CONSTITUTIONAL LAW: Assignment #2
(4) That on December 3, 1935, the National Assembly in session assembled,
Angara v. Electoral Commission
63 Phil. 139 (1936)
G.R. No. L-45081 July 15, 1936
JOSE A. ANGARA, petitioner,
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL
CASTILLO, and DIONISIO C. MAYOR, respondents.
Godofredo Reyes for petitioner.
Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
LAUREL, J.:
This is an original action instituted in this court by the petitioner, Jose A.
Angara, for the issuance of a writ of prohibition to restrain and prohibit the
Electoral Commission, one of the respondents, from taking further cognizance
of the protest filed by Pedro Ynsua, another respondent, against the election of
said petitioner as member of the National Assembly for the first assembly
district of the Province of Tayabas.
The facts of this case as they appear in the petition and as admitted by the
respondents are as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A.
Angara, and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio
Mayor, were candidates voted for the position of member of the National
Assembly for the first district of the Province of Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed
the petitioner as member-elect of the National Assembly for the said district,
for having received the most number of votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
passed the following resolution:
[No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS
DIPUTADOS CONTRA QUIENES NO SE HA PRESENTADO
PROTESTA.
Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se
hubiere presentado debidamente una protesta antes de la adopcion de la
presente resolucion sean, como por la presente, son aprobadas y confirmadas.
Adoptada, 3 de diciembre, 1935.
(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before
the Electoral Commission a "Motion of Protest" against the election of the
herein petitioner, Jose A. Angara, being the only protest filed after the passage
of Resolutions No. 8 aforequoted, and praying, among other-things, that said
respondent be declared elected member of the National Assembly for the first
district of Tayabas, or that the election of said position be nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a resolution,
paragraph 6 of which provides:
6. La Comision no considerara ninguna protesta que no se haya presentado en
o antes de este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of
the respondents in the aforesaid protest, filed before the Electoral Commission
a "Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss
the Protest", alleging (a) that Resolution No. 8 of the National Assembly was
adopted in the legitimate exercise of its constitutional prerogative to prescribe
the period during which protests against the election of its members should be
presented; (b) that the aforesaid resolution has for its object, and is the accepted
formula for, the limitation of said period; and (c) that the protest in question
was filed out of the prescribed period;
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(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an
"Answer to the Motion of Dismissal" alleging that there is no legal or
constitutional provision barring the presentation of a protest against the election
of a member of the National Assembly after confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a
"Reply" to the aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission
promulgated a resolution on January 23, 1936, denying herein petitioner's
"Motion to Dismiss the Protest."
The application of the petitioner sets forth the following grounds for the
issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the electoral
Commission solely as regards the merits of contested elections to the National
Assembly;
(b) That the Constitution excludes from said jurisdiction the power to regulate
the proceedings of said election contests, which power has been reserved to the
Legislative Department of the Government or the National Assembly;
(c) That like the Supreme Court and other courts created in pursuance of the
Constitution, whose exclusive jurisdiction relates solely to deciding the merits
of controversies submitted to them for decision and to matters involving their
internal organization, the Electoral Commission can regulate its proceedings
only if the National Assembly has not availed of its primary power to so
regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore, valid and
should be respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended to the
Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No.
127 of the 73rd Congress of the United States) as well as under section 1 and 3
(should be sections 1 and 2) of article VIII of the Constitution, this Supreme
Court has jurisdiction to pass upon the fundamental question herein raised
because it involves an interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in
behalf of the respondent Electoral Commission interposing the following
special defenses:
(a) That the Electoral Commission has been created by the Constitution as an
instrumentality of the Legislative Department invested with the jurisdiction to
decide "all contests relating to the election, returns, and qualifications of the
members of the National Assembly"; that in adopting its resolution of
December 9, 1935, fixing this date as the last day for the presentation of protests
against the election of any member of the National Assembly, it acted within
its jurisdiction and in the legitimate exercise of the implied powers granted it
by the Constitution to adopt the rules and regulations essential to carry out the
power and functions conferred upon the same by the fundamental law; that in
adopting its resolution of January 23, 1936, overruling the motion of the
petitioner to dismiss the election protest in question, and declaring itself with
jurisdiction to take cognizance of said protest, it acted in the legitimate exercise
of its quasi-judicial functions a an instrumentality of the Legislative
Department of the Commonwealth Government, and hence said act is beyond
the judicial cognizance or control of the Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935,
confirming the election of the members of the National Assembly against whom
no protest had thus far been filed, could not and did not deprive the electoral
Commission of its jurisdiction to take cognizance of election protests filed
within the time that might be set by its own rules:
(c) That the Electoral Commission is a body invested with quasi-judicial
functions, created by the Constitution as an instrumentality of the Legislative
Department, and is not an "inferior tribunal, or corporation, or board, or person"
within the purview of section 226 and 516 of the Code of Civil Procedure,
against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his
own behalf on March 2, 1936, setting forth the following as his special defense:
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(a) That at the time of the approval of the rules of the Electoral Commission on
December 9, 1935, there was no existing law fixing the period within which
protests against the election of members of the National Assembly should be
filed; that in fixing December 9, 1935, as the last day for the filing of protests
against the election of members of the National Assembly, the Electoral
Commission was exercising a power impliedly conferred upon it by the
Constitution, by reason of its quasi-judicial attributes;
(b) That said respondent presented his motion of protest before the Electoral
Commission on December 9, 1935, the last day fixed by paragraph 6 of the
rules of the said Electoral Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the
protest filed by said respondent and over the parties thereto, and the resolution
of the Electoral Commission of January 23, 1936, denying petitioner's motion
to dismiss said protest was an act within the jurisdiction of the said commission,
and is not reviewable by means of a writ of prohibition;
(d) That neither the law nor the Constitution requires confirmation by the
National Assembly of the election of its members, and that such confirmation
does not operate to limit the period within which protests should be filed as to
deprive the Electoral Commission of jurisdiction over protest filed subsequent
thereto;
(e) That the Electoral Commission is an independent entity created by the
Constitution, endowed with quasi-judicial functions, whose decision are final
and unappealable;
( f ) That the electoral Commission, as a constitutional creation, is not an inferior
tribunal, corporation, board or person, within the terms of sections 226 and 516
of the Code of Civil Procedure; and that neither under the provisions of sections
1 and 2 of article II (should be article VIII) of the Constitution and paragraph
13 of section 1 of the Ordinance appended thereto could it be subject in the
exercise of its quasi-judicial functions to a writ of prohibition from the Supreme
Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the
73rd Congress of the united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for
decision, the petitioner prayed for the issuance of a preliminary writ of
injunction against the respondent Electoral Commission which petition was
denied "without passing upon the merits of the case" by resolution of this court
of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the following two
principal propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the
subject matter of the controversy upon the foregoing related facts, and in the
affirmative,
2. Has the said Electoral Commission acted without or in excess of its
jurisdiction in assuming to the cognizance of the protest filed the election of the
herein petitioner notwithstanding the previous confirmation of such election by
resolution of the National Assembly?
We could perhaps dispose of this case by passing directly upon the merits of
the controversy. However, the question of jurisdiction having been presented,
we do not feel justified in evading the issue. Being a case primæ impressionis,
it would hardly be consistent with our sense of duty to overlook the broader
aspect of the question and leave it undecided. Neither would we be doing justice
to the industry and vehemence of counsel were we not to pass upon the question
of jurisdiction squarely presented to our consideration.
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in
our Constitution. Each department of the government has exclusive cognizance
of matters within its jurisdiction, and is supreme within its own sphere. But it
does not follow from the fact that the three powers are to be kept separate and
distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate
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system of checks and balances to secure coordination in the workings of the
various departments of the government. For example, the Chief Executive
under our Constitution is so far made a check on the legislative power that this
assent is required in the enactment of laws. This, however, is subject to the
further check that a bill may become a law notwithstanding the refusal of the
President to approve it, by a vote of two-thirds or three-fourths, as the case may
be, of the National Assembly. The President has also the right to convene the
Assembly in special session whenever he chooses. On the other hand, the
National Assembly operates as a check on the Executive in the sense that its
consent through its Commission on Appointments is necessary in the
appointments of certain officers; and the concurrence of a majority of all its
members is essential to the conclusion of treaties. Furthermore, in its power to
determine what courts other than the Supreme Court shall be established, to
define their jurisdiction and to appropriate funds for their support, the National
Assembly controls the judicial department to a certain extent. The Assembly
also exercises the judicial power of trying impeachments. And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the Constitution.
But in the main, the Constitution has blocked out with deft strokes and in bold
lines, allotment of power to the executive, the legislative and the judicial
departments of the government. The overlapping and interlacing of functions
and duties between the several departments, however, sometimes makes it hard
to say just where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmarks of the Constitution are
apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments
and among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting
through their delegates to so provide, that instrument which is the expression
of their sovereignty however limited, has established a republican government
intended to operate and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations and restrictions
provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which
to direct the course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitation and restrictions embodied in our
Constitution are real as they should be in any living constitution. In the United
States where no express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak of its historical
origin and development there, has been set at rest by popular acquiescence for
a period of more than one and a half centuries. In our case, this moderating
power is granted, if not expressly, by clear implication from section 2 of article
VIII of our constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution itself
has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. Even then, this
power of judicial review is limited to actual cases and controversies to be
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exercised after full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis mota presented. Any attempt
at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its function is in this
manner, the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive
and legislative departments of the governments of the government.
But much as we might postulate on the internal checks of power provided in
our Constitution, it ought not the less to be remembered that, in the language of
James Madison, the system itself is not "the chief palladium of constitutional
liberty . . . the people who are authors of this blessing must also be its guardians
. . . their eyes must be ever ready to mark, their voice to pronounce . . .
aggression on the authority of their constitution." In the Last and ultimate
analysis, then, must the success of our government in the unfolding years to
come be tested in the crucible of Filipino minds and hearts than in consultation
rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of December
3, 1935, confirmed the election of the herein petitioner to the said body. On the
other hand, the Electoral Commission has by resolution adopted on December
9, 1935, fixed said date as the last day for the filing of protests against the
election, returns and qualifications of members of the National Assembly,
notwithstanding the previous confirmation made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the National
Assembly has the effect of cutting off the power of the Electoral Commission
to entertain protests against the election, returns and qualifications of members
of the National Assembly, submitted after December 3, 1935, then the
resolution of the Electoral Commission of December 9, 1935, is mere
surplusage and had no effect. But, if, as contended by the respondents, the
Electoral Commission has the sole power of regulating its proceedings to the
exclusion of the National Assembly, then the resolution of December 9, 1935,
by which the Electoral Commission fixed said date as the last day for filing
protests against the election, returns and qualifications of members of the
National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a
grave constitutional nature between the National Assembly on the one hand,
and the Electoral Commission on the other. From the very nature of the
republican government established in our country in the light of American
experience and of our own, upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission, as we shall have
occasion to refer hereafter, is a constitutional organ, created for a specific
purpose, namely to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while acting within the
limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not subject to
constitutional restrictions. The Electoral Commission is not a separate
department of the government, and even if it were, conflicting claims of
authority under the fundamental law between department powers and agencies
of the government are necessarily determined by the judiciary in justifiable and
appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our constitution adopted the
American type where the written constitution is interpreted and given effect by
the judicial department. In some countries which have declined to follow the
American example, provisions have been inserted in their constitutions
prohibiting the courts from exercising the power to interpret the fundamental
law. This is taken as a recognition of what otherwise would be the rule that in
the absence of direct prohibition courts are bound to assume what is logically
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their function. For instance, the Constitution of Poland of 1921, expressly
provides that courts shall have no power to examine the validity of statutes (art.
81, chap. IV). The former Austrian Constitution contained a similar declaration.
In countries whose constitutions are silent in this respect, courts have assumed
this power. This is true in Norway, Greece, Australia and South Africa.
Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional
Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-
123, Title IX, Constitutional of the Republic of 1931) especial constitutional
courts are established to pass upon the validity of ordinary laws. In our case,
the nature of the present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of authority between two
agencies created by the Constitution. Were we to decline to take cognizance of
the controversy, who will determine the conflict? And if the conflict were left
undecided and undetermined, would not a void be thus created in our
constitutional system which may be in the long run prove destructive of the
entire framework? To ask these questions is to answer them. Natura vacuum
abhorret, so must we avoid exhaustion in our constitutional system. Upon
principle, reason and authority, we are clearly of the opinion that upon the
admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject mater of the present controversy for the purpose
of determining the character, scope and extent of the constitutional grant to the
Electoral Commission as "the sole judge of all contests relating to the election,
returns and qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass
upon the second proposition and determine whether the Electoral Commission
has acted without or in excess of its jurisdiction in adopting its resolution of
December 9, 1935, and in assuming to take cognizance of the protest filed
against the election of the herein petitioner notwithstanding the previous
confirmation thereof by the National Assembly on December 3, 1935. As able
counsel for the petitioner has pointed out, the issue hinges on the interpretation
of section 4 of Article VI of the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justice of
the Supreme Court designated by the Chief Justice, and of six Members chosen
by the National Assembly, three of whom shall be nominated by the party
having the largest number of votes, and three by the party having the second
largest number of votes therein. The senior Justice in the Commission shall be
its Chairman. The Electoral Commission shall be the sole judge of all contests
relating to the election, returns and qualifications of the members of the
National Assembly." It is imperative, therefore, that we delve into the origin
and history of this constitutional provision and inquire into the intention of its
framers and the people who adopted it so that we may properly appreciate its
full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1,
1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the judge
of the elections, returns, and qualifications of its members", was taken from
clause 1 of section 5, Article I of the Constitution of the United States providing
that "Each House shall be the Judge of the Elections, Returns, and
Qualifications of its own Members, . . . ." The Act of Congress of August 29,
1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole"
as follows: "That the Senate and House of Representatives, respectively, shall
be the sole judges of the elections, returns, and qualifications of their elective
members . . ." apparently in order to emphasize the exclusive the Legislative
over the particular case s therein specified. This court has had occasion to
characterize this grant of power to the Philippine Senate and House of
Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards
of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent tribunal for the purpose of
deciding contested elections to the legislature was taken by the sub-committee
of five appointed by the Committee on Constitutional Guarantees of the
Constitutional Convention, which sub-committee submitted a report on August
30, 1934, recommending the creation of a Tribunal of Constitutional Security
empowered to hear legislature but also against the election of executive officers
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for whose election the vote of the whole nation is required, as well as to initiate
impeachment proceedings against specified executive and judicial officer. For
the purpose of hearing legislative protests, the tribunal was to be composed of
three justices designated by the Supreme Court and six members of the house
of the legislature to which the contest corresponds, three members to be
designed by the majority party and three by the minority, to be presided over
by the Senior Justice unless the Chief Justice is also a member in which case
the latter shall preside. The foregoing proposal was submitted by the Committee
on Constitutional Guarantees to the Convention on September 15, 1934, with
slight modifications consisting in the reduction of the legislative representation
to four members, that is, two senators to be designated one each from the two
major parties in the Senate and two representatives to be designated one each
from the two major parties in the House of Representatives, and in awarding
representation to the executive department in the persons of two representatives
to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing its report.
As submitted to the Convention on September 24, 1934 subsection 5, section 5,
of the proposed Article on the Legislative Department, reads as follows:
The elections, returns and qualifications of the members of either house and all
cases contesting the election of any of their members shall be judged by an
Electoral Commission, constituted, as to each House, by three members elected
by the members of the party having the largest number of votes therein, three
elected by the members of the party having the second largest number of votes,
and as to its Chairman, one Justice of the Supreme Court designated by the
Chief Justice.
The idea of creating a Tribunal of Constitutional Security with comprehensive
jurisdiction as proposed by the Committee on Constitutional Guarantees which
was probably inspired by the Spanish plan (art. 121, Constitution of the Spanish
Republic of 1931), was soon abandoned in favor of the proposition of the
Committee on Legislative Power to create a similar body with reduced powers
and with specific and limited jurisdiction, to be designated as a Electoral
Commission. The Sponsorship Committee modified the proposal of the
Committee on Legislative Power with respect to the composition of the
Electoral Commission and made further changes in phraseology to suit the
project of adopting a unicameral instead of a bicameral legislature. The draft as
finally submitted to the Convention on October 26, 1934, reads as follows:
(6) The elections, returns and qualifications of the Members of the National
Assembly and all cases contesting the election of any of its Members shall be
judged by an Electoral Commission, composed of three members elected by the
party having the largest number of votes in the National Assembly, three elected
by the members of the party having the second largest number of votes, and
three justices of the Supreme Court designated by the Chief Justice, the
Commission to be presided over by one of said justices.
During the discussion of the amendment introduced by Delegates Labrador,
Abordo, and others, proposing to strike out the whole subsection of the
foregoing draft and inserting in lieu thereof the following: "The National
Assembly shall be the soled and exclusive judge of the elections, returns, and
qualifications of the Members", the following illuminating remarks were made
on the floor of the Convention in its session of December 4, 1934, as to the
scope of the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the
meaning of the first four lines, paragraph 6, page 11 of the draft, reading: "The
elections, returns and qualifications of the Members of the National Assembly
and all cases contesting the election of any of its Members shall be judged by
an Electoral Commission, . . ." I should like to ask from the gentleman from
Capiz whether the election and qualification of the member whose elections is
not contested shall also be judged by the Electoral Commission.
Mr. ROXAS. If there is no question about the election of the members, there is
nothing to be judged; that is why the word "judge" is used to indicate a
controversy. If there is no question about the election of a member, there is
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nothing to be submitted to the Electoral Commission and there is nothing to be
determined.
Mr. VENTURA. But does that carry the idea also that the Electoral
Commission shall confirm also the election of those whose election is not
contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the
action of the House of Representatives confirming the election of its members
is just a matter of the rules of the assembly. It is not constitutional. It is not
necessary. After a man files his credentials that he has been elected, that is
sufficient, unless his election is contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have observed
that for purposes of the auditor, in the matter of election of a member to a
legislative body, because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president
who is elected? What happens with regards to the councilors of a municipality?
Does anybody confirm their election? The municipal council does this: it makes
a canvass and proclaims — in this case the municipal council proclaims who
has been elected, and it ends there, unless there is a contest. It is the same case;
there is no need on the part of the Electoral Commission unless there is a
contest. The first clause refers to the case referred to by the gentleman from
Cavite where one person tries to be elected in place of another who was declared
elected. From example, in a case when the residence of the man who has been
elected is in question, or in case the citizenship of the man who has been elected
is in question.
However, if the assembly desires to annul the power of the commission, it may
do so by certain maneuvers upon its first meeting when the returns are
submitted to the assembly. The purpose is to give to the Electoral Commission
all the powers exercised by the assembly referring to the elections, returns and
qualifications of the members. When there is no contest, there is nothing to be
judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr. Delegate.
Mr. CINCO. Mr. President, I have a similar question as that propounded by the
gentleman from Ilocos Norte when I arose a while ago. However I want to ask
more questions from the delegate from Capiz. This paragraph 6 on page 11 of
the draft cites cases contesting the election as separate from the first part of the
sections which refers to elections, returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested
elections are already included in the phrase "the elections, returns and
qualifications." This phrase "and contested elections" was inserted merely for
the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its
own instance, refuse to confirm the elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this
power is granted to the assembly, the assembly on its own motion does not have
the right to contest the election and qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is
retained as it is, even if two-thirds of the assembly believe that a member has
not the qualifications provided by law, they cannot remove him for that reason.
Mr. LABRADOR. So that the right to remove shall only be retained by the
Electoral Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of the assembly has the
right to question the eligibility of its members?
Mr. ROXAS. Before a member can question the eligibility, he must go to the
Electoral Commission and make the question before the Electoral Commission.
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Mr. LABRADOR. So that the Electoral Commission shall decide whether the
election is contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if the Electoral
Commission has power and authority to pass upon the qualifications of the
members of the National Assembly even though that question has not been
raised.
Mr. ROXAS. I have just said that they have no power, because they can only
judge.
In the same session, the first clause of the aforesaid draft reading "The election,
returns and qualifications of the members of the National Assembly and" was
eliminated by the Sponsorship Committee in response to an amendment
introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and
others. In explaining the difference between the original draft and the draft as
amended, Delegate Roxas speaking for the Sponsorship Committee said:
xxx xxx xxx
Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la
objecion apuntada por varios Delegados al efecto de que la primera clausula del
draft que dice: "The elections, returns and qualifications of the members of the
National Assembly" parece que da a la Comision Electoral la facultad de
determinar tambien la eleccion de los miembros que no ha sido protestados y
para obviar esa dificultad, creemos que la enmienda tien razon en ese sentido,
si enmendamos el draft, de tal modo que se lea como sigue: "All cases
contesting the election", de modo que los jueces de la Comision Electoral se
limitaran solamente a los casos en que haya habido protesta contra las actas."
Before the amendment of Delegate Labrador was voted upon the following
interpellation also took place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria,
y otros tres a la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto
equivale practicamente a dejar el asunto a los miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta
constituido en esa forma, tanto los miembros de la mayoria como los de la
minoria asi como los miembros de la Corte Suprema consideraran la cuestion
sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para
dar el triunfo.
El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos
hacer que tanto los de la mayoria como los de la minoria prescindieran del
partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and others seeking
to restore the power to decide contests relating to the election, returns and
qualifications of members of the National Assembly to the National Assembly
itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend
the draft by reducing the representation of the minority party and the Supreme
Court in the Electoral Commission to two members each, so as to accord more
representation to the majority party. The Convention rejected this amendment
by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-
partisan character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the Members
of the National Assembly shall be judged by an Electoral Commission,
composed of three members elected by the party having the largest number of
votes in the National Assembly, three elected by the members of the party
having the second largest number of votes, and three justices of the Supreme
Court designated by the Chief Justice, the Commission to be presided over by
one of said justices.
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The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. There shall be an Electoral Commission composed of three Justices of
the Supreme Court designated by the Chief Justice, and of six Members chosen
by the National Assembly, three of whom shall be nominated by the party
having the largest number of votes, and three by the party having the second
largest number of votes therein. The senior Justice in the Commission shall be
its chairman. The Electoral Commission shall be the sole judge of the election,
returns, and qualifications of the Members of the National Assembly.
When the foregoing draft was submitted for approval on February 8, 1935, the
Style Committee, through President Recto, to effectuate the original intention
of the Convention, agreed to insert the phrase "All contests relating to" between
the phrase "judge of" and the words "the elections", which was accordingly
accepted by the Convention.
The transfer of the power of determining the election, returns and qualifications
of the members of the legislature long lodged in the legislative body, to an
independent, impartial and non-partisan tribunal, is by no means a mere
experiment in the science of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition,
chapter VI, pages 57, 58), gives a vivid account of the "scandalously notorious"
canvassing of votes by political parties in the disposition of contests by the
House of Commons in the following passages which are partly quoted by the
petitioner in his printed memorandum of March 14, 1936:
153. From the time when the commons established their right to be the
exclusive judges of the elections, returns, and qualifications of their members,
until the year 1770, two modes of proceeding prevailed, in the determination of
controverted elections, and rights of membership. One of the standing
committees appointed at the commencement of each session, was denominated
the committee of privileges and elections, whose functions was to hear and
investigate all questions of this description which might be referred to them,
and to report their proceedings, with their opinion thereupon, to the house, from
time to time. When an election petition was referred to this committee they
heard the parties and their witnesses and other evidence, and made a report of
all the evidence, together with their opinion thereupon, in the form of
resolutions, which were considered and agreed or disagreed to by the house.
The other mode of proceeding was by a hearing at the bar of the house itself.
When this court was adopted, the case was heard and decided by the house, in
substantially the same manner as by a committee. The committee of privileges
and elections although a select committee. The committee of privileges and
elections although a select committee was usually what is called an open one;
that is to say, in order to constitute the committee, a quorum of the members
named was required to be present, but all the members of the house were at
liberty to attend the committee and vote if they pleased.
154. With the growth of political parties in parliament questions relating to the
right of membership gradually assumed a political character; so that for many
years previous to the year 1770, controverted elections had been tried and
determined by the house of commons, as mere party questions, upon which the
strength of contending factions might be tested. Thus, for Example, in 1741, Sir
Robert Walpole, after repeated attacks upon his government, resigned his office
in consequence of an adverse vote upon the Chippenham election. Mr. Hatsell
remarks, of the trial of election cases, as conducted under this system, that
"Every principle of decency and justice were notoriously and openly
prostituted, from whence the younger part of the house were insensibly, but too
successfully, induced to adopt the same licentious conduct in more serious
matters, and in questions of higher importance to the public welfare." Mr.
George Grenville, a distinguished member of the house of commons, undertook
to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the
unanimous leave of the house to bring in a bill, "to regulate the trial of
controverted elections, or returns of members to serve in parliament." In his
speech to explain his plan, on the motion for leave, Mr. Grenville alluded to the
existing practice in the following terms: "Instead of trusting to the merits of
their respective causes, the principal dependence of both parties is their private
interest among us; and it is scandalously notorious that we are as earnestly
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canvassed to attend in favor of the opposite sides, as if we were wholly self-
elective, and not bound to act by the principles of justice, but by the
discretionary impulse of our own inclinations; nay, it is well known, that in
every contested election, many members of this house, who are ultimately to
judge in a kind of judicial capacity between the competitors, enlist themselves
as parties in the contention, and take upon themselves the partial management
of the very business, upon which they should determine with the strictest
impartiality."
155. It was to put an end to the practices thus described, that Mr. Grenville
brought in a bill which met with the approbation of both houses, and received
the royal assent on the 12th of April, 1770. This was the celebrated law since
known by the name of the Grenville Act; of which Mr. Hatsell declares, that it
"was one of the nobles works, for the honor of the house of commons, and the
security of the constitution, that was ever devised by any minister or statesman."
It is probable, that the magnitude of the evil, or the apparent success of the
remedy, may have led many of the contemporaries of the measure to the
information of a judgement, which was not acquiesced in by some of the leading
statesmen of the day, and has not been entirely confirmed by subsequent
experience. The bill was objected to by Lord North, Mr. De Grey, afterwards
chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of
the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of
parliament, and a total abrogation of one of the most important rights and
jurisdictions of the house of commons.
As early as 1868, the House of Commons in England solved the problem of
insuring the non-partisan settlement of the controverted elections of its
members by abdicating its prerogative to two judges of the King's Bench of the
High Court of Justice selected from a rota in accordance with rules of court
made for the purpose. Having proved successful, the practice has become
imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 &
32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices
Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions
Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911
[1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In
the Dominion of Canada, election contests which were originally heard by the
Committee of the House of Commons, are since 1922 tried in the courts.
Likewise, in the Commonwealth of Australia, election contests which were
originally determined by each house, are since 1922 tried in the High Court. In
Hungary, the organic law provides that all protests against the election of
members of the Upper House of the Diet are to be resolved by the Supreme
Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The
Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the
Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide
contested elections to the Diet or National Assembly in the Supreme Court. For
the purpose of deciding legislative contests, the Constitution of the German
Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak Republic
of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of
June 2, 1927 (art. 43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both
from the legislature and the judiciary is by no means unknown in the United
States. In the presidential elections of 1876 there was a dispute as to the number
of electoral votes received by each of the two opposing candidates. As the
Constitution made no adequate provision for such a contingency, Congress
passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap.
37, pp. 227-229), creating a special Electoral Commission composed of five
members elected by the Senate, five members elected by the House of
Representatives, and five justices of the Supreme Court, the fifth justice to be
selected by the four designated in the Act. The decision of the commission was
to be binding unless rejected by the two houses voting separately. Although
there is not much of a moral lesson to be derived from the experience of
America in this regard, judging from the observations of Justice Field, who was
a member of that body on the part of the Supreme Court (Countryman, the
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Supreme Court of the United States and its Appellate Power under the
Constitution [Albany, 1913] — Relentless Partisanship of Electoral
Commission, p. 25 et seq.), the experiment has at least abiding historical
interest.
The members of the Constitutional Convention who framed our fundamental
law were in their majority men mature in years and experience. To be sure,
many of them were familiar with the history and political development of other
countries of the world. When , therefore, they deemed it wise to create an
Electoral Commission as a constitutional organ and invested it with the
exclusive function of passing upon and determining the election, returns and
qualifications of the members of the National Assembly, they must have done
so not only in the light of their own experience but also having in view the
experience of other enlightened peoples of the world. The creation of the
Electoral Commission was designed to remedy certain evils of which the
framers of our Constitution were cognizant. Notwithstanding the vigorous
opposition of some members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the constitutional the creation
of the Electoral Commission is the expression of the wisdom and "ultimate
justice of the people". (Abraham Lincoln, First Inaugural Address, March 4,
1861.)
From the deliberations of our Constitutional Convention it is evident that the
purpose was to transfer in its totality all the powers previously exercised by the
legislature in matters pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the knowledge and
appreciation of contemporary constitutional precedents, however, as the long-
felt need of determining legislative contests devoid of partisan considerations
which prompted the people, acting through their delegates to the Convention,
to provide for this body known as the Electoral Commission. With this end in
view, a composite body in which both the majority and minority parties are
equally represented to off-set partisan influence in its deliberations was created,
and further endowed with judicial temper by including in its membership three
justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with the
necessary authority in the performance and execution of the limited and specific
function assigned to it by the Constitution. Although it is not a power in our
tripartite scheme of government, it is, to all intents and purposes, when acting
within the limits of its authority, an independent organ. It is, to be sure, closer
to the legislative department than to any other. The location of the provision
(section 4) creating the Electoral Commission under Article VI entitled
"Legislative Department" of our Constitution is very indicative. Its
compositions is also significant in that it is constituted by a majority of
members of the legislature. But it is a body separate from and independent of
the legislature.
The grant of power to the Electoral Commission to judge all contests relating
to the election, returns and qualifications of members of the National Assembly,
is intended to be as complete and unimpaired as if it had remained originally in
the legislature. The express lodging of that power in the Electoral Commission
is an implied denial of the exercise of that power by the National Assembly.
And this is as effective a restriction upon the legislative power as an express
prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs.
Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed
in behalf of the National Assembly that said body may regulate the proceedings
of the Electoral Commission and cut off the power of the commission to lay
down the period within which protests should be filed, the grant of power to the
commission would be ineffective. The Electoral Commission in such case
would be invested with the power to determine contested cases involving the
election, returns and qualifications of the members of the National Assembly
but subject at all times to the regulative power of the National Assembly. Not
only would the purpose of the framers of our Constitution of totally transferring
this authority from the legislative body be frustrated, but a dual authority would
be created with the resultant inevitable clash of powers from time to time. A
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sad spectacle would then be presented of the Electoral Commission retaining
the bare authority of taking cognizance of cases referred to, but in reality
without the necessary means to render that authority effective whenever and
whenever the National Assembly has chosen to act, a situation worse than that
intended to be remedied by the framers of our Constitution. The power to
regulate on the part of the National Assembly in procedural matters will
inevitably lead to the ultimate control by the Assembly of the entire proceedings
of the Electoral Commission, and, by indirection, to the entire abrogation of the
constitutional grant. It is obvious that this result should not be permitted.
We are not insensible to the impassioned argument or the learned counsel for
the petitioner regarding the importance and necessity of respecting the dignity
and independence of the national Assembly as a coordinate department of the
government and of according validity to its acts, to avoid what he characterized
would be practically an unlimited power of the commission in the admission of
protests against members of the National Assembly. But as we have pointed out
hereinabove, the creation of the Electoral Commission carried with it ex
necesitate rei the power regulative in character to limit the time with which
protests intrusted to its cognizance should be filed. It is a settled rule of
construction that where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of the
other is also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp.
138, 139). In the absence of any further constitutional provision relating to the
procedure to be followed in filing protests before the Electoral Commission,
therefore, the incidental power to promulgate such rules necessary for the
proper exercise of its exclusive power to judge all contests relating to the
election, returns and qualifications of members of the National Assembly, must
be deemed by necessary implication to have been lodged also in the Electoral
Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the
Electoral Commission may abuse its regulative authority by admitting protests
beyond any reasonable time, to the disturbance of the tranquillity and peace of
mind of the members of the National Assembly. But the possibility of abuse is
not argument against the concession of the power as there is no power that is
not susceptible of abuse. In the second place, if any mistake has been committed
in the creation of an Electoral Commission and in investing it with exclusive
jurisdiction in all cases relating to the election, returns, and qualifications of
members of the National Assembly, the remedy is political, not judicial, and
must be sought through the ordinary processes of democracy. All the possible
abuses of the government are not intended to be corrected by the judiciary. We
believe, however, that the people in creating the Electoral Commission reposed
as much confidence in this body in the exclusive determination of the specified
cases assigned to it, as they have given to the Supreme Court in the proper cases
entrusted to it for decision. All the agencies of the government were designed
by the Constitution to achieve specific purposes, and each constitutional organ
working within its own particular sphere of discretionary action must be
deemed to be animated with the same zeal and honesty in accomplishing the
great ends for which they were created by the sovereign will. That the actuations
of these constitutional agencies might leave much to be desired in given
instances, is inherent in the perfection of human institutions. In the third place,
from the fact that the Electoral Commission may not be interfered with in the
exercise of its legitimate power, it does not follow that its acts, however illegal
or unconstitutional, may not be challenge in appropriate cases over which the
courts may exercise jurisdiction.
But independently of the legal and constitutional aspects of the present case,
there are considerations of equitable character that should not be overlooked in
the appreciation of the intrinsic merits of the controversy. The Commonwealth
Government was inaugurated on November 15, 1935, on which date the
Constitution, except as to the provisions mentioned in section 6 of Article XV
thereof, went into effect. The new National Assembly convened on November
25th of that year, and the resolution confirming the election of the petitioner,
Jose A. Angara was approved by that body on December 3, 1935. The protest
by the herein respondent Pedro Ynsua against the election of the petitioner was
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filed on December 9 of the same year. The pleadings do not show when the
Electoral Commission was formally organized but it does appear that on
December 9, 1935, the Electoral Commission met for the first time and
approved a resolution fixing said date as the last day for the filing of election
protest. When, therefore, the National Assembly passed its resolution of
December 3, 1935, confirming the election of the petitioner to the National
Assembly, the Electoral Commission had not yet met; neither does it appear
that said body had actually been organized. As a mater of fact, according to
certified copies of official records on file in the archives division of the National
Assembly attached to the record of this case upon the petition of the petitioner,
the three justices of the Supreme Court the six members of the National
Assembly constituting the Electoral Commission were respectively designated
only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly
confirming non-protested elections of members of the National Assembly had
the effect of limiting or tolling the time for the presentation of protests, the
result would be that the National Assembly — on the hypothesis that it still
retained the incidental power of regulation in such cases — had already barred
the presentation of protests before the Electoral Commission had had time to
organize itself and deliberate on the mode and method to be followed in a matter
entrusted to its exclusive jurisdiction by the Constitution. This result was not
and could not have been contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming the
election of members against whom no protests had been filed at the time of its
passage on December 3, 1935, can not be construed as a limitation upon the
time for the initiation of election contests. While there might have been good
reason for the legislative practice of confirmation of the election of members of
the legislature at the time when the power to decide election contests was still
lodged in the legislature, confirmation alone by the legislature cannot be
construed as depriving the Electoral Commission of the authority incidental to
its constitutional power to be "the sole judge of all contest relating to the
election, returns, and qualifications of the members of the National Assembly",
to fix the time for the filing of said election protests. Confirmation by the
National Assembly of the returns of its members against whose election no
protests have been filed is, to all legal purposes, unnecessary. As contended by
the Electoral Commission in its resolution of January 23, 1936, overruling the
motion of the herein petitioner to dismiss the protest filed by the respondent
Pedro Ynsua, confirmation of the election of any member is not required by the
Constitution before he can discharge his duties as such member. As a matter of
fact, certification by the proper provincial board of canvassers is sufficient to
entitle a member-elect to a seat in the national Assembly and to render him
eligible to any office in said body (No. 1, par. 1, Rules of the National
Assembly, adopted December 6, 1935).
Under the practice prevailing both in the English House of Commons and in the
Congress of the United States, confirmation is neither necessary in order to
entitle a member-elect to take his seat. The return of the proper election officers
is sufficient, and the member-elect presenting such return begins to enjoy the
privileges of a member from the time that he takes his oath of office (Laws of
England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs.
21, 25, 26). Confirmation is in order only in cases of contested elections where
the decision is adverse to the claims of the protestant. In England, the judges'
decision or report in controverted elections is certified to the Speaker of the
House of Commons, and the House, upon being informed of such certificate or
report by the Speaker, is required to enter the same upon the Journals, and to
give such directions for confirming or altering the return, or for the issue of a
writ for a new election, or for carrying into execution the determination as
circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States,
it is believed, the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alternation or amendment of the
return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still in force, each house
of the Philippine Legislature fixed the time when protests against the election
of any of its members should be filed. This was expressly authorized by section
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18 of the Jones Law making each house the sole judge of the election, return
and qualifications of its members, as well as by a law (sec. 478, Act No. 3387)
empowering each house to respectively prescribe by resolution the time and
manner of filing contest in the election of member of said bodies. As a matter
of formality, after the time fixed by its rules for the filing of protests had already
expired, each house passed a resolution confirming or approving the returns of
such members against whose election no protests had been filed within the
prescribed time. This was interpreted as cutting off the filing of further protests
against the election of those members not theretofore contested (Amistad vs.
Claravall [Isabela], Second Philippine Legislature, Record — First Period, p.
89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature;
Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First
Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth
Philippine Legislature, Record — First Period, pp. 1121, 1122; Aguilar vs.
Corpus [Masbate], Eighth Philippine Legislature, Record — First Period, vol.
III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones
Law. Act No. 3387, section 478, must be deemed to have been impliedly
abrogated also, for the reason that with the power to determine all contest
relating to the election, returns and qualifications of members of the National
Assembly, is inseparably linked the authority to prescribe regulations for the
exercise of that power. There was thus no law nor constitutional provisions
which authorized the National Assembly to fix, as it is alleged to have fixed on
December 3, 1935, the time for the filing of contests against the election of its
members. And what the National Assembly could not do directly, it could not
do by indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally
the theory of separation of power into the legislative, the executive and the
judicial.
(b) That the system of checks and balances and the overlapping of functions
and duties often makes difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the
agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is
the only constitutional mechanism devised finally to resolve the conflict and
allocate constitutional boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and
appropriate cases and controversies, and is the power and duty to see that no
one branch or agency of the government transcends the Constitution, which is
the source of all authority.
(e) That the Electoral Commission is an independent constitutional creation
with specific powers and functions to execute and perform, closer for purposes
of classification to the legislative than to any of the other two departments of
the governments.
(f ) That the Electoral Commission is the sole judge of all contests relating to
the election, returns and qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution went
into effect, each house of the legislature was respectively the sole judge of the
elections, returns, and qualifications of their elective members.
(h) That the present Constitution has transferred all the powers previously
exercised by the legislature with respect to contests relating to the elections,
returns and qualifications of its members, to the Electoral Commission.
(i) That such transfer of power from the legislature to the Electoral Commission
was full, clear and complete, and carried with it ex necesitate rei the implied
power inter alia to prescribe the rules and regulations as to the time and manner
of filing protests.
( j) That the avowed purpose in creating the Electoral Commission was to have
an independent constitutional organ pass upon all contests relating to the
election, returns and qualifications of members of the National Assembly,
devoid of partisan influence or consideration, which object would be frustrated
if the National Assembly were to retain the power to prescribe rules and
regulations regarding the manner of conducting said contests.
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(k) That section 4 of article VI of the Constitution repealed not only section 18
of the Jones Law making each house of the Philippine Legislature respectively
the sole judge of the elections, returns and qualifications of its elective
members, but also section 478 of Act No. 3387 empowering each house to
prescribe by resolution the time and manner of filing contests against the
election of its members, the time and manner of notifying the adverse party,
and bond or bonds, to be required, if any, and to fix the costs and expenses of
contest.
(l) That confirmation by the National Assembly of the election is contested or
not, is not essential before such member-elect may discharge the duties and
enjoy the privileges of a member of the National Assembly.
(m) That confirmation by the National Assembly of the election of any member
against whom no protest had been filed prior to said confirmation, does not and
cannot deprive the Electoral Commission of its incidental power to prescribe
the time within which protests against the election of any member of the
National Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within the
legitimate exercise of its constitutional prerogative in assuming to take
cognizance of the protest filed by the respondent Pedro Ynsua against the
election of the herein petitioner Jose A. Angara, and that the resolution of the
National Assembly of December 3, 1935 can not in any manner toll the time
for filing protests against the elections, returns and qualifications of members
of the National Assembly, nor prevent the filing of a protest within such time
as the rules of the Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the character of the Electoral
Commission as a constitutional creation and as to the scope and extent of its
authority under the facts of the present controversy, we deem it unnecessary to
determine whether the Electoral Commission is an inferior tribunal,
corporation, board or person within the purview of sections 226 and 516 of the
Code of Civil Procedure.
The petition for a writ of prohibition against the Electoral Commission is
hereby denied, with costs against the petitioner. So ordered.
Francisco v. House of Representatives
G.R. No. 160261 (Nov. 10, 2003)
G.R. No. 160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY
SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE
GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how
passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature, scope
and extent of their respective constitutional powers where the Constitution itself
provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at
times turbulent, dynamics of the relationship among these co-equal branches.
This Court is confronted with one such today involving the legislature and the
judiciary which has drawn legal luminaries to chart antipodal courses and not a
few of our countrymen to vent cacophonous sentiments thereon.
16 of 692
There may indeed be some legitimacy to the characterization that the present
controversy subject of the instant petitions – whether the filing of the second
impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the
House of Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political question – has
resulted in a political crisis. Perhaps even more truth to the view that it was
brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient
to address all the issues which this controversy spawns that this Court
unequivocally pronounces, at the first instance, that the feared resort to extra-
constitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is
ever mindful of the essential truth that the inviolate doctrine of separation of
powers among the legislative, executive or judicial branches of government by
no means prescribes for absolute autonomy in the discharge by each of that part
of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has been
carefully calibrated by the Constitution to temper the official acts of each of
these three branches must be given effect without destroying their indispensable
co-equality.
Taken together, these two fundamental doctrines of republican government,
intended as they are to insure that governmental power is wielded only for the
good of the people, mandate a relationship of interdependence and coordination
among these branches where the delicate functions of enacting, interpreting and
enforcing laws are harmonized to achieve a unity of governance, guided only
by what is in the greater interest and well-being of the people. Verily, salus
populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must
at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice, and lead
modest lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme
Court, the Members of the Constitutional Commissions, and the Ombudsman
may be removed from office, on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other public officers and employees may
be removed from office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement
by any Member thereof, which shall be included in the Order of Business within
ten session days, and referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty session days from
such referral, together with the corresponding resolution. The resolution shall
be calendared for consideration by the House within ten session days from
receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be
necessary either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at
least one-third of all the Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall forthwith proceed.
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(5) No impeachment proceedings shall be initiated against the same official
more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice
of the Supreme Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the Members of the
Senate.
(7) Judgment in cases of impeachment shall not extend further than removal
from office and disqualification to hold any office under the Republic of the
Philippines, but the party convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively carry
out the purpose of this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the
12th Congress of the House of Representatives adopted and approved the Rules
of Procedure in Impeachment Proceedings (House Impeachment Rules) on
November 28, 2001, superseding the previous House Impeachment Rules1
approved by the 11th Congress. The relevant distinctions between these two
Congresses' House Impeachment Rules are shown in the following tabulation:
11TH CONGRESS RULES
12TH CONGRESS NEW RULES
RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating Impeachment. – Impeachment shall be initiated
only by a verified complaint for impeachment filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement
by any Member thereof or by a verified complaint or resolution of impeachment
filed by at least one-third (1/3) of all the Members of the House.
RULE V
BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. – Impeachment Proceedings Deemed Initiated. – In cases where a
Member of the House files a verified complaint of impeachment or a citizen
files a verified complaint that is endorsed by a Member of the House through a
resolution of endorsement against an impeachable officer, impeachment
proceedings against such official are deemed initiated on the day the Committee
on Justice finds that the verified complaint and/or resolution against such
official, as the case may be, is sufficient in substance, or on the date the House
votes to overturn or affirm the finding of the said Committee that the verified
complaint and/or resolution, as the case may be, is not sufficient in substance.
In cases where a verified complaint or a resolution of impeachment is filed or
endorsed, as the case may be, by at least one-third (1/3) of the Members of the
House, impeachment proceedings are deemed initiated at the time of the filing
of such verified complaint or resolution of impeachment with the Secretary
General.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. – No impeachment proceedings shall be initiated
against the same official more than once within the period of one (1) year.
Section 17. Bar Against Initiation Of Impeachment Proceedings. – Within a
period of one (1) year from the date impeachment proceedings are deemed
initiated as provided in Section 16 hereof, no impeachment proceedings, as
such, can be initiated against the same official. (Italics in the original; emphasis
and underscoring supplied)
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On July 22, 2002, the House of Representatives adopted a Resolution,2
sponsored by Representative Felix William D. Fuentebella, which directed the
Committee on Justice "to conduct an investigation, in aid of legislation, on the
manner of disbursements and expenditures by the Chief Justice of the Supreme
Court of the Judiciary Development Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment
complaint4 (first impeachment complaint) against Chief Justice Hilario G.
Davide Jr. and seven Associate Justices5 of this Court for "culpable violation
of the Constitution, betrayal of the public trust and other high crimes."6 The
complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B.
Zamora and Didagen Piang Dilangalen,7 and was referred to the House
Committee on Justice on August 5, 20038 in accordance with Section 3(2) of
Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof, which shall be included in the Order of
Business within ten session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session
days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first
impeachment complaint was "sufficient in form,"9 but voted to dismiss the
same on October 22, 2003 for being insufficient in substance.10 To date, the
Committee Report to this effect has not yet been sent to the House in plenary
in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first
complaint or on October 23, 2003, a day after the House Committee on Justice
voted to dismiss it, the second impeachment complaint11 was filed with the
Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr.
(First District, Tarlac) and Felix William B. Fuentebella (Third District,
Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-mentioned House
Resolution. This second impeachment complaint was accompanied by a
"Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of
all the Members of the House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et. al.,
most of which petitions contend that the filing of the second impeachment
complaint is unconstitutional as it violates the provision of Section 5 of Article
XI of the Constitution that "[n]o impeachment proceedings shall be initiated
against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he
has a duty as a member of the Integrated Bar of the Philippines to use all
available legal remedies to stop an unconstitutional impeachment, that the
issues raised in his petition for Certiorari, Prohibition and Mandamus are of
transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings
introduced by the 12th Congress,"14 posits that his right to bring an
impeachment complaint against then Ombudsman Aniano Desierto had been
violated due to the capricious and arbitrary changes in the House Impeachment
Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III,
Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court
issue a writ of mandamus directing respondents House of Representatives et.
al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to
return the second impeachment complaint and/or strike it off the records of the
House of Representatives, and to promulgate rules which are consistent with
the Constitution; and (3) this Court permanently enjoin respondent House of
Representatives from proceeding with the second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and
taxpayers, alleging that the issues of the case are of transcendental importance,
pray, in their petition for Certiorari/Prohibition, the issuance of a writ
"perpetually" prohibiting respondent House of Representatives from filing any
Articles of Impeachment against the Chief Justice with the Senate; and for the
issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against
the Chief Justice or, in the event that the Senate has accepted the same, from
proceeding with the impeachment trial.
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In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang,
as citizens, taxpayers, lawyers and members of the Integrated Bar of the
Philippines, alleging that their petition for Prohibition involves public interest
as it involves the use of public funds necessary to conduct the impeachment
trial on the second impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings on said
second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has
recognized that he has locus standi to bring petitions of this nature in the cases
of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay Development
Corporation,16 prays in his petition for Injunction that the second impeachment
complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and
members of the legal profession, pray in their petition for Prohibition for an
order prohibiting respondent House of Representatives from drafting, adopting,
approving and transmitting to the Senate the second impeachment complaint,
and respondents De Venecia and Nazareno from transmitting the Articles of
Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and
Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of
Representatives, they have a legal interest in ensuring that only constitutional
impeachment proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they
have a right to be protected against all forms of senseless spending of taxpayers'
money and that they have an obligation to protect the Supreme Court, the Chief
Justice, and the integrity of the Judiciary, allege in their petition for Certiorari
and Prohibition that it is instituted as "a class suit" and pray that (1) the House
Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court
enjoin the Senate and the Senate President from taking cognizance of, hearing,
trying and deciding the second impeachment complaint, and issue a writ of
prohibition commanding the Senate, its prosecutors and agents to desist from
conducting any proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are
citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer
and a member of the Philippine Bar, both allege in their petition, which does
not state what its nature is, that the filing of the second impeachment complaint
involves paramount public interest and pray that Sections 16 and 17 of the
House Impeachment Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a
member of the Philippine Bar Association and of the Integrated Bar of the
Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in
their petition for the issuance of a Temporary Restraining Order and Permanent
Injunction to enjoin the House of Representatives from proceeding with the
second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that
it is mandated by the Code of Professional Responsibility to uphold the
Constitution, prays in its petition for Certiorari and Prohibition that Sections 16
and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment
Rules be declared unconstitutional and that the House of Representatives be
permanently enjoined from proceeding with the second impeachment
complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition
for Certiorari and Prohibition that the House Impeachment Rules be declared
unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al.,
in their petition for Prohibition and Injunction which they claim is a class suit
filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in
behalf of succeeding generations of Filipinos, pray for the issuance of a writ
prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and that
this Court declare as unconstitutional the second impeachment complaint and
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the acts of respondent House of Representatives in interfering with the fiscal
matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino,
alleging that the issues in his petition for Prohibition are of national and
transcendental significance and that as an official of the Philippine Judicial
Academy, he has a direct and substantial interest in the unhampered operation
of the Supreme Court and its officials in discharging their duties in accordance
with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate
and the Senate from receiving the same or giving the impeachment complaint
due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his
petition for Prohibition that respondents Fuentebella and Teodoro at the time
they filed the second impeachment complaint, were "absolutely without any
legal power to do so, as they acted without jurisdiction as far as the Articles of
Impeachment assail the alleged abuse of powers of the Chief Justice to disburse
the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L.
Hofileña, alleging that as professors of law they have an abiding interest in the
subject matter of their petition for Certiorari and Prohibition as it pertains to a
constitutional issue "which they are trying to inculcate in the minds of their
students," pray that the House of Representatives be enjoined from endorsing
and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging
his locus standi, but alleging that the second impeachment complaint is founded
on the issue of whether or not the Judicial Development Fund (JDF) was spent
in accordance with law and that the House of Representatives does not have
exclusive jurisdiction in the examination and audit thereof, prays in his petition
"To Declare Complaint Null and Void for Lack of Cause of Action and
Jurisdiction" that the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the
issues raised in the filing of the second impeachment complaint involve matters
of transcendental importance, prays in its petition for Certiorari/Prohibition that
(1) the second impeachment complaint and all proceedings arising therefrom
be declared null and void; (2) respondent House of Representatives be
prohibited from transmitting the Articles of Impeachment to the Senate; and (3)
respondent Senate be prohibited from accepting the Articles of Impeachment
and from conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and
taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second
impeachment complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives be declared null and
void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief
Justice or, in the event that they have accepted the same, that they be prohibited
from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the
first three of the eighteen which were filed before this Court,18 prayed for the
issuance of a Temporary Restraining Order and/or preliminary injunction to
prevent the House of Representatives from transmitting the Articles of
Impeachment arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed for the
declaration of the November 28, 2001 House Impeachment Rules as null and
void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295,
which were filed on October 28, 2003, sought similar relief. In addition, petition
bearing docket number G.R. No. 160292 alleged that House Resolution No. 260
(calling for a legislative inquiry into the administration by the Chief Justice of
the JDF) infringes on the constitutional doctrine of separation of powers and is
a direct violation of the constitutional principle of fiscal autonomy of the
judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second impeachment complaint
be formally transmitted to the Senate, but it was not carried because the House
of Representatives adjourned for lack of quorum,19 and as reflected above, to
date, the Articles of Impeachment have yet to be forwarded to the Senate.
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Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October 28,
2003, Justices Puno and Vitug offered to recuse themselves, but the Court
rejected their offer. Justice Panganiban inhibited himself, but the Court directed
him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution
of October 28, 2003, resolved to (a) consolidate the petitions; (b) require
respondent House of Representatives and the Senate, as well as the Solicitor
General, to comment on the petitions not later than 4:30 p.m. of November 3,
2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00
a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In
addition, this Court called on petitioners and respondents to maintain the status
quo, enjoining all the parties and others acting for and in their behalf to refrain
from committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through
Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special
appearance, submitted a Manifestation asserting that this Court has no
jurisdiction to hear, much less prohibit or enjoin the House of Representatives,
which is an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated duty to
initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in
his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)21 and
Comment, praying that "the consolidated petitions be dismissed for lack of
jurisdiction of the Court over the issues affecting the impeachment proceedings
and that the sole power, authority and jurisdiction of the Senate as the
impeachment court to try and decide impeachment cases, including the one
where the Chief Justice is the respondent, be recognized and upheld pursuant
to the provisions of Article XI of the Constitution."22
Acting on the other petitions which were subsequently filed, this Court resolved
to (a) consolidate them with the earlier consolidated petitions; (b) require
respondents to file their comment not later than 4:30 p.m. of November 3, 2003;
and (c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President
Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned,
the petitions are plainly premature and have no basis in law or in fact, adding
that as of the time of the filing of the petitions, no justiciable issue was presented
before it since (1) its constitutional duty to constitute itself as an impeachment
court commences only upon its receipt of the Articles of Impeachment, which
it had not, and (2) the principal issues raised by the petitions pertain exclusively
to the proceedings in the House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and
160295, questioning the status quo Resolution issued by this Court on October
28, 2003 on the ground that it would unnecessarily put Congress and this Court
in a "constitutional deadlock" and praying for the dismissal of all the petitions
as the matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino
Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene and
to Admit the Herein Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No.
160261. On November 5, 2003, World War II Veterans Legionnaires of the
Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene"
in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's
Comment and Attorneys Macalintal and Quadra's Petition in Intervention were
admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the
arguments of petitioners, intervenors Senator Pimentel and Attorney
Makalintal, and Solicitor General Alfredo Benipayo on the principal issues
outlined in an Advisory issued by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who
can invoke it; on what issues and at what time; and whether it should be
exercised by this Court at this time.
22 of 692
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5)
of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising
from the instant petitions as well as the myriad arguments and opinions
presented for and against the grant of the reliefs prayed for, this Court has sifted
and determined them to be as follows: (1) the threshold and novel issue of
whether or not the power of judicial review extends to those arising from
impeachment proceedings; (2) whether or not the essential pre-requisites for
the exercise of the power of judicial review have been fulfilled; and (3) the
substantive issues yet remaining. These matters shall now be discussed in
seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of
judicial review to determine the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the
government in Section 1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by
Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral
Commission23 after the effectivity of the 1935 Constitution whose provisions,
unlike the present Constitution, did not contain the present provision in Article
VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:
x x x In times of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely obliterated.
In cases of conflict, the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers between
the several departments and among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting
through their delegates to so provide, that instrument which is the expression
of their sovereignty however limited, has established a republican government
intended to operate and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations and restrictions
provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which
to direct the course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living constitution. In the United
States where no express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak of its historical
origin and development there, has been set at rest by popular acquiescence for
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a period of more than one and a half centuries. In our case, this moderating
power is granted, if not expressly, by clear implication from section 2 of article
VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution itself
has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. Even then, this
power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis mota presented. Any attempt
at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its function is in this
manner, the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive
and legislative departments of the government.24 (Italics in the original;
emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the
proper allocation of powers" of the different branches of government and "to
direct the course of government along constitutional channels" is inherent in all
courts25 as a necessary consequence of the judicial power itself, which is "the
power of the court to settle actual controversies involving rights which are
legally demandable and enforceable."26
Thus, even in the United States where the power of judicial review is not
explicitly conferred upon the courts by its Constitution, such power has "been
set at rest by popular acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison27
that the power of judicial review was first articulated by Chief Justice Marshall,
to wit:
It is also not entirely unworthy of observation, that in declaring what shall be
the supreme law of the land, the constitution itself is first mentioned; and not
the laws of the United States generally, but those only which shall be made in
pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States
confirms and strengthens the principle, supposed to be essential to all written
constitutions, that a law repugnant to the constitution is void; and that courts,
as well as other departments, are bound by that instrument.28 (Italics in the
original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the
1935 Constitution, the power of judicial review was exercised by our courts to
invalidate constitutionally infirm acts.29 And as pointed out by noted political
law professor and former Supreme Court Justice Vicente V. Mendoza,30 the
executive and legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil Code, to
wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to the
contrary.
When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed
an integral component of the delicate system of checks and balances which,
together with the corollary principle of separation of powers, forms the bedrock
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of our republican form of government and insures that its vast powers are
utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in
our Constitution. Each department of the government has exclusive cognizance
of matters within its jurisdiction, and is supreme within its own sphere. But it
does not follow from the fact that the three powers are to be kept separate and
distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate
system of checks and balances to secure coordination in the workings of the
various departments of the government. x x x And the judiciary in turn, with
the Supreme Court as the final arbiter, effectively checks the other departments
in the exercise of its power to determine the law, and hence to declare executive
and legislative acts void if violative of the Constitution.32 (Emphasis and
underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "x x x judicial review is essential for the maintenance and
enforcement of the separation of powers and the balancing of powers among
the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them."33 To
him, "[j]udicial review is the chief, indeed the only, medium of participation –
or instrument of intervention – of the judiciary in that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of
discretion by "any branch or instrumentalities of government," the afore-quoted
Section 1, Article VIII of the Constitution engraves, for the first time into its
history, into block letter law the so-called "expanded certiorari jurisdiction" of
this Court, the nature of and rationale for which are mirrored in the following
excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It
says:
The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and
explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part or instrumentality of the
government.
Fellow Members of this Commission, this is actually a product of our
experience during martial law. As a matter of fact, it has some antecedents in
the past, but the role of the judiciary during the deposed regime was marred
considerably by the circumstance that in a number of cases against the
government, which then had no legal defense at all, the solicitor general set up
the defense of political questions and got away with it. As a consequence,
certain principles concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees, and other matters
related to the operation and effect of martial law failed because the government
set up the defense of political question. And the Supreme Court said: "Well,
since it is political, we have no authority to pass upon it." The Committee on
the Judiciary feels that this was not a proper solution of the questions involved.
It did not merely request an encroachment upon the rights of the people, but it,
in effect, encouraged further violations thereof during the martial law regime.
xxx
xxx
Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words,
the judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
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to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.35 (Italics in the original; emphasis
and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court
must necessarily turn to the Constitution itself which employs the well-settled
principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution
must be given their ordinary meaning except where technical terms are
employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration,36
this Court, speaking through Chief Justice Enrique Fernando, declared:
We look to the language of the document itself in our search for its meaning.
We do not of course stop there, but that is where we begin. It is to be assumed
that the words in which constitutional provisions are couched express the
objective sought to be attained. They are to be given their ordinary meaning
except where technical terms are employed in which case the significance thus
attached to them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much as possible should
be understood in the sense they have in common use. What it says according to
the text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus these are the cases where the need for
construction is reduced to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its framers.
And so did this Court apply this principle in Civil Liberties Union v. Executive
Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention underlying
the provision under consideration. Thus, it has been held that the Court in
construing a Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of
the times, and the condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which induced the framers of
the Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.39 (Emphasis and
underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking
through Madame Justice Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental
principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary
task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of
the Constitution. It may also be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation offered by the framers.41
(Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a
whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice
Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated
a provision of our Constitution merely for the benefit of one person without
considering that it could also affect others. When they adopted subsection 2,
they permitted, if not willed, that said provision should function to the full
extent of its substance and its terms, not by itself alone, but in conjunction with
all other provisions of that great document.43 (Emphasis and underscoring
supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court
affirmed that:
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It is a well-established rule in constitutional construction that no one provision
of the Constitution is to be separated from all the others, to be considered alone,
but that all the provisions bearing upon a particular subject are to be brought
into view and to be so interpreted as to effectuate the great purposes of the
instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and
one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in
favor of a construction which will render every word operative, rather than one
which may make the words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to
other aids is available. In still the same case of Civil Liberties Union v.
Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason and
purpose of the resulting Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional
convention "are of value as showing the views of the individual members, and
as indicating the reasons for their votes, but they give us no light as to the views
of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution from what appears upon its
face." The proper interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's understanding
thereof.46 (Emphasis and underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and
jurisprudential application of the power of judicial review that respondents
Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel
argument that the Constitution has excluded impeachment proceedings from
the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that
impeachment is a political action which cannot assume a judicial character.
Hence, any question, issue or incident arising at any stage of the impeachment
proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole power
to try" impeachment cases48 (1) entirely excludes the application of judicial
review over it; and (2) necessarily includes the Senate's power to determine
constitutional questions relative to impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings
are outside the scope of judicial review, respondents Speaker De Venecia, et.
al. and intervenor Senator Pimentel rely heavily on American authorities,
principally the majority opinion in the case of Nixon v. United States.50 Thus,
they contend that the exercise of judicial review over impeachment proceedings
is inappropriate since it runs counter to the framers' decision to allocate to
different fora the powers to try impeachments and to try crimes; it disturbs the
system of checks and balances, under which impeachment is the only legislative
check on the judiciary; and it would create a lack of finality and difficulty in
fashioning relief.51 Respondents likewise point to deliberations on the US
Constitution to show the intent to isolate judicial power of review in cases of
impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the
American Constitution and American authorities cannot be credited to support
the proposition that the Senate's "sole power to try and decide impeachment
cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually
demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial
review to check and restrain any grave abuse of the impeachment process. Nor
can it reasonably support the interpretation that it necessarily confers upon the
Senate the inherently judicial power to determine constitutional questions
incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American
Constitution, are of dubious application for these are no longer controlling
within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case of Garcia vs.
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COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not
be beguiled by foreign jurisprudence some of which are hardly applicable
because they have been dictated by different constitutional settings and
needs."53 Indeed, although the Philippine Constitution can trace its origins to
that of the United States, their paths of development have long since diverged.
In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the Philippine Supreme
Court and that of the U.S. Supreme Court is that while the power of judicial
review is only impliedly granted to the U.S. Supreme Court and is discretionary
in nature, that granted to the Philippine Supreme Court and lower courts, as
expressly provided for in the Constitution, is not just a power but also a duty,
and it was given an expanded definition to include the power to correct any
grave abuse of discretion on the part of any government branch or
instrumentality.
There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of Representatives without
limitation,54 our Constitution, though vesting in the House of Representatives
the exclusive power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4)
and (5), Article XI thereof. These limitations include the manner of filing,
required vote to impeach, and the one year bar on the impeachment of one and
the same official.
Respondents are also of the view that judicial review of impeachments
undermines their finality and may also lead to conflicts between Congress and
the judiciary. Thus, they call upon this Court to exercise judicial statesmanship
on the principle that "whenever possible, the Court should defer to the judgment
of the people expressed legislatively, recognizing full well the perils of judicial
willfulness and pride."56
But did not the people also express their will when they instituted the above-
mentioned safeguards in the Constitution? This shows that the Constitution did
not intend to leave the matter of impeachment to the sole discretion of Congress.
Instead, it provided for certain well-defined limits, or in the language of Baker
v. Carr,57 "judicially discoverable standards" for determining the validity of
the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by
respondents in support of the argument that the impeachment power is beyond
the scope of judicial review, are not in point. These cases concern the denial of
petitions for writs of mandamus to compel the legislature to perform non-
ministerial acts, and do not concern the exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the power of
judicial review over congressional action. Thus, in Santiago v. Guingona, Jr.,60
this Court ruled that it is well within the power and jurisdiction of the Court to
inquire whether the Senate or its officials committed a violation of the
Constitution or grave abuse of discretion in the exercise of their functions and
prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the
Philippine Senate on the ground that it contravened the Constitution, it held that
the petition raises a justiciable controversy and that when an action of the
legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution
of the House of Representatives withdrawing the nomination, and rescinding
the election, of a congressman as a member of the House Electoral Tribunal for
being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House representation in the
Commission on Appointments was based on proportional representation of the
political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House
of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that
although under the Constitution, the legislative power is vested exclusively in
Congress, this does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it
ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential before
such member-elect may discharge the duties and enjoy the privileges of a
member of the National Assembly.
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Finally, there exists no constitutional basis for the contention that the exercise
of judicial review over impeachment proceedings would upset the system of
checks and balances. Verily, the Constitution is to be interpreted as a whole and
"one section is not to be allowed to defeat another."67 Both are integral
components of the calibrated system of independence and interdependence that
insures that no branch of government act beyond the powers assigned to it by
the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of
judicial review, like almost all powers conferred by the Constitution, is subject
to several limitations, namely: (1) an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act must have
"standing" to challenge; he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest
possible opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case.
x x x Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties,
and limited further to the constitutional question raised or the very lis mota
presented. Any attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions unrelated to actualities. Narrowed as
its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in
the executive and legislative departments of the government.68 (Italics in the
original)
Standing
Locus standi or legal standing or has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury
as a result of the governmental act that is being challenged. The gist of the
question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that
petitioners do not have standing since only the Chief Justice has sustained and
will sustain direct personal injury. Amicus curiae former Justice Minister and
Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing
since this Court had, in the past, accorded standing to taxpayers, voters,
concerned citizens, legislators in cases involving paramount public interest70
and transcendental importance,71 and that procedural matters are subordinate
to the need to determine whether or not the other branches of the government
have kept themselves within the limits of the Constitution and the laws and that
they have not abused the discretion given to them.72 Amicus curiae Dean Raul
Pangalangan of the U.P. College of Law is of the same opinion, citing
transcendental importance and the well-entrenched rule exception that, when
the real party in interest is unable to vindicate his rights by seeking the same
remedies, as in the case of the Chief Justice who, for ethical reasons, cannot
himself invoke the jurisdiction of this Court, the courts will grant petitioners
standing.
There is, however, a difference between the rule on real-party-in-interest and
the rule on standing, for the former is a concept of civil procedure73 while the
latter has constitutional underpinnings.74 In view of the arguments set forth
regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan,
Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it
from real party-in-interest.
The difference between the rule on standing and real party in interest has been
noted by authorities thus: "It is important to note . . . that standing because of
its constitutional and public policy underpinnings, is very different from
questions relating to whether a particular plaintiff is the real party in interest or
has capacity to sue. Although all three requirements are directed towards
ensuring that only certain parties can maintain an action, standing restrictions
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require a partial consideration of the merits, as well as broader policy concerns
relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits
are brought not by parties who have been personally injured by the operation
of a law or by official action taken, but by concerned citizens, taxpayers or
voters who actually sue in the public interest. Hence the question in standing is
whether such parties have "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether he is
"the party who would be benefited or injured by the judgment, or the 'party
entitled to the avails of the suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged
unconstitutional acts of the House of Representatives, none of the petitioners
before us asserts a violation of the personal rights of the Chief Justice. On the
contrary, they invariably invoke the vindication of their own rights – as
taxpayers; members of Congress; citizens, individually or in a class suit; and
members of the bar and of the legal profession – which were supposedly
violated by the alleged unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators
when specific requirements have been met have been given standing by this
Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about
to be subjected to some burdens or penalties by reason of the statute or act
complained of.77 In fine, when the proceeding involves the assertion of a public
right,78 the mere fact that he is a citizen satisfies the requirement of personal
interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public
funds are illegally disbursed, or that public money is being deflected to any
improper purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.79 Before he can invoke the
power of judicial review, however, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the enforcement
of the questioned statute or contract. It is not sufficient that he has merely a
general interest common to all members of the public.80
At all events, courts are vested with discretion as to whether or not a taxpayer's
suit should be entertained.81 This Court opts to grant standing to most of the
petitioners, given their allegation that any impending transmittal to the Senate
of the Articles of Impeachment and the ensuing trial of the Chief Justice will
necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official
action which he claims infringes his prerogatives as a legislator.82 Indeed, a
member of the House of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office.83
While an association has legal personality to represent its members,84
especially when it is composed of substantial taxpayers and the outcome will
affect their vital interests,85 the mere invocation by the Integrated Bar of the
Philippines or any member of the legal profession of the duty to preserve the
rule of law and nothing more, although undoubtedly true, does not suffice to
clothe it with standing. Its interest is too general. It is shared by other groups
and the whole citizenry. However, a reading of the petitions shows that it has
advanced constitutional issues which deserve the attention of this Court in view
of their seriousness, novelty and weight as precedents.86 It, therefore, behooves
this Court to relax the rules on standing and to resolve the issues presented by
it.
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In the same vein, when dealing with class suits filed in behalf of all citizens,
persons intervening must be sufficiently numerous to fully protect the interests
of all concerned87 to enable the court to deal properly with all interests
involved in the suit,88 for a judgment in a class suit, whether favorable or
unfavorable to the class, is, under the res judicata principle, binding on all
members of the class whether or not they were before the court.89 Where it
clearly appears that not all interests can be sufficiently represented as shown by
the divergent issues raised in the numerous petitions before this Court, G.R. No.
160365 as a class suit ought to fail. Since petitioners additionally allege
standing as citizens and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground
of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No.
160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following
instructive determinants formulated by former Supreme Court Justice
Florentino P. Feliciano are instructive: (1) the character of the funds or other
assets involved in the case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a
more direct and specific interest in raising the questions being raised.90
Applying these determinants, this Court is satisfied that the issues raised herein
are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people, as when the issues raised are of
paramount importance to the public.91 Such liberality does not, however, mean
that the requirement that a party should have an interest in the matter is totally
eliminated. A party must, at the very least, still plead the existence of such
interest, it not being one of which courts can take judicial notice. In petitioner
Vallejos' case, he failed to allege any interest in the case. He does not thus have
standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of
Court requires an intervenor to possess a legal interest in the matter in litigation,
or in the success of either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof. While intervention
is not a matter of right, it may be permitted by the courts when the applicant
shows facts which satisfy the requirements of the law authorizing
intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case,
they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save
for one additional issue, they raise the same issues and the same standing, and
no objection on the part of petitioners Candelaria, et. al. has been interposed,
this Court as earlier stated, granted the Motion for Leave of Court to Intervene
and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.,
et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their
right as citizens to intervene, alleging that "they will suffer if this insidious
scheme of the minority members of the House of Representatives is successful,"
this Court found the requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310 were of transcendental
importance, World War II Veterans Legionnaires of the Philippines, Inc. filed
a "Petition-in-Intervention with Leave to Intervene" to raise the additional issue
of whether or not the second impeachment complaint against the Chief Justice
is valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines,
Inc. possess a legal interest in the matter in litigation the respective motions to
intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the
limited purpose of making of record and arguing a point of view that differs
with Senate President Drilon's. He alleges that submitting to this Court's
jurisdiction as the Senate President does will undermine the independence of
the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly,
Senator Pimentel possesses a legal interest in the matter in litigation, he being
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a member of Congress against which the herein petitions are directed. For this
reason, and to fully ventilate all substantial issues relating to the matter at hand,
his Motion to Intervene was granted and he was, as earlier stated, allowed to
argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied
for, while he asserts an interest as a taxpayer, he failed to meet the standing
requirement for bringing taxpayer's suits as set forth in Dumlao v. Comelec,93
to wit:
x x x While, concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege that their tax
money is "being extracted and spent in violation of specific constitutional
protection against abuses of legislative power," or that there is a misapplication
of such funds by respondent COMELEC, or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain
respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that
the act of petitioners will result in illegal disbursement of public funds or in
public money being deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that
for a case to be considered ripe for adjudication, "it is a prerequisite that
something had by then been accomplished or performed by either branch before
a court may come into the picture."96 Only then may the courts pass on the
validity of what was done, if and when the latter is challenged in an appropriate
legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of
the second impeachment complaint against the Chief Justice in accordance with
the House Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts having been
carried out, i.e., the second impeachment complaint had been filed with the
House of Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged unconstitutional act
should be accomplished and performed before suit, as Tan v. Macapagal holds,
has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions
are premature. Amicus curiae former Senate President Jovito R. Salonga opines
that there may be no urgent need for this Court to render a decision at this time,
it being the final arbiter on questions of constitutionality anyway. He thus
recommends that all remedies in the House and Senate should first be
exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law
who suggests to this Court to take judicial notice of on-going attempts to
encourage signatories to the second impeachment complaint to withdraw their
signatures and opines that the House Impeachment Rules provide for an
opportunity for members to raise constitutional questions themselves when the
Articles of Impeachment are presented on a motion to transmit to the same to
the Senate. The dean maintains that even assuming that the Articles are
transmitted to the Senate, the Chief Justice can raise the issue of their
constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the House
Impeachment Rules of their constitutional infirmity. Neither would such a
withdrawal, by itself, obliterate the questioned second impeachment complaint
since it would only place it under the ambit of Sections 3(2) and (3) of Article
XI of the Constitution97 and, therefore, petitioners would continue to suffer
their injuries.
Second and most importantly, the futility of seeking remedies from either or
both Houses of Congress before coming to this Court is shown by the fact that,
as previously discussed, neither the House of Representatives nor the Senate is
clothed with the power to rule with definitiveness on the issue of
constitutionality, whether concerning impeachment proceedings or otherwise,
as said power is exclusively vested in the judiciary by the earlier quoted Section
I, Article VIII of the Constitution. Remedy cannot be sought from a body which
is bereft of power to grant it.
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Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion
defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language
of Corpus Juris Secundum, it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.99 (Italics in
the original)
Prior to the 1973 Constitution, without consistency and seemingly without any
rhyme or reason, this Court vacillated on its stance of taking cognizance of
cases which involved political questions. In some cases, this Court hid behind
the cover of the political question doctrine and refused to exercise its power of
judicial review.100 In other cases, however, despite the seeming political nature
of the therein issues involved, this Court assumed jurisdiction whenever it
found constitutionally imposed limits on powers or functions conferred upon
political bodies.101 Even in the landmark 1988 case of Javellana v. Executive
Secretary102 which raised the issue of whether the 1973 Constitution was
ratified, hence, in force, this Court shunted the political question doctrine and
took cognizance thereof. Ratification by the people of a Constitution is a
political question, it being a question decided by the people in their sovereign
capacity.
The frequency with which this Court invoked the political question doctrine to
refuse to take jurisdiction over certain cases during the Marcos regime
motivated Chief Justice Concepcion, when he became a Constitutional
Commissioner, to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the
usual comment that the judiciary is the weakest among the three major branches
of the service. Since the legislature holds the purse and the executive the sword,
the judiciary has nothing with which to enforce its decisions or commands
except the power of reason and appeal to conscience which, after all, reflects
the will of God, and is the most powerful of all other powers without exception.
x x x And so, with the body's indulgence, I will proceed to read the provisions
drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It
says:
The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and
explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part or instrumentality of the
government.
Fellow Members of this Commission, this is actually a product of our
experience during martial law. As a matter of fact, it has some antecedents in
the past, but the role of the judiciary during the deposed regime was marred
considerably by the circumstance that in a number of cases against the
government, which then had no legal defense at all, the solicitor general set up
the defense of political questions and got away with it. As a consequence,
certain principles concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees, and other matters
related to the operation and effect of martial law failed because the government
set up the defense of political question. And the Supreme Court said: "Well,
since it is political, we have no authority to pass upon it." The Committee on
the Judiciary feels that this was not a proper solution of the questions involved.
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It did not merely request an encroachment upon the rights of the people, but it,
in effect, encouraged further violations thereof during the martial law regime. I
am sure the members of the Bar are familiar with this situation. But for the
benefit of the Members of the Commission who are not lawyers, allow me to
explain. I will start with a decision of the Supreme Court in 1973 on the case of
Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was
announced on September 22, although the proclamation was dated September
21. The obvious reason for the delay in its publication was that the
administration had apprehended and detained prominent newsmen on
September 21. So that when martial law was announced on September 22, the
media hardly published anything about it. In fact, the media could not publish
any story not only because our main writers were already incarcerated, but also
because those who succeeded them in their jobs were under mortal threat of
being the object of wrath of the ruling party. The 1971 Constitutional
Convention had begun on June 1, 1971 and by September 21 or 22 had not
finished the Constitution; it had barely agreed in the fundamentals of the
Constitution. I forgot to say that upon the proclamation of martial law, some
delegates to that 1971 Constitutional Convention, dozens of them, were picked
up. One of them was our very own colleague, Commissioner Calderon. So, the
unfinished draft of the Constitution was taken over by representatives of
Malacañang. In 17 days, they finished what the delegates to the 1971
Constitutional Convention had been unable to accomplish for about 14 months.
The draft of the 1973 Constitution was presented to the President around
December 1, 1972, whereupon the President issued a decree calling a plebiscite
which suspended the operation of some provisions in the martial law decree
which prohibited discussions, much less public discussions of certain matters
of public concern. The purpose was presumably to allow a free discussion on
the draft of the Constitution on which a plebiscite was to be held sometime in
January 1973. If I may use a word famous by our colleague, Commissioner
Ople, during the interregnum, however, the draft of the Constitution was
analyzed and criticized with such a telling effect that Malacañang felt the
danger of its approval. So, the President suspended indefinitely the holding of
the plebiscite and announced that he would consult the people in a referendum
to be held from January 10 to January 15. But the questions to be submitted in
the referendum were not announced until the eve of its scheduled beginning,
under the supposed supervision not of the Commission on Elections, but of
what was then designated as "citizens assemblies or barangays." Thus the
barangays came into existence. The questions to be propounded were released
with proposed answers thereto, suggesting that it was unnecessary to hold a
plebiscite because the answers given in the referendum should be regarded as
the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme
Court praying that the holding of the referendum be suspended. When the
motion was being heard before the Supreme Court, the Minister of Justice
delivered to the Court a proclamation of the President declaring that the new
Constitution was already in force because the overwhelming majority of the
votes cast in the referendum favored the Constitution. Immediately after the
departure of the Minister of Justice, I proceeded to the session room where the
case was being heard. I then informed the Court and the parties the presidential
proclamation declaring that the 1973 Constitution had been ratified by the
people and is now in force.
A number of other cases were filed to declare the presidential proclamation null
and void. The main defense put up by the government was that the issue was a
political question and that the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to January 15,
the vast majority ratified the draft of the Constitution. Note that all members of
the Supreme Court were residents of Manila, but none of them had been notified
of any referendum in their respective places of residence, much less did they
participate in the alleged referendum. None of them saw any referendum
proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the
members of the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big
difference between a referendum and a plebiscite. But another group of justices
upheld the defense that the issue was a political question. Whereupon, they
dismissed the case. This is not the only major case in which the plea of "political
question" was set up. There have been a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was
clearly justiciable.
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xxx
x x x When your Committee on the Judiciary began to perform its functions, it
faced the following questions: What is judicial power? What is a political
question?
The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be
enforced by a judiciary party. In a decided case, a husband complained that his
wife was unwilling to perform her duties as a wife. The Court said: "We can
tell your wife what her duties as such are and that she is bound to comply with
them, but we cannot force her physically to discharge her main marital duty to
her husband. There are some rights guaranteed by law, but they are so personal
that to enforce them by actual compulsion would be highly derogatory to human
dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies
involving rights which are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme Court has, also
another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and the
Judiciary. Each one is supreme within its own sphere and independent of the
others. Because of that supremacy power to determine whether a given law is
valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words,
the judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may
have an initial food for thought on the subject of the judiciary.103 (Italics in the
original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice
Concepcion further clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial
power is not vested in the Supreme Court alone but also in other lower courts
as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had
abused its authority to the extent of lacking jurisdiction or excess of jurisdiction,
that is not a political question. Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the
Supreme Court according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political
question doctrine?
MR. CONCEPCION. No.
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FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion,
amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do
away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define what is judicial
power. But the Gentleman will notice it says, "judicial power includes" and the
reason being that the definition that we might make may not cover all possible
areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the
political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional
Commission, it is clear that judicial power is not only a power; it is also a duty,
a duty which cannot be abdicated by the mere specter of this creature called the
political question doctrine. Chief Justice Concepcion hastened to clarify,
however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two
species of political questions: (1) "truly political questions" and (2) those which
"are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect
of the doctrine of separation of powers to be maintained. On the other hand, by
virtue of Section 1, Article VIII of the Constitution, courts can review questions
which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College
of Law, this Court has in fact in a number of cases taken jurisdiction over
questions which are not truly political following the effectivity of the present
Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice
Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments to
decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro
Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "(t)he
political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases."108 (Emphasis
and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court
ruled:
In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers,
in proper cases, even the political question.110 x x x (Emphasis and
underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political
questions and non-justiciable political questions, however. Identification of
these two species of political questions may be problematic. There has been no
clear standard. The American case of Baker v. Carr111 attempts to provide
some:
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x x x Prominent on the surface of any case held to involve a political question
is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for questioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually
demonstrable constitutional commitment of the issue to a coordinate political
department; (2) the lack of judicially discoverable and manageable standards
for resolving it; and (3) the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion. These standards are
not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept
of judicial review is radically different from our current concept, for Section 1,
Article VIII of the Constitution provides our courts with far less discretion in
determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-
justiciable political question lies in the answer to the question of whether there
are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine whether
the branch or instrumentality of the government properly acted within such
limits. This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint
constitute valid impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with
Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the
Judicial Development Fund is an unconstitutional infringement of the
constitutionally mandated fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment
adopted by the 12th Congress are unconstitutional for violating the provisions
of Section 3, Article XI of the Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of
Article XI of the Constitution.
The first issue goes into the merits of the second impeachment complaint over
which this Court has no jurisdiction. More importantly, any discussion of this
issue would require this Court to make a determination of what constitutes an
impeachable offense. Such a determination is a purely political question which
the Constitution has left to the sound discretion of the legislation. Such an intent
is clear from the deliberations of the Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds
for impeachment, two of these, namely, other high crimes and betrayal of public
trust, elude a precise definition. In fact, an examination of the records of the
1986 Constitutional Commission shows that the framers could find no better
way to approximate the boundaries of betrayal of public trust and other high
crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.114 Clearly, the
issue calls upon this court to decide a non-justiciable political question which
is beyond the scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever possible.
Thus, in the case of Sotto v. Commission on Elections,115 this Court held:
37 of 692
x x x It is a well-established rule that a court should not pass upon a
constitutional question and decide a law to be unconstitutional or invalid, unless
such question is raised by the parties and that when it is raised, if the record
also presents some other ground upon which the court may rest its judgment,
that course will be adopted and the constitutional question will be left for
consideration until a case arises in which a decision upon such question will be
unavoidable.116 [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian
Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act
No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction over a
constitutional question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there must be an
actual case or controversy involving a conflict of legal rights susceptible of
judicial determination, the constitutional question must have been opportunely
raised by the proper party, and the resolution of the question is unavoidably
necessary to the decision of the case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is
truly unavoidable and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the
invalidity of the second impeachment complaint, collectively raise several
constitutional issues upon which the outcome of this controversy could possibly
be made to rest. In determining whether one, some or all of the remaining
substantial issues should be passed upon, this Court is guided by the related
cannon of adjudication that "the court should not form a rule of constitutional
law broader than is required by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among
other reasons, the second impeachment complaint is invalid since it directly
resulted from a Resolution120 calling for a legislative inquiry into the JDF,
which Resolution and legislative inquiry petitioners claim to likewise be
unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence of the
judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the
studied opinion of this Court that the issue of the constitutionality of the said
Resolution and resulting legislative inquiry is too far removed from the issue of
the validity of the second impeachment complaint. Moreover, the resolution of
said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative
inquiries in general, which would thus be broader than is required by the facts
of these consolidated cases. This opinion is further strengthened by the fact that
said petitioners have raised other grounds in support of their petition which
would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative
inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate
Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of
Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI
thereof provides:
The Senate or the House of Representatives or any of its respective committees
may conduct inquiries in aid of legislation in accordance with its duly published
rules of procedure. The rights of persons appearing in or affected by such
inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of legislation
is not, therefore absolute or unlimited. Its exercise is circumscribed by the
afore-quoted provision of the Constitution. Thus, as provided therein, the
investigation must be "in aid of legislation in accordance with its duly published
rules of procedure" and that "the rights of persons appearing in or affected by
such inquiries shall be respected." It follows then that the right rights of persons
under the Bill of Rights must be respected, including the right to due process
and the right not be compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino
Quadra, while joining the original petition of petitioners Candelaria, et. al.,
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introduce the new argument that since the second impeachment complaint was
verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix
William Fuentebella, the same does not fall under the provisions of Section 3
(4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed
by at least one-third of all the Members of the House, the same shall constitute
the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives
signed a Resolution of Endorsement/Impeachment, the same did not satisfy the
requisites for the application of the afore-mentioned section in that the "verified
complaint or resolution of impeachment" was not filed "by at least one-third of
all the Members of the House." With the exception of Representatives Teodoro
and Fuentebella, the signatories to said Resolution are alleged to have verified
the same merely as a "Resolution of Endorsement." Intervenors point to the
"Verification" of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the
abovementioned Complaint of Representatives Gilberto Teodoro and Felix
William B. Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the Constitution
requires in order for said second impeachment complaint to automatically
become the Articles of Impeachment and for trial in the Senate to begin
"forthwith," is that the verified complaint be "filed," not merely endorsed, by at
least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment
complaint should have been calendared and referred to the House Committee
on Justice under Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof, which shall be included in the Order of
Business within ten session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session
days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined that
for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or
more representatives who signed and verified the second impeachment
complaint as complainants, signed and verified the signatories to a resolution
of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment
contemplated by the Constitution, such resolution of endorsement being
necessary only from at least one Member whenever a citizen files a verified
impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra,
does indeed limit the scope of the constitutional issues to the provisions on
impeachment, more compelling considerations militate against its adoption as
the lis mota or crux of the present controversy. Chief among this is the fact that
only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have
raised this issue as a ground for invalidating the second impeachment
complaint. Thus, to adopt this additional ground as the basis for deciding the
instant consolidated petitions would not only render for naught the efforts of
the original petitioners in G.R. No. 160262, but the efforts presented by the
other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the
determination of the instant cases is made easier by the fact that said intervenors
Macalintal and Quadra have joined in the petition of Candelaria, et. al.,
adopting the latter's arguments and issues as their own. Consequently, they are
not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as
they are, constitute the very lis mota of the instant controversy: (1) whether
Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the
12th Congress are unconstitutional for violating the provisions of Section 3,
Article XI of the Constitution; and (2) whether, as a result thereof, the second
impeachment complaint is barred under Section 3(5) of Article XI of the
Constitution.
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Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground
that the Senate, sitting as an impeachment court, has the sole power to try and
decide all cases of impeachment. Again, this Court reiterates that the power of
judicial review includes the power of review over justiciable issues in
impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here
is a moral compulsion for the Court to not assume jurisdiction over the
impeachment because all the Members thereof are subject to impeachment."125
But this argument is very much like saying the Legislature has a moral
compulsion not to pass laws with penalty clauses because Members of the
House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before
this Court. Adjudication may not be declined, because this Court is not legally
disqualified. Nor can jurisdiction be renounced as there is no other tribunal to
which the controversy may be referred."126 Otherwise, this Court would be
shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution.
More than being clothed with authority thus, this Court is duty-bound to take
cognizance of the instant petitions.127 In the august words of amicus curiae
Father Bernas, "jurisdiction is not just a power; it is a solemn duty which may
not be renounced. To renounce it, even if it is vexatious, would be a dereliction
of duty."
Even in cases where it is an interested party, the Court under our system of
government cannot inhibit itself and must rule upon the challenge because no
other office has the authority to do so.128 On the occasion that this Court had
been an interested party to the controversy before it, it has acted upon the matter
"not with officiousness but in the discharge of an unavoidable duty and, as
always, with detachment and fairness."129 After all, "by [his] appointment to
the office, the public has laid on [a member of the judiciary] their confidence
that [he] is mentally and morally fit to pass upon the merits of their varied
contentions. For this reason, they expect [him] to be fearless in [his] pursuit to
render justice, to be unafraid to displease any person, interest or power and to
be equipped with a moral fiber strong enough to resist the temptations lurking
in [his] office."130
The duty to exercise the power of adjudication regardless of interest had already
been settled in the case of Abbas v. Senate Electoral Tribunal.131 In that case,
the petitioners filed with the respondent Senate Electoral Tribunal a Motion for
Disqualification or Inhibition of the Senators-Members thereof from the
hearing and resolution of SET Case No. 002-87 on the ground that all of them
were interested parties to said case as respondents therein. This would have
reduced the Tribunal's membership to only its three Justices-Members whose
disqualification was not sought, leaving them to decide the matter. This Court
held:
Where, as here, a situation is created which precludes the substitution of any
Senator sitting in the Tribunal by any of his other colleagues in the Senate
without inviting the same objections to the substitute's competence, the
proposed mass disqualification, if sanctioned and ordered, would leave the
Tribunal no alternative but to abandon a duty that no other court or body can
perform, but which it cannot lawfully discharge if shorn of the participation of
its entire membership of Senators.
To our mind, this is the overriding consideration — that the Tribunal be not
prevented from discharging a duty which it alone has the power to perform, the
performance of which is in the highest public interest as evidenced by its being
expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the
Constitution could not have been unaware of the possibility of an election
contest that would involve all Senators—elect, six of whom would inevitably
have to sit in judgment thereon. Indeed, such possibility might surface again in
the wake of the 1992 elections when once more, but for the last time, all 24
seats in the Senate will be at stake. Yet the Constitution provides no scheme or
mode for settling such unusual situations or for the substitution of Senators
designated to the Tribunal whose disqualification may be sought. Litigants in
such situations must simply place their trust and hopes of vindication in the
fairness and sense of justice of the Members of the Tribunal. Justices and
Senators, singly and collectively.
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Let us not be misunderstood as saying that no Senator-Member of the Senate
Electoral Tribunal may inhibit or disqualify himself from sitting in judgment
on any case before said Tribunal. Every Member of the Tribunal may, as his
conscience dictates, refrain from participating in the resolution of a case where
he sincerely feels that his personal interests or biases would stand in the way of
an objective and impartial judgment. What we are merely saying is that in the
light of the Constitution, the Senate Electoral Tribunal cannot legally function
as such, absent its entire membership of Senators and that no amendment of its
Rules can confer on the three Justices-Members alone the power of valid
adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority
of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction
as established by the fundamental law. Disqualification of a judge is a
deprivation of his judicial power. And if that judge is the one designated by the
Constitution to exercise the jurisdiction of his court, as is the case with the
Justices of this Court, the deprivation of his or their judicial power is equivalent
to the deprivation of the judicial power of the court itself. It affects the very
heart of judicial independence. The proposed mass disqualification, if
sanctioned and ordered, would leave the Court no alternative but to abandon a
duty which it cannot lawfully discharge if shorn of the participation of its entire
membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it
exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the
"seven pillars" of limitations of the power of judicial review, enunciated by US
Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly,
non-adversary proceeding, declining because to decide such questions 'is
legitimate only in the last resort, and as a necessity in the determination of real,
earnest and vital controversy between individuals. It never was the thought that,
by means of a friendly suit, a party beaten in the legislature could transfer to
the courts an inquiry as to the constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional law in advance of
the necessity of deciding it.' . . . 'It is not the habit of the Court to decide
questions of a constitutional nature unless absolutely necessary to a decision of
the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which
the case may be disposed of. This rule has found most varied application. Thus,
if a case can be decided on either of two grounds, one involving a constitutional
question, the other a question of statutory construction or general law, the Court
will decide only the latter. Appeals from the highest court of a state challenging
its decision of a question under the Federal Constitution are frequently
dismissed because the judgment can be sustained on an independent state
ground.
5. The Court will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation. Among the many
applications of this rule, none is more striking than the denial of the right of
challenge to one who lacks a personal or property right. Thus, the challenge by
a public official interested only in the performance of his official duty will not
be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a
suit brought by a citizen who sought to have the Nineteenth Amendment
declared unconstitutional. In Massachusetts v. Mellon, the challenge of the
federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance
of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if
a serious doubt of constitutionality is raised, it is a cardinal principle that this
Court will first ascertain whether a construction of the statute is fairly possible
by which the question may be avoided (citations omitted).
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The foregoing "pillars" of limitation of judicial review, summarized in
Ashwander v. TVA from different decisions of the United States Supreme
Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the
facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation
of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the
exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must
have a personal and substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible
opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial
restraint the possibility that "judicial review of impeachments might also lead
to embarrassing conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or conflicts of interest in
judicial hearings, and the scenario that it would be confusing and humiliating
and risk serious political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an impeachable official.137
Intervenor Soriano echoes this argument by alleging that failure of this Court
to enforce its Resolution against Congress would result in the diminution of its
judicial authority and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by
the Solicitor General, the possibility of the occurrence of a constitutional crisis
is not a reason for this Court to refrain from upholding the Constitution in all
impeachment cases. Justices cannot abandon their constitutional duties just
because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is
not regarded as settled until the Supreme Court has passed upon the
constitutionality of the act involved, the judgment has not only juridical effects
but also political consequences. Those political consequences may follow even
where the Court fails to grant the petitioner's prayer to nullify an act for lack of
the necessary number of votes. Frequently, failure to act explicitly, one way or
the other, itself constitutes a decision for the respondent and validation, or at
least quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in
the end there were not enough votes either to grant the petitions, or to sustain
respondent's claims,"140 the pre-existing constitutional order was disrupted
which paved the way for the establishment of the martial law regime.
Such an argument by respondents and intervenor also presumes that the
coordinate branches of the government would behave in a lawless manner and
not do their duty under the law to uphold the Constitution and obey the laws of
the land. Yet there is no reason to believe that any of the branches of
government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental law
of the land.
Substituting the word public officers for judges, this Court is well guided by
the doctrine in People v. Veneracion, to wit:141
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Obedience to the rule of law forms the bedrock of our system of justice. If
[public officers], under the guise of religious or political beliefs were allowed
to roam unrestricted beyond boundaries within which they are required by law
to exercise the duties of their office, then law becomes meaningless. A
government of laws, not of men excludes the exercise of broad discretionary
powers by those acting under its authority. Under this system, [public officers]
are guided by the Rule of Law, and ought "to protect and enforce it without fear
or favor," resist encroachments by governments, political parties, or even the
interference of their own personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues
that Sections 16 and 17 of Rule V of the House Impeachment Rules do not
violate Section 3 (5) of Article XI of our present Constitution, contending that
the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is
the House of Representatives, as a collective body, which has the exclusive
power to initiate all cases of impeachment; that initiate could not possibly mean
"to file" because filing can, as Section 3 (2), Article XI of the Constitution
provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint
for impeachment by any member of the House of Representatives; or (2) by any
citizen upon a resolution of endorsement by any member; or (3) by at least 1/3
of all the members of the House. Respondent House of Representatives
concludes that the one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been violated as the
impeachment complaint against Chief Justice Davide and seven Associate
Justices had not been initiated as the House of Representatives, acting as the
collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term
"initiate." Resort to statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution,
Commissioner Florenz Regalado, who eventually became an Associate Justice
of this Court, agreed on the meaning of "initiate" as "to file," as proffered and
explained by Constitutional Commissioner Maambong during the
Constitutional Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant petitions
held on November 5, 2003 at which he added that the act of "initiating" included
the act of taking initial action on the complaint, dissipates any doubt that indeed
the word "initiate" as it twice appears in Article XI (3) and (5) of the
Constitution means to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do,
to begin, to commence, or set going. As Webster's Third New International
Dictionary of the English Language concisely puts it, it means "to perform or
facilitate the first action," which jibes with Justice Regalado's position, and that
of Father Bernas, who elucidated during the oral arguments of the instant
petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of
acts consisting of a beginning, a middle and an end. The end is the transmittal
of the articles of impeachment to the Senate. The middle consists of those
deliberative moments leading to the formulation of the articles of impeachment.
The beginning or the initiation is the filing of the complaint and its referral to
the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives
Cojuangco and Fuentebella says that impeachment is "deemed initiated" when
the Justice Committee votes in favor of impeachment or when the House
reverses a contrary vote of the Committee. Note that the Rule does not say
"impeachment proceedings" are initiated but rather are "deemed initiated." The
language is recognition that initiation happened earlier, but by legal fiction
there is an attempt to postpone it to a time after actual initiation. (Emphasis and
underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking
into the intent of the law. Fortunately, the intent of the framers of the 1987
Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and
the substantive provisions on impeachment, I understand there have been many
proposals and, I think, these would need some time for Committee action.
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However, I would just like to indicate that I submitted to the Committee a
resolution on impeachment proceedings, copies of which have been furnished
the Members of this body. This is borne out of my experience as a member of
the Committee on Justice, Human Rights and Good Government which took
charge of the last impeachment resolution filed before the First Batasang
Pambansa. For the information of the Committee, the resolution covers several
steps in the impeachment proceedings starting with initiation, action of the
Speaker committee action, calendaring of report, voting on the report,
transmittal referral to the Senate, trial and judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted by Commissioner
Regalado, but I will just make of record my thinking that we do not really
initiate the filing of the Articles of Impeachment on the floor. The procedure,
as I have pointed out earlier, was that the initiation starts with the filing of the
complaint. And what is actually done on the floor is that the committee
resolution containing the Articles of Impeachment is the one approved by the
body.
As the phraseology now runs, which may be corrected by the Committee on
Style, it appears that the initiation starts on the floor. If we only have time, I
could cite examples in the case of the impeachment proceedings of President
Richard Nixon wherein the Committee on the Judiciary submitted the
recommendation, the resolution, and the Articles of Impeachment to the body,
and it was the body who approved the resolution. It is not the body which
initiates it. It only approves or disapproves the resolution. So, on that score,
probably the Committee on Style could help in rearranging these words because
we have to be very technical about this. I have been bringing with me The Rules
of the House of Representatives of the U.S. Congress. The Senate Rules are
with me. The proceedings on the case of Richard Nixon are with me. I have
submitted my proposal, but the Committee has already decided. Nevertheless,
I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the
approval of Section 3 (3). My reconsideration will not at all affect the substance,
but it is only in keeping with the exact formulation of the Rules of the House of
Representatives of the United States regarding impeachment.
I am proposing, Madam President, without doing damage to any of this
provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words
which read: "to initiate impeachment proceedings" and the comma (,) and insert
on line 19 after the word "resolution" the phrase WITH THE ARTICLES, and
then capitalize the letter "i" in "impeachment" and replace the word "by" with
OF, so that the whole section will now read: "A vote of at least one-third of all
the Members of the House shall be necessary either to affirm a resolution WITH
THE ARTICLES of Impeachment OF the Committee or to override its contrary
resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing
of the verified complaint and every resolution to impeach always carries with
it the Articles of Impeachment. As a matter of fact, the words "Articles of
Impeachment" are mentioned on line 25 in the case of the direct filing of a
verified compliant of one-third of all the Members of the House. I will mention
again, Madam President, that my amendment will not vary the substance in any
way. It is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam
President.143 (Italics in the original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and
accepted by the Committee on the Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of
the complaint. In his amicus curiae brief, Commissioner Maambong explained
that "the obvious reason in deleting the phrase "to initiate impeachment
proceedings" as contained in the text of the provision of Section 3 (3) was to
settle and make it understood once and for all that the initiation of impeachment
proceedings starts with the filing of the complaint, and the vote of one-third of
the House in a resolution of impeachment does not initiate the impeachment
proceedings which was already initiated by the filing of a verified complaint
under Section 3, paragraph (2), Article XI of the Constitution."145
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Amicus curiae Constitutional Commissioner Regalado is of the same view as
is Father Bernas, who was also a member of the 1986 Constitutional
Commission, that the word "initiate" as used in Article XI, Section 3(5) means
to file, both adding, however, that the filing must be accompanied by an action
to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the
word "initiate," appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to
initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same official
more than once within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to
initiate." The object in the first sentence is "impeachment case." The object in
the second sentence is "impeachment proceeding." Following the principle of
reddendo singuala sinuilis, the term "cases" must be distinguished from the term
"proceedings." An impeachment case is the legal controversy that must be
decided by the Senate. Above-quoted first provision provides that the House,
by a vote of one-third of all its members, can bring a case to the Senate. It is in
that sense that the House has "exclusive power" to initiate all cases of
impeachment. No other body can do it. However, before a decision is made to
initiate a case in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate, which comes from
the Latin word initium, means to begin. On the other hand, proceeding is a
progressive noun. It has a beginning, a middle, and an end. It takes place not in
the Senate but in the House and consists of several steps: (1) there is the filing
of a verified complaint either by a Member of the House of Representatives or
by a private citizen endorsed by a Member of the House of the Representatives;
(2) there is the processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the resolution of the
Committee rejects or upholds the complaint, the resolution must be forwarded
to the House for further processing; and (4) there is the processing of the same
complaint by the House of Representatives which either affirms a favorable
resolution of the Committee or overrides a contrary resolution by a vote of one-
third of all the members. If at least one third of all the Members upholds the
complaint, Articles of Impeachment are prepared and transmitted to the Senate.
It is at this point that the House "initiates an impeachment case." It is at this
point that an impeachable public official is successfully impeached. That is, he
or she is successfully charged with an impeachment "case" before the Senate as
impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated
when the complaint is transmitted to the Senate for trial because that is the end
of the House proceeding and the beginning of another proceeding, namely the
trial. Neither is the "impeachment proceeding" initiated when the House
deliberates on the resolution passed on to it by the Committee, because
something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning. Rather,
the proceeding is initiated or begins, when a verified complaint is filed and
referred to the Committee on Justice for action. This is the initiating step which
triggers the series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary
meaning. Thus when a proposal reached the floor proposing that "A vote of at
least one-third of all the Members of the House shall be necessary… to initiate
impeachment proceedings," this was met by a proposal to delete the line on the
ground that the vote of the House does not initiate impeachment proceeding but
rather the filing of a complaint does.146 Thus the line was deleted and is not
found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment
proceeding shall be initiated against the same official more than once within a
period of one year," it means that no second verified complaint may be accepted
and referred to the Committee on Justice for action. By his explanation, this
interpretation is founded on the common understanding of the meaning of "to
initiate" which means to begin. He reminds that the Constitution is ratified by
the people, both ordinary and sophisticated, as they understand it; and that
ordinary people read ordinary meaning into ordinary words and not abstruse
45 of 692
meaning, they ratify words as they understand it and not as sophisticated
lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate
impeachment proceedings because Section 3 (1) says "The House of
Representatives shall have the exclusive power to initiate all cases of
impeachment," This is a misreading of said provision and is contrary to the
principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs
of two former Constitutional Commissioners, it is without a doubt that the term
"to initiate" refers to the filing of the impeachment complaint coupled with
Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and referral
or endorsement of the impeachment complaint to the House Committee on
Justice or, by the filing by at least one-third of the members of the House of
Representatives with the Secretary General of the House, the meaning of
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has
been initiated, another impeachment complaint may not be filed against the
same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules,
impeachment proceedings are deemed initiated (1) if there is a finding by the
House Committee on Justice that the verified complaint and/or resolution is
sufficient in substance, or (2) once the House itself affirms or overturns the
finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement
before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the
House. These rules clearly contravene Section 3 (5) of Article XI since the rules
give the term "initiate" a meaning different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could
not use contemporaneous construction as an aid in the interpretation of Sec.3
(5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that "their
personal opinions (referring to Justices who were delegates to the Constitution
Convention) on the matter at issue expressed during this Court's our
deliberations stand on a different footing from the properly recorded utterances
of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who are
so absorbed in their emotional roles that intelligent spectators may know more
about the real meaning because of the latter's balanced perspectives and
disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions. There
are at present only two members of this Court who participated in the 1986
Constitutional Commission – Chief Justice Davide and Justice Adolf Azcuna.
Chief Justice Davide has not taken part in these proceedings for obvious
reasons. Moreover, this Court has not simply relied on the personal opinions
now given by members of the Constitutional Commission, but has examined
the records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of
Article XI, it is clear and unequivocal that it and only it has the power to make
and interpret its rules governing impeachment. Its argument is premised on the
assumption that Congress has absolute power to promulgate its rules. This
assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its
rules on impeachment to effectively carry out the purpose of this section."
Clearly, its power to promulgate its rules on impeachment is limited by the
phrase "to effectively carry out the purpose of this section." Hence, these rules
cannot contravene the very purpose of the Constitution which said rules were
intended to effectively carry out. Moreover, Section 3 of Article XI clearly
provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement
by any Member thereof, which shall be included in the Order of Business within
ten session days, and referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty session days from
46 of 692
such referral, together with the corresponding resolution. The resolution shall
be calendared for consideration by the House within ten session days from
receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be
necessary to either affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at
least one-third of all the Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official
more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the
fundamental law. If as alleged Congress had absolute rule making power, then
it would by necessary implication have the power to alter or amend the meaning
of the Constitution without need of referendum.
In Osmeña v. Pendatun,149 this Court held that it is within the province of
either House of Congress to interpret its rules and that it was the best judge of
what constituted "disorderly behavior" of its members. However, in Paceta v.
Secretary of the Commission on Appointments,150 Justice (later Chief Justice)
Enrique Fernando, speaking for this Court and quoting Justice Brandeis in
United States v. Smith,151 declared that where the construction to be given to
a rule affects persons other than members of the Legislature, the question
becomes judicial in nature. In Arroyo v. De Venecia,152 quoting United States
v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for this Court,
held that while the Constitution empowers each house to determine its rules of
proceedings, it may not by its rules ignore constitutional restraints or violate
fundamental rights, and further that there should be a reasonable relation
between the mode or method of proceeding established by the rule and the result
which is sought to be attained. It is only within these limitations that all matters
of method are open to the determination of the Legislature. In the same case of
Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and
Dissenting Opinion, was even more emphatic as he stressed that in the
Philippine setting there is even more reason for courts to inquire into the
validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of
power if we assume jurisdiction over he case at bar. Even in the United States,
the principle of separation of power is no longer an impregnable impediment
against the interposition of judicial power on cases involving breach of rules of
procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window
to view the issues before the Court. It is in Ballin where the US Supreme Court
first defined the boundaries of the power of the judiciary to review
congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may determine
the rules of its proceedings." It appears that in pursuance of this authority the
House had, prior to that day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names
of members sufficient to make a quorum in the hall of the House who do not
vote shall be noted by the clerk and recorded in the journal, and reported to the
Speaker with the names of the members voting, and be counted and announced
in determining the presence of a quorum to do business. (House Journal, 230,
Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question,
therefore, is as to the validity of this rule, and not what methods the Speaker
may of his own motion resort to for determining the presence of a quorum, nor
what matters the Speaker or clerk may of their own volition place upon the
journal. Neither do the advantages or disadvantages, the wisdom or folly, of
such a rule present any matters for judicial consideration. With the courts the
question is only one of power. The Constitution empowers each house to
determine its rules of proceedings. It may not by its rules ignore constitutional
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restraints or violate fundamental rights, and there should be a reasonable
relation between the mode or method of proceedings established by the rule and
the result which is sought to be attained. But within these limitations all matters
of method are open to the determination of the House, and it is no impeachment
of the rule to say that some other way would be better, more accurate, or even
more just. It is no objection to the validity of a rule that a different one has been
prescribed and in force for a length of time. The power to make rules is not one
which once exercised is exhausted. It is a continuous power, always subject to
be exercised by the House, and within the limitations suggested, absolute and
beyond the challenge of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined
by the Court and it was found to satisfy the test: (1) that it did not ignore any
constitutional restraint; (2) it did not violate any fundamental right; and (3) its
method had a reasonable relationship with the result sought to be attained. By
examining Rule XV, the Court did not allow its jurisdiction to be defeated by
the mere invocation of the principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason for courts to
categorically reject the political question defense when its interposition will
cover up abuse of power. For section 1, Article VIII of our Constitution was
intentionally cobbled to empower courts "x x x to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."
This power is new and was not granted to our courts in the 1935 and 1972
Constitutions. It was not also xeroxed from the US Constitution or any foreign
state constitution. The CONCOM granted this enormous power to our courts in
view of our experience under martial law where abusive exercises of state
power were shielded from judicial scrutiny by the misuse of the political
question doctrine. Led by the eminent former Chief Justice Roberto
Concepcion, the CONCOM expanded and sharpened the checking powers of
the judiciary vis-à-vis the Executive and the Legislative departments of
government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a
mere power which it can decline to exercise. Precisely to deter this
disinclination, the Constitution imposed it as a duty of this Court to strike down
any act of a branch or instrumentality of government or any of its officials done
with grave abuse of discretion amounting to lack or excess of jurisdiction.
Rightly or wrongly, the Constitution has elongated the checking powers of this
Court against the other branches of government despite their more democratic
character, the President and the legislators being elected by the people.156
xxx
The provision defining judicial power as including the 'duty of the courts of
justice. . . to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government' constitutes the capstone of the efforts of the
Constitutional Commission to upgrade the powers of this court vis-à-vis the
other branches of government. This provision was dictated by our experience
under martial law which taught us that a stronger and more independent
judiciary is needed to abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of
government committed with grave abuse of discretion, the new Constitution
transformed this Court from passivity to activism. This transformation, dictated
by our distinct experience as nation, is not merely evolutionary but
revolutionary. Under the 1935 and the 1973 Constitutions, this Court
approached constitutional violations by initially determining what it cannot do;
under the 1987 Constitution, there is a shift in stress – this Court is mandated
to approach constitutional violations not by finding out what it should not do
but what it must do. The Court must discharge this solemn duty by not
resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this
new constitutional provision as the case at bar once more calls us to define the
parameters of our power to review violations of the rules of the House. We will
not be true to our trust as the last bulwark against government abuses if we
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refuse to exercise this new power or if we wield it with timidity. To be sure, it
is this exceeding timidity to unsheathe the judicial sword that has increasingly
emboldened other branches of government to denigrate, if not defy, orders of
our courts. In Tolentino, I endorsed the view of former Senator Salonga that
this novel provision stretching the latitude of judicial power is distinctly
Filipino and its interpretation should not be depreciated by undue reliance on
inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of
our own history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions.
Here, the third parties alleging the violation of private rights and the
Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as
basis for arguing that this Court may not decide on the constitutionality of
Sections 16 and 17 of the House Impeachment Rules. As already observed, the
U.S. Federal Constitution simply provides that "the House of Representatives
shall have the sole power of impeachment." It adds nothing more. It gives no
clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a
textually demonstrable constitutional commitment of a constitutional power to
the House of Representatives. This reasoning does not hold with regard to
impeachment power of the Philippine House of Representatives since our
Constitution, as earlier enumerated, furnishes several provisions articulating
how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment
Rules which state that impeachment proceedings are deemed initiated (1) if
there is a finding by the House Committee on Justice that the verified complaint
and/or resolution is sufficient in substance, or (2) once the House itself affirms
or overturns the finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of
a verified complaint or a resolution of impeachment by at least 1/3 of the
members of the House thus clearly contravene Section 3 (5) of Article XI as
they give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice, the
initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes
clear. Once an impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official within a one year
period following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former
President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven
associate justices of this Court, on June 2, 2003 and referred to the House
Committee on Justice on August 5, 2003, the second impeachment complaint
filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella
against the Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings against the same
impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a
phenomenon that takes the center stage of our individual and collective
consciousness as a people with our characteristic flair for human drama,
conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two weeks
have proven to be an exasperating, mentally and emotionally exhausting
experience. Both sides have fought bitterly a dialectical struggle to articulate
what they respectively believe to be the correct position or view on the issues
involved. Passions had ran high as demonstrators, whether for or against the
impeachment of the Chief Justice, took to the streets armed with their familiar
slogans and chants to air their voice on the matter. Various sectors of society -
from the business, retired military, to the academe and denominations of faith
– offered suggestions for a return to a state of normalcy in the official relations
of the governmental branches affected to obviate any perceived resulting
instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment
had been constituted, this Court was specifically asked, told, urged and argued
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to take no action of any kind and form with respect to the prosecution by the
House of Representatives of the impeachment complaint against the subject
respondent public official. When the present petitions were knocking so to
speak at the doorsteps of this Court, the same clamor for non-interference was
made through what are now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the Court from any
move that may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question
of the constitutionality of initiating the impeachment complaint against Chief
Justice Davide is concerned. To reiterate what has been already explained, the
Court found the existence in full of all the requisite conditions for its exercise
of its constitutionally vested power and duty of judicial review over an issue
whose resolution precisely called for the construction or interpretation of a
provision of the fundamental law of the land. What lies in here is an issue of a
genuine constitutional material which only this Court can properly and
competently address and adjudicate in accordance with the clear-cut allocation
of powers under our system of government. Face-to-face thus with a matter or
problem that squarely falls under the Court's jurisdiction, no other course of
action can be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the
process of impeachment has effectively set up a regime of judicial supremacy,
is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved
on the merits only the main issue of whether the impeachment proceedings
initiated against the Chief Justice transgressed the constitutionally imposed
one-year time bar rule. Beyond this, it did not go about assuming jurisdiction
where it had none, nor indiscriminately turn justiciable issues out of decidedly
political questions. Because it is not at all the business of this Court to assert
judicial dominance over the other two great branches of the government.
Rather, the raison d'etre of the judiciary is to complement the discharge by the
executive and legislative of their own powers to bring about ultimately the
beneficent effects of having founded and ordered our society upon the rule of
law.
It is suggested that by our taking cognizance of the issue of constitutionality of
the impeachment proceedings against the Chief Justice, the members of this
Court have actually closed ranks to protect a brethren. That the members'
interests in ruling on said issue is as much at stake as is that of the Chief Justice.
Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long
held and been entrusted with the judicial power to resolve conflicting legal
rights regardless of the personalities involved in the suits or actions. This Court
has dispensed justice over the course of time, unaffected by whomsoever stood
to benefit or suffer therefrom, unfraid by whatever imputations or speculations
could be made to it, so long as it rendered judgment according to the law and
the facts. Why can it not now be trusted to wield judicial power in these
petitions just because it is the highest ranking magistrate who is involved when
it is an incontrovertible fact that the fundamental issue is not him but the validity
of a government branch's official act as tested by the limits set by the
Constitution? Of course, there are rules on the inhibition of any member of the
judiciary from taking part in a case in specified instances. But to disqualify this
entire institution now from the suit at bar is to regard the Supreme Court as
likely incapable of impartiality when one of its members is a party to a case,
which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal
system which recognizes equality of all men before the law as essential to the
law's moral authority and that of its agents to secure respect for and obedience
to its commands. Perhaps, there is no other government branch or
instrumentality that is most zealous in protecting that principle of legal equality
other than the Supreme Court which has discerned its real meaning and
ramifications through its application to numerous cases especially of the high-
profile kind in the annals of jurisprudence. The Chief Justice is not above the
law and neither is any other member of this Court. But just because he is the
Chief Justice does not imply that he gets to have less in law than anybody else.
The law is solicitous of every individual's rights irrespective of his station in
life.
The Filipino nation and its democratic institutions have no doubt been put to
test once again by this impeachment case against Chief Justice Hilario Davide.
Accordingly, this Court has resorted to no other than the Constitution in search
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for a solution to what many feared would ripen to a crisis in government. But
though it is indeed immensely a blessing for this Court to have found answers
in our bedrock of legal principles, it is equally important that it went through
this crucible of a democratic process, if only to discover that it can resolve
differences without the use of force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in
Impeachment Proceedings which were approved by the House of
Representatives on November 28, 2001 are unconstitutional. Consequently, the
second impeachment complaint against Chief Justice Hilario G. Davide, Jr.
which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
B. Fuentebella with the Office of the Secretary General of the House of
Representatives on October 23, 2003 is barred under paragraph 5, section 3 of
Article XI of the Constitution.
SO ORDERED.
PACU v. Secretary of Education
97 Phil. 806
G.R. No. L-5279 October 31, 1955
PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC.,
petitioner,
vs.
SECRETARY OF EDUCATION and the BOARD OF TEXTBOOKS,
respondents.
Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M.
Fernando for petitioner.
Office of the Solicitor General Pompeyo Diaz and Assistant Solicitor General
Francisco Carreon for respondents.
BENGZON, J.:
The petitioning colleges and universities request that Act No. 2706 as amended
by Act No. 3075 and Commonwealth Act No. 180 be declared unconstitutional,
because: A. They deprive owners of schools and colleges as well as teachers
and parents of liberty and property without due process of law; B. They deprive
parents of their natural rights and duty to rear their children for civic efficiency;
and C. Their provisions conferring on the Secretary of Education unlimited
power and discretion to prescribe rules and standards constitute an unlawful
delegation of legislative power.
A printed memorandum explaining their position in extenso is attached to the
record.
The Government's legal representative submitted a mimeographed
memorandum contending that, (1) the matter constitutes no justiciable
controversy exhibiting unavoidable necessity of deciding the constitutional
questions; (2) petitioners are in estoppel to challenge the validity of the said
acts; and (3) the Acts are constitutionally valid.
Petitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and
recognition of private schools and colleges obligatory for the Secretary of
Public Instruction." Under its provisions, the Department of Education has, for
the past 37 years, supervised and regulated all private schools in this country
apparently without audible protest, nay, with the general acquiescence of the
general public and the parties concerned.
It should be understandable, then, that this Court should be doubly reluctant to
consider petitioner's demand for avoidance of the law aforesaid, specially
where, as respondents assert, petitioners suffered no wrong—nor allege any—
from the enforcement of the criticized statute.
It must be evident to any one that the power to declare a legislative enactment
void is one which the judge, conscious of the fallability of the human judgment,
will shrink from exercising in any case where he can conscientiously and with
due regard to duty and official oath decline the responsibility. (Cooley
Constitutional Limitations, 8th Ed., Vol. I, p. 332.)
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When a law has been long treated as constitutional and important rights have
become dependent thereon, the Court may refuse to consider an attack on its
validity. (C. J. S. 16, p. 204.)
As a general rule, the constitutionality of a statute will be passed on only if, and
to the extent that, it is directly and necessarily involved in a justiciable
controversy and is essential to the protection of the rights of the parties
concerned. (16 C. J. S., p. 207.)
In support of their first proposition petitioners contend that the right of a citizen
to own and operate a school is guaranteed by the Constitution, and any law
requiring previous governmental approval or permit before such person could
exercise said right, amounts to censorship of previous restraint, a practice
abhorent to our system of law and government. Petitioners obviously refer to
section 3 of Act No. 2706 as amended which provides that before a private
school may be opened to the public it must first obtain a permit from the
Secretary of Education. The Solicitor General on the other hand points out that
none of the petitioners has cause to present this issue, because all of them have
permits to operate and are actually operating by virtue of their permits.1 And
they do not assert that the respondent Secretary of Education has threatened to
revoke their permits. They have suffered no wrong under the terms of law—
and, naturally need no relief in the form they now seek to obtain.
It is an established principle that to entitle a private individual immediately in
danger of sustaining a direct injury as the result of that action and it is not
sufficient that he has merely a general to invoke the judicial power to determine
the validity of executive or legislative action he must show that he has sustained
or is interest common to all members of the public. (Ex parte Levitt, 302 U. S.
633 82 L. Ed. 493.)
Courts will not pass upon the constitutionality of a law upon the complaint of
one who fails to show that he is injured by its operation. (Tyler vs. Judges, 179
U. S. 405; Hendrick vs. Maryland, 235 U. S. 610; Coffman vs. Breeze Corp.,
323 U. S. 316-325.)
The power of courts to declare a law unconstitutional arises only when the
interests of litigant require the use of that judicial authority for their protection
against actual interference, a hypothetical threat being insufficient. (United
Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed. 754.)
Bona fide suit.—Judicial power is limited to the decision of actual cases and
controversies. The authority to pass on the validity of statutes is incidental to
the decision of such cases where conflicting claims under the Constitution and
under a legislative act assailed as contrary to the Constitution are raised. It is
legitimate only in the last resort, and as necessity in the determination of real,
earnest, and vital controversy between litigants. (Tañada and Fernando,
Constitution of the Philippines, p. 1138.)
Mere apprehension that the Secretary of Education might under the law
withdraw the permit of one of petitioners does not constitute a justiciable
controversy. (Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197
S. W. 2d. 771.)
And action, like this, is brought for a positive purpose, nay, to obtain actual and
positive relief. (Salonga vs. Warner Barnes, L-2245, January, 1951.) Courts do
not sit to adjudicate mere academic questions to satisfy scholarly interest
therein, however intellectually solid the problem may be. This is specially true
where the issues "reach constitutional dimensions, for then there comes into
play regard for the court's duty to avoid decision of constitutional issues unless
avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep.,
May 23, 1995, Law Ed., Vol. 99, p. 511.)
The above notwithstanding, in view of the several decisions of the United States
Supreme Court quoted by petitioners, apparently outlawing censorship of the
kind objected to by them, we have decided to look into the matter, lest they may
allege we refuse to act even in the face of clear violation of fundamental
personal rights of liberty and property.
Petitioners complain that before opening a school the owner must secure a
permit from the Secretary of Education. Such requirement was not originally
included in Act No. 2706. It was introduced by Commonwealth Act No. 180
approved in 1936. Why?
In March 1924 the Philippine Legislature approved Act No. 3162 creating a
Board of Educational Survey to make a study and survey of education in the
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Philippines and of all educational institutions, facilities and agencies thereof. A
Board chairmaned by Dr. Paul Munroe, Columbia University, assisted by a staff
of carefully selected technical members performed the task, made a five-month
thorough and impartial examination of the local educational system, and
submitted a report with recommendations, printed as a book of 671 pages. The
following paragraphs are taken from such report:
PRIVATE-ADVENTURE SCHOOLS
There is no law or regulation in the Philippine Islands today to prevent a person,
however disqualified by ignorance, greed, or even immoral character, from
opening a school to teach the young. It it true that in order to post over the door
"Recognized by the Government," a private adventure school must first be
inspected by the proper Government official, but a refusal to grant such
recognition does not by any means result in such a school ceasing to exist. As
a matter of fact, there are more such unrecognized private schools than of the
recognized variety. How many, no one knows, as the Division of Private
Schools keeps records only of the recognized type.
Conclusion.—An unprejudiced consideration of the fact presented under the
caption Private Adventure Schools leads but to one conclusion, viz.: the great
majority of them from primary grade to university are money-making devices
for the profit of those who organize and administer them. The people whose
children and youth attend them are not getting what they pay for. It is obvious
that the system constitutes a great evil. That it should be permitted to exist with
almost no supervision is indefensible. The suggestion has been made with the
reference to the private institutions of university grade that some board of
control be organized under legislative control to supervise their administration.
The Commission believes that the recommendations it offers at the end of this
chapter are more likely to bring about the needed reforms.
Recommendations.—The Commission recommends that legislation be enacted
to prohibit the opening of any school by an individual or organization without
the permission of the Secretary of Public Instruction. That before granting such
permission the Secretary assure himself that such school measures up to proper
standards in the following respects, and that the continued existence of the
school be dependent upon its continuing to conform to these conditions:
(1) The location and construction of the buildings, the lighting and
ventilation of the rooms, the nature of the lavatories, closets, water supply,
school furniture and apparatus, and methods of cleaning shall be such as to
insure hygienic conditions for both pupils and teachers.
(2) The library and laboratory facilities shall be adequate to the needs of
instruction in the subjects taught.
(3) The classes shall not show an excessive number of pupils per teacher.
The Commission recommends 40 as a maximum.
(4) The teachers shall meet qualifications equal to those of teachers in the
public schools of the same grade.
xxx xxx xxx
In view of these findings and recommendations, can there be any doubt that the
Government in the exercise of its police power to correct "a great evil" could
validly establish the "previous permit" system objected to by petitioners? This
is what differentiates our law from the other statutes declared invalid in other
jurisdictions. And if any doubt still exists, recourse may now be had to the
provision of our Constitution that "All educational institutions shall be under
the supervision and subject to regulation by the State." (Art. XIV, sec. 5.) The
power to regulate establishments or business occupations implies the power to
require a permit or license. (53 C. J. S. 4.)
What goes for the "previous permit" naturally goes for the power to revoke such
permit on account of violation of rules or regulations of the Department.
II. This brings us to the petitioners' third proposition that the questioned
statutes "conferring on the Secretary of Education unlimited power and
discretion to prescribe rules and standards constitute an unlawful delegation of
legislative power."
This attack is specifically aimed at section 1 of Act No. 2706 which, as
amended, provides:
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It shall be the duty of the Secretary of Public Instruction to maintain a general
standard of efficiency in all private schools and colleges of the Philippines so
that the same shall furnish adequate instruction to the public, in accordance with
the class and grade of instruction given in them, and for this purpose said
Secretary or his duly authorized representative shall have authority to advise,
inspect, and regulate said schools and colleges in order to determine the
efficiency of instruction given in the same,
"Nowhere in this Act" petitioners argue "can one find any description, either
general or specific, of what constitutes a 'general standard of efficiency.'
Nowhere in this Act is there any indication of any basis or condition to ascertain
what is 'adequate instruction to the public.' Nowhere in this Act is there any
statement of conditions, acts, or factors, which the Secretary of Education must
take into account to determine the 'efficiency of instruction.'"
The attack on this score is also extended to section 6 which provides:
The Department of Education shall from time to time prepare and publish in
pamphlet form the minimum standards required of primary, intermediate, and
high schools, and colleges granting the degrees of Bachelor of Arts, Bachelor
of Science, or any other academic degree. It shall also from time to time prepare
and publish in pamphlet form the minimum standards required of law, medical,
dental, pharmaceutical, engineering, agricultural and other medical or
vocational schools or colleges giving instruction of a technical, vocational or
professional character.
Petitioners reason out, "this section leaves everything to the uncontrolled
discretion of the Secretary of Education or his department. The Secretary of
Education is given the power to fix the standard. In plain language, the statute
turns over to the Secretary of Education the exclusive authority of the
legislature to formulate standard. . . .."
It is quite clear the two sections empower and require the Secretary of
Education to prescribe rules fixing minimum standards of adequate and
efficient instruction to be observed by all such private schools and colleges as
may be permitted to operate. The petitioners contend that as the legislature has
not fixed the standards, "the provision is extremely vague, indefinite and
uncertain"—and for that reason constitutionality objectionable. The best
answer is that despite such alleged vagueness the Secretary of Education has
fixed standards to ensure adequate and efficient instruction, as shown by the
memoranda fixing or revising curricula, the school calendars, entrance and final
examinations, admission and accreditation of students etc.; and the system of
private education has, in general, been satisfactorily in operation for 37 years.
Which only shows that the Legislature did and could, validly rely upon the
educational experience and training of those in charge of the Department of
Education to ascertain and formulate minimum requirements of adequate
instruction as the basis of government recognition of any private school.
At any rate, petitioners do not show how these standards have injured any of
them or interfered with their operation. Wherefore, no reason exists for them to
assail the validity of the power nor the exercise of the power by the Secretary
of Education.
True, the petitioners assert that, the Secretary has issued rules and regulations
"whimsical and capricious" and that such discretionary power has produced
arrogant inspectors who "bully heads and teachers of private schools."
Nevertheless, their remedy is to challenge those regulations specifically, and/or
to ring those inspectors to book, in proper administrative or judicial
proceedings—not to invalidate the law. For it needs no argument, to show that
abuse by the officials entrusted with the execution of a statute does not per se
demonstrate the unconstitutionality of such statute.
Anyway, we find the defendants' position to be sufficiently sustained by the
decision in Alegra vs. Collector of Customs, 53 Phil., 394 upon holding the
statute that authorized the Director of Agriculture to "designate standards for
the commercial grades of abaca, maguey and sisal" against vigorous attacks on
the ground of invalid delegation of legislative power.
Indeed "adequate and efficient instruction" should be considered sufficient, in
the same way as "public welfare" "necessary in the interest of law and order"
"public interest" and "justice and equity and substantial merits of the case" have
been held sufficient as legislative standards justifying delegation of authority to
regulate. (See Tañada and Fernando, Constitution of the Philippines, p. 793,
citing Philippine cases.)
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On this phase of the litigation we conclude that there has been no undue
delegation of legislative power.
In this connection, and to support their position that the law and the Secretary
of Education have transcended the governmental power of supervision and
regulation, the petitioners appended a list of circulars and memoranda issued
by the said Department. However they failed to indicate which of such official
documents was constitutionally objectionable for being "capricious," or pain
"nuisance"; and it is one of our decisional practices that unless a constitutional
point is specifically raised, insisted upon and adequately argued, the court will
not consider it. (Santiago vs. Far Eastern, 73 Phil., 408.)
We are told that such list will give an idea of how the statute has placed in the
hands of the Secretary of Education complete control of the various activities
of private schools, and why the statute should be struck down as
unconstitutional. It is clear in our opinion that the statute does not in express
terms give the Secretary complete control. It gives him powers to inspect
private schools, to regulate their activities, to give them official permits to
operate under certain conditions, and to revoke such permits for cause. This
does not amount to complete control. If any of such Department circulars or
memoranda issued by the Secretary go beyond the bounds of regulation and
seeks to establish complete control, it would surely be invalid. Conceivably
some of them are of this nature, but besides not having before us the text of
such circulars, the petitioners have omitted to specify. In any event with the
recent approval of Republic Act No. 1124 creating the National Board of
Education, opportunity for administrative correction of the supposed anomalies
or encroachments is amply afforded herein petitioners. A more expeditious and
perhaps more technically competent forum exists, wherein to discuss the
necessity, convenience or relevancy of the measures criticized by them. (See
also Republic Act No. 176.)
If however the statutes in question actually give the Secretary control over
private schools, the question arises whether the power of supervision and
regulation granted to the State by section 5 Article XIV was meant to include
control of private educational institutions. It is enough to point out that local
educators and writers think the Constitution provides for control of Education
by the State. (See Tolentino, Government of the Philippine Constitution, Vol.
II, p. 615; Benitez, Philippine Social Life and Progress, p. 335.)
The Constitution (it) "provides for state control of all educational institutions"
even as it enumerates certain fundamental objectives of all education to wit, the
development of moral character, personal discipline, civic conscience and
vocational efficiency, and instruction in the duties of citizenship. (Malcolm &
Laurel, Philippine Constitutional Law, 1936.)
The Solicitor General cities many authorities to show that the power to regulate
means power to control, and quotes from the proceedings of the Constitutional
Convention to prove that State control of private education was intended by the
organic law. It is significant to note that the Constitution grants power to
supervise and to regulate. Which may mean greater power than mere regulation.
III. Another grievance of petitioners—probably the most significant—is
the assessment of 1 per cent levied on gross receipts of all private schools for
additional Government expenses in connection with their supervision and
regulation. The statute is section 11-A of Act No. 2706 as amended by Republic
Act No. 74 which reads as follows:
SEC. 11-A. The total annual expense of the Office of Private Education
shall be met by the regular amount appropriated in the annual Appropriation
Act: Provided, however, That for additional expenses in the supervision and
regulation of private schools, colleges and universities and in the purchase of
textbook to be sold to student of said schools, colleges and universities and
President of the Philippines may authorize the Secretary of Instruction to levy
an equitable assessment from each private educational institution equivalent to
one percent of the total amount accruing from tuition and other fees: . . . and
non-payment of the assessment herein provided by any private school, college
or university shall be sufficient cause for the cancellation by the Secretary of
Instruction of the permit for recognition granted to it.
Petitioners maintain that this is a tax on the exercise of a constitutional right—
the right to open a school, the liberty to teach etc. They claim this is
unconstitutional, in the same way that taxes on the privilege of selling religious
literature or of publishing a newspaper—both constitutional privileges—have
been held, in the United States, to be invalid as taxes on the exercise of a
constitutional right.
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The Solicitor General on the other hand argues that insofar as petitioners' action
attempts to restrain the further collection of the assessment, courts have no
jurisdiction to restrain the collection of taxes by injunction, and in so far as they
seek to recover fees already paid the suit, it is one against the State without its
consent. Anyway he concludes, the action involving "the legality of any tax
impost or assessment" falls within the original jurisdiction of Courts of First
Instance.
There are good grounds in support of Government's position. If this levy of 1
per cent is truly a mere fee—and not a tax—to finance the cost of the
Department's duty and power to regulate and supervise private schools, the
exaction may be upheld; but such point involves investigation and examination
of relevant data, which should best be carried out in the lower courts. If on the
other hand it is a tax, petitioners' issue would still be within the original
jurisdiction of the Courts of First Instance.
The last grievance of petitioners relates to the validity of Republic Act No. 139
which in its section 1 provides:
The textbooks to be used in the private schools recognized or authorized by the
government shall be submitted to the Board (Board of Textbooks) which shall
have the power to prohibit the use of any of said textbooks which it may find
to be against the law or to offend the dignity and honor of the government and
people of the Philippines, or which it may find to be against the general policies
of the government, or which it may deem pedagogically unsuitable.
This power of the Board, petitioners aver, is censorship in "its baldest form".
They cite two U. S. cases (Miss. and Minnesota) outlawing statutes that impose
previous restraints upon publication of newspapers, or curtail the right of
individuals to disseminate teachings critical of government institutions or
policies.
Herein lies another important issue submitted in the cause. The question is
really whether the law may be enacted in the exercise of the State's
constitutional power (Art. XIV, sec. 5) to supervise and regulate private
schools. If that power amounts to control of private schools, as some think it is,
maybe the law is valid. In this connection we do not share the belief that section
5 has added new power to what the State inherently possesses by virtue of the
police power. An express power is necessarily more extensive than a mere
implied power. For instance, if there is conflict between an express individual
right and the express power to control private education it cannot off-hand be
said that the latter must yield to the former—conflict of two express powers.
But if the power to control education is merely implied from the police power,
it is feasible to uphold the express individual right, as was probably the situation
in the two decisions brought to our attention, of Mississippi and Minnesota,
states where constitutional control of private schools is not expressly produced.
However, as herein previously noted, no justiciable controversy has been
presented to us. We are not informed that the Board on Textbooks has
prohibited this or that text, or that the petitioners refused or intend to refuse to
submit some textbooks, and are in danger of losing substantial privileges or
rights for so refusing.
The average lawyer who reads the above quoted section of Republic Act 139
will fail to perceive anything objectionable. Why should not the State prohibit
the use of textbooks that are illegal, or offensive to the Filipinos or adverse to
governmental policies or educationally improper? What's the power of
regulation and supervision for? But those trained to the investigation of
constitutional issues are likely to apprehend the danger to civil liberties, of
possible educational dictatorship or thought control, as petitioners' counsel
foresee with obvious alarm. Much depends, however, upon the execution and
implementation of the statute. Not that constitutionality depends necessarily
upon the law's effects. But if the Board on Textbooks in its actuations strictly
adheres to the letter of the section and wisely steers a middle course between
the Scylla of "dictatorship" and the Charybdis of "thought control", no cause
for complaint will arise and no occasion for judicial review will develop.
Anyway, and again, petitioners now have a more expeditious remedy thru an
administrative appeal to the National Board of Education created by Republic
Act 1124.
Of course it is necessary to assure herein petitioners, that when and if, the
dangers they apprehend materialize and judicial intervention is suitably
invoked, after all administrative remedies are exhausted, the courts will not
shrink from their duty to delimit constitutional boundaries and protect
individual liberties.
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IV. For all the foregoing considerations, reserving to the petitioners the
right to institute in the proper court, and at the proper time, such actions as may
call for decision of the issue herein presented by them, this petition for
prohibition will be denied. So ordered.
Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, JJ., concur.
Mariano v. Comelec
G.R. No. 119694 (March 7, 1995)
Cutaran v. DENR
G.R. No. 134958 (January 31, 2001)
[G.R. No. 134958. January 31, 2001]
PATRICIO CUTARAN, DAVID DANGWAS and PACIO DOSIL,
petitioners, vs. DEPARTMENT OF ENVIRONMENT and NATURAL
RESOURCES, herein represented by SEC. VICTOR O. RAMOS, OSCAR
M. HAMADA and GUILLERMO S. FIANZA, in his capacity as Chairman
of Community Special Task Force on Ancestral Lands (CSTFAL), Baguio City,
respondents.
DECISION
GONZAGA-REYES, J.:
Before us is a petition for review of the decision rendered by the Court of
Appeals on March 25, 1998 and the order dated August 5, 1998 in CA-G.R SP
No. 43930, a petition for prohibition originally filed with the appellate court to
enjoin the respondent DENR from implementing DENR Special Order Nos. 31,
as amended by 31-A and 31-B, series of 1990, Special Order No. 25, series of
1993 and all other administrative issuances relative thereto, for having been
issued without prior legislative authority.
In 1990 the Assistant Secretary for Luzon Operations of the DENR issued
Special Order no. 31[1] entitled Creation of a Special Task force on acceptance,
identification, evaluation and delineation of ancestral land claims in the
Cordillera Administrative Region. The special task force created thereunder
was authorized to accept and evaluate and delineate ancestral land claims within
the said area, and after due evaluation of the claims, to issue appropriate land
titles (Certificate of Ancestral Land Claim) in accordance with existing laws.[2]
On January 15, 1993 the Secretary of the DENR issued Special Order no. 25[3]
entitled Creation of Special Task Forces provincial and community
environment and natural resources offices for the identification, delineation and
recognition of ancestral land claims nationwide and Department Administrative
Order no. 02,[4] containing the Implementing Rules and Guidelines of Special
Order no. 25.
In 1990, the same year Special Order no. 31 was issued, the relatives of herein
petitioners filed separate applications for certificate of ancestral land claim
(CALC) over the land they, respectively occupy inside the Camp John Hay
Reservation. In 1996 the applications were denied by the DENR Community
Special Task Force on Ancestral Lands on the ground that the Bontoc and
Applai tribes to which they belong are not among the recognized tribes of
Baguio City. Also pursuant to the assailed administrative issuances the Heirs of
Apeng Carantes filed an application [5] for certification of ancestral land claim
over a parcel of land also within Camp John Hay and overlapping some portions
of the land occupied by the petitioners. Petitioners claim that even if no
certificate of ancestral land claim has yet been issued by the DENR in favor of
the heirs of Carantes, the latter, on the strength of certain documents issued by
the DENR, tried to acquire possession of the land they applied for, including
the portion occupied by herein petitioners. Petitioners also allege that the heirs
of Carantes removed some of the improvements they introduced within the area
they actually occupy and if not for the petitioners timely resistance to such
intrusions, the petitioners would have been totally evicted therefrom.
Hence, this petition for prohibition originally filed with the Court of Appeals to
enjoin the respondent DENR from implementing the assailed administrative
issuances and from processing the application for certificate of ancestral land
claim (CALC) filed by the heirs of Carantes on the ground that the said
administrative issuances are void for lack of legal basis.
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The Court of Appeals[6] held that the assailed DENR Special Orders Nos. 31,
31-A, 31-B issued in 1990 prior to the effectivity of RA 7586 known as the
National Integrated Protected Areas Systems (NIPAS) Act of 1992, are of no
force and effect for pre-empting legislative prerogative but sustained the
validity of DENR Special Order No. 25, and its implementing rules (DAO No.
02, series of 1993) by the appellate court on the ground that they were issued
pursuant to the powers delegated to the DENR under section 13 of RA 7586,
which reads:
Section 13. Ancestral Lands and Rights over Them.- Ancestral lands and
customary rights and interest arising therefrom shall be accorded due
recognition. The DENR shall prescribe rules and regulations to govern ancestral
lands within protected areas: Provided, that the DENR shall have no power to
evict indigenous communities from their present occupancy nor resettle them
to another area without their consent: Provided, however, that all rules and
regulations, whether adversely affecting said communities or not, shall be
subjected to notice and hearing to be participated in by members of concerned
indigenous community.[7]
The petitioners filed with this Court a petition for review of the appellate courts
decision on the ground that the Court of Appeals erred in upholding the validity
of Special Order No. 25 and its implementing rules. The petitioners seek to
enjoin the respondent DENR from processing the application for certificate of
ancestral land claim filed by the Heirs of Carantes. Petitioners contend that in
addition to the failure of the DENR to publish the assailed administrative
issuances in a newspaper of general circulation prior to its implementation, RA
7586, which provides for the creation of a National Integrated Protected Areas
System, does not contain the slightest implication of a grant of authority to the
DENR to adjudicate or confer title over lands occupied by indigenous
communities. It is contended that the said law only grants DENR administrative
and managerial powers over designated national and natural parks called
protected areas wherein rare and endangered species of plants and animals
inhabit.[8] The petitioners further allege that the subsequent passage of in 1997
of Republic Act 8371, otherwise known as the Indigenous Peoples Rights Act,
wherein the power to evaluate and issue certificates of ancestral land titles is
vested in the National Commission on Indigenous Cultural Communities/
Indigenous People (NCIP) is unmistakable indication of the legislatures
withholding of authority from the DENR to confer title over lands occupied by
indigenous communities.[9] Finally, the petitioners claim that the validity of
the questioned DENR special orders cannot be based on the constitutional
provisions regarding the protection of cultural communities as the said
provisions are policy statements to guide the legislature in the exercise of their
law-making powers and by themselves are not self-executory.
The Solicitor-General filed memorandum in behalf of the respondent DENR
praying for the affirmance of the appellate courts decision. The respondent
argues that the subject DENR special orders were issued pursuant to the powers
granted by RA 7586 to the DENR to protect the socio-economic interests of
indigenous peoples. The land occupied by the petitioners is within a protected
area as defined by the said law and is well within the jurisdiction of the DENR.
The respondent likewise claims that the petitioners are estopped from
contesting the validity of the DENR administrative issuances considering that
their relatives applied for certificates of ancestral land claim (CALC) under the
said special orders which applications were, however, denied. The petitioners
should not be allowed to challenge the same administrative orders which they
themselves previously invoked.
The respondents do not contest the ruling of the appellate court as regards the
nullity of Special Order no. 31, as amended. The sole issue before us concerns
the validity of DENR Special Order no. 25, series of 1993 and its implementing
rules DAO no. 02. The petitioners main contention is that the assailed
administrative orders were issued beyond the jurisdiction or power of the
DENR secretary under the NIPAS Act of 1992. They seek to enjoin the
respondents from processing the application for ancestral land claim filed by
the heirs of Carantes because if approved, the petitioners may be evicted from
the portion of the land they occupy which overlaps the land applied for by the
Carantes heirs.
From a reading of the records it appears to us that the petition was prematurely
filed. Under the undisputed facts there is as yet no justiciable controversy for
the court to resolve and the petition should have been dismissed by the appellate
court on this ground.
We gather from the allegations of the petition and that of the petitioners
memorandum that the alleged application for certificate of ancestral land claim
(CALC) filed by the heirs of Carantes under the assailed DENR special orders
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has not been granted nor the CALC applied for, issued. The DENR is still
processing the application of the heirs of Carantes for a certificate of ancestral
land claim, which the DENR may or may not grant. It is evident that the adverse
legal interests involved in this case are the competing claims of the petitioners
and that of the heirs of Carantes to possess a common portion of a piece of land.
As the undisputed facts stand there is no justiciable controversy between the
petitioners and the respondents as there is no actual or imminent violation of
the petitioners asserted right to possess the land by reason of the
implementation of the questioned administrative issuances.
A justiciable controversy has been defined as, a definite and concrete dispute
touching on the legal relations of parties having adverse legal interests[10]
which may be resolved by a court of law through the application of a law.[11]
Courts have no judicial power to review cases involving political questions and
as a rule, will desist from taking cognizance of speculative or hypothetical
cases, advisory opinions and in cases that has become moot.[12] Subject to
certain well-defined exceptions[13] courts will not touch an issue involving the
validity of a law unless there has been a governmental act accomplished or
performed that has a direct adverse effect on the legal right of the person
contesting its validity.[14] In the case of PACU vs. Secretary of Education[15]
the petition contesting the validity of a regulation issued by the Secretary of
Education requiring private schools to secure a permit to operate was dismissed
on the ground that all the petitioners have permits and are actually operating
under the same. The petitioners questioned the regulation because of the
possibility that the permit might be denied them in the future. This Court held
that there was no justiciable controversy because the petitioners suffered no
wrong by the implementation of the questioned regulation and therefore, they
are not entitled to relief. A mere apprehension that the Secretary of Education
will withdraw the permit does not amount to a justiciable controversy. The
questioned regulation in the PACU case may be questioned by a private school
whose permit to operate has been revoked or one whose application therefor
has been denied.[16]
This Court cannot rule on the basis of petitioners speculation that the DENR
will approve the application of the heirs of Carantes. There must be an actual
governmental act which directly causes or will imminently cause injury to the
alleged legal right of the petitioner to possess the land before the jurisdiction of
this Court may be invoked. There is no showing that the petitioners were being
evicted from the land by the heirs of Carantes under orders from the DENR.
The petitioners allegation that certain documents from the DENR were shown
to them by the heirs of Carantes to justify eviction is vague, and it would appear
that the petitioners did not verify if indeed the respondent DENR or its officers
authorized the attempted eviction. Suffice it to say that by the petitioners own
admission that the respondents are still processing and have not approved the
application of the heirs of Carantes, the petitioners alleged right to possess the
land is not violated nor is in imminent danger of being violated, as the DENR
may or may not approve Carantes application. Until such time, the petitioners
are simply speculating that they might be evicted from the premises at some
future time. Borrowing from the pronouncements of this Court in the PACU
case, They (the petitioners) have suffered no wrong under the terms of the
lawand, naturally need no relief in the form they now seek to obtain.[17] If
indeed the heirs of Carantes are trying to enter the land and disturbing the
petitioners possession thereof even without prior approval by the DENR of the
claim of the heirs of Carantes, the case is simply one for forcible entry.
WHEREFORE, for lack of justiciable controversy, the decision of the appellate
court is hereby set aside.
SO ORDERED.
Montescarlos v. Comelec
G.R. No. 152295 (July 9, 2002)
[G.R. No. 152295. July 9, 2002]
ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO,
JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA DECENA,
and OTHER YOUTH OF THE LAND SIMILARLY SITUATED, petitioners,
vs. COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, DEPARTMENT OF BUDGET AND
MANAGEMENT, EXECUTIVE SECRETARY of the OFFICE OF THE
PRESIDENT, SENATOR FRANKLIN DRILON in his capacity as Senate
President and SENATOR AQUILINO PIMENTEL in his capacity as Minority
Leader of the Senate of the Philippines, CONGRESSMAN JOSE DE
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VENECIA in his capacity as Speaker, CONGRESSMAN AGUSTO L.
SYJOCO in his capacity as Chairman of the Committee on Suffrage and
Electoral Reforms, and CONGRESSMAN EMILIO C. MACIAS II in his
capacity as Chairman of the Committee on Local Government of the House of
Representatives, THE PRESIDENT OF THE PAMBANSANG KATIPUNAN
NG MGA SANGGUNIANG KABATAAN, AND ALL THEIR AGENTS
AND REPRESENTATIVES, respondents.
DECISION
CARPIO, J.:
The Case
Before us is a petition for certiorari, prohibition and mandamus with prayer for
a temporary restraining order or preliminary injunction. The petition seeks to
prevent the postponement of the Sangguniang Kabataan (SK for brevity)
elections originally scheduled last May 6, 2002. The petition also seeks to
prevent the reduction of the age requirement for membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayers and class
suit, on their own behalf and on behalf of other youths similarly situated.
Petitioners claim that they are in danger of being disqualified to vote and be
voted for in the SK elections should the SK elections on May 6, 2002 be
postponed to a later date. Under the Local Government Code of 1991 (R.A. No.
7160), membership in the SK is limited to youths at least 15 but not more than
21 years old.
Petitioners allege that public respondents connived, confederated and conspired
to postpone the May 6, 2002 SK elections and to lower the membership age in
the SK to at least 15 but less than 18 years of age. Petitioners assail the alleged
conspiracy because youths at least 18 but not more than 21 years old will be
summarily and unduly dismembered, unfairly discriminated, unnecessarily
disenfranchised, unjustly disassociated and obnoxiously disqualified from the
SK organization.[1]
Thus, petitioners pray for the issuance of a temporary restraining order or
preliminary injunction -
a) To prevent, annul or declare unconstitutional any law, decree, Comelec
resolution/directive and other respondents issuances, orders and actions and the
like in postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002 SK elections set
by the present law and in accordance with Comelec Resolutions No. 4713 and
4714 and to expedite the funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for whatever reason,
there must be a definite date for said elections, for example, July 15, 2002, and
the present SK membership, except those incumbent SK officers who were
elected on May 6, 1996, shall be allowed to run for any SK elective position
even if they are more than 21 years old.
d) To direct the incumbent SK officers who are presently representing the SK
in every sanggunian and the NYC to vacate their post after the barangay
elections.[2]
The Facts
The SK is a youth organization originally established by Presidential Decree
No. 684 as the Kabataang Barangay (KB for brevity). The KB was composed
of all barangay residents who were less than 18 years old, without specifying
the minimum age. The KB was organized to provide its members with the
opportunity to express their views and opinions on issues of transcendental
importance.[3]
The Local Government Code of 1991 renamed the KB to SK and limited SK
membership to those youths at least 15 but not more than 21 years of age.[4]
The SK remains as a youth organization in every barangay tasked to initiate
programs to enhance the social, political, economic, cultural, intellectual,
moral, spiritual, and physical development of the youth.[5] The SK in every
barangay is composed of a chairperson and seven members, all elected by the
Katipunan ng Kabataan. The Katipunan ng Kabataan in every barangay is
composed of all citizens actually residing in the barangay for at least six months
and who meet the membership age requirement.
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The first SK elections took place on December 4, 1992. RA No. 7808 reset the
SK elections to the first Monday of May of 1996 and every three years
thereafter. RA No. 7808 mandated the Comelec to supervise the conduct of the
SK elections under rules the Comelec shall promulgate. Accordingly, the
Comelec on December 4, 2001 issued Resolution Nos. 4713[6] and 4714[7] to
govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros
for brevity) sent a letter[8] to the Comelec, demanding that the SK elections be
held as scheduled on May 6, 2002. Montesclaros also urged the Comelec to
respond to her letter within 10 days upon receipt of the letter, otherwise, she
will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity),
then Comelec Chairman, wrote identical letters to the Speaker of the House[9]
and the Senate President[10] about the status of pending bills on the SK and
Barangay elections. In his letters, the Comelec Chairman intimated that it was
operationally very difficult to hold both elections simultaneously in May 2002.
Instead, the Comelec Chairman expressed support for the bill of Senator
Franklin Drilon that proposed to hold the Barangay elections in May 2002 and
postpone the SK elections to November 2002.
Ten days lapsed without the Comelec responding to the letter of Montesclaros.
Subsequently, petitioners received a copy of Comelec En Banc Resolution No.
4763[11] dated February 5, 2002 recommending to Congress the postponement
of the SK elections to November 2002 but holding the Barangay elections in
May 2002 as scheduled.[12]
On March 6, 2002, the Senate and the House of Representatives passed their
respective bills postponing the SK elections. On March 11, 2002, the Bicameral
Conference Committee (Bicameral Committee for brevity) of the Senate and
the House came out with a Report[13] recommending approval of the
reconciled bill consolidating Senate Bill No. 2050[14] and House Bill No.
4456.[15] The Bicameral Committees consolidated bill reset the SK and
Barangay elections to July 15, 2002 and lowered the membership age in the SK
to at least 15 but not more than 18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committees
consolidated bill and on March 13, 2002, the House of Representatives
approved the same. The President signed the approved bill into law on March
19, 2002.
The Issues
Petitioners[16] raise the following grounds in support of their petition:
I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK
ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE,
DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK
MEMBERS WHO ARE 18 BUT NOT LESS[17] (SIC) THAN 21 YEARS
OLD COMPOSED OF ABOUT 7 MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE SK
ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO
IMPLEMENT THEIR ILLEGAL SCHEME AND MACHINATION IN SPITE
OF THE FACT THAT THERE ARE AVAILABLE FUNDS FOR THE
PURPOSE.
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IV.
THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON
THEIR RESPECTIVE OFFICES CONTRARY TO THE ENVISION (SIC) OF
THE CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION
OF LAW AND CONSTITUTION.[18]
The Courts Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the following events that have
transpired since petitioners filed this petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were
not held as scheduled.
2. Congress enacted RA No. 9164[19] which provides that voters and
candidates for the SK elections must be at least 15 but less than 18 years of age
on the day of the election.[20] RA No. 9164 also provides that there shall be a
synchronized SK and Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations for
the conduct of the July 15, 2002 synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of the
May 6, 2002 SK elections disenfranchises them, preventing them from voting
and being voted for in the SK elections. Petitioners theory is that if the SK
elections were postponed to a date later than May 6, 2002, the postponement
would disqualify from SK membership youths who will turn 21 years old
between May 6, 2002 and the date of the new SK elections. Petitioners claim
that a reduction in the SK membership age to 15 but less than 18 years of age
from the then membership age of 15 but not more than 21 years of age would
disqualify about seven million youths. The public respondents failure to hold
the elections on May 6, 2002 would prejudice petitioners and other youths
similarly situated.
Thus, petitioners instituted this petition to: (1) compel public respondents to
hold the SK elections on May 6, 2002 and should it be postponed, the SK
elections should be held not later than July 15, 2002; (2) prevent public
respondents from passing laws and issuing resolutions and orders that would
lower the membership age in the SK; and (3) compel public respondents to
allow petitioners and those who have turned more than 21 years old on May 6,
2002 to participate in any re-scheduled SK elections.
The Courts power of judicial review may be exercised in constitutional cases
only if all the following requisites are complied with, namely: (1) the existence
of an actual and appropriate case or controversy; (2) a personal and substantial
interest of the party raising the constitutional question; (3) the exercise of
judicial review is pleaded at the earliest opportunity; and (4) the constitutional
question is the lis mota of the case.[21]
In the instant case, there is no actual controversy requiring the exercise of the
power of judicial review. While seeking to prevent a postponement of the May
6, 2002 SK elections, petitioners are nevertheless amenable to a resetting of the
SK elections to any date not later than July 15, 2002. RA No. 9164 has reset the
SK elections to July 15, 2002, a date acceptable to petitioners. With respect to
the date of the SK elections, there is therefore no actual controversy requiring
judicial intervention.
Petitioners prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial review because it is not a
law. A proposed bill creates no right and imposes no duty legally enforceable
by the Court. A proposed bill, having no legal effect, violates no constitutional
right or duty. The Court has no power to declare a proposed bill constitutional
or unconstitutional because that would be in the nature of rendering an advisory
opinion on a proposed act of Congress. The power of judicial review cannot be
exercised in vacuo.[22] The second paragraph of Section 1, Article VIII of the
Constitution states
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
62 of 692
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)
Thus, there can be no justiciable controversy involving the constitutionality of
a proposed bill. The Court can exercise its power of judicial review only after
a law is enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from
passing any law, or from setting into motion the legislative mill according to its
internal rules. Thus, the following acts of Congress in the exercise of its
legislative powers are not subject to judicial restraint: the filing of bills by
members of Congress, the approval of bills by each chamber of Congress, the
reconciliation by the Bicameral Committee of approved bills, and the eventual
approval into law of the reconciled bills by each chamber of Congress. Absent
a clear violation of specific constitutional limitations or of constitutional rights
of private parties, the Court cannot exercise its power of judicial review over
the internal processes or procedures of Congress.[23]
The Court has also no power to dictate to Congress the object or subject of bills
that Congress should enact into law. The judicial power to review the
constitutionality of laws does not include the power to prescribe to Congress
what laws to enact. The Court has no power to compel Congress by mandamus
to enact a law allowing petitioners, regardless of their age, to vote and be voted
for in the July 15, 2002 SK elections. To do so would destroy the delicate
system of checks and balances finely crafted by the Constitution for the three
co-equal, coordinate and independent branches of government.
Under RA No. 9164, Congress merely restored the age requirement in PD No.
684, the original charter of the SK, which fixed the maximum age for
membership in the SK to youths less than 18 years old. Petitioners do not have
a vested right to the permanence of the age requirement under Section 424 of
the Local Government Code of 1991. Every law passed by Congress is always
subject to amendment or repeal by Congress. The Court cannot restrain
Congress from amending or repealing laws, for the power to make laws
includes the power to change the laws.[24]
The Court cannot also direct the Comelec to allow over-aged voters to vote or
be voted for in an election that is limited under RA No. 9164 to youths at least
15 but less than 18 years old. A law is needed to allow all those who have turned
more than 21 years old on or after May 6, 2002 to participate in the July 15,
2002 SK elections. Youths from 18 to 21 years old as of May 6, 2002 are also
no longer SK members, and cannot participate in the July 15, 2002 SK
elections. Congress will have to decide whether to enact an amendatory law.
Petitioners remedy is legislation, not judicial intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A
party must show that he has been, or is about to be denied some personal right
or privilege to which he is lawfully entitled.[25] A party must also show that he
has a real interest in the suit. By real interest is meant a present substantial
interest, as distinguished from a mere expectancy or future, contingent,
subordinate, or inconsequential interest.[26]
In the instant case, petitioners seek to enforce a right originally conferred by
law on those who were at least 15 but not more than 21 years old. Now, with
the passage of RA No. 9164, this right is limited to those who on the date of the
SK elections are at least 15 but less than 18 years old. The new law restricts
membership in the SK to this specific age group. Not falling within this
classification, petitioners have ceased to be members of the SK and are no
longer qualified to participate in the July 15, 2002 SK elections. Plainly,
petitioners no longer have a personal and substantial interest in the SK
elections.
This petition does not raise any constitutional issue. At the time petitioners filed
this petition, RA No. 9164, which reset the SK elections and reduced the age
requirement for SK membership, was not yet enacted into law. After the
passage of RA No. 9164, petitioners failed to assail any provision in RA No.
9164 that could be unconstitutional. To grant petitioners prayer to be allowed
to vote and be voted for in the July 15, 2002 SK elections necessitates assailing
the constitutionality of RA No. 9164. This, petitioners have not done. The Court
will not strike down a law unless its constitutionality is properly raised in an
appropriate action and adequately argued.[27]
The only semblance of a constitutional issue, albeit erroneous, that petitioners
raise is their claim that SK membership is a property right within the meaning
of the Constitution.[28] Since certain public offices are reserved for SK
officers, petitioners also claim a constitutionally protected opportunity to
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occupy these public offices. In petitioners own words, they and others similarly
situated stand to lose their opportunity to work in the government positions
reserved for SK members or officers.[29] Under the Local Government Code
of 1991, the president of the federation of SK organizations in a municipality,
city or province is an ex-officio member of the municipal council, city council
or provincial board, respectively.[30] The chairperson of the SK in the barangay
is an ex-officio member of the Sangguniang Barangay.[31] The president of the
national federation of SK organizations is an ex-officio member of the National
Youth Commission, with rank of a Department Assistant Secretary.[32]
Congress exercises the power to prescribe the qualifications for SK
membership. One who is no longer qualified because of an amendment in the
law cannot complain of being deprived of a proprietary right to SK
membership. Only those who qualify as SK members can contest, based on a
statutory right, any act disqualifying them from SK membership or from voting
in the SK elections. SK membership is not a property right protected by the
Constitution because it is a mere statutory right conferred by law. Congress may
amend at any time the law to change or even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a
[P]ublic office is a public trust.[33] No one has a vested right to any public
office, much less a vested right to an expectancy of holding a public office. In
Cornejo v. Gabriel,[34] decided in 1920, the Court already ruled:
Again, for this petition to come under the due process of law prohibition, it
would be necessary to consider an office a property. It is, however, well settled
x x x that a public office is not property within the sense of the constitutional
guaranties of due process of law, but is a public trust or agency. x x x The basic
idea of the government x x x is that of a popular representative government, the
officers being mere agents and not rulers of the people, one where no one man
or set of men has a proprietary or contractual right to an office, but where every
officer accepts office pursuant to the provisions of the law and holds the office
as a trust for the people he represents. (Emphasis supplied)
Petitioners, who apparently desire to hold public office, should realize from the
very start that no one has a proprietary right to public office. While the law
makes an SK officer an ex-officio member of a local government legislative
council, the law does not confer on petitioners a proprietary right or even a
proprietary expectancy to sit in local legislative councils. The constitutional
principle of a public office as a public trust precludes any proprietary claim to
public office. Even the State policy directing equal access to opportunities for
public service[35] cannot bestow on petitioners a proprietary right to SK
membership or a proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youths involvement in
public affairs,[36] this policy refers to those who belong to the class of people
defined as the youth. Congress has the power to define who are the youth
qualified to join the SK, which itself is a creation of Congress. Those who do
not qualify because they are past the age group defined as the youth cannot
insist on being part of the youth. In government service, once an employee
reaches mandatory retirement age, he cannot invoke any property right to cling
to his office. In the same manner, since petitioners are now past the maximum
age for membership in the SK, they cannot invoke any property right to cling
to their SK membership.
The petition must also fail because no grave abuse of discretion attended the
postponement of the SK elections. RA No. 9164 is now the law that prescribes
the qualifications of candidates and voters for the SK elections. This law also
fixes the date of the SK elections. Petitioners are not even assailing the
constitutionality of RA No. 9164. RA No. 9164 enjoys the presumption of
constitutionality and will apply to the July 15, 2002 SK elections.
Petitioners have not shown that the Comelec acted illegally or with grave abuse
of discretion in recommending to Congress the postponement of the SK
elections. The very evidence relied upon by petitioners contradict their
allegation of illegality. The evidence consist of the following: (1) Comelec en
banc Resolution No. 4763 dated February 5, 2002 that recommended the
postponement of the SK elections to 2003; (2) the letter of then Comelec
Chairman Benipayo addressed to the Speaker of the House of Representatives
and the President of the Senate; and (3) the Conference Committee Report
consolidating Senate Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall[37] and to recommend to Congress effective measures
to minimize election spending.[38] The Comelecs acts enjoy the presumption
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of regularity in the performance of official duties.[39] These acts cannot WHEREFORE, the petition is DISMISSED for utter lack of merit.
constitute proof, as claimed by petitioners, that there exists a connivance and
conspiracy (among) respondents in contravention of the present law. As the SO ORDERED.
Court held in Pangkat Laguna v. Comelec,[40] the Comelec, as the government
agency tasked with the enforcement and administration of elections laws, is
entitled to the presumption of regularity of official acts with respect to the
elections. Atlas Fertilizer v. Sec, DAR
G.R. No. 93100 (June 19, 1997)
The 1987 Constitution imposes upon the Comelec the duty of enforcing and
administering all laws and regulations relative to the conduct of elections. G.R. No. 93100 June 19, 1997
Petitioners failed to prove that the Comelec committed grave abuse of
discretion in recommending to Congress the postponement of the May 6, 2002 ATLAS FERTILIZER CORPORATION, petitioner,
SK elections. The evidence cited by petitioners even establish that the Comelec vs.
has demonstrated an earnest effort to address the practical problems in holding THE HONORABLE SECRETARY OF THE DEPARTMENT OF
the SK elections on May 6, 2002. The presumption remains that the decision of AGRARIAN REFORM, respondent.
the Comelec to recommend to Congress the postponement of the elections was
made in good faith in the regular course of its official duties. G.R. No. 97855 June 19, 1997

Grave abuse of discretion is such capricious and whimsical exercise of PHILIPPINE FEDERATION OF FISHFARM PRODUCERS, INC. petitioner,
judgment that is patent and gross as to amount to an evasion of a positive duty vs.
or a virtual refusal to perform a duty enjoined by law.[41] Public respondents THE HONORABLE SECRETARY OF THE DEPARTMENT OF
having acted strictly pursuant to their constitutional powers and duties, we find AGRARIAN REFORM, respondent.
no grave abuse of discretion in their assailed acts.
RESOLUTION
Petitioners contend that the postponement of the SK elections would allow the
incumbent SK officers to perpetuate themselves in power, depriving other
youths of the opportunity to serve in elective SK positions. This argument
deserves scant consideration. While RA No. 9164 contains a hold-over ROMERO, J.:
provision, incumbent SK officials can remain in office only until their
successors have been elected or qualified. On July 15, 2002, when the SK Before this Court are consolidated petitions questioning the constitutionality of
elections are held, the hold-over period expires and all incumbent SK officials some portions of Republic Act No. 6657 otherwise known as the
automatically cease to hold their SK offices and their ex-officio public offices. Comprehensive Agrarian Reform Law. 1

In sum, petitioners have no personal and substantial interest in maintaining this Petitioners Atlas Fertilizer Corporation, 2 Philippine Federation of Fishfarm
suit. This petition presents no actual justiciable controversy. Petitioners do not Producers, Inc. and petitioner-in-intervention Archie's Fishpond, Inc. and
cite any provision of law that is alleged to be unconstitutional. Lastly, we find Arsenio Al. Acuna 3 are engaged in the aquaculture industry utilizing fishponds
no grave abuse of discretion on the part of public respondents. and prawn farms. They assail Sections 3 (b), 11, 13, 16 (d), 17 and 32 of R.A.

65 of 692
6657, as well as the implementing guidelines and procedures contained in
Administrative Order Nos. 8 and 10 Series of 1988 issued by public respondent
Secretary of the Department of Agrarian Reform as unconstitutional.
Petitioners claim that the questioned provisions of CARL violate the
Constitution in the following manner:
1. Sections 3 (b), 11, 13, 16 (d), 17 and 32 of CARL extend agrarian
reform to aquaculture lands even as Section 4, Article XIII of the Constitution
limits agrarian reform only to agricultural lands.
2. The questioned provisions similarly treat of aquaculture lands and
agriculture lands when they are differently situated, and differently treat
aquaculture lands and other industrial lands, when they are similarly situated in
violation of the constitutional guarantee of the equal protection of the laws.
3. The questioned provisions distort employment benefits and burdens in
favor of aquaculture employees and against other industrial workers even as
Section 1 and 3, Article XIII of the Constitution mandate the State to promote
equality in economic and employment opportunities.
4. The questioned provisions deprive petitioner of its government-
induced investments in aquaculture even as Sections 2 and 3, Article XIII of
the Constitution mandate the State to respect the freedom of enterprise and the
right of enterprises to reasonable returns on investments and to expansion and
growth.
The constitutionality of the above-mentioned provisions has been ruled upon in
the case of Luz Farms, Inc. v. Secretary of Agrarian Reform 4 regarding the
inclusion of land devoted to the raising of livestock, poultry and swine in its
coverage.
The issue now before this Court is the constitutionality of the same above-
mentioned provisions insofar as they include in its coverage lands devoted to
the aquaculture industry, particularly fishponds and prawn farms.
In their first argument , petitioners contend that in the case of Luz Farms, Inc.
v. Secretary of Agrarian Reform, 5 this Court has already ruled impliedly that
lands devoted to fishing are not agricultural lands. In aquaculture, fishponds
and prawn farms, the use of land is only incidental to and not the principal factor
in productivity and, hence, as held in "Luz Farms," they too should be excluded
from R.A. 6657 just as lands devoted to livestock, swine, and poultry have been
excluded for the same reason. They also argue that they are entitled to the full
benefit of "Luz Farms" to the effect that only five percent of the total investment
in aquaculture activities, fishponds, and prawn farms, is in the form of land, and
therefore, cannot be classified as agricultural activity. Further, that in fishponds
and prawn farms, there are no farmers, nor farm workers, who till lands, and no
agrarian unrest, and therefore, the constitutionally intended beneficiaries under
Section 4, Art. XIII, 1987 Constitution do not exist in aquaculture.
In their second argument, they contend that R.A. 6657, by including in its
coverage, the raising of fish and aquaculture operations including fishponds and
prawn ponds, treating them as in the same class or classification as agriculture
or farming violates the equal protection clause of the Constitution and is,
therefore, void. Further, the Constitutional Commission debates show that the
intent of the constitutional framers is to exclude "industrial" lands, to which
category lands devoted to aquaculture, fishponds, and fish farms belong.
Petitioners also claim that Administrative Order Nos. 8 and 10 issued by the
Secretary of the Department of Agrarian Reform are, likewise, unconstitutional,
as held in "Luz Farms," and are therefore void as they implement the assailed
provisions of CARL.
The provisions of CARL being assailed as unconstitutional are as follows:
(a) Section 3 (b) which includes the "raising of fish in the definition of
"Agricultural, Agricultural Enterprise or Agricultural Activity." (Emphasis
Supplied)
(b) Section 11 which defines "commercial farms" as private agricultural
lands devoted to fishponds and prawn ponds. . . . (Emphasis Supplied)
(c) Section 13 which calls upon petitioner to execute a production-sharing
plan.
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(d) Section 16(d) and 17 which vest on the Department of Agrarian reform
the authority to summarily determine the just compensation to be paid for lands
covered by the comprehensive Agrarian reform Law.
(e) Section 32 which spells out the production-sharing plan mentioned in
section 13 —
. . . (W)hereby three percent (3%) of the gross sales from the production of such
lands are distributed within sixty (60) days at the end of the fiscal year as
compensation to regular and other farmworkers in such lands over and above
the compensation they currently receive: Provided, That these individuals or
entities realize gross sales in excess of five million pesos per annum unless the
DAR, upon proper application, determines a lower ceiling.
In the event that the individual or entity realizes a profit, an additional ten
percent (10%) of the net profit after tax shall be distributed to said regular and
other farmworkers within ninety (90) days of the end of the fiscal year. . . .
While the Court will not hesitate to declare a law or an act void when confronted
squarely with constitutional issues, neither will it preempt the Legislative and
the Executive branches of the government in correcting or clarifying, by means
of amendment, said law or act. On February 20, 1995, Republic Act No. 7881
6 was approved by Congress. Provisions of said Act pertinent to the assailed
provisions of CARL are the following:
Sec. 1. Section 3, Paragraph (b) of Republic Act No. 6657 is hereby amended
to read as follows:
Sec. 3. Definitions. — For the purpose of this Act, unless the context indicates
otherwise:
(b) Agriculture, Agricultural Enterprise or Agricultural Activity means the
cultivation of the soil, planting of crops, growing of fruit trees, including the
harvesting of such farm products and other farm activities and practices
performed by a farmer in conjunction with such farming operations done by
persons whether natural or juridical.
Sec. 2. Section 10 of Republic Act No. 6657 is hereby amended to read as
follows:
Sec. 10. Exemptions and Exclusions. —
xxx xxx xxx
b) Private lands actually, directly and exclusively used for prawn farms
and fishponds shall be exempt from the coverage of this Act: Provided, That
said prawn farms and fishponds have not been distributed and Certificate of
Land Ownership Award (CLOA) issued to agrarian reform beneficiaries under
the Comprehensive Agrarian Reform Program.
In cases where the fishponds or prawn farms have been subjected to the
Comprehensive Agrarian Reform Law, by voluntary offer to sell, or
commercial farms deferment or notices of compulsory acquisition, a simple and
absolute majority of the actual regular workers or tenants must consent to the
exemption within one (1) year from the effectivity of this Act. when the workers
or tenants do not agree to this exemption, the fishponds or prawn farms shall be
distributed collectively to the worker — beneficiaries or tenants who shall form
a cooperative or association to manage the same.
In cases where the fishponds or prawn farms have not been subjected to the
Comprehensive Agrarian Reform Law, the consent of the farm workers shall
no longer be necessary, however, the provision of Section 32-A hereof on
incentives shall apply.
xxx xxx xxx
Sec. 3. Section 11, Paragraph 1 is hereby amended to read as follows:
Sec. 11. Commercial Farming. — Commercial farms, which are private
agricultural lands devoted to saltbeds, fruit farms, orchards, vegetable and cut-
flower farms and cacao, coffee and rubber plantations, shall be subject to
immediate compulsory acquisition and distribution after ten (10) years from the
effectivity of this Act. In the case of new farms, the ten-year period shall begin
from the first year of commercial production and operation, as determined by
the DAR. During the ten-year period, the Government shall initiate steps
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necessary to acquire these lands, upon payment of just compensation for the
land and the improvements thereon, preferably in favor of organized
cooperatives or associations, which shall thereafter manage the said lands for
the workers — beneficiaries.
Sec. 4. There shall be incorporated after Section 32 of Republic Act No. 6657
a section to read as follows
Sec. 32-A. Incentives. — Individuals or entities owning or operating
fishponds and prawn farms are hereby mandated to execute within six (6)
months from the effectivity of this Act, an incentive plan with their regular
fishpond or prawn farm workers' organization, if any, whereby seven point five
percent (7.5%) of their net profit before tax from the operation of the fishpond
or prawn farms are distributed within sixty (60) days at the end of the fiscal
year as compensation to regular and other pond workers in such ponds over and
above the compensation they currently receive.
In order to safeguard the right of the regular fishpond or prawn farm workers
under the incentive plan, the books of the fishpond or prawn owners shall be
subject to periodic audit or inspection by certified public accountants chosen
by the workers.
The foregoing provision shall not apply to agricultural lands subsequently
converted to fishponds or prawn farms provided the size of the land converted
does not exceed the retention limit of the landowner.
The above-mentioned provisions of R.A. No. 7881 expressly state that
fishponds and prawn farms are excluded from the coverage of CARL. In view
of the foregoing, the question concerning the constitutionality of the assailed
provisions has become moot and academic with the passage of R.A. No. 7881.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Gonzales v. Narvasa
G.R. No. 140835 (August 14, 2000)
[G. R. No. 140835. August 14, 2000]
RAMON A. GONZALES, petitioner, vs. HON. ANDRES R. NARVASA, as
Chairman, PREPARATORY COMMISSION ON CONSTITUTIONAL
REFORMS; HON. RONALDO B. ZAMORA, as Executive Secretary;
COMMISSION ON AUDIT; ROBERTO AVENTAJADO, as Presidential
Consultant on Council of Economic Advisers/Economic Affairs; ANGELITO
C. BANAYO, as Presidential Adviser for/on Political Affairs; VERONICA
IGNACIO-JONES, as Presidential Assistant/ Appointment Secretary (In
charge of appointments), respondents.
DECISION
GONZAGA-REYES, J.:
In this petition for prohibition and mandamus filed on December 9, 1999,
petitioner Ramon A. Gonzales, in his capacity as a citizen and taxpayer, assails
the constitutionality of the creation of the Preparatory Commission on
Constitutional Reform (PCCR) and of the positions of presidential consultants,
advisers and assistants. Petitioner asks this Court to enjoin the PCCR and the
presidential consultants, advisers and assistants from acting as such, and to
enjoin Executive Secretary Ronaldo B. Zamora from enforcing their advice and
recommendations. In addition, petitioner seeks to enjoin the Commission on
Audit from passing in audit expenditures for the PCCR and the presidential
consultants, advisers and assistants. Finally, petitioner prays for an order
compelling respondent Zamora to furnish petitioner with information on certain
matters.
On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his
capacity as Chairman of the PCCR, filed his Comment to the Petition. The rest
of the respondents, who are being represented in this case by the Solicitor
General, filed their Comment with this Court on March 7, 2000. Petitioner then
filed a Consolidated Reply on April 24, 2000, whereupon this case was
considered submitted for decision.
I. Preparatory Commission on Constitutional Reform
The Preparatory Commission on Constitutional Reform (PCCR) was created
by President Estrada on November 26, 1998 by virtue of Executive Order No.
43 (E.O. No. 43) in order to study and recommend proposed amendments
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and/or revisions to the 1987 Constitution, and the manner of implementing the
same.[1] Petitioner disputes the constitutionality of the PCCR on two grounds.
First, he contends that it is a public office which only the legislature can create
by way of a law.[2] Secondly, petitioner asserts that by creating such a body
the President is intervening in a process from which he is totally excluded by
the Constitution the amendment of the fundamental charter.[3]
It is alleged by respondents that, with respect to the PCCR, this case has become
moot and academic. We agree.
An action is considered moot when it no longer presents a justiciable
controversy because the issues involved have become academic or dead.[4]
Under E.O. No. 43, the PCCR was instructed to complete its task on or before
June 30, 1999.[5] However, on February 19, 1999, the President issued
Executive Order No. 70 (E.O. No. 70), which extended the time frame for the
completion of the commissions work, viz
SECTION 6. Section 8 is hereby amended to read as follows:
Time Frame. The Commission shall commence its work on 01 January 1999
and complete the same on or before 31 December 1999. The Commission shall
submit its report and recommendations to the President within fifteen (15)
working days from 31 December 1999.
The PCCR submitted its recommendations to the President on December 20,
1999 and was dissolved by the President on the same day. It had likewise spent
the funds allotted to it.[6] Thus, the PCCR has ceased to exist, having lost its
raison detre. Subsequent events have overtaken the petition and the Court has
nothing left to resolve.
The staleness of the issue before us is made more manifest by the impossibility
of granting the relief prayed for by petitioner. Basically, petitioner asks this
Court to enjoin the PCCR from acting as such.[7] Clearly, prohibition is an
inappropriate remedy since the body sought to be enjoined no longer exists. It
is well established that prohibition is a preventive remedy and does not lie to
restrain an act that is already fait accompli.[8] At this point, any ruling
regarding the PCCR would simply be in the nature of an advisory opinion,
which is definitely beyond the permissible scope of judicial power.
In addition to the mootness of the issue, petitioners lack of standing constitutes
another obstacle to the successful invocation of judicial power insofar as the
PCCR is concerned.
The question in standing is whether a party has alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.[9] In assailing the
constitutionality of E.O. Nos. 43 and 70, petitioner asserts his interest as a
citizen and taxpayer.[10] A citizen acquires standing only if he can establish
that he has suffered some actual or threatened injury as a result of the allegedly
illegal conduct of the government; the injury is fairly traceable to the challenged
action; and the injury is likely to be redressed by a favorable action.[11] In
Kilosbayan, Incorporated v. Morato,[12] we denied standing to petitioners who
were assailing a lease agreement between the Philippine Charity Sweepstakes
Office and the Philippine Gaming Management Corporation, stating that,
in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716, Sept.
22, 1987, standing was denied to a petitioner who sought to declare a form of
lottery known as Instant Sweepstakes invalid because, as the Court held,
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of three (3)
minor children. But nowhere in his petition does petitioner claim that his rights
and privileges as a lawyer or citizen have been directly and personally injured
by the operation of the Instant Sweepstakes. The interest of the person assailing
the constitutionality of a statute must be direct and personal. He must be able
to show, not only that the law is invalid, but also that he has sustained or in
immediate danger of sustaining some direct injury as a result of its enforcement,
and not merely that he suffers thereby in some indefinite way. It must appear
that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute complained of.
We apprehend no difference between the petitioner in Valmonte and the present
petitioners. Petitioners do not in fact show what particularized interest they
have for bringing this suit. It does not detract from the high regard for
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petitioners as civic leaders to say that their interest falls short of that required
to maintain an action under Rule 3, d 2.
Coming now to the instant case, petitioner has not shown that he has sustained
or is in danger of sustaining any personal injury attributable to the creation of
the PCCR. If at all, it is only Congress, not petitioner, which can claim any
injury in this case since, according to petitioner, the President has encroached
upon the legislatures powers to create a public office and to propose
amendments to the Charter by forming the PCCR. Petitioner has sustained no
direct, or even any indirect, injury. Neither does he claim that his rights or
privileges have been or are in danger of being violated, nor that he shall be
subjected to any penalties or burdens as a result of the PCCRs activities.
Clearly, petitioner has failed to establish his locus standi so as to enable him to
seek judicial redress as a citizen.
A taxpayer is deemed to have the standing to raise a constitutional issue when
it is established that public funds have been disbursed in alleged contravention
of the law or the Constitution.[13], Thus payers action is properly brought only
when there is an exercise by Congress of its taxing or spending power.[14] This
was our ruling in a recent case wherein petitioners Telecommunications and
Broadcast Attorneys of the Philippines (TELEBAP) and GMA Network, Inc.
questioned the validity of section 92 of B.P. No. 881 (otherwise knows as the
Omnibus Election Code) requiring radio and television stations to give free air
time to the Commission on Elections during the campaign period.[15] The
Court held that petitioner TELEBAP did not have any interest as a taxpayer
since the assailed law did not involve the taxing or spending power of
Congress.[16]
Many other rulings have premised the grant or denial of standing to taxpayers
upon whether or not the case involved a disbursement of public funds by the
legislature. In Sanidad v. Commission on Elections,[17] the petitioners therein
were allowed to bring a taxpayers suit to question several presidential decrees
promulgated by then President Marcos in his legislative capacity calling for a
national referendum, with the Court explaining that
...[i]t is now an ancient rule that the valid source of a statute Presidential
Decrees are of such nature may be contested by one who will sustain a direct
injury as a result of its enforcement. At the instance of taxpayers, laws
providing for the disbursement of public funds may be enjoined, upon the
theory that the expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a misapplication of
such funds. The breadth of Presidential Decree No. 991 carries an appropriation
of Five Million Pesos for the effective implementation of its purposes.
Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to
carry out its provisions. The interest of the aforenamed petitioners as taxpayers
in the lawful expenditure of these amounts of public money sufficiently clothes
them with that personality to litigate the validity of the Decrees appropriating
said funds.
In still another case, the Court held that petitioners the Philippine Constitution
Association, Inc., a non-profit civic organization - had standing as taxpayers to
question the constitutionality of Republic Act No. 3836 insofar as it provides
for retirement gratuity and commutation of vacation and sick leaves to Senators
and Representatives and to the elective officials of both houses of
Congress.[18] And in Pascual v. Secretary of Public Works,[19] the Court
allowed petitioner to maintain a taxpayers suit assailing the constitutional
soundness of Republic Act No. 920 appropriating P85,000 for the construction,
repair and improvement of feeder roads within private property. All these cases
involved the disbursement of public funds by means of a law.
Meanwhile, in Bugnay Construction and Development Corporation v.
Laron,[20] the Court declared that the trial court was wrong in allowing
respondent Ravanzo to bring an action for injunction in his capacity as a
taxpayer in order to question the legality of the contract of lease covering the
public market entered into between the City of Dagupan and petitioner. The
Court declared that Ravanzo did not possess the requisite standing to bring such
taxpayers suit since [o]n its face, and there is no evidence to the contrary, the
lease contract entered into between petitioner and the City shows that no public
funds have been or will be used in the construction of the market building.
Coming now to the instant case, it is readily apparent that there is no exercise
by Congress of its taxing or spending power. The PCCR was created by the
President by virtue of E.O. No. 43, as amended by E.O. No. 70. Under section
7 of E.O. No. 43, the amount of P3 million is appropriated for its operational
expenses to be sourced from the funds of the Office of the President. The
relevant provision states -
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Appropriations. The initial amount of Three Million Pesos (P3,000,000.00) is
hereby appropriated for the operational expenses of the Commission to be
sourced from funds of the Office of the President, subject to the usual
accounting and auditing rules and regulations. Additional amounts shall be
released to the Commission upon submission of requirements for expenditures.
The appropriations for the PCCR were authorized by the President, not by
Congress. In fact, there was no an appropriation at all. In a strict sense,
appropriation has been defined as nothing more than the legislative
authorization prescribed by the Constitution that money may be paid out of the
Treasury, while appropriation made by law refers to the act of the legislature
setting apart or assigning to a particular use a certain sum to be used in the
payment of debt or dues from the State to its creditors. [21] The funds used for
the PCCR were taken from funds intended for the Office of the President, in the
exercise of the Chief Executives power to transfer funds pursuant to section 25
(5) of article VI of the Constitution.
In the final analysis, it must be stressed that the Court retains the power to
decide whether or not it will entertain a taxpayers suit.[22] In the case at bar,
there being no exercise by Congress of its taxing or spending power, petitioner
cannot be allowed to question the creation of the PCCR in his capacity as a
taxpayer, but rather, he must establish that he has a personal and substantial
interest in the case and that he has sustained or will sustain direct injury as a
result of its enforcement.[23] In other words, petitioner must show that he is a
real party in interest - that he will stand to be benefited or injured by the
judgment or that he will be entitled to the avails of the suit.[24] Nowhere in his
pleadings does petitioner presume to make such a representation.
II. Presidential Consultants, Advisers, Assistants
The second issue raised by petitioner concerns the presidential consultants.
Petitioner alleges that in 1995 and 1996, the President created seventy (70)
positions in the Office of the President and appointed to said positions twenty
(20) presidential consultants, twenty-two (22) presidential advisers, and
twenty-eight (28) presidential assistants.[25] Petitioner asserts that, as in the
case of the PCCR, the President does not have the power to create these
positions.[26]
Consistent with the abovementioned discussion on standing, petitioner does not
have the personality to raise this issue before the Court. First of all, he has not
proven that he has sustained or is in danger of sustaining any injury as a result
of the appointment of such presidential advisers. Secondly, petitioner has not
alleged the necessary facts so as to enable the Court to determine if he possesses
a taxpayers interest in this particular issue. Unlike the PCCR which was created
by virtue of an executive order, petitioner does not allege by what official act,
whether it be by means of an executive order, administrative order,
memorandum order, or otherwise, the President attempted to create the
positions of presidential advisers, consultants and assistants. Thus, it is unclear
what act of the President petitioner is assailing. In support of his allegation,
petitioner merely annexed a copy of the Philippine Government Directory
(Annex C) listing the names and positions of such presidential consultants,
advisers and assistants to his petition. However, appointment is obviously not
synonymous with creation. It would be improvident for this Court to entertain
this issue given the insufficient nature of the allegations in the Petition.
III. Right to Information
Finally, petitioner asks us to issue a writ of mandamus ordering Executive
Secretary Ronaldo B. Zamora to answer his letter (Annex D) dated October 4,
1999 requesting for the names of executive officials holding multiple positions
in government, copies of their appointments, and a list of the recipients of
luxury vehicles seized by the Bureau of Customs and turned over to
Malacanang.[27]
The right to information is enshrined in Section 7 of the Bill of Rights which
provides that
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining
to official acts, transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the citizen, subject
to such limitations as may be provided by law.
Under both the 1973[28] and 1987 Constitution, this is a self-executory
provision which can be invoked by any citizen before the courts. This was our
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ruling in Legaspi v. Civil Service Commission,[29] wherein the Court classified
the right to information as a public right and when a [m]andamus proceeding WHEREFORE, the petition is dismissed, with the exception that respondent
involves the assertion of a public right, the requirement of personal interest is Zamora is ordered to furnish petitioner with the information requested.
satisfied by the mere fact that the petitioner is a citizen, and therefore, part of
the general public which possesses the right. However, Congress may provide SO ORDERED.
for reasonable conditions upon the access to information. Such limitations were
embodied in Republic Act No. 6713, otherwise knows as the Code of Conduct
and Ethical Standards for Public Officials and Employees, which took effect on Lacson v. Perez
March 25, 1989. This law provides that, in the performance of their duties, all G.R. No. 147780 (May 10, 2001)
public officials and employees are obliged to respond to letters sent by the G.R. No. 147780 May 10, 2001
public within fifteen (15) working days from receipt thereof and to ensure the
accessibility of all public documents for inspection by the public within PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O.
reasonable working hours, subject to the reasonable claims of MANCAO, petitioners,
confidentiality.[30] vs.
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO
Elaborating on the significance of the right to information, the Court said in MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents.
Baldoza v. Dimaano[31] that [t]he incorporation of this right in the Constitution
is a recognition of the fundamental role of free exchange of information in a ----------------------------------------
democracy. There can be no realistic perception by the public of the nations
problems, nor a meaningful democratic decisionmaking if they are denied G.R. No. 147781 May 10, 2001
access to information of general interest. Information is needed to enable the
members of society to cope with the exigencies of the times. The information MIRIAM DEFENSOR-SANTIAGO, petitioner,
to which the public is entitled to are those concerning matters of public concern, vs.
a term which embrace[s] a broad spectrum of subjects which the public may ANGELO REYES, Secretary of National Defense, ET AL., respondents.
want to know, either because these directly affect their lives, or simply because
such matters naturally arouse the interest of an ordinary citizen. In the final ----------------------------------------
analysis, it is for the courts to determine in a case by case basis whether the
matter at issue is of interest or importance, as it relates to or affects the G.R. No. 147799 May 10, 2001
public.[32]
RONALDO A. LUMBAO, petitioner,
Thus, we agree with petitioner that respondent Zamora, in his official capacity vs.
as Executive Secretary, has a constitutional and statutory duty to answer SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO
petitioners letter dealing with matters which are unquestionably of public VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT.
concern that is, appointments made to public offices and the utilization of public REYNALDO BERROYA, respondents.
property. With regard to petitioners request for copies of the appointment
papers of certain officials, respondent Zamora is obliged to allow the inspection ----------------------------------------
and copying of the same subject to the reasonable limitations required for the
orderly conduct of official business.[33]
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G.R. No. 147810 May 10, 2001
THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,
vs.
THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ,
THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO
VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
GENERAL LEANDRO MENDOZA, respondents.
RESOLUTION
MELO, J.:
On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent
mob armed with explosives, firearms, bladed weapons, clubs, stones and other
deadly weapons" assaulting and attempting to break into Malacañang, issued
Proclamation No. 38 declaring that there was a state of rebellion in the National
Capital Region. She likewise issued General Order No. 1 directing the Armed
Forces of the Philippines and the Philippine National Police to suppress the
rebellion in the National Capital Region. Warrantless arrests of several alleged
leaders and promoters of the "rebellion" were thereafter effected.
Aggrieved by the warrantless arrests, and the declaration of a "state of
rebellion," which allegedly gave a semblance of legality to the arrests, the
following four related petitions were filed before the Court –
(1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus
(with an urgent application for the issuance of temporary restraining order
and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray
B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus and/or
review of the factual basis for the suspension of the privilege of the writ of
habeas corpus, with prayer for the suspension of the privilege of the writ of
habeas corpus, with prayer for a temporary restraining order filed by Miriam
Defensor-Santiago; (3) G. R. No. 147799 for prohibition and injunction with
prayer for a writ of preliminary injunction and/or restraining order filed by
Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and prohibition
filed by the political party Laban ng Demokratikong Pilipino.
All the foregoing petitions assail the declaration of a state of rebellion by
President Gloria Macapagal-Arroyo and the warrantless arrests allegedly
effected by virtue thereof, as having no basis both in fact and in law.
Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting
of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the
instant petitions have been rendered moot and academic. As to petitioners'
claim that the proclamation of a "state of rebellion" is being used by the
authorities to justify warrantless arrests, the Secretary of Justice denies that it
has issued a particular order to arrest specific persons in connection with the
"rebellion." He states that what is extant are general instructions to law
enforcement officers and military agencies to implement Proclamation No. 38.
Indeed, as stated in respondents' Joint Comments:
[I]t is already the declared intention of the Justice Department and police
authorities to obtain regular warrants of arrests from the courts for all acts
committed prior to and until May 1, 2001 which means that preliminary
investigations will henceforth be conducted.
(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799,
p. 16; G.R. No. 147810, p. 24)
With this declaration, petitioners' apprehensions as to warrantless arrests should
be laid to rest.
In quelling or suppressing the rebellion, the authorities may only resort to
warrantless arrests of persons suspected of rebellion, as provided under Section
5, Rule 113 of the Rules of Court, if the circumstances so warrant. The
warrantless arrest feared by petitioners is, thus, not based on the declaration of
a "state of rebellion."
Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition),
147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they
are under imminent danger of being arrested without warrant do not justify their
resort to the extraordinary remedies of mandamus and prohibition, since an
individual subjected to warrantless arrest is not without adequate remedies in
the ordinary course of law. Such an individual may ask for a preliminary
investigation under Rule 112 of the Rules of Court, where he may adduce
evidence in his defense, or he may submit himself to inquest proceedings to
73 of 692
determine whether or not he should remain under custody and correspondingly
be charged in court. Further, a person subject of a warrantless arrest must be
delivered to the proper judicial authorities within the periods provided in Article
125 of the Revised Penal Code, otherwise the arresting officer could be held
liable for delay in the delivery of detained persons. Should the detention be
without legal ground, the person arrested can charge the arresting officer with
arbitrary detention. All this is without prejudice to his filing an action for
damages against the arresting officer under Article 32 of the Civil Code. Verily,
petitioners have a surfeit of other remedies which they can avail themselves of,
thereby making the prayer for prohibition and mandamus improper at this time
(Section 2 and 3, Rule 65, Rules of Court).1âwphi1.nêt
Aside from the foregoing reasons, several considerations likewise inevitably
call for the dismissal of the petitions at bar.
G.R. No. 147780
In connection with their alleged impending warrantless arrest, petitioners
Lacson, Aquino, and mancao pray that the "appropriate court before whom the
informations against petitioners are filed be directed to desist from arraigning
and proceeding with the trial of the case, until the instant petition is finally
resolved." This relief is clearly premature considering that as of this date, no
complaints or charges have been filed against any of the petitioners for any
crime. And in the event that the same are later filed, this Court cannot enjoin
criminal prosecution conducted in accordance with the Rules of Court, for by
that time any arrest would have been in pursuant of a duly issued warrant.
As regards petitioners' prayer that the hold departure orders issued against them
be declared null and void ab initio, it is to be noted that petitioners are not
directly assailing the validity of the subject hold departure orders in their
petition. They are not even expressing intention to leave the country in the near
future. The prayer to set aside the same must be made in proper proceedings
initiated for that purpose.
Anent petitioners' allegations ex abundante ad cautelam in support of their
application for the issuance of a writ of habeas corpus, it is manifest that the
writ is not called for since its purpose is to relieve petitioners from unlawful
restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains
speculative up to this very day.
G.R. No. 147781
The petition herein is denominated by petitioner Defensor-Santiago as one for
mandamus. It is basic in matters relating to petitions for mandamus that the
legal right of the petitioner to the performance of a particular act which is sought
to be compelled must be clear and complete. Mandamus will not issue unless
the right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85
Phil. 272). Up to the present time, petitioner Defensor Santiago has not shown
that she is in imminent danger of being arrested without a warrant. In point of
fact, the authorities have categorically stated that petitioner will not be arrested
without a warrant.
G.R. No. 147799
Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP),
for his part, argues that the declaration of a "state of rebellion" is violative of
the doctrine of separation of powers, being an encroachment on the domain of
the judiciary which has the constitutional prerogative to "determine or interpret"
what took place on May 1, 2001, and that the declaration of a state of rebellion
cannot be an exception to the general rule on the allocation of the governmental
powers.
We disagree. To be sure, Section 18, Article VII of the Constitution expressly
provides that "[t]he President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion…" Thus, we held in Integrated Bar of the Philippines v. Hon. Zamora,
(G.R. No. 141284, August 15, 2000):
x x x The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters considered for
satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court
may use to judge necessity, information necessary to arrive at such judgment
might also prove unmanageable for the courts. Certain pertinent information
74 of 692
might be difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that there is a
need to call out the armed forces may be of a nature not constituting technical
proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power
to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property. x
xx
(at pp.22-23)
The Court, in a proper case, may look into the sufficiency of the factual basis
of the exercise of this power. However, this is no longer feasible at this time,
Proclamation No. 38 having been lifted.
However, to consider the petition as one for declaratory relief affords little
comfort to petitioner, this Court not having jurisdiction in the first instance over
such a petition. Section 5[1], Article VIII of the Constitution limits the original
jurisdiction of the Court to cases affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
WHEREFORE, premises considered, the petitions are hereby DISMISSED.
However, in G.R. No. 147780, 147781, and 147799, respondents, consistent
and congruent with their undertaking earlier adverted to, together with their
agents, representatives, and all persons acting for and in their behalf, are hereby
enjoined from arresting petitioners therein without the required judicial warrant
for all acts committed in relation to or in connection with the may 1, 2001 siege
of Malacañang.
SO ORDERED.

G.R. No. 147810

Defunis v. Odegaard
Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The 416 US 312 (1974)
rule requires that a party must show a personal stake in the outcome of the case
or an injury to himself that can be redressed by a favorable decision so as to DeFUNIS ET AL.
warrant an invocation of the court's jurisdiction and to justify the exercise of v.
the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 ODEGAARD ET AL.
SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself
which would justify resort to the Court. Petitioner is a juridical person not No. 73-235.
subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Supreme Court of United States.
Nor is it alleged that its leaders, members, and supporters are being threatened
with warrantless arrest and detention for the crime of rebellion. Every action Argued February 26, 1974.
must be brought in the name of the party whose legal right has been invaded or Decided April 23, 1974.
infringed, or whose legal right is under imminent threat of invasion or CERTIORARI TO THE SUPREME COURT OF WASHINGTON.
infringement. Josef Diamond argued the cause for petitioners. With him on the briefs was
Lyle L. Iversen.
At best, the instant petition may be considered as an action for declaratory
relief, petitioner claiming that its right to freedom of expression and freedom
of assembly is affected by the declaration of a "state of rebellion" and that said
proclamation is invalid for being contrary to the Constitution.
75 of 692
313*313 Slade Gorton, Attorney General of Washington, argued the cause for
respondents. With him on the brief was James B. Wilson, Senior Assistant
Attorney General.[*]
314*314 PER CURIAM.
In 1971 the petitioner Marco DeFunis, Jr.,[1] applied for admission as a first-
year student at the University of Washington Law School, a state-operated
institution. The size of the incoming first-year class was to be limited to 150
persons, and the Law School received some 1,600 applications for these 150
places. DeFunis was eventually notified that he had been denied admission. He
thereupon commenced this suit in a Washington trial court, contending that the
procedures and criteria employed by the Law School Admissions Committee
invidiously discriminated against him on account of his race in violation of the
Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution.
DeFunis brought the suit on behalf of himself alone, and not as the
representative of any class, against the various respondents, who are officers,
faculty members, and members of the Board of Regents of the University of
Washington. He asked the trial court to issue a mandatory injunction
commanding the respondents to admit him as a member of the first-year class
entering in September 1971, on the ground that the Law School admissions
policy had resulted in the unconstitutional denial of his application for
admission. The trial court agreed with his claim and granted the requested
relief. 315*315 DeFunis was, accordingly, admitted to the Law School and
began his legal studies there in the fall of 1971. On appeal, the Washington
Supreme Court reversed the judgment of the trial court and held that the Law
School admissions policy did not violate the Constitution. By this time DeFunis
was in his second year at the Law School.
He then petitioned this Court for a writ of certiorari, and MR. JUSTICE
DOUGLAS, as Circuit Justice, stayed the judgment of the Washington
Supreme Court pending the "final disposition of the case by this Court." By
virtue of this stay, DeFunis has remained in law school, and was in the first
term of his third and final year when this Court first considered his certiorari
petition in the fall of 1973. Because of our concern that DeFunis' third-year
standing in the Law School might have rendered this case moot, we requested
the parties to brief the question of mootness before we acted on the petition. In
response, both sides contended that the case was not moot. The respondents
indicated that, if the decision of the Washington Supreme Court were permitted
to stand, the petitioner could complete the term for which he was then enrolled
but would have to apply to the faculty for permission to continue in the school
before he could register for another term.[2]
We granted the petition for certiorari on November 19, 1973. 414 U. S. 1038.
The case was in due course orally argued on February 26, 1974.
In response to questions raised from the bench during the oral argument,
counsel for the petitioner has informed the Court that DeFunis has now
registered "for his final 316*316 quarter in law school." Counsel for the
respondents have made clear that the Law School will not in any way seek to
abrogate this registration.[3] In light of DeFunis' recent registration for the last
quarter of his final law school year, and the Law School's assurance that his
registration is fully effective, the insistent question again arises whether this
case is not moot, and to that question we now turn.
The starting point for analysis is the familiar proposition that "federal courts are
without power to decide questions that cannot affect the rights of litigants in the
case before them." North Carolina v. Rice, 404 U. S. 244 246 (1971). The
inability of the federal judiciary "to review moot cases derives from the
requirement of Art. III of the Constitution under which the exercise of judicial
power depends upon the existence of a case or controversy." Liner v. Jafco,
Inc., 375 U. S. 301, 306 n. 3 (1964); see also Powell v. McCormack, 395 U. S.
486, 496 n. 7 (1969); Sibron v. New York, 392 U. S. 40, 50 n. 8 (1968).
Although as a matter of Washington state law it appears that this case would be
saved from mootness by "the great public interest in the continuing issues raised
by this appeal," 82 Wash. 2d 11, 23 n. 6, 507 P. 2d 1169, 1177 n. 6 (1973), the
fact remains that under Art. III "[e]ven in cases arising in the state courts, the
question of mootness is a federal one which a federal court must resolve before
it assumes jurisdiction." North Carolina v. Rice, supra, at 246.
The respondents have represented that, without regard to the ultimate resolution
of the issues in this case, 317*317 DeFunis will remain a student in the Law
School for the duration of any term in which he has already enrolled. Since he
has now registered for his final term, it is evident that he will be given an
76 of 692
opportunity to complete all academic and other requirements for graduation,
and, if he does so, will receive his diploma regardless of any decision this Court
might reach on the merits of this case. In short, all parties agree that DeFunis is
now entitled to complete his legal studies at the University of Washington and
to receive his degree from that institution. A determination by this Court of the
legal issues tendered by the parties is no longer necessary to compel that result,
and could not serve to prevent it. DeFunis did not cast his suit as a class action,
and the only remedy he requested was an injunction commanding his admission
to the Law School. He was not only accorded that remedy, but he now has also
been irrevocably admitted to the final term of the final year of the Law School
course. The controversy between the parties has thus clearly ceased to be
"definite and concrete" and no longer "touch[es] the legal relations of parties
having adverse legal interests." Aetna Life Ins. Co. v. Haworth, 300 U. S. 227,
240-241 (1937).
It matters not that these circumstances partially stem from a policy decision on
the part of the respondent Law School authorities. The respondents, through
their counsel, the Attorney General of the State, have professionally represented
that in no event will the status of DeFunis now be affected by any view this
Court might express on the merits of this controversy. And it has been the
settled practice of the Court, in contexts no less significant, fully to accept
representations such as these as parameters for decision. See Gerende v.
Election Board, 341 U. S. 56 (1951); Whitehill v. Elkins, 389 U. S. 54, 57-58
(1967); Ehlert v. United States, 402 U. S. 99, 318*318 107 (1971); cf. Law
Students Research Council v. Wadmond, 401 U. S. 154, 162-163 (1971).
There is a line of decisions in this Court standing for the proposition that the
"voluntary cessation of allegedly illegal conduct does not deprive the tribunal
of power to hear and determine the case, i. e., does not make the case moot."
United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953); United States v.
Trans-Missouri Freight Assn., 166 U. S. 290, 308-310 (1897); Walling v.
Helmerich & Payne, Inc., 323 U. S. 37, 43 (1944); Gray v. Sanders, 372 U. S.
368, 376 (1963); United States v. Phosphate Export Assn., 393 U. S. 199, 202-
203 (1968). These decisions and the doctrine they reflect would be quite
relevant if the question of mootness here had arisen by reason of a unilateral
change in the admissions procedures of the Law School. For it was the
admissions procedures that were the target of this litigation, and a voluntary
cessation of the admissions practices complained of could make this case moot
only if it could be said with assurance "that `there is no reasonable expectation
that the wrong will be repeated.' " United States v. W. T. Grant Co., supra, at
633. Otherwise, "[t]he defendant is free to return to his old ways," id., at 632,
and this fact would be enough to prevent mootness because of the "public
interest in having the legality of the practices settled." Ibid. But mootness in the
present case depends not at all upon a "voluntary cessation" of the admissions
practices that were the subject of this litigation. It depends, instead, upon the
simple fact that DeFunis is now in the final quarter of the final year of his course
of study, and the settled and unchallenged policy of the Law School to permit
him to complete the term for which he is now enrolled.
It might also be suggested that this case presents a question that is "capable of
repetition, yet evading 319*319 review," Southern Pacific Terminal Co. v. ICC,
219 U. S. 498, 515 (1911); Roe v. Wade, 410 U. S. 113, 125 (1973), and is thus
amenable to federal adjudication even though it might otherwise be considered
moot. But DeFunis will never again be required to run the gantlet of the Law
School's admission process, and so the question is certainly not "capable of
repetition" so far as he is concerned. Moreover, just because this particular case
did not reach the Court until the eve of the petitioner's graduation from law
school, it hardly follows that the issue he raises will in the future evade review.
If the admissions procedures of the Law School remain unchanged,[4] there is
no reason to suppose that a subsequent case attacking those procedures will not
come with relative speed to this Court, now that the Supreme Court of
Washington has spoken. This case, therefore, in no way presents the
exceptional situation in which the Southern Pacific Terminal doctrine might
permit a departure from "[t]he usual rule in federal cases . . . that an actual
controversy must exist at stages of appellate or certiorari review, and not simply
at the date the action is initiated." Roe v. Wade, supra, at 125; United States v.
Munsingwear, Inc., 340 U. S. 36 (1950).
Because the petitioner will complete his law school studies at the end of the
term for which he has now registered regardless of any decision this Court
might reach on the merits of this litigation, we conclude that the Court cannot,
consistently with the limitations of 320*320 Art. III of the Constitution,
consider the substantive constitutional issues tendered by the parties.[5]
Accordingly, the judgment of the Supreme Court of Washington is vacated, and
the cause is remanded for such proceedings as by that court may be deemed
appropriate.
77 of 692

It is so ordered.
Acop v. Guingona
G.R. No. 134855 (July 2, 2002)
[G.R. No. 134855. July 2, 2002]
CHIEF SUPT. ROMEO M. ACOP and SR. SUPT. FRANCISCO G. ZUBIA,
JR., petitioners-appellants, vs. HON. TEOFISTO T. GUINGONA, JR., in his
capacity as Secretary of the Department of Justice, and SENIOR STATE
PROSECUTOR JUDE ROMANO, in his capacity as the Director of the
Government's Witness Protection Program; SPO2 EDUARDO DELOS
REYES and SPO2 CORAZON DELA CRUZ, respondents-appellees.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of
Court filed by Chief Supt. Romeo M. Acop and Sr. Supt. Francisco G. Zubia
seeking to reverse and set aside the Decision dated July 30, 1998 of the
Regional Trial Court of Quezon City (Branch 89) which dismissed this petition
for injunction.
The factual antecedents leading to the present petition are as follows:
On May 18, 1995, eleven (11) suspected members of the criminal group known
as the Kuratong Baleleng gang were killed along Commonwealth Avenue in
Quezon City in an alleged shootout with the Anti-Bank Robbery Intelligence
Task Group of the Philippine National Police (PNP).
SPO2 Eduardo delos Reyes, a member of the Criminal Investigation Command
(CIC) of the PNP and who was one of the officers assigned to conduct an
investigation of the May 18, 1995 incident, made a public disclosure of his
findings that there was no shootout and the eleven suspected members of the
Kuratong Baleleng gang were instead summarily executed. SPO2 Corazon dela
Cruz, also a member of the CIC, made the same statement corroborating the
claim of SPO2 delos Reyes.
The Senate conducted hearings to determine the circumstances surrounding the
subject incident. SPO2 delos Reyes and SPO2 dela Cruz testified before the
Senate hearings. On June 2, 1995, former Senator Raul Roco, who was then the
Chairman of the Senate Committee on Justice and Human Rights,
recommended that SPO2 delos Reyes and SPO2 dela Cruz be admitted to the
government's Witness Protection, Security and Benefit Program. Accordingly,
SPO2 delos Reyes and SPO2 dela Cruz were admitted into the said Program.
On March 12, 1996, herein petitioners, in their capacity as taxpayers, but who
are among the PNP officers implicated in the alleged rubout, filed before the
court a quo a petition for injunction with prayer for temporary restraining order
questioning the legality of the admission of SPO2 delos Reyes and SPO2 dela
Cruz into the Program. Petitioners contend that under Section 3(d) of R.A. No.
6981, law enforcement officers, like SPO2 delos Reyes and SPO2 dela Cruz,
are disqualified from being admitted into the witness protection program even
though they may be testifying against other law enforcement officers.
On July 30, 1998, the trial court rendered the herein assailed decision.
Hence, the petition anchored on a sole assignment of error, to wit:
"THE COURT A QUO ERRED IN RULING THAT RESPONDENTS SPO2
EDUARDO DELOS REYES AND SPO2 CORAZON DELA CRUZ ARE
QUALIFIED TO BE ADMITTED INTO THE WITNESS PROTECTION
PROGRAM DESPITE THEIR CLEAR DISQUALIFICATION FROM THE
PROGRAM UNDER SECTION 3(D) OF REPUBLIC ACT NO. 6981,
OTHERWISE KNOWN AS THE 'WITNESS PROTECTION, SECURITY
AND BENEFIT ACT'."
Petitioners pray that the decision of the RTC be reversed and set aside and
instead -
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"a) An Injunction be issued enjoining the Department of Justice from
continuing to provide the benefits accruing under the Witness Protection
Program to respondents SPO2 delos Reyes and SPO2 dela Cruz;
"b) Order the immediate discharge of respondents SPO2 delos Reyes and SPO2
dela Cruz from WPP and for the latter to be ordered to cease and desist from
accepting the benefits of the WPP; and
"c) Order respondents SPO2 delos Reyes and SPO2 dela Cruz to return
whatever monetary benefits they have received from the government as a
consequence of their wrongful and illegal admission into the WPP."[1]
In its Comment, the Office of the Solicitor General (OSG) claims that the
petition lacks merit and that the same has been rendered moot and academic
because the coverage of SPO2 delos Reyes and SPO2 dela Cruz under the
Program was already terminated on December 3, 1997 and August 23, 1998,
respectively, as evidenced by the letter of the Director of the Program addressed
to the OSG, dated February 10, 1999.[2] In their comment, private respondents
SPO2 delos Reyes and SPO2 dela Cruz agree with the OSG.
Indeed, prayers a) and b) above had been rendered moot and academic by
reason of the release of SPO2 delos Reyes and SPO2 dela Cruz from the
coverage of the Program. However, we find it necessary to resolve the merits
of the principal issue raised for a proper disposition of prayer c) and for future
guidance of both bench and bar as to the application of Sections 3(d) and 4 of
R.A. No. 6981. As we have ruled in Alunan III vs. Mirasol,[3] and Viola vs.
Alunan III,[4] "courts will decide a question otherwise moot and academic if it
is 'capable of repetition, yet evading review.'"
Petitioners' main contention is that Section 3 of R.A. No. 6981 lays down the
basic qualifications a person must possess in order to be admitted into the
Program and that Section 4 of the same statute is not an exception to Section 3
but, it simply adds requirements for witnesses before they may become eligible
for admission into the Program in case of legislative investigations.
We do not agree.
Section 3(d) provides:
Sec. 3. Admission into the Program. - Any person who has witnessed or has
knowledge or information on the commission of a crime and has testified or is
testifying or about to testify before any judicial or quasi-judicial body, or before
any investigating authority, may be admitted into the Program: Provided, That:
xxx
(d) he is not a law enforcement officer, even if he would be testifying against
the other law enforcement officers. In such a case, only the immediate members
of his family may avail themselves of the protection provided for under this
Act.
Section 4 provides:
Sec. 4. Witness in Legislative Investigations. - In case of legislative
investigations in aid of legislation, a witness, with his express consent, may be
admitted into the Program upon the recommendation of the legislative
committee where his testimony is needed when in its judgment there is pressing
necessity therefor: Provided, That such recommendation is approved by the
President of the Senate or the Speaker of the House of Representatives, as the
case may be.
A careful reading of Sections 3 and 4 readily shows that these are distinct and
independent provisions. It is true that the proviso in Section 3(d) disqualifies
law enforcement officers from being admitted into the Program when they
"testify before any judicial or quasi-judicial body, or before any investigating
authority." This is the general rule. However, Section 4 provides for a specific
and separate situation where a witness testifies before a legislative
investigation. An investigation by a legislative committee does not fall under
the category of "any investigating authority" referred to in Section 3. Section 4
contains only a proviso that the witness' admission to the Program must be
recommended by the legislative committee when in its judgment there is a
pressing necessity therefor and said recommendation is approved by the
President of the Senate or the Speaker of the House of Representatives, as the
case may be. Section 4 does not contain any proviso similar to Sec. 3(d) as
quoted above, nor does Section 4 refer to the application of the proviso under
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Section 3. In other words, Section 4 did not make any qualification or
distinction.
It is basic under the law on statutory construction that where the law does not
distinguish, courts should not distinguish.[5] The operation of a proviso is
usually and properly confined to the clause or distinct portion of the enactment
which immediately precedes it or to which it pertains, and does not extend to
or qualify other sections or portions of the statute, unless the legislative intent
that it shall so operate is clearly disclosed.[6]
In the present case, it is clear that the legislative intent that the proviso under
Section 3(d) of R.A. No. 6981 does not apply to Section 4. The trial court did
not err in concluding that if the framers of the law intended otherwise, they
could have easily placed the same proviso of Section 3(d) or referred to it under
Section 4. Hence, in the absence of a clear proviso or reference to Section 3(d),
a witness in a legislative investigation whether or not he is a law enforcement
officer, may be admitted into the Program subject only to the requirements
provided for under Section 4. It is not disputed that the Senate Committee on
Justice and Human Rights, chaired by then Senator Raul Roco, had
recommended the admission of SPO2 delos Reyes and dela Cruz into the
Program and was duly indorsed by then Senate President Edgardo J. Angara.
WHEREFORE, we DENY DUE COURSE to the petition and AFFIRM the
assailed decision.
SO ORDERED.
Sanlakas v. Executive Secretary
G.R. No. 159085 (Feb. 3, 2004)
[G.R. No. 159085. February 3, 2004]
SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG
MANGGAGAWA, represented by REP. RENATO MAGTUBO petitioners,
vs. EXECUTIVE SECRETARY SECRETARY ANGELO REYES,
GENERAL NARCISO ABAYA, DIR. GEN. HERMOGENES EBDANE,
respondents.
[G.R. No. 159103. February 3, 2004]
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely,
SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, RENE B.
GOROSPE, EDWIN R. SANDOVAL and RODOLFO D. MAPILE,
petitioners, vs. HON. EXECUTIVE SECRETARY ALBERTO G. ROMULO,
HON. SECRETARY OF JUSTICE SIMEON DATUMANONG, HON.
SECRETARY OF NATIONAL DEFENSE ANGELO REYES, and HON.
SECRETARY JOSE LINA, JR., respondents.
[G.R. No. 159185. February 3, 2004]
REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L.
LOBREGAT, REP. HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B.
MITRA, REP. EMMYLOU J. TALINO-SANTOS, and REP. GEORGILU R.
YUMUL-HERMIDA, petitioners, vs. PRESIDENT GLORIA MACAPAGAL-
ARROYO; and EXECUTIVE SECRETARY ALBERTO G. ROMULO,
respondents.
[G.R. No. 159196. February 3, 2004]
AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner, vs.
SECRETARY ALBERTO ROMULO, AS EXECUTIVE SECRETARY;
SECRETARY ANGELO REYES, AS SECRETARY OF NATIONAL
DEFENSE; GENERAL NARCISO ABAYA, AS CHIEF OF STAFF OF THE
ARMED FORCES; SECRETARY JOSE LINA, et al., respondents.
DECISION
TINGA, J.:
They came in the middle of the night. Armed with high-powered ammunitions
and explosives, some three hundred junior officers and enlisted men of the
Armed Forces of the Philippines (AFP) stormed into the Oakwood Premiere
apartments in Makati City in the wee hours of July 27, 2003. Bewailing the
corruption in the AFP, the soldiers demanded, among other things, the
resignation of the President, the Secretary of Defense and the Chief of the
Philippine National Police (PNP).[1]
In the wake of the Oakwood occupation, the President issued later in the day
Proclamation No. 427 and General Order No. 4, both declaring a state of
80 of 692
rebellion and calling out the Armed Forces to suppress the rebellion.
Proclamation No. 427 reads in full:
PROCLAMATION NO. 427
DECLARING A STATE OF REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed
with high-powered firearms and explosives, acting upon the instigation and
command and direction of known and unknown leaders, have seized a building
in Makati City, put bombs in the area, publicly declared withdrawal of support
for, and took arms against the duly constituted Government, and continue to
rise publicly and show open hostility, for the purpose of removing allegiance to
the Government certain bodies of the Armed Forces of the Philippines and the
Philippine National Police, and depriving the President of the Republic of the
Philippines, wholly or partially, of her powers and prerogatives which
constitute the crime of rebellion punishable under Article 134 of the Revised
Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines
are being supported, abetted and aided by known and unknown leaders,
conspirators and plotters in the government service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution,
whenever it becomes necessary, the President, as the Commander-in-Chief of
the Armed Forces of the Philippines, may call out such Armed Forces to
suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me by law, hereby confirm the existence of an actual and on-
going rebellion, compelling me to declare a state of rebellion.
In view of the foregoing, I am issuing General Order No. 4 in accordance with
Section 18, Article VII of the Constitution, calling out the Armed Forces of the
Philippines and the Philippine National Police to immediately carry out the
necessary actions and measures to suppress and quell the rebellion with due
regard to constitutional rights.
General Order No. 4 is similarly worded:
GENERAL ORDER NO. 4
DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE
PHILIPPINE NATIONAL POLICE TO SUPPRESS REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed
with high-powered firearms and explosives, acting upon the instigation and
command and direction of known and unknown leaders, have seized a building
in Makati City, put bombs in the area, publicly declared withdrawal of support
for, and took arms against the duly constituted Government, and continue to
rise publicly and show open hostility, for the purpose of removing allegiance to
the Government certain bodies of the Armed Forces of the Philippines and the
Philippine National Police, and depriving the President of the Republic of the
Philippines, wholly or partially, of her powers and prerogatives which
constitute the crime of rebellion punishable under Article 134 et seq. of the
Revised Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines
are being supported, abetted and aided by known and unknown leaders,
conspirators and plotters in the government service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution,
whenever it becomes necessary, the President, as the Commander-in-Chief of
all Armed Forces of the Philippines, may call out such Armed Forces to
suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me by the Constitution as President of the Republic of the
Philippines and Commander-in-Chief of all the armed forces of the Philippines
and pursuant to Proclamation No. 427 dated July 27, 2003, do hereby call upon
the Armed Forces of the Philippines and the Philippine National Police to
suppress and quell the rebellion.
I hereby direct the Chief of the Armed Forces of the Philippines and the Chief
of the Philippine National Police and the officers and men of the Armed Forces
of the Philippines and the Philippine National Police to immediately carry out
81 of 692
the necessary and appropriate actions and measures to suppress and quell the
rebellion with due regard to constitutional rights.
By the evening of July 27, 2003, the Oakwood occupation had ended. After
hours-long negotiations, the soldiers agreed to return to barracks. The President,
however, did not immediately lift the declaration of a state of rebellion and did
so only on August 1, 2003, through Proclamation No. 435:
DECLARING THAT THE STATE OF REBELLION HAS CEASED TO
EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of
rebellion was declared;
WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was
issued on the basis of Proclamation No. 427 dated July 27, 2003, and pursuant
to Article VII, Section 18 of the Constitution, the Armed Forces of the
Philippines and the Philippine National Police were directed to suppress and
quell the rebellion;
WHEREAS, the Armed Forces of the Philippines and the Philippine National
Police have effectively suppressed and quelled the rebellion.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Philippines, by virtue of the powers vested in me by law, hereby declare that
the state of rebellion has ceased to exist.
In the interim, several petitions were filed before this Court challenging the
validity of Proclamation No. 427 and General Order No. 4.
In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),[2] party-
list organizations Sanlakas and Partido ng Manggagawa (PM), contend that
Section 18, Article VII of the Constitution does not require the declaration of a
state of rebellion to call out the armed forces.[3] They further submit that,
because of the cessation of the Oakwood occupation, there exists no sufficient
factual basis for the proclamation by the President of a state of rebellion for an
indefinite period.[4]
Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive
Secretary, et al.) are officers/members of the Social Justice Society (SJS),
Filipino citizens, taxpayers, law professors and bar reviewers.[5] Like Sanlakas
and PM, they claim that Section 18, Article VII of the Constitution does not
authorize the declaration of a state of rebellion.[6] They contend that the
declaration is a constitutional anomaly that confuses, confounds and misleads
because [o]verzealous public officers, acting pursuant to such proclamation or
general order, are liable to violate the constitutional right of private citizens.[7]
Petitioners also submit that the proclamation is a circumvention of the report
requirement under the same Section 18, Article VII, commanding the President
to submit a report to Congress within 48 hours from the proclamation of martial
law.[8] Finally, they contend that the presidential issuances cannot be construed
as an exercise of emergency powers as Congress has not delegated any such
power to the President.[9]
In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and
Executive Secretary Romulo), petitioners brought suit as citizens and as
Members of the House of Representatives whose rights, powers and functions
were allegedly affected by the declaration of a state of rebellion.[10] Petitioners
do not challenge the power of the President to call out the Armed Forces.[11]
They argue, however, that the declaration of a state of rebellion is a superfluity,
and is actually an exercise of emergency powers.[12] Such exercise, it is
contended, amounts to a usurpation of the power of Congress granted by
Section 23 (2), Article VI of the Constitution.[13]
In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the
subject presidential issuances as an unwarranted, illegal and abusive exercise
of a martial law power that has no basis under the Constitution.[14] In the main,
petitioner fears that the declaration of a state of rebellion opens the door to the
unconstitutional implementation of warrantless arrests for the crime of
rebellion.[15]
Required to comment, the Solicitor General argues that the petitions have been
rendered moot by the lifting of the declaration.[16] In addition, the Solicitor
General questions the standing of the petitioners to bring suit.[17]
The Court agrees with the Solicitor General that the issuance of Proclamation
No. 435, declaring that the state of rebellion has ceased to exist, has rendered
82 of 692
the case moot. As a rule, courts do not adjudicate moot cases, judicial power
being limited to the determination of actual controversies.[18] Nevertheless,
courts will decide a question, otherwise moot, if it is capable of repetition yet
evading review.[19] The case at bar is one such case.
Once before, the President on May 1, 2001 declared a state of rebellion and
called upon the AFP and the PNP to suppress the rebellion through
Proclamation No. 38 and General Order No. 1. On that occasion, an angry and
violent mob armed with explosives, firearms, bladed weapons, clubs, stones
and other deadly weapons assaulted and attempted to break into Malacaang.[20]
Petitions were filed before this Court assailing the validity of the Presidents
declaration. Five days after such declaration, however, the President lifted the
same. The mootness of the petitions in Lacson v. Perez and accompanying
cases[21] precluded this Court from addressing the constitutionality of the
declaration.
To prevent similar questions from reemerging, we seize this opportunity to
finally lay to rest the validity of the declaration of a state of rebellion in the
exercise of the Presidents calling out power, the mootness of the petitions
notwithstanding.
Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of
Congress, have standing to challenge the subject issuances. In Philippine
Constitution Association v. Enriquez, [22] this Court recognized that:
To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of
the powers of that institution.
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a
member of Congress. In such a case, any member of Congress can have a resort
to the courts.
Petitioner Members of Congress claim that the declaration of a state of rebellion
by the President is tantamount to an exercise of Congress emergency powers,
thus impairing the lawmakers legislative powers. Petitioners also maintain that
the declaration is a subterfuge to avoid congressional scrutiny into the
Presidents exercise of martial law powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal
standing or locus standi to bring suit. Legal standing or locus standi has been
defined as a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is
being challenged. The gist of the question of standing is whether a party alleges
such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.[23]
Petitioners Sanlakas and PM assert that:
2. As a basic principle of the organizations and as an important plank in their
programs, petitioners are committed to assert, defend, protect, uphold, and
promote the rights, interests, and welfare of the people, especially the poor and
marginalized classes and sectors of Philippine society. Petitioners are
committed to defend and assert human rights, including political and civil
rights, of the citizens.
3. Members of the petitioner organizations resort to mass actions and
mobilizations in the exercise of their Constitutional rights to peaceably
assemble and their freedom of speech and of expression under Section 4, Article
III of the 1987 Constitution, as a vehicle to publicly ventilate their grievances
and legitimate demands and to mobilize public opinion to support the same.[24]
[Emphasis in the original.]
Petitioner party-list organizations claim no better right than the Laban ng
Demokratikong Pilipino, whose standing this Court rejected in Lacson v. Perez:
petitioner has not demonstrated any injury to itself which would justify the
resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it
cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its
leaders, members, and supporters are being threatened with warrantless arrest
and detention for the crime of rebellion. Every action must be brought in the
name of the party whose legal rights has been invaded or infringed, or whose
legal right is under imminent threat of invasion or infringement.
83 of 692

At best, the instant petition may be considered as an action for declaratory
relief, petitioner claiming that it[]s right to freedom of expression and freedom
of assembly is affected by the declaration of a state of rebellion and that said
proclamation is invalid for being contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords little
comfort to petitioner, this Court not having jurisdiction in the first instance over
such a petition. Section 5 [1], Article VIII of the Constitution limits the original
jurisdiction of the court to cases affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.[25]
Even assuming that petitioners are peoples organizations, this status would not
vest them with the requisite personality to question the validity of the
presidential issuances, as this Court made clear in Kilosbayan v. Morato: [26]
The Constitution provides that the State shall respect the role of independent
peoples organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and aspirations
through peaceful and lawful means, that their right to effective and reasonable
participation at all levels of social, political, and economic decision-making
shall not be abridged. (Art. XIII, 15-16)
These provisions have not changed the traditional rule that only real parties in
interest or those with standing, as the case may be, may invoke the judicial
power. The jurisdiction of this Court, even in cases involving constitutional
questions, is limited by the case and controversy requirement of Art. VIII, 5.
This requirement lies at the very heart of the judicial function. It is what
differentiates decisionmaking in the courts from decisionmaking in the political
departments of the government and bars the bringing of suits by just any
party.[27]
That petitioner SJS officers/members are taxpayers and citizens does not
necessarily endow them with standing. A taxpayer may bring suit where the act
complained of directly involves the illegal disbursement of public funds derived
from taxation.[28] No such illegal disbursement is alleged.
On the other hand, a citizen will be allowed to raise a constitutional question
only when he can show that he has personally suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government;
the injury is fairly traceable to the challenged action; and the injury is likely to
be redressed by a favorable action.[29] Again, no such injury is alleged in this
case.
Even granting these petitioners have standing on the ground that the issues they
raise are of transcendental importance, the petitions must fail.
It is true that for the purpose of exercising the calling out power the Constitution
does not require the President to make a declaration of a state of rebellion.
Section 18, Article VII provides:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the writ of
habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if
the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need
of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis for the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within thirty days from its
filing.
84 of 692

A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of the jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with
invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released. [Emphasis supplied.]
The above provision grants the President, as Commander-in-Chief, a sequence
of graduated power[s].[30] From the most to the least benign, these are: the
calling out power, the power to suspend the privilege of the writ of habeas
corpus, and the power to declare martial law. In the exercise of the latter two
powers, the Constitution requires the concurrence of two conditions, namely,
an actual invasion or rebellion, and that public safety requires the exercise of
such power.[31] However, as we observed in Integrated Bar of the Philippines
v. Zamora,[32] [t]hese conditions are not required in the exercise of the calling
out power. The only criterion is that whenever it becomes necessary, the
President may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion.
Nevertheless, it is equally true that Section 18, Article VII does not expressly
prohibit the President from declaring a state of rebellion. Note that the
Constitution vests the President not only with Commander-in-Chief powers but,
first and foremost, with Executive powers.
Section 1, Article VII of the 1987 Philippine Constitution states: The executive
power shall be vested in the President. As if by exposition, Section 17 of the
same Article provides: He shall ensure that the laws be faithfully executed. The
provisions trace their history to the Constitution of the United States.
The specific provisions of the U.S. Constitution granting the U.S. President
executive and commander-in-chief powers have remained in their original
simple form since the Philadelphia Constitution of 1776, Article II of which
states in part:
Section 1. 1. The Executive Power shall be vested in a President of the United
States of America . . . .
....
Section 2. 1. The President shall be Commander in Chief of the Army and Navy
of the United States. . . .
....
Section 3. he shall take care that the laws be faithfully executed. [Article II
Executive Power]
Recalling in historical vignettes the use by the U.S. President of the above-
quoted provisions, as juxtaposed against the corresponding action of the U.S.
Supreme Court, is instructive. Clad with the prerogatives of the office and
endowed with sovereign powers, which are drawn chiefly from the Executive
Power and Commander-in-Chief provisions, as well as the presidential oath of
office, the President serves as Chief of State or Chief of Government,
Commander-in-Chief, Chief of Foreign Relations and Chief of Public
Opinion.[33]
First to find definitive new piers for the authority of the Chief of State, as the
protector of the people, was President Andrew Jackson. Coming to office by
virtue of a political revolution, Jackson, as President not only kept faith with
the people by driving the patricians from power. Old Hickory, as he was fondly
called, was the first President to champion the indissolubility of the Union by
defeating South Carolinas nullification effort.[34]
The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify
the hotspurs from South Carolina. Its State Legislature ordered an election for
a convention, whose members quickly passed an Ordinance of Nullification.
The Ordinance declared the Tariff Acts unconstitutional, prohibited South
85 of 692
Carolina citizens from obeying them after a certain date in 1833, and threatened
secession if the Federal Government sought to oppose the tariff laws. The
Legislature then implemented the Ordinance with bristling punitive laws aimed
at any who sought to pay or collect customs duties.[35]
Jackson bided his time. His task of enforcement would not be easy. Technically,
the President might send troops into a State only if the Governor called for help
to suppress an insurrection, which would not occur in the instance. The
President could also send troops to see to it that the laws enacted by Congress
were faithfully executed. But these laws were aimed at individual citizens, and
provided no enforcement machinery against violation by a State. Jackson
prepared to ask Congress for a force bill.[36]
In a letter to a friend, the President gave the essence of his position. He wrote:
. . . when a faction in a State attempts to nullify a constitutional law of Congress,
or to destroy the Union, the balance of the people composing this Union have a
perfect right to coerce them to obedience. Then in a Proclamation he issued on
December 10, 1832, he called upon South Carolinians to realize that there could
be no peaceable interference with the execution of the laws, and dared them,
disunion by armed force is treason. Are you ready to incur its guilt? [37]
The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers.
Soon, State Legislatures began to adopt resolutions of agreement, and the
President announced that the national voice from Maine on the north to
Louisiana on the south had declared nullification and accession confined to
contempt and infamy.[38]
No other President entered office faced with problems so formidable, and
enfeebled by personal and political handicaps so daunting, as Abraham Lincoln.
Lincoln believed the Presidents power broad and that of Congress explicit and
restricted, and sought some source of executive power not failed by misuse or
wrecked by sabotage. He seized upon the Presidents designation by the
Constitution as Commander-in-Chief, coupled it to the executive power
provision and joined them as the war power which authorized him to do many
things beyond the competence of Congress.[39]
Lincoln embraced the Jackson concept of the Presidents independent power and
duty under his oath directly to represent and protect the people. In his Message
of July 4, 1861, Lincoln declared that the Executive found the duty of
employing the war power in defense of the government forced upon him. He
could not but perform the duty or surrender the existence of the Government . .
. . This concept began as a transition device, to be validated by Congress when
it assembled. In less than two-years, it grew into an independent power under
which he felt authorized to suspend the privilege of the writ of habeas corpus,
issue the Emancipation Proclamation, and restore reoccupied States.[40]
Lincolns Proclamation of April 15, 1861, called for 75,000 troops. Their first
service, according to the proclamation, would be to recapture forts, places and
property, taking care to avoid any devastation, any destruction of or interference
with property, or any disturbance of peaceful citizens.[41]
Early in 1863, the U.S. Supreme Court approved President Lincolns report to
use the war powers without the benefit of Congress. The decision was handed
in the celebrated Prize Cases[42] which involved suits attacking the Presidents
right to legally institute a blockade. Although his Proclamation was
subsequently validated by Congress, the claimants contended that under
international law, a blockade could be instituted only as a measure of war under
the sovereign power of the State. Since under the Constitution only Congress is
exclusively empowered to declare war, it is only that body that could impose a
blockade and all prizes seized before the legislative declaration were illegal. By
a 5 to 4 vote, the Supreme Court upheld Lincolns right to act as he had.[43]
In the course of time, the U.S. Presidents power to call out armed forces and
suspend the privilege of the writ of habeas corpus without prior legislative
approval, in case of invasion, insurrection, or rebellion came to be recognized
and accepted. The United States introduced the expanded presidential powers
in the Philippines through the Philippine Bill of 1902.[44] The use of the power
was put to judicial test and this Court held that the case raised a political
question and said that it is beyond its province to inquire into the exercise of
the power.[45] Later, the grant of the power was incorporated in the 1935
Constitution.[46]
Elected in 1884, Grover Cleveland took his ascent to the presidency to mean
that it made him the trustee of all the people. Guided by the maxim that Public
86 of 692
office is a public trust, which he practiced during his incumbency, Cleveland
sent federal troops to Illinois to quell striking railway workers who defied a
court injunction. The injunction banned all picketing and distribution of
handbills. For leading the strikes and violating the injunction, Debs, who was
the union president, was convicted of contempt of court. Brought to the
Supreme Court, the principal issue was by what authority of the Constitution or
statute had the President to send troops without the request of the Governor of
the State.[47]
In In Re: Eugene Debs, et al,[48] the Supreme Court upheld the contempt
conviction. It ruled that it is not the governments province to mix in merely
individual present controversies. Still, so it went on, whenever wrongs
complained of are such as affect the public at large, and are in respect of matters
which by the Constitution are entrusted to the care of the Nation and concerning
which the Nation owes the duty to all citizens of securing to them their common
rights, then the mere fact that the Government has no pecuniary interest in the
controversy is not sufficient to exclude it from the Courts, or prevent it from
taking measures therein to fully discharge those constitutional duties.[49] Thus,
Clevelands course had the Courts attest.
Taking off from President Cleveland, President Theodore Roosevelt launched
what political scientists dub the stewardship theory. Calling himself the steward
of the people, he felt that the executive power was limited only by the specific
restrictions and prohibitions appearing in the Constitution, or impleaded by
Congress under its constitutional powers.[50]
The most far-reaching extension of presidential power T.R. ever undertook to
employ was his plan to occupy and operate Pennsylvanias coal mines under his
authority as Commander-in-Chief. In the issue, he found means other than force
to end the 1902 hard-coal strike, but he had made detailed plans to use his power
as Commander-in-Chief to wrest the mines from the stubborn operators, so that
coal production would begin again.[51]
Eventually, the power of the State to intervene in and even take over the
operation of vital utilities in the public interest was accepted. In the Philippines,
this led to the incorporation of Section 6,[52] Article XIII of the 1935
Constitution, which was later carried over with modifications in Section 7,[53]
Article XIV of the 1973 Constitution, and thereafter in Section 18,[54] Article
XII of the 1987 Constitution.
The lesson to be learned from the U.S. constitutional history is that the
Commander-in-Chief powers are broad enough as it is and become more so
when taken together with the provision on executive power and the presidential
oath of office. Thus, the plenitude of the powers of the presidency equips the
occupant with the means to address exigencies or threats which undermine the
very existence of government or the integrity of the State.
In The Philippine Presidency A Study of Executive Power, the late Mme.
Justice Irene R. Cortes, proposed that the Philippine President was vested with
residual power and that this is even greater than that of the U.S. President. She
attributed this distinction to the unitary and highly centralized nature of the
Philippine government. She noted that, There is no counterpart of the several
states of the American union which have reserved powers under the United
States constitution. Elaborating on the constitutional basis for her argument, she
wrote:
. The [1935] Philippine [C]onstitution establishes the three departments of the
government in this manner: The legislative power shall be vested in a Congress
of the Philippines which shall consist of a Senate and a House of
Representatives. The executive power shall be vested in a President of the
Philippines. The judicial powers shall be vested in one Supreme Court and in
such inferior courts as may be provided by law. These provisions not only
establish a separation of powers by actual division but also confer plenary
legislative, executive, and judicial powers. For as the Supreme Court of the
Philippines pointed out in Ocampo v. Cabangis, a grant of legislative power
means a grant of all the legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised under the
government. If this is true of the legislative power which is exercised by two
chambers with a combined membership [at that time] of more than 120 and of
the judicial power which is vested in a hierarchy of courts, it can equally if not
more appropriately apply to the executive power which is vested in one official
the president. He personifies the executive branch. There is a unity in the
executive branch absent from the two other branches of government. The
president is not the chief of many executives. He is the executive. His direction
of the executive branch can be more immediate and direct than the United States
87 of 692
president because he is given by express provision of the constitution control
over all executive departments, bureaus and offices.[55]
The esteemed Justice conducted her study against the backdrop of the 1935
Constitution, the framers of which, early on, arrived at a general opinion in
favor of a strong Executive in the Philippines.[56] Since then, reeling from the
aftermath of martial law, our most recent Charter has restricted the Presidents
powers as Commander-in-Chief. The same, however, cannot be said of the
Presidents powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the Presidents
power to forbid the return of her exiled predecessor. The rationale for the
majoritys ruling rested on the Presidents
unstated residual powers which are implied from the grant of executive power
and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of
the members of the Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime of Mr. Marcos, for
the result was a limitation of specific powers of the President, particularly those
relating to the commander-in-chief clause, but not a diminution of the general
grant of executive power.[57] [Underscoring supplied. Italics in the original.]
Thus, the Presidents authority to declare a state of rebellion springs in the main
from her powers as chief executive and, at the same time, draws strength from
her Commander-in-Chief powers. Indeed, as the Solicitor General accurately
points out, statutory authority for such a declaration may be found in Section 4,
Chapter 2 (Ordinance Power), Book III (Office of the President) of the Revised
Administrative Code of 1987, which states:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status
or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.
[Emphasis supplied.]
The foregoing discussion notwithstanding, in calling out the armed forces, a
declaration of a state of rebellion is an utter superfluity.[58] At most, it only
gives notice to the nation that such a state exists and that the armed forces may
be called to prevent or suppress it.[59] Perhaps the declaration may wreak
emotional effects upon the perceived enemies of the State, even on the entire
nation. But this Courts mandate is to probe only into the legal consequences of
the declaration. This Court finds that such a declaration is devoid of any legal
significance. For all legal intents, the declaration is deemed not written.
Should there be any confusion generated by the issuance of Proclamation No.
427 and General Order No. 4, we clarify that, as the dissenters in Lacson
correctly pointed out, the mere declaration of a state of rebellion cannot
diminish or violate constitutionally protected rights.[60] Indeed, if a state of
martial law does not suspend the operation of the Constitution or automatically
suspend the privilege of the writ of habeas corpus,[61] then it is with more
reason that a simple declaration of a state of rebellion could not bring about
these conditions.[62] At any rate, the presidential issuances themselves call for
the suppression of the rebellion with due regard to constitutional rights.
For the same reasons, apprehensions that the military and police authorities may
resort to warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra,
majority of the Court held that [i]n quelling or suppressing the rebellion, the
authorities may only resort to warrantless arrests of persons suspected of
rebellion, as provided under Section 5, Rule 113 of the Rules of Court,[63] if
the circumstances so warrant. The warrantless arrest feared by petitioners is,
thus, not based on the declaration of a state of rebellion.[64] In other words, a
person may be subjected to a warrantless arrest for the crime of rebellion
whether or not the President has declared a state of rebellion, so long as the
requisites for a valid warrantless arrest are present.
It is not disputed that the President has full discretionary power to call out the
armed forces and to determine the necessity for the exercise of such power.
While the Court may examine whether the power was exercised within
constitutional limits or in a manner constituting grave abuse of discretion, none
of the petitioners here have, by way of proof, supported their assertion that the
President acted without factual basis.[65]
88 of 692
The argument that the declaration of a state of rebellion amounts to a AQUILINO Q. PIMENTEL, JR.,
declaration of martial law and, therefore, is a circumvention of the report EDGARDO J. ANGARA,
requirement, is a leap of logic. There is no indication that military tribunals JUAN PONCE ENRILE,
have replaced civil courts in the theater of war or that military authorities have LUISA P. EJERCITO-ESTRADA,
taken over the functions of civil government. There is no allegation of JINGGOY E. ESTRADA,
curtailment of civil or political rights. There is no indication that the President PANFILO M. LACSON,
has exercised judicial and legislative powers. In short, there is no illustration ALFREDO S. LIM,
that the President has attempted to exercise or has exercised martial law powers. JAMBY A.S. MADRIGAL, and
SERGIO R. OSMEA III,
Nor by any stretch of the imagination can the declaration constitute an indirect Petitioners,
exercise of emergency powers, which exercise depends upon a grant of
Congress pursuant to Section 23 (2), Article VI of the Constitution: - versus -
G.R. No. 164978
Sec. 23. (1) .
Present:
(2) In times of war or other national emergency, the Congress may, by law, Davide, Jr., C.J.,
authorize the President, for a limited period and subject to such restrictions as Puno,
it may prescribe, to exercise powers necessary and proper to carry out a declared Panganiban,
national policy. Unless sooner withdrawn by resolution of the Congress, such Quisumbing,
powers shall cease upon the next adjournment thereof. Ynares-Santiago,
Sandoval-Gutierrez,
The petitions do not cite a specific instance where the President has attempted Carpio,
to or has exercised powers beyond her powers as Chief Executive or as Austria-Martinez,
Commander-in-Chief. The President, in declaring a state of rebellion and in Corona,
calling out the armed forces, was merely exercising a wedding of her Chief Carpio Morales,
Executive and Commander-in-Chief powers. These are purely executive EXEC. SECRETARY EDUARDO
powers, vested on the President by Sections 1 and 18, Article VII, as opposed Callejo, Sr.,
to the delegated legislative powers contemplated by Section 23 (2), Article VI. R. ERMITA, FLORENCIO B. ABAD,
Azcuna,
WHEREFORE, the petitions are hereby DISMISSED. AVELINO J. CRUZ, JR.,
Tinga,
SO ORDERED. MICHAEL T. DEFENSOR, Chico-Nazario, and
JOSEPH H. DURANO, Garcia, JJ.
Pimentel v. Ermita RAUL M. GONZALEZ,
G.R. No. 164978 (Oct. 13, 2005) ALBERTO G. ROMULO,
RENE C. VILLA, and Promulgated:
ARTHUR C. YAP,
Respondents. October 13, 2005
89 of 692
x----------------------------------------------------- Alberto G. Romulo
x Foreign Affairs
23 August 2004
DECISION Raul M. Gonzalez
Justice
CARPIO, J.: 23 August 2004
Florencio B. Abad
Education
23 August 2004
The Case Avelino J. Cruz, Jr.
National Defense
23 August 2004
This is a petition for certiorari and prohibition[1] with a prayer for the issuance Rene C. Villa
of a writ of preliminary injunction to declare unconstitutional the appointments Agrarian Reform
issued by President Gloria Macapagal-Arroyo (President Arroyo) through 23 August 2004
Executive Secretary Eduardo R. Ermita (Secretary Ermita) to Florencio B. Joseph H. Durano
Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Tourism
Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap (respondents) 23 August 2004
as acting secretaries of their respective departments. The petition also seeks to Michael T. Defensor
prohibit respondents from performing the duties of department secretaries. Environment and Natural Resources
23 August 2004

Antecedent Facts The appointment papers are uniformly worded as follows:

The Senate and the House of Representatives (Congress) commenced their Sir:
regular session on 26 July 2004. The Commission on Appointments, composed
of Senators and Representatives, was constituted on 25 August 2004. Pursuant to the provisions of existing laws, you are hereby appointed ACTING
SECRETARY, DEPARTMENT OF (appropriate department) vice (name of
Meanwhile, President Arroyo issued appointments[2] to respondents as acting person replaced).
secretaries of their respective departments.
By virtue hereof, you may qualify and enter upon the performance of the duties
Appointee and functions of the office, furnishing this Office and the Civil Service
Department Commission with copies of your Oath of Office.
Date of Appointment
Arthur C. Yap (signed)
Agriculture Gloria Arroyo
15 August 2004
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Respondents took their oath of office and assumed duties as acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel), Edgardo
J. Angara (Senator Angara), Juan Ponce Enrile (Senator Enrile), Luisa P.
Ejercito-Estrada (Senator Ejercito-Estrada), Jinggoy E. Estrada (Senator
Estrada), Panfilo M. Lacson (Senator Lacson), Alfredo S. Lim (Senator Lim),
Jamby A.S. Madrigal (Senator Madrigal), and Sergio R. Osmea, III (Senator
Osmea) (petitioners) filed the present petition as Senators of the Republic of
the Philippines.
Congress adjourned on 22 September 2004. On 23 September 2004, President
Arroyo issued ad interim appointments[3] to respondents as secretaries of the
departments to which they were previously appointed in an acting capacity. The
appointment papers are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed
SECRETARY [AD INTERIM], DEPARTMENT OF (appropriate department).
By virtue hereof, you may qualify and enter upon the performance of the duties
and functions of the office, furnishing this Office and the Civil Service
Commission with copies of your oath of office.
(signed)
Gloria Arroyo
Issue
The petition questions the constitutionality of President Arroyos appointment
of respondents as acting secretaries without the consent of the Commission on
Appointments while Congress is in session.
The Courts Ruling
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because President Arroyo
had extended to respondents ad interim appointments on 23 September 2004
immediately after the recess of Congress.
As a rule, the writ of prohibition will not lie to enjoin acts already done.[4]
However, as an exception to the rule on mootness, courts will decide a question
otherwise moot if it is capable of repetition yet evading review.[5]
In the present case, the mootness of the petition does not bar its resolution. The
question of the constitutionality of the Presidents appointment of department
secretaries in an acting capacity while Congress is in session will arise in every
such appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the legislature may
not interfere with the exercise of this executive power except in those instances
when the Constitution expressly allows it to interfere.[6] Limitations on the
executive power to appoint are construed strictly against the legislature.[7] The
scope of the legislatures interference in the executives power to appoint is
limited to the power to prescribe the qualifications to an appointive office.
91 of 692
Congress cannot appoint a person to an office in the guise of prescribing
qualifications to that office. Neither may Congress impose on the President the
duty to appoint any particular person to an office.[8]
However, even if the Commission on Appointments is composed of members
of Congress, the exercise of its powers is executive and not legislative. The
Commission on Appointments does not legislate when it exercises its power to
give or withhold consent to presidential appointments. Thus:
xxx The Commission on Appointments is a creature of the Constitution.
Although its membership is confined to members of Congress, said
Commission is independent of Congress. The powers of the Commission do not
come from Congress, but emanate directly from the Constitution. Hence, it is
not an agent of Congress. In fact, the functions of the Commissioner are purely
executive in nature. xxx[9]
On Petitioners Standing
The Solicitor General states that the present petition is a quo warranto
proceeding because, with the exception of Secretary Ermita, petitioners
effectively seek to oust respondents for unlawfully exercising the powers of
department secretaries. The Solicitor General further states that petitioners may
not claim standing as Senators because no power of the Commission on
Appointments has been infringed upon or violated by the President. xxx If at
all, the Commission on Appointments as a body (rather than individual
members of the Congress) may possess standing in this case.[10]
Petitioners, on the other hand, state that the Court can exercise its certiorari
jurisdiction over unconstitutional acts of the President.[11] Petitioners further
contend that they possess standing because President Arroyos appointment of
department secretaries in an acting capacity while Congress is in session
impairs the powers of Congress. Petitioners cite Sanlakas v. Executive
Secretary[12] as basis, thus:
To the extent that the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of
the powers of that institution.
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a
member of Congress. In such a case, any member of Congress can have a resort
to the courts.
Considering the independence of the Commission on Appointments from
Congress, it is error for petitioners to claim standing in the present case as
members of Congress. President Arroyos issuance of acting appointments while
Congress is in session impairs no power of Congress. Among the petitioners,
only the following are members of the Commission on Appointments of the
13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as
Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada,
and Senator Osmea as members.
Thus, on the impairment of the prerogatives of members of the Commission on
Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and
Osmea have standing in the present petition. This is in contrast to Senators
Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their
perceived prerogatives as members of Congress, possess no standing in the
present petition.
The Constitutionality of President Arroyos Issuance
of Appointments to Respondents as Acting Secretaries
Petitioners contend that President Arroyo should not have appointed
respondents as acting secretaries because in case of a vacancy in the Office of
a Secretary, it is only an Undersecretary who can be designated as Acting
Secretary.[13] Petitioners base their argument on Section 10, Chapter 2, Book
IV of Executive Order No. 292 (EO 292),[14] which enumerates the powers
and duties of the undersecretary. Paragraph 5 of Section 10 reads:
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SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the latters absence or
inability to discharge his duties for any cause or in case of vacancy of the said
office, unless otherwise provided by law. Where there are more than one
Undersecretary, the Secretary shall allocate the foregoing powers and duties
among them. The President shall likewise make the temporary designation of
Acting Secretary from among them; and
xxx
Petitioners further assert that while Congress is in session, there can be no
appointments, whether regular or acting, to a vacant position of an office
needing confirmation by the Commission on Appointments, without first
having obtained its consent.[15]
In sharp contrast, respondents maintain that the President can issue
appointments in an acting capacity to department secretaries without the
consent of the Commission on Appointments even while Congress is in session.
Respondents point to Section 16, Article VII of the 1987 Constitution. Section
16 reads:
SEC. 16. The President shall nominate and, with the consent of the Commission
on Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers lower in rank
in the President alone, in the courts, or in the heads of departments, agencies,
commissions, or boards.
The President shall have the power to make appointments during the recess of
the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.
Respondents also rely on EO 292, which devotes a chapter to the Presidents
power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO
292 read:
SEC. 16. Power of Appointment. The President shall exercise the power to
appoint such officials as provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. (1) The President may
temporarily designate an officer already in the government service or any other
competent person to perform the functions of an office in the executive branch,
appointment to which is vested in him by law, when: (a) the officer regularly
appointed to the office is unable to perform his duties by reason of illness,
absence or any other cause; or (b) there exists a vacancy[.]
(2) The person designated shall receive the compensation attached to the
position, unless he is already in the government service in which case he shall
receive only such additional compensation as, with his existing salary, shall not
exceed the salary authorized by law for the position filled. The compensation
hereby authorized shall be paid out of the funds appropriated for the office or
agency concerned.
(3) In no case shall a temporary designation exceed one (1) year. (Emphasis
supplied)
Petitioners and respondents maintain two diametrically opposed lines of
thought. Petitioners assert that the President cannot issue appointments in an
acting capacity to department secretaries while Congress is in session because
the law does not give the President such power. In contrast, respondents insist
that the President can issue such appointments because no law prohibits such
appointments.
93 of 692
The essence of an appointment in an acting capacity is its temporary nature. It
is a stop-gap measure intended to fill an office for a limited time until the
appointment of a permanent occupant to the office.[16] In case of vacancy in
an office occupied by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an alter ego of her
choice as acting secretary before the permanent appointee of her choice could
assume office.
Congress, through a law, cannot impose on the President the obligation to
appoint automatically the undersecretary as her temporary alter ego. An alter
ego, whether temporary or permanent, holds a position of great trust and
confidence. Congress, in the guise of prescribing qualifications to an office,
cannot impose on the President who her alter ego should be.
The office of a department secretary may become vacant while Congress is in
session. Since a department secretary is the alter ego of the President, the acting
appointee to the office must necessarily have the Presidents confidence. Thus,
by the very nature of the office of a department secretary, the President must
appoint in an acting capacity a person of her choice even while Congress is in
session. That person may or may not be the permanent appointee, but practical
reasons may make it expedient that the acting appointee will also be the
permanent appointee.
The law expressly allows the President to make such acting appointment.
Section 17, Chapter 5, Title I, Book III of EO 292 states that [t]he President
may temporarily designate an officer already in the government service or any
other competent person to perform the functions of an office in the executive
branch. Thus, the President may even appoint in an acting capacity a person not
yet in the government service, as long as the President deems that person
competent.
Petitioners assert that Section 17 does not apply to appointments vested in the
President by the Constitution, because it only applies to appointments vested in
the President by law. Petitioners forget that Congress is not the only source of
law. Law refers to the Constitution, statutes or acts of Congress, municipal
ordinances, implementing rules issued pursuant to law, and judicial
decisions.[17]
Finally, petitioners claim that the issuance of appointments in an acting capacity
is susceptible to abuse. Petitioners fail to consider that acting appointments
cannot exceed one year as expressly provided in Section 17(3), Chapter 5, Title
I, Book III of EO 292. The law has incorporated this safeguard to prevent
abuses, like the use of acting appointments as a way to circumvent confirmation
by the Commission on Appointments.
In distinguishing ad interim appointments from appointments in an acting
capacity, a noted textbook writer on constitutional law has observed:
Ad-interim appointments must be distinguished from appointments in an acting
capacity. Both of them are effective upon acceptance. But ad-interim
appointments are extended only during a recess of Congress, whereas acting
appointments may be extended any time there is a vacancy. Moreover ad-
interim appointments are submitted to the Commission on Appointments for
confirmation or rejection; acting appointments are not submitted to the
Commission on Appointments. Acting appointments are a way of temporarily
filling important offices but, if abused, they can also be a way of circumventing
the need for confirmation by the Commission on Appointments.[18]
However, we find no abuse in the present case. The absence of abuse is readily
apparent from President Arroyos issuance of ad interim appointments to
respondents immediately upon the recess of Congress, way before the lapse of
one year.
WHEREFORE, we DISMISS the present petition for certiorari and prohibition.
SO ORDERED.
David v. Arroyo
G.R. No. 171396 (May 6, 2003)
EN BANC
94 of 692
PROF. RANDOLF S. DAVID, LORENZO TA„ADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R.
RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG,
Petitioners,
- versus -
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE,
Respondents.
x-------------------------------------------------x
NI„EZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC.,
Petitioners,
- versus -
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO,
Respondents.
x-------------------------------------------------x
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO
A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C.
OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA,
TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA,
LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN
MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-
CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL,
ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT
OF CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY
AMADO GAT INCIONG,
Petitioners,
- versus -
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ,
JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG,
GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO,
CHIEF PNP,
Respondents.
x-------------------------------------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON
ELMER C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS Ð KILUSANG MAYO
UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND
ROQUE M. TAN,
Petitioners,
- versus -
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO,
THE HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA,
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO,
Respondents.
x-------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC. (ALG),
95 of 692
 Petitioner,
- versus - G.R. No. 171396

Present:
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, PANGANIBAN, C.J.,
Respondents. *PUNO,
x-------------------------------------------------x QUISUMBING,
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. YNARES-SANTIAGO,
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, SANDOVAL-GUTIERREZ,
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. CARPIO,
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND AUSTRIA-MARTINEZ,
INTEGRATED BAR OF THE PHILIPPINES (IBP), CORONA,
Petitioners, CARPIO MORALES,
CALLEJO, SR.,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GARCIA, and
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND VELASCO, JJ.
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF, Promulgated:
Respondents.
x-------------------------------------------------x May 3, 2006
LOREN B. LEGARDA,
Petitioner,
G.R. No. 171409

- versus -

GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT

AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS
CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL
POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND
EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY,
Respondents.
96 of 692
G.R. No. 171485

G.R. No. 171400

G.R. No. 171483

97 of 692
 DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula
G.R. No. 171489 are necessary.[1] Superior strength Ð the use of force Ð cannot make wrongs
into rights. In this regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. PanganibanÕs philosophy of liberty is thus most

relevant. He said: ÒIn cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak.Ó Laws and actions that restrict
fundamental rights come to the courts Òwith a heavy presumption against their
constitutional validity.Ó[2]
These seven (7) consolidated petitions for certiorari and prohibition allege
that in issuing Presidential Proclamation No. 1017 (PP 1017) and General
Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave
abuse of discretion. Petitioners contend that respondent officials of the
Government, in their professed efforts to defend and preserve democratic
institutions, are actually trampling upon the very freedom guaranteed and
protected by the Constitution. Hence, such issuances are void for being
unconstitutional.

Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree of
liberty, without which, law becomes tyranny, with the degree of law, without
G.R. No. 171424 which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20th Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of
x-------------------------------------------------------------------------------------------- national emergency, thus:
-x
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic
of the Philippines and Commander-in-Chief of the Armed Forces of the
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Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of
the Philippine Constitution which states that: ÒThe President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress.
. .rebellion. . .,Ó and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the
laws and to all decrees, orders and regulations promulgated by me personally
or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left represented by the NDF-CPP-
NPA and the extreme Right, represented by military adventurists Ð the
historical enemies of the democratic Philippine State Ð who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly constituted Government elected in May
2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State Ð by
obstructing governance including hindering the growth of the economy and
sabotaging the peopleÕs confidence in government and their faith in the future
of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and the
integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left, represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists -
the historical enemies of the democratic Philippine State Ð and who are now in
a tactical alliance and engaged in a concerted and systematic conspiracy, over
a broad front, to bring down the duly-constituted Government elected in May
2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy and
sabotaging the peopleÕs confidence in the government and their faith in the
future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
99 of 692

WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and the
integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution as President of the Republic of the
Philippines, and Commander-in-Chief of the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call
upon the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), to prevent and suppress acts of terrorism and lawless violence in
the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP,
as well as the officers and men of the AFP and PNP, to immediately carry out
the necessary and appropriate actions and measures to suppress and prevent acts
of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP
1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of
the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued
declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), were
directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to
undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed
and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO,
President of the Republic of the Philippines, by virtue of the powers vested in
me by law, hereby declare that the state of national emergency has ceased to
exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents
stated that the proximate cause behind the executive issuances was the
conspiracy among some military officers, leftist insurgents of the New
PeopleÕs Army (NPA), and some members of the political opposition in a plot
to unseat or assassinate President Arroyo.[4] They considered the aim to oust
or assassinate the President and take-over the reigns of government as a clear
and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No. 5.
Significantly, there was no refutation from petitionersÕ counsels.
The Solicitor General argued that the intent of the Constitution is to give full
discretionary powers to the President in determining the necessity of calling out
the armed forces. He emphasized that none of the petitioners has shown that
PP 1017 was without factual bases. While he explained that it is not
respondentsÕ task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation
of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First
Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang,
members of the Magdalo Group indicted in the Oakwood mutiny, escaped their
detention cell in Fort Bonifacio, Taguig City. In a public statement, they
vowed to remain defiant and to elude arrest at all costs. They called upon the
people to Òshow and proclaim our displeasure at the sham regime. Let us
demonstrate our disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms.Ó [5]
100 of 692

On February 17, 2006, the authorities got hold of a document entitled ÒOplan
Hackle I Ó which detailed plans for bombings and attacks during the Philippine
Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President
Arroyo herself.[6] Upon the advice of her security, President Arroyo decided
not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse
in Batangas province. Found in his possession were two (2) flash disks
containing minutes of the meetings between members of the Magdalo Group
and the National PeopleÕs Army (NPA), a tape recorder, audio cassette
cartridges, diskettes, and copies of subversive documents.[7] Prior to his
arrest, Lt. San Juan announced through DZRH that the ÒMagdaloÕs D-Day
would be on February 24, 2006, the 20th Anniversary of Edsa I.Ó
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr. to
ÒdisavowÓ any defection. The latter promptly obeyed and issued a public
statement: ÒAll SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty.Ó
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory AquinoÕs brother, businessmen and mid-level government
officials plotted moves to bring down the Arroyo administration. Nelly
Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo
critic, called a U.S. government official about his groupÕs plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon
identified him as B/Gen. Danilo Lim, Commander of the ArmyÕs elite Scout
Ranger. Lim said Òit was all systems go for the planned movement against
Arroyo.Ó[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be held on February
24, 2005. According to these two (2) officers, there was no way they could
possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga
has remained faithful to his Commander-in-Chief and to the chain of command.
He immediately took custody of B/Gen. Lim and directed Col. Querubin to
return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary
work within the military and the police establishments in order to forge
alliances with its members and key officials. NPA spokesman Gregorio ÒKa
RogerÓ Rosal declared: ÒThe Communist Party and revolutionary movement
and the entire people look forward to the possibility in the coming year of
accomplishing its immediate task of bringing down the Arroyo regime; of
rendering it to weaken and unable to rule that it will not take much longer to
end it.Ó[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: ÒAnti-Arroyo
groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field.Ó He
claimed that with the forces of the national democratic movement, the anti-
Arroyo conservative political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the PresidentÕs ouster is nearing
its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers
and cell sites in Bulacan and Bataan was also considered as additional factual
basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army
outpost in Benguet resulting in the death of three (3) soldiers. And also the
directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her security advisers
and several cabinet members to assess the gravity of the fermenting peace and
order situation. She directed both the AFP and the PNP to account for all their
101 of 692
men and ensure that the chain of command remains solid and undivided. To
protect the young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire National
Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP
1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration of Edsa
People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political rallies,
which to the PresidentÕs mind were organized for purposes of destabilization,
are cancelled. Presidential Chief of Staff Michael Defensor announced that
Òwarrantless arrests and take-over of facilities, including media, can already be
implemented.Ó[11]
Undeterred by the announcements that rallies and public assemblies would not
be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging
at the EDSA shrine. Those who were already near the EDSA site were
violently dispersed by huge clusters of anti-riot police. The well-trained
policemen used truncheons, big fiber glass shields, water cannons, and tear gas
to stop and break up the marching groups, and scatter the massed participants.
The same police action was used against the protesters marching forward to
Cubao, Quezon City and to the corner of Santolan Street and EDSA. That
same evening, hundreds of riot policemen broke up an EDSA celebration rally
held along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion,
Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis
of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The
raiding team confiscated news stories by reporters, documents, pictures, and
mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City
were stationed inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside the
building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and
its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is Òmeant
to show a Ôstrong presence,Õ to tell media outlets not to connive or do anything
that would help the rebels in bringing down this government.Ó The PNP
warned that it would take over any media organization that would not follow
Òstandards set by the government during the state of national emergency.Ó
Director General Lomibao stated that Òif they do not follow the standards Ð
and the standards are - if they would contribute to instability in the government,
or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017
Ð we will recommend a Ôtakeover.ÕÓ National TelecommunicationsÕ
Commissioner Ronald Solis urged television and radio networks to
ÒcooperateÓ with the government for the duration of the state of national
emergency. He asked for Òbalanced reportingÓ from broadcasters when
covering the events surrounding the coup attempt foiled by the government.
He warned that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage when the national
security is threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno
(KMU), while leaving his farmhouse in Bulacan. The police showed a warrant
for his arrest dated 1985. BeltranÕs lawyer explained that the warrant, which
stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these
petitions.
102 of 692
When members of petitioner KMU went to Camp Crame to visit Beltran, they
were told they could not be admitted because of PP 1017 and G.O. No. 5. Two
members were arrested and detained, while the rest were dispersed by the
police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went
after him during a public forum at the Sulo Hotel in Quezon City. But his two
drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Monta–o, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the Orchard
Golf and Country Club in Dasmari–as, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casi–o
and Gabriela Representative Liza Maza. Bayan Muna Representative Josel
Virador was arrested at the PAL Ticket Office in Davao City. Later, he was
turned over to the custody of the House of Representatives where the ÒBatasan
5Ó decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these
petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP
1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017
on the grounds that (1) it encroaches on the emergency powers of Congress; (2)
it is a subterfuge to avoid the constitutional requirements for the imposition of
martial law; and (3) it violates the constitutional guarantees of freedom of the
press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune
Publishing Co., Inc. challenged the CIDGÕs act of raiding the Daily Tribune
offices as a clear case of ÒcensorshipÓ or Òprior restraint.Ó They also claimed
that the term ÒemergencyÓ refers only to tsunami, typhoon, hurricane and
similar occurrences, hence, there is Òabsolutely no emergencyÓ that warrants
the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casi–o,
Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5
constitute Òusurpation of legislative powersÓ; Òviolation of freedom of
expressionÓ and Òa declaration of martial law.Ó They alleged that President
Arroyo Ògravely abused her discretion in calling out the armed forces without
clear and verifiable factual basis of the possibility of lawless violence and a
showing that there is necessity to do so.Ó
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
arrogate unto President Arroyo the power to enact laws and decrees; (2) their
issuance was without factual basis; and (3) they violate freedom of expression
and the right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a)
Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III,
(c) Section 23[19] of Article VI, and (d) Section 17[20] of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an Òarbitrary and unlawful exercise by the President of her Martial Law
powers.Ó And assuming that PP 1017 is not really a declaration of Martial
Law, petitioners argued that Òit amounts to an exercise by the President of
emergency powers without congressional approval.Ó In addition, petitioners
asserted that PP 1017 Ògoes beyond the nature and function of a proclamation
as defined under the Revised Administrative Code.Ó
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And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that
PP 1017 and G.O. No. 5 are Òunconstitutional for being violative of the
freedom of expression, including its cognate rights such as freedom of the press
and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution.Ó In this
regard, she stated that these issuances prevented her from fully prosecuting her
election protest pending before the Presidential Electoral Tribunal.
In respondentsÕ Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being moot; second,
petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et
al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing;
third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP
1017 does not violate the peopleÕs right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard the
parties on the above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI),
171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal
standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country
is the concept of judicial review enunciated in Marbury v. Madison.[21] This
concept rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or unconsciously
oversteps these limitations there must be some authority competent to hold it in
control, to thwart its unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the theory of
judicial review.[22]
But the power of judicial review does not repose upon the courts a Òself-
starting capacity.Ó[23] Courts may exercise such power only when the
following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of constitutionality;
third, the constitutional question must be raised at the earliest opportunity; and
fourth, the decision of the constitutional question must be necessary to the
determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we
shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal
claims susceptible of judicial resolution. It is Òdefinite and concrete, touching
the legal relations of parties having adverse legal interest;Ó a real and
substantial controversy admitting of specific relief.[25] The Solicitor General
refutes the existence of such actual case or controversy, contending that the
present petitions were rendered Òmoot and academicÓ by President ArroyoÕs
issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events,[26] so that a declaration thereon would be of
no practical use or value.[27] Generally, courts decline jurisdiction over such
case[28] or dismiss it on ground of mootness.[29]
104 of 692

The Court holds that President ArroyoÕs issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP
1017 was operative, the police officers, according to petitioners, committed
illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or
valid? Do they justify these alleged illegal acts? These are the vital issues that
must be resolved in the present petitions. It must be stressed that Òan
unconstitutional act is not a law, it confers no rights, it imposes no duties, it
affords no protection; it is in legal contemplation, inoperative.Ó[30]
The Òmoot and academicÓ principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the
Constitution;[31] second, the exceptional character of the situation and the
paramount public interest is involved;[32] third, when constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar,
and the public;[33] and fourth, the case is capable of repetition yet evading
review.[34]
All the foregoing exceptions are present here and justify this CourtÕs
assumption of jurisdiction over the instant petitions. Petitioners alleged that the
issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no
question that the issues being raised affect the publicÕs interest, involving as
they do the peopleÕs basic rights to freedom of expression, of assembly and of
the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by constitutional
guarantees.[35] And lastly, respondentsÕ contested actions are capable of
repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. PanganibanÕs Separate Opinion in Sanlakas v.
Executive Secretary.[36] However, they failed to take into account the Chief
JusticeÕs very statement that an otherwise ÒmootÓ case may still be decided
Òprovided the party raising it in a proper case has been and/or continues to be
prejudiced or damaged as a direct result of its issuance.Ó The present case
falls right within this exception to the mootness rule pointed out by the Chief
Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court
deems it imperative to have a more than passing discussion on legal standing
or locus standi.
Locus standi is defined as Òa right of appearance in a court of justice on
a given question.Ó[37] In private suits, standing is governed by the Òreal-
parties-in interestÓ rule as contained in Section 2, Rule 3 of the 1997 Rules of
Civil Procedure, as amended. It provides that Òevery action must be prosecuted
or defended in the name of the real party in interest.Ó Accordingly, the Òreal-
party-in interestÓ is Òthe party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the suit.Ó[38]
Succinctly put, the plaintiffÕs standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in public suits. Here,
the plaintiff who asserts a Òpublic rightÓ in assailing an allegedly illegal
official action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be suing
as a Òstranger,Ó or in the category of a Òcitizen,Ó or Ôtaxpayer.Ó In either
case, he has to adequately show that he is entitled to seek judicial protection.
In other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a ÒcitizenÓ or Òtaxpayer.
Case law in most jurisdictions now allows both ÒcitizenÓ and
ÒtaxpayerÓ standing in public actions. The distinction was first laid down in
Beauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayerÕs suit
is in a different category from the plaintiff in a citizenÕs suit. In the former,
the plaintiff is affected by the expenditure of public funds, while in the latter,
he is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins:[40] ÒIn matter of mere public
right, howeverÉthe people are the real partiesÉIt is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly
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pursued and punished, and that a public grievance be remedied.Ó With respect
to taxpayerÕs suits, Terr v. Jordan[41] held that Òthe right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public
funds to his injury cannot be denied.Ó
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and thus
hinders the activities of governmental agencies engaged in public service, the
United State Supreme Court laid down the more stringent Òdirect injuryÓ test
in Ex Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same
Court ruled that for a private individual to invoke the judicial power to
determine the validity of an executive or legislative action, he must show that
he has sustained a direct injury as a result of that action, and it is not sufficient
that he has a general interest common to all members of the public.
This Court adopted the Òdirect injuryÓ test in our jurisdiction. In People v.
Vera,[44] it held that the person who impugns the validity of a statute must
have Òa personal and substantial interest in the case such that he has sustained,
or will sustain direct injury as a result.Ó The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate,[45] Manila Race
Horse TrainersÕ Association v. De la Fuente,[46] Pascual v. Secretary of
Public Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi
may be waived by the Court in the exercise of its discretion. This was done in
the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[49] where the
Òtranscendental importanceÓ of the cases prompted the Court to act liberally.
Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,[50]
this Court resolved to pass upon the issues raised due to the Òfar-reaching
implicationsÓ of the petition notwithstanding its categorical statement that
petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving
the constitutionality or validity of laws, regulations and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the principle
of Òtranscendental importance.Ó Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance which
clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that
Ògiven the transcendental importance of the issues involved, the Court may
relax the standing requirements and allow the suit to prosper despite the lack of
direct injury to the parties seeking judicial reviewÓ of the Visiting Forces
Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners
may not file suit in their capacity as taxpayers absent a showing that ÒBalikatan
02-01Ó involves the exercise of CongressÕ taxing or spending powers, it
reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,[55] that in
cases of transcendental importance, the cases must be settled promptly and
definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided
by this Court. Taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the CourtÕs
attitude toward legal standing.
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 In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of
Kilosbayan as a peopleÕs organization does not give it the requisite personality
to question the validity of the on-line lottery contract, more so where it does not
raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent
any allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc.
v. Comelec,[57] the Court reiterated the Òdirect injuryÓ test with respect to
concerned citizensÕ cases involving constitutional issues. It held that Òthere
must be a showing that the citizen personally suffered some actual or threatened
injury arising from the alleged illegal official act.Ó
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners
who are members of Congress have standing to sue, as they claim that the
PresidentÕs declaration of a state of rebellion is a usurpation of the emergency
powers of Congress, thus impairing their legislative powers. As to petitioners
Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared
them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged Òdirect
injuryÓ resulting from Òillegal arrestÓ and Òunlawful searchÓ committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does
not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or not
the concurrence of Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the interest of justice that
those affected by PP 1017 can be represented by their Congressmen in bringing
to the attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in
Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in the Philippines,
Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine Amusement and
Gaming Corporation,[63] and Ta–ada v. Tuvera,[64] that when the issue
concerns a public right, it is sufficient that the petitioner is a citizen and has an
interest in the execution of the laws.
In G.R. No. 171483, KMUÕs assertion that PP 1017 and G.O. No. 5 violated
its right to peaceful assembly may be deemed sufficient to give it legal standing.
Organizations may be granted standing to assert the rights of their
members.[65] We take judicial notice of the announcement by the Office of
the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to
allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 and G.O.
No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the Court held that
the mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing
in this case. This is too general an interest which is shared by other groups and
the whole citizenry. However, in view of the transcendental importance of the
issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the
instant petition as there are no allegations of illegal disbursement of public
funds. The fact that she is a former Senator is of no consequence. She can no
longer sue as a legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation.
Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown
that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may
relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary
to the bigger question of proper exercise of judicial power. This is the
underlying legal tenet of the Òliberality doctrineÓ on legal standing. It cannot
be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question
which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling
of this Court on this very critical matter. The petitions thus call for the
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application of the Òtranscendental importanceÓ doctrine, a relaxation of the
standing requirements for the petitioners in the ÒPP 1017 cases.Ó
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled
is the doctrine that the President, during his tenure of office or actual
incumbency,[67] may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of
the high office of the President, the Head of State, if he can be dragged into
court litigations while serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or distraction to enable him to
fully attend to the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive branch and
anything which impairs his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President
is not accountable to anyone. Like any other official, he remains accountable
to the people[68] but he may be removed from office only in the mode provided
by law and that is by impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
ÒnecessaryÓ for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the PresidentÕs
exercise of his Commander-in-Chief power has reached its distilled point - from
the indulgent days of Barcelon v. Baker[70] and Montenegro
v. Castaneda[71] to the volatile era of Lansang v. Garcia,[72] Aquino,
Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts
across the line defining Òpolitical questions,Ó particularly those questions Òin
regard to which full discretionary authority has been delegated to the legislative
or executive branch of the government.Ó[75] Barcelon and Montenegro were
in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were
unanimous in the conviction that the Court has the authority to inquire into the
existence of factual bases in order to determine their constitutional sufficiency.
From the principle of separation of powers, it shifted the focus to the system of
checks and balances, Òunder which the President is supreme, x x x only if and
when he acts within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the
Judicial Department, which in this respect, is, in turn,
constitutionally supreme.Ó[76] In 1973, the unanimous Court of Lansang was
divided in Aquino v. Enrile.[77] There, the Court was almost
evenly divided on the issue of whether the validity of the imposition
of Martial Law is a political or justiciable question.[78] Then came Garcia-
Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need
to re-examine the latter case, ratiocinating that Òin times of war or national
emergency, the President must be given absolute control for the very life of the
nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God.Ó[79]
The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most
pertinent to these cases at bar -- echoed a principle similar to Lansang. While
the Court considered the PresidentÕs Òcalling-outÓ power as a discretionary
power solely vested in his wisdom, it stressed that Òthis does not prevent an
examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave
abuse of discretion.Ó This ruling is mainly a result of the CourtÕs reliance
on Section 1, Article VIII of 1987 Constitution which fortifies the authority of
the courts to determine in an appropriate action the validity of the acts of the
political departments. Under the new definition of judicial power, the courts
are authorized not only Òto settle actual controversies involving rights which
are legally demandable and enforceable,Ó but also Òto determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.Ó
The latter part of the authority represents a broadening of judicial power to
enable the courts of justice to review what was before a forbidden territory, to
wit, the discretion of the political departments of the government.[81] It speaks
of judicial prerogative not only in terms of power but also of duty.[82]
As to how the Court may inquire into the PresidentÕs exercise of power,
Lansang adopted the test that Òjudicial inquiry can go no further than to satisfy
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the Court not that the PresidentÕs decision is correct,Ó but that Òthe President
did not act arbitrarily.Ó Thus, the standard laid down is not correctness, but
arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled
that Òit is incumbent upon the petitioner to show that the PresidentÕs decision
is totally bereft of factual basisÓ and that if he fails, by way of proof, to support
his assertion, then Òthis Court cannot undertake an independent investigation
beyond the pleadings.Ó
Petitioners failed to show that President ArroyoÕs exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor GeneralÕs Consolidated Comment and Memorandum shows a
detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections
in the military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the
growing alliance between the NPA and the military. Petitioners presented
nothing to refute such events. Thus, absent any contrary allegations, the Court
is convinced that the President was justified in issuing PP 1017 calling for
military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what
she believed was lawless violence, invasion or rebellion. However, the
exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in
times of emergency. A glimpse at the various political theories relating to this
subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In
times of danger to the nation, positive law enacted by the legislature might be
inadequate or even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a prerogative Òpower
to act according to discretion for the public good, without the proscription of
the law and sometimes even against it.Ó[84] But Locke recognized that this
moral restraint might not suffice to avoid abuse of prerogative powers. Who
shall judge the need for resorting to the prerogative and how may its abuse be
avoided? Here, Locke readily admitted defeat, suggesting that Òthe people
have no other remedy in this, as in all other cases where they have no judge on
earth, but to appeal to Heaven.Ó[85]
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them
bring about, at a time of crisis, the ruin of the StateÉ
It is wrong therefore to wish to make political institutions as strong as to render
it impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to
their preservation, the method is to nominate a supreme lawyer, who shall
silence all the laws and suspend for a moment the sovereign authority. In such
a case, there is no doubt about the general will, and it clear that the peopleÕs
first intention is that the State shall not perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship or Òsupreme
magistracyÓ as he termed it. For him, it would more likely be cheapened by
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Òindiscreet use.Ó He was unwilling to rely upon an Òappeal to heaven.Ó
Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship.[87]
John Stuart Mill concluded his ardent defense of representative government: ÒI
am far from condemning, in cases of extreme necessity, the assumption of
absolute power in the form of a temporary dictatorship.Ó[88]
Nicollo MachiavelliÕs view of emergency powers, as one element in the whole
scheme of limited government, furnished an ironic contrast to the Lockean
theory of prerogative. He recognized and attempted to bridge this chasm in
democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to
extra Ðconstitutional measures; for although they may for a time be beneficial,
yet the precedent is pernicious, for if the practice is once established for good
objects, they will in a little while be disregarded under that pretext but for evil
purposes. Thus, no republic will ever be perfect if she has not by law provided
for everything, having a remedy for every emergency and fixed rules for
applying it.[89]
Machiavelli Ð in contrast to Locke, Rosseau and Mill Ð sought to
incorporate into the constitution a regularized system of standby emergency
powers to be invoked with suitable checks and controls in time of national
danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.[90]
Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed the
doctrine of constitutional dictatorship.[91] Frederick M. Watkins saw Òno
reason why absolutism should not be used as a means for the defense of liberal
institutions,Ó provided it Òserves to protect established institutions from the
danger of permanent injury in a period of temporary emergency and is followed
by a prompt return to the previous forms of political life.Ó[92] He recognized
the two (2) key elements of the problem of emergency governance, as well as
all constitutional governance: increasing administrative powers of the
executive, while at the same time Òimposing limitation upon that power.Ó[93]
Watkins placed his real faith in a scheme of constitutional dictatorship. These
are the conditions of success of such a dictatorship: ÒThe period of dictatorship
must be relatively shortÉDictatorship should always be strictly legitimate in
characterÉFinal authority to determine the need for dictatorship in any given
case must never rest with the dictator himselfÉÓ[94] and the objective of such
an emergency dictatorship should be Òstrict political conservatism.Ó
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] ÒIt
is a problem of concentrating power Ð in a government where power has
consciously been divided Ð to cope withÉ situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for how
long, and to what end.Ó[96] Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: ÒThe emergency
executive must be appointed by constitutional means Ð i.e., he must be
legitimate; he should not enjoy power to determine the existence of an
emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense of
the constitutional order.Ó[97]
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and the United
States, reverted to a description of a scheme of Òconstitutional dictatorshipÓ
as solution to the vexing problems presented by emergency.[98] Like Watkins
and Friedrich, he stated a priori the conditions of success of the Òconstitutional
dictatorship,Ó thus:
1) No general regime or particular institution of constitutional dictatorship
should be initiated unless it is necessary or even indispensable to the
preservation of the State and its constitutional orderÉ
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2) Éthe decision to institute a constitutional dictatorship should never be in the
hands of the man or men who will constitute the dictatorÉ
3) No government should initiate a constitutional dictatorship without making
specific provisions for its terminationÉ
4) Éall uses of emergency powers and all readjustments in the organization of
the government should be effected in pursuit of constitutional or legal
requirementsÉ
5) É no dictatorial institution should be adopted, no right invaded, no regular
procedure altered any more than is absolutely necessary for the conquest of the
particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship
should never be permanent in character or effectÉ
7) The dictatorship should be carried on by persons representative of every
part of the citizenry interested in the defense of the existing constitutional order.
..
8) Ultimate responsibility should be maintained for every action taken under
a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to
institute one should never be in the hands of the man or men who constitute the
dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the
crisis for which it was institutedÉ
11) Éthe termination of the crisis must be followed by a complete return as
possible to the political and governmental conditions existing prior to the
initiation of the constitutional dictatorshipÉ[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and
he places great faith in the effectiveness of congressional investigating
committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light of
recent experience, were one in saying that, Òthe suggestion that democracies
surrender the control of government to an authoritarian ruler in time of grave
danger to the nation is not based upon sound constitutional theory.Ó To
appraise emergency power in terms of constitutional dictatorship serves merely
to distort the problem and hinder realistic analysis. It matters not whether the
term ÒdictatorÓ is used in its normal sense (as applied to authoritarian rulers)
or is employed to embrace all chief executives administering emergency
powers. However used, Òconstitutional dictatorshipÓ cannot be divorced from
the implication of suspension of the processes of constitutionalism. Thus, they
favored instead the Òconcept of constitutionalismÓ articulated by Charles H.
McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of
this study, is that formulated by Charles H. McIlwain. While it does not by any
means necessarily exclude some indeterminate limitations upon the substantive
powers of government, full emphasis is placed upon procedural limitations, and
political responsibility. McIlwain clearly recognized the need to repose
adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between which there is a great
and very significant difference. In associating constitutionalism with
ÒlimitedÓ as distinguished from ÒweakÓ government, McIlwain meant
government limited to the orderly procedure of law as opposed to the processes
of force. The two fundamental correlative elements of constitutionalism for
which all lovers of liberty must yet fight are the legal limits to arbitrary power
and a complete political responsibility of government to the governed.[101]
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In the final analysis, the various approaches to emergency of the above political
theorists Ð- from LockÕs Òtheory of prerogative,Ó to WatkinsÕ doctrine of
Òconstitutional dictatorshipÓ and, eventually, to McIlwainÕs Òprinciple of
constitutionalismÓ --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the
Chief Executive, while insuring that such powers will be exercised with a sense
of political responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of
a repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice
JacksonÕs Òbalanced power structure.Ó[102] Executive, legislative, and
judicial powers are dispersed to the President, the Congress, and the Supreme
Court, respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to serve
as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other
words, in times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within carefully
prescribed procedural limitations.
a. ÒFacial ChallengeÓ
Petitioners contend that PP 1017 is void on its face because of its
Òoverbreadth.Ó They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the Constitution
and sent a Òchilling effectÓ to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing Òon their facesÓ statutes in free speech cases, also known under the
American Law as First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech or
even speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,[104] the
US Supreme Court held that Òwe have not recognized an ÔoverbreadthÕ
doctrine outside the limited context of the First AmendmentÓ (freedom of
speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a
law that Òreflects legitimate state interest in maintaining comprehensive
control over harmful, constitutionally unprotected conduct.Ó Undoubtedly,
lawless violence, insurrection and rebellion are considered ÒharmfulÓ and
Òconstitutionally unprotected conduct.Ó In Broadrick v. Oklahoma,[105] it
was held:
It remains a Ômatter of no little difficultyÕ to determine when a law may
properly be held void on its face and when Ôsuch summary actionÕ is
inappropriate. But the plain import of our cases is, at the very least, that facial
overbreadth adjudication is an exception to our traditional rules of practice and
that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from Ôpure
speechÕ toward conduct and that conduct Ðeven if expressive Ð falls within
the scope of otherwise valid criminal laws that reflect legitimate state interests
in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only Òspoken wordsÓ and again,
that Òoverbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to protected
conduct.Ó[106] Here, the incontrovertible fact remains that PP 1017 pertains
to a spectrum of conduct, not free speech, which is manifestly subject to state
regulation.
Second, facial invalidation of laws is considered as Òmanifestly strong
medicine,Ó to be used Òsparingly and only as a last resort,Ó and is Ògenerally
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disfavored;Ó[107] The reason for this is obvious. Embedded in the traditional
rules governing constitutional adjudication is the principle that a person to
whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other
situations not before the Court.[108] A writer and scholar in Constitutional
Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects
of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties; and
the court invalidates the entire statute Òon its face,Ó not merely Òas applied
forÓ so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts
to depart from the normal adjudicatory rules is the concern with the Òchilling;Ó
deterrent effect of the overbroad statute on third parties not courageous enough
to bring suit. The Court assumes that an overbroad lawÕs Òvery existence may
cause others not before the court to refrain from constitutionally protected
speech or expression.Ó An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require
the Court to examine PP 1017 and pinpoint its flaws and defects, not on the
basis of its actual operation to petitioners, but on the assumption or prediction
that its very existence may cause others not before the Court to refrain from
constitutionally protected speech or expression. In Younger v. Harris,[109] it
was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process of
the relief sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes,...ordinarily results in a kind
of case that is wholly unsatisfactory for deciding constitutional questions,
whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there
can be no instance when the assailed law may be valid. Here, petitioners did
not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness.
This, too, is unwarranted.
Related to the ÒoverbreadthÓ doctrine is the Òvoid for vagueness doctrineÓ
which holds that Òa law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application.Ó[110] It is
subject to the same principles governing overbreadth doctrine. For one, it is
also an analytical tool for testing Òon their facesÓ statutes in free speech cases.
And like overbreadth, it is said that a litigant may challenge a statute on its face
only if it is vague in all its possible applications. Again, petitioners did not even
attempt to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the meaning and
application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
Òby virtue of the power vested upon me by Section 18, Artilce VII É do hereby
command the Armed Forces of the Philippines, to maintain law and order
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throughout the Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellionÓ
Second provision:
Òand to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;Ó
Third provision:
Òas provided in Section 17, Article XII of the Constitution do hereby declare a
State of National Emergency.Ó
First Provision: Calling-out Power
The first provision pertains to the PresidentÕs calling-out power. In
Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O.
Tinga, held that Section 18, Article VII of the Constitution reproduced as
follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress. The Congress, voting jointly, by a vote
of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined
by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four
hours following such proclamation or suspension, convene in accordance with
its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual bases of the proclamation of martial
law or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
grants the President, as Commander-in-Chief, a ÒsequenceÓ of graduated
powers. From the most to the least benign, these are: the calling-out power, the
power to suspend the privilege of the writ of habeas corpus, and the power to
declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,[112]
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the Court ruled that the only criterion for the exercise of the calling-out power
is that Òwhenever it becomes necessary,Ó the President may call the armed
forces Òto prevent or suppress lawless violence, invasion or rebellion.Ó Are
these conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her OfficeÕs vast intelligence network, she is in the best
position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces
to aid him in suppressing lawless violence, invasion and rebellion. This
involves ordinary police action. But every act that goes beyond the PresidentÕs
calling-out power is considered illegal or ultra vires. For this reason, a
President must be careful in the exercise of his powers. He cannot invoke a
greater power when he wishes to act under a lesser power. There lies the
wisdom of our Constitution, the greater the power, the greater are the
limitations.
It is pertinent to state, however, that there is a distinction between the
PresidentÕs authority to declare a Òstate of rebellionÓ (in Sanlakas) and the
authority to proclaim a state of national emergency. While President ArroyoÕs
authority to declare a Òstate of rebellionÓ emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2,
Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. Ð Proclamations. Ð Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the existence
of which the operation of a specific law or regulation is made to depend, shall
be promulgated in proclamations which shall have the force of an executive
order.
President ArroyoÕs declaration of a Òstate of rebellionÓ was merely an
act declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words of
Sanlakas, is harmless, without legal significance, and deemed not written. In
these cases, PP 1017 is more than that. In declaring a state of national
emergency, President Arroyo did not only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied on Section 17, Article XII, a
provision on the StateÕs extraordinary power to take over privately-owned
public utility and business affected with public interest. Indeed, PP 1017 calls
for the exercise of an awesome power. Obviously, such Proclamation cannot
be deemed harmless, without legal significance, or not written, as in the case of
Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP 1017
are its wordings. It is plain therein that what the President invoked was her
calling-out power.
The declaration of Martial Law is a Òwarn[ing] to citizens that the
military power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they must,
upon pain of arrest and punishment, not commit any acts which will in any way
render more difficult the restoration of order and the enforcement of law.Ó[113]
In his ÒStatement before the Senate Committee on JusticeÓ on March 13,
2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law,
said that of the three powers of the President as Commander-in-Chief, the
power to declare Martial Law poses the most severe threat to civil liberties. It
is a strong medicine which should not be resorted to lightly. It cannot be used
to stifle or persecute critics of the government. It is placed in the keeping of
the President for the purpose of enabling him to secure the people from harm
and to restore order so that they can enjoy their individual freedoms. In fact,
Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial
Law. It is no more than a call by the President to the armed forces to prevent
or suppress lawless violence. As such, it cannot be used to justify acts that
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only under a valid declaration of Martial Law can be done. Its use for any
other purpose is a perversion of its nature and scope, and any act done contrary
to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of news
media and agencies and press censorship; and (d) issuance of Presidential
Decrees, are powers which can be exercised by the President as Commander-
in-Chief only where there is a valid declaration of Martial Law or suspension
of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of
Martial Law. It is merely an exercise of President ArroyoÕs calling-out power
for the armed forces to assist her in preventing or suppressing lawless violence.
Second Provision: ÒTake CareÓ Power
The second provision pertains to the power of the President to ensure that the
laws be faithfully executed. This is based on Section 17, Article VII which
reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,[115] the primary
function of the President is to enforce the laws as well as to formulate policies
to be embodied in existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the
Philippines, he will, among others, Òexecute its laws.Ó[116] In the exercise of
such function, the President, if needed, may employ the powers attached to his
office as the Commander-in-Chief of all the armed forces of the country,[117]
including the Philippine National Police[118] under the Department of Interior
and Local Government.[119]
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casi–o, Liza Maza, and Josel Virador argue
that PP 1017 is unconstitutional as it arrogated upon President Arroyo the
power to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail the
clause Òto enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction.Ó
\
PetitionersÕ contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted[120] from Former President MarcosÕ
Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and decrees,
orders and regulations promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: Òto enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction.Ó Upon the other hand, the enabling clause of PP 1017 issued by
President Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction.Ó
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Is it within the domain of President Arroyo to promulgate ÒdecreesÓ?
PP 1017 states in part: Òto enforce obedience to all the laws and decrees
x x x promulgated by me personally or upon my direction.Ó
The President is granted an Ordinance Power under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987). She may issue any
of the following:
Sec. 2. Executive Orders. Ñ Acts of the President providing for rules of a
general or permanent character in implementation or execution of constitutional
or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Ñ Acts of the President which relate to particular
aspect of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
Sec. 4. Proclamations. Ñ Acts of the President fixing a date or declaring a status
or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Ñ Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only concern
a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. Ñ Acts of the President on matters relating to
internal administration, which the President desires to bring to the attention of
all or some of the departments, agencies, bureaus or offices of the Government,
for information or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Ñ Acts and commands of the President in
his capacity as Commander-in-Chief of the Armed Forces of the Philippines
shall be issued as general or special orders.
President ArroyoÕs ordinance power is limited to the foregoing issuances. She
cannot issue decrees similar to those issued by Former President Marcos under
PP 1081. Presidential Decrees are laws which are of the same category and
binding force as statutes because they were issued by the President in the
exercise of his legislative power during the period of Martial Law under the
1973 Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate Òdecrees.Ó Legislative power is
peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that Ò[t]he legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House of
Representatives.Ó To be sure, neither Martial Law nor a state of rebellion nor
a state of emergency can justify President ArroyoÕs exercise of legislative
power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through
the military?
As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to Òlaws,Ó she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can only
order the military, under PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.
Third Provision: Power to Take Over
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The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article XII of the Constitution do hereby declare a state
of national emergency.
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience Òto all the laws and to all decrees x x xÓ but also to act pursuant to
the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately-
owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision
when she issued PP 1017?
The answer is simple. During the existence of the state of national emergency,
PP 1017 purports to grant the President, without any authority or delegation
from Congress, to take over or direct the operation of any privately-owned
public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the
Òmartial lawÓ thinking of the 1971 Constitutional Convention.[122] In effect
at the time of its approval was President MarcosÕ Letter of Instruction No. 2
dated September 22, 1972 instructing the Secretary of National Defense to take
over Òthe management, control and operation of the Manila Electric Company,
the Philippine Long Distance Telephone Company, the National Waterworks
and Sewerage Authority, the Philippine National Railways, the Philippine Air
Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful
prosecution by the Government of its effort to contain, solve and end the present
national emergency.Ó
Petitioners, particularly the members of the House of Representatives,
claim that President ArroyoÕs inclusion of Section 17, Article XII in PP 1017
is an encroachment on the legislatureÕs emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the PresidentÕs authority to declare
Òa state of national emergencyÓ and to exercise emergency powers. To
the first, as elucidated by the Court, Section 18, Article VII grants the President
such power, hence, no legitimate constitutional objection can be raised. But to
the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare the
existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as
it may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision
refers not only to war but also to Òother national emergency.Ó If the intention
of the Framers of our Constitution was to withhold from the President the
authority to declare a Òstate of national emergencyÓ pursuant to Section 18,
Article VII (calling-out power) and grant it to Congress (like the declaration of
the existence of a state of war), then the Framers could have provided so.
Clearly, they did not intend that Congress should first authorize the President
before he can declare a Òstate of national emergency.Ó The logical conclusion
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then is that President Arroyo could validly declare the existence of a state of
national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions
of a constitution which relate to the same subject matter will be construed
together and considered in the light of each other.[123] Considering that
Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate
to national emergencies, they must be read together to determine the limitation
of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in
the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to
the President. Certainly, a body cannot delegate a power not reposed upon it.
However, knowing that during grave emergencies, it may not be possible or
practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to
the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may
prescribe.
(4) The emergency powers must be exercised to carry out a national policy
declared by Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency
powers clause. The taking over of private business affected with public interest
is just another facet of the emergency powers generally reposed upon Congress.
Thus, when Section 17 states that the Òthe State may, during the emergency
and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected with public
interest,Ó it refers to Congress, not the President. Now, whether or not the
President may exercise such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the reasonable terms thereof.
Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it must be
found in some provision of the Constitution. And it is not claimed that express
constitutional language grants this power to the President. The contention is
that presidential power should be implied from the aggregate of his powers
under the Constitution. Particular reliance is placed on provisions in Article II
which say that ÒThe executive Power shall be vested in a President . . . .;Ó that
Òhe shall take Care that the Laws be faithfully executed;Ó and that he Òshall
be Commander-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the PresidentÕs
military power as Commander-in-Chief of the Armed Forces. The Government
attempts to do so by citing a number of cases upholding broad powers in
military commanders engaged in day-to-day fighting in a theater of war. Such
cases need not concern us here. Even though Òtheater of warÓ be an expanding
concept, we cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from
stopping production. This is a job for the nationÕs lawmakers, not for its
military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of our
Constitution, the PresidentÕs power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution limits his
functions in the lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And the Constitution is neither silent nor
equivocal about who shall make laws which the President is to execute. The
first section of the first article says that ÒAll legislative Powers herein granted
shall be vested in a Congress of the United States. . .Ó[126]
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Petitioner Cacho-Olivares, et al. contends that the term ÒemergencyÓ under
Section 17, Article XII refers to Òtsunami,Ó Òtyphoon,Ó ÒhurricaneÓ and
Òsimilar occurrences.Ó This is a limited view of Òemergency.Ó
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that
which is accepted as normal. Implicit in this definitions are the elements of
intensity, variety, and perception.[127] Emergencies, as perceived by
legislature or executive in the United Sates since 1933, have been occasioned
by a wide range of situations, classifiable under three (3) principal heads: a)
economic,[128] b) natural disaster,[129] and c) national security.[130]
ÒEmergency,Ó as contemplated in our Constitution, is of the same breadth. It
may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood,
or other similar catastrophe of nationwide proportions or effect.[131] This is
evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the CommitteeÕs definition of Ònational
emergencyÓ which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected
with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example,
calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
Ònational emergency.Ó
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.[132]
x x x x x x
MR. TINGSON. May I ask the committee if Ònational emergencyÓ refers to
military national emergency or could this be economic emergency?Ó
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.[133]
It may be argued that when there is national emergency, Congress may
not be able to convene and, therefore, unable to delegate to the President the
power to take over privately-owned public utility or business affected with
public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative
power, through which extraordinary measures are exercised, remains in
Congress even in times of crisis.
Òx x x
After all the criticisms that have been made against the efficiency of the
system of the separation of powers, the fact remains that the Constitution has
set up this form of government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that
they share the faith of other democracy-loving peoples in this system, with all
its faults, as the ideal. The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting periods of crisis
no matter how serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to another
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department Ð unless we regard as legislating the carrying out of a legislative
policy according to prescribed standards; no, not even when that Republic was
fighting a total war, or when it was engaged in a life-and-death struggle to
preserve the Union. The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances Ôthe
various branches, executive, legislative, and judicial,Õ given the ability to act,
are called upon Ôto perform the duties and discharge the responsibilities
committed to them respectively.Ó
Following our interpretation of Section 17, Article XII, invoked by President
Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the
operation of any privately owned public utility or business affected with public
interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take
over privately-owned public utility or business affected with public interest.
The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has no
power to point out the types of businesses affected with public interest that
should be taken over. In short, the President has no absolute authority to
exercise all the powers of the State under Section 17, Article VII in the absence
of an emergency powers act passed by Congress.
c. ÒAS APPLIED CHALLENGEÓ
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual
are often not compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and the
freedom of speech, of expression, of the press, and of assembly under the Bill
of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate Òdirect injury.Ó
In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to
celebrate the 20th Anniversary of People Power I. The arresting officers cited
PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,
Inc. claimed that on February 25, 2006, the CIDG operatives Òraided and
ransacked without warrantÓ their office. Three policemen were assigned to
guard their office as a possible Òsource of destabilization.Ó Again, the basis
was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged
that their members were Òturned away and dispersedÓ when they went to
EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People
Power I.
A perusal of the Òdirect injuriesÓ allegedly suffered by the said
petitioners shows that they resulted from the implementation, pursuant to G.O.
No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis
of these illegal acts? In general, does the illegal implementation of a law render
it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid
although they may be abused and misabused[135] and may afford an
opportunity for abuse in the manner of application.[136] The validity of a
statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired, not from its effects in a particular
case.[137] PP 1017 is merely an invocation of the PresidentÕs calling-out
power. Its general purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished the end desired
which prompted President Arroyo to issue PP 1021. But there is nothing in PP
1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizensÕ constitutional rights.
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Now, may this Court adjudge a law or ordinance unconstitutional on the ground
that its implementor committed illegal acts? The answer is no. The criterion
by which the validity of the statute or ordinance is to be measured is the
essential basis for the exercise of power, and not a mere incidental result arising
from its exertion.[138] This is logical. Just imagine the absurdity of situations
when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the
blunders committed by policemen in the cases passed upon by the Court,
majority of the provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are Òacts and commands of the President in his capacity
as Commander-in-Chief of the Armed Forces of the Philippines.Ó They are
internal rules issued by the executive officer to his subordinates precisely for
the proper and efficient administration of law. Such rules and regulations create
no relation except between the official who issues them and the official who
receives them.[139] They are based on and are the product of, a relationship in
which power is their source, and obedience, their object.[140] For these
reasons, one requirement for these rules to be valid is that they must be
reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
Ònecessary and appropriate actions and measures to suppress and prevent acts
of terrorism and lawless violence.Ó
Unlike the term Òlawless violenceÓ which is unarguably extant in our statutes
and the Constitution, and which is invariably associated with Òinvasion,
insurrection or rebellion,Ó the phrase Òacts of terrorismÓ is still an amorphous
and vague concept. Congress has yet to enact a law defining and punishing acts
of terrorism.
In fact, this Òdefinitional predicamentÓ or the Òabsence of an agreed definition
of terrorismÓ confronts not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the Òfight against
terrorismÓ has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states Òsponsoring terrorismÓ and of
terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined by
strategic interests.
The basic problem underlying all these military actions Ð or threats of the use
of force as the most recent by the United States against Iraq Ð consists in the
absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of
violence either by states, by armed groups such as liberation movements, or by
individuals.
The dilemma can by summarized in the saying ÒOne countryÕs terrorist is
another countryÕs freedom fighter.Ó The apparent contradiction or lack of
consistency in the use of the term ÒterrorismÓ may further be demonstrated by
the historical fact that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella
in Algeria, to mention only a few, were originally labeled as terrorists by those
who controlled the territory at the time, but later became internationally
respected statesmen.
What, then, is the defining criterion for terrorist acts Ð the differentia specifica
distinguishing those acts from eventually legitimate acts of national resistance
or self-defense?
Since the times of the Cold War the United Nations Organization has been
trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to bridge
the gap between those who associate ÒterrorismÓ with any violent act by non-
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state groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of force
when resistance against foreign occupation or against systematic oppression of
ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and movements
such as Palestine Liberation Organization (PLO) Ð which is a terrorist group
for Israel and a liberation movement for Arabs and Muslims Ð the Kashmiri
resistance groups Ð who are terrorists in the perception of India, liberation
fighters in that of Pakistan Ð the earlier Contras in Nicaragua Ð freedom
fighters for the United States, terrorists for the Socialist camp Ð or, most
drastically, the Afghani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the West,
nurtured by the United States, and a terrorist gang for the Soviet Union. One
could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way Ð because of opposing political interests that
are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our
analysis, the basic reason for these striking inconsistencies lies in the divergent
interest of states. Depending on whether a state is in the position of an
occupying power or in that of a rival, or adversary, of an occupying power in a
given territory, the definition of terrorism will ÒfluctuateÓ accordingly. A state
may eventually see itself as protector of the rights of a certain ethnic group
outside its territory and will therefore speak of a Òliberation struggle,Ó not of
ÒterrorismÓ when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular
armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-
freedom fighter dichotomy. A Òpolicy of double standardsÓ on this vital issue
of international affairs has been the unavoidable consequence.
This Òdefinitional predicamentÓ of an organization consisting of sovereign
states Ð and not of peoples, in spite of the emphasis in the Preamble to the
United Nations Charter! Ð has become even more serious in the present global
power constellation: one superpower exercises the decisive role in the Security
Council, former great powers of the Cold War era as well as medium powers
are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States.[141]
The absence of a law defining Òacts of terrorismÓ may result in abuse and
oppression on the part of the police or military. An illustration is when a group
of persons are merely engaged in a drinking spree. Yet the military or the
police may consider the act as an act of terrorism and immediately arrest them
pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part.
It must be remembered that an act can only be considered a crime if there is a
law defining the same as such and imposing the corresponding penalty thereon.
So far, the word ÒterrorismÓ appears only once in our criminal laws, i.e., in
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during the
Martial Law regime. This decree is entitled ÒCodifying The Various Laws on
Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations.Ó The word ÒterrorismÓ is mentioned in the following
provision: ÒThat one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force, violence,
terrorism, x x x shall be punished by reclusion temporal x x x.Ó
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985.
These two (2) laws, however, do not define Òacts of terrorism.Ó Since there
is no law defining Òacts of terrorism,Ó it is President Arroyo alone, under G.O.
No. 5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there
can be indiscriminate arrest without warrants, breaking into offices and
residences, taking over the media enterprises, prohibition and dispersal of all
assemblies and gatherings unfriendly to the administration. All these can be
effected in the name of G.O. No. 5. These acts go far beyond the calling-out
power of the President. Certainly, they violate the due process clause of the
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Constitution. Thus, this Court declares that the Òacts of terrorismÓ portion of
G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police
to commit acts beyond what are necessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the Order.
Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that Òthe right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and seizure of
whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.Ó[142] The plain
import of the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search warrant
or warrant of arrest. Thus, the fundamental protection given by this provision
is that between person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.[143]
In the Brief Account[144] submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a
criminal suspect; fourth, he was treated brusquely by policemen who Òheld his
head and tried to push himÓ inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880[145] and Inciting to Sedition;
sixth, he was detained for seven (7) hours; and seventh, he was eventually
released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner DavidÕs
warrantless arrest. During the inquest for the charges of inciting to sedition
and violation of BP 880, all that the arresting officers could invoke was
their observation that some rallyists were wearing t-shirts with the invective
ÒOust Gloria NowÓ and their erroneous assumption that petitioner David
was the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered
his immediate release on the ground of insufficiency of evidence. He noted that
petitioner David was not wearing the subject t-shirt and even if he was wearing
it, such fact is insufficient to charge him with inciting to sedition. Further, he
also stated that there is insufficient evidence for the charge of violation of BP
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880 as it was not even known whether petitioner David was the leader of the
rally.[147]
But what made it doubly worse for petitioners David et al. is that not only was
their right against warrantless arrest violated, but also their right to peaceably
assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
ÒAssemblyÓ means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil that Congress
has a right to prevent. In other words, like other rights embraced in the freedom
of expression, the right to assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly
is intended to be held in a public place, a permit for the use of such place, and
not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing
any crime, neither was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from circumstances,
the charges of inciting to sedition and violation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral argument, failed to
justify the arresting officersÕ conduct. In De Jonge v. Oregon,[148] it was held
that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding
of meetings for peaceable political action cannot be proscribed. Those who
assist in the conduct of such meetings cannot be branded as criminals on that
score. The question, if the rights of free speech and peaceful assembly are not
to be preserved, is not as to the auspices under which the meeting was held but
as to its purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which the
Constitution protects. If the persons assembling have committed crimes
elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations
of valid laws. But it is a different matter when the State, instead of prosecuting
them for such offenses, seizes upon mere participation in a peaceable assembly
and a lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal
and arrest of the members of KMU et al. (G.R. No. 171483) unwarranted.
Apparently, their dispersal was done merely on the basis of Malaca–angÕs
directive canceling all permits previously issued by local government units.
This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that Òfreedom of assembly is not to be limited, much
less denied, except on a showing of a clear and present danger of a substantive
evil that the State has a right to prevent.Ó[149] Tolerance is the rule and
limitation is the exception. Only upon a showing that an assembly presents a
clear and present danger that the State may deny the citizensÕ right to exercise
it. Indeed, respondents failed to show or convince the Court that the rallyists
committed acts amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between protected and
unprotected assemblies was eliminated.
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 Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue permits
and to revoke such permits after due notice and hearing on the determination of
the presence of clear and present danger. Here, petitioners were not even
notified and heard on the revocation of their permits.[150] The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal
defect. When a personÕs right is restricted by government action, it behooves
a democratic government to see to it that the restriction is fair, reasonable, and
according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of
speech i.e., the freedom of the press. PetitionersÕ narration of facts, which the
Solicitor General failed to refute, established the following: first, the Daily
TribuneÕs offices were searched without warrant; second, the police operatives
seized several materials for publication; third, the search was conducted at
about 1:00 oÕ clock in the morning of February 25, 2006; fourth, the search
was conducted in the absence of any official of the Daily Tribune except the
security guard of the building; and fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying that such
raid was Òmeant to show a Ôstrong presence,Õ to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government.Ó Director General Lomibao further stated that Òif they do not
follow the standards Ðand the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 Ð we will recommend a Ôtakeover.ÕÓ
National Telecommunications Commissioner Ronald Solis urged television
and radio networks to ÒcooperateÓ with the government for the duration of the
state of national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for
media coverage during times when the national security is threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure
lays down the steps in the conduct of search and seizure. Section 4 requires
that a search warrant be issued upon probable cause in connection with one
specific offence to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce.
Section 8 mandates that the search of a house, room, or any other premise be
made in the presence of the lawful occupant thereof or any member of his
family or in the absence of the latter, in the presence of two (2) witnesses of
sufficient age and discretion residing in the same locality. And Section 9 states
that the warrant must direct that it be served in the daytime, unless the property
is on the person or in the place ordered to be searched, in which case a direction
may be inserted that it be served at any time of the day or night. All these rules
were violated by the CIDG operatives.
Not only that, the search violated petitionersÕ freedom of the press. The best
gauge of a free and democratic society rests in the degree of freedom enjoyed
by its media. In the Burgos v. Chief of Staff[152] this Court held that --
As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We ForumÓ newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the
freedom of the press guaranteed under the fundamental law, and constitutes a
virtual denial of petitioners' freedom to express themselves in print. This state
of being is patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment and growth
of the citizenry.
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While admittedly, the Daily Tribune was not padlocked and sealed like the xxx xxx xxx
ÒMetropolitan MailÓ and ÒWe ForumÓ newspapers in the above case, yet it
cannot be denied that the CIDG operatives exceeded their enforcement duties. SR. ASSO. JUSTICE PUNO:
The search and seizure of materials for publication, the stationing of policemen
in the vicinity of the The Daily Tribune offices, and the arrogant warning of These have been published in the past issues of the Daily Tribune; all
government officials to media, are plain censorship. It is that officious you have to do is to get those past issues. So why do you have to go there at 1
functionary of the repressive government who tells the citizen that he may oÕclock in the morning and without any search warrant? Did they become
speak only if allowed to do so, and no more and no less than what he is suddenly part of the evidence of rebellion or inciting to sedition or what?
permitted to say on pain of punishment should he be so rash as to disobey.[153]
Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions SOLGEN BENIPAYO:
because of its anti-government sentiments. This Court cannot tolerate the
blatant disregard of a constitutional right even if it involves the most defiant of Well, it was the police that did that, Your Honor. Not upon my
our citizens. Freedom to comment on public affairs is essential to the vitality instructions.
of a representative democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments SR. ASSO. JUSTICE PUNO:
thereon. The motto should always be obsta principiis.[154]
Are you saying that the act of the policeman is illegal, it is not based on
any law, and it is not based on Proclamation 1017.

Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the TribuneÕs offices and the seizure of its materials for publication
and other papers are illegal; and that the same are inadmissible Òfor any
purpose,Ó thus:
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect and gather
clippings from Daily Tribune or any other newspaper.

JUSTICE CALLEJO: SR. ASSO. JUSTICE PUNO:

You made quite a mouthful of admission when you said that the Is it based on any law?
policemen, when inspected the Tribune for the purpose of gathering evidence
and you admitted that the policemen were able to get the clippings. Is that not SOLGEN BENIPAYO:
in admission of the admissibility of these clippings that were taken from the
Tribune? As far as I know, no, Your Honor, from the facts, no.

SOLICITOR GENERAL BENIPAYO: SR. ASSO. JUSTICE PUNO:

Under the law they would seem to be, if they were illegally seized, I So, it has no basis, no legal basis whatsoever?
think and I know, Your Honor, and these are inadmissible for any purpose.[155]

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SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I donÕt know if
it is premature to say this, we do not condone this. If the people who have been
injured by this would want to sue them, they can sue and there are remedies for
this.[156]
Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I donÕt know whether this will clarify. The acts, the supposed illegal
or unlawful acts committed on the occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as you said, a misapplication
of the law. These are acts of the police officers, that is their responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional
in every aspect and Òshould result in no constitutional or statutory breaches if
applied according to their letter.Ó
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the military
to prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizensÕ rights under the Constitution, this
Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. PanganibanÕs concurring opinion,
attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 Ð a supervening
event Ð would have normally rendered this case moot and academic. However,
while PP 1017 was still operative, illegal acts were committed allegedly in
pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar
to it, may not again be issued. Already, there have been media reports on April
30, 2006 that allegedly PP 1017 would be reimposed Òif the May 1 ralliesÓ
become Òunruly and violent.Ó Consequently, the transcendental issues raised
by the parties should not be Òevaded;Ó they must now be resolved to prevent
future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
1017Õs extraneous provisions giving the President express or implied power
(1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even
those not related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of prior restraint
on the press, are ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the absence of a
legislation, cannot take over privately-owned public utility and private business
affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President Ð acting as Commander-in-Chief Ð addressed to subalterns in the
AFP to carry out the provisions of PP 1017. Significantly, it also provides a
valid standard Ð that the military and the police should take only the
Ònecessary and appropriate actions and measures to suppress and prevent acts
of lawless violence.Ó But the words Òacts of terrorismÓ found in G.O. No. 5
have not been legally defined and made punishable by Congress and should
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thus be deemed deleted from the said G.O. While ÒterrorismÓ has been
denounced generally in media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of the AFPÕs authority in
carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the
KMU and NAFLU-KMU members; (3) the imposition of standards on media
or any prior restraint on the press; and (4) the warrantless search of the Tribune
offices and the whimsical seizures of some articles for publication and other
materials, are not authorized by the Constitution, the law and jurisprudence.
Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers concerned.
They have not been individually identified and given their day in court. The
civil complaints or causes of action and/or relevant criminal Informations have
not been presented before this Court. Elementary due process bars this Court
from making any specific pronouncement of civil, criminal or administrative
liabilities.
It is well to remember that military power is a means to an end and substantive
civil rights are ends in themselves. How to give the military the power it needs
to protect the Republic without unnecessarily trampling individual rights is one
of the eternal balancing tasks of a democratic state. During emergency,
governmental action may vary in breadth and intensity from normal times, yet
they should not be arbitrary as to unduly restrain our peopleÕs liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the
various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two vital
principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.[158]
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws not
related to lawless violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017
declaring national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President
to take over privately-owned public utility or business affected with public
interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the
AFP and the PNP should implement PP 1017, i.e. whatever is Ònecessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence.Ó Considering that Òacts of terrorismÓ have not yet been defined and
made punishable by the Legislature, such portion of G.O. No. 5 is declared
UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal
and warrantless arrest of the KMU and NAFLU-KMU members during their
rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press, as
well as the warrantless search of the Tribune offices and whimsical seizure of
its articles for publication and other materials, are declared
UNCONSTITUTIONAL.
No costs.
SO ORDERED.
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 Joya v. PCGG
G.R. No. 96541 (August 24, 1993)
G.R. No. 96541 August 24, 1993
DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION
REYNA, PROF. RICARTE M. PURUGANAN, IRMA POTENCIANO,
ADRIAN CRISTOBAL, INGRID SANTAMARIA, CORAZON FIEL,
AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R. JACELA, JR.,
MAURO MALANG, FEDERICO AGUILAR ALCUAZ, LUCRECIA R.
URTULA, SUSANO GONZALES, STEVE SANTOS, EPHRAIM SAMSON,
SOLER SANTOS, ANG KIU KOK, KERIMA POLOTAN, LUCRECIA
KASILAG, LIGAYA DAVID PEREZ, VIRGILIO ALMARIO, LIWAYWAY
A. ARCEO, CHARITO PLANAS, HELENA BENITEZ, ANNA MARIA L.
HARPER, ROSALINDA OROSA, SUSAN CALO MEDINA, PATRICIA
RUIZ, BONNIE RUIZ, NELSON NAVARRO, MANDY NAVASERO,
ROMEO SALVADOR, JOSEPHINE DARANG, and PAZ VETO PLANAS,
petitioners,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG),
CATALINO MACARAIG, JR., in his official capacity, and/or the Executive
Secretary, and CHAIRMAN MATEO A.T. CAPARAS, respondents.
M.M. Lazaro & Associates for petitioners.
The Solicitor General for respondents.
BELLOSILLO, J.:
All thirty-five (35) petitioners in this Special Civil Action for Prohibition and
Mandamus with Prayer for Preliminary Injunction and/or Restraining Order
seek to enjoin the Presidential Commission on Good Government (PCGG) from
proceeding with the auction sale scheduled on 11 January 1991 by Christie's of
New York of the Old Masters Paintings and 18th and 19th century silverware
seized from Malacañang and the Metropolitan Museum of Manila and placed
in the custody of the Central Bank.
The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of
PCGG, wrote then President Corazon C. Aquino, requesting her for authority
to sign the proposed Consignment Agreement between the Republic of the
Philippines through PCGG and Christie, Manson and Woods International, Inc.
(Christie's of New York, or CHRISTIE'S) concerning the scheduled sale on 11
January 1991 of eighty-two (82) Old Masters Paintings and antique silverware
seized from Malacañang and the Metropolitan Museum of Manila alleged to be
part of the ill-gotten wealth of the late President Marcos, his relatives and
cronies.
On 14 August 1990, then President Aquino, through former Executive
Secretary Catalino Macaraig, Jr., authorized Chairman Caparas to sign the
Consignment Agreement allowing Christie's of New York to auction off the
subject art pieces for and in behalf of the Republic of the Philippines.
On 15 August 1990, PCGG, through Chairman Caparas, representing the
Government of the Republic of the Philippines, signed the Consignment
Agreement with Christie's of New York. According to the agreement, PCGG
shall consign to CHRISTIE'S for sale at public auction the eighty-two (82) Old
Masters Paintings then found at the Metropolitan Museum of Manila as well as
the silverware contained in seventy-one (71) cartons in the custody of the
Central Bank of the Philippines, and such other property as may subsequently
be identified by PCGG and accepted by CHRISTIE'S to be subject to the
provisions of the agreement. 1
On 26 October 1990, the Commission on Audit (COA) through then Chairman
Eufemio C. Domingo submitted to President Aquino the audit findings and
observations of COA on the Consignment Agreement of 15 August 1990 to the
effect that: (a) the authority of former PCGG Chairman Caparas to enter into
the Consignment Agreement was of doubtful legality; (b) the contract was
highly disadvantageous to the government; (c) PCGG had a poor track record
in asset disposal by auction in the U.S.; and, (d) the assets subject of auction
were historical relics and had cultural significance, hence, their disposal was
prohibited by law. 2
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On 15 November 1990, PCGG through its new Chairman David M. Castro,
wrote President Aquino defending the Consignment Agreement and refuting
the allegations of COA Chairman Domingo. 3 On the same date, Director of
National Museum Gabriel S. Casal issued a certification that the items subject
of the Consignment Agreement did not fall within the classification of protected
cultural properties and did not specifically qualify as part of the Filipino cultural
heritage. 4 Hence, this petition originally filed on 7 January 1991 by Dean Jose
Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M.
Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid Santamaria, Corazon
Fiel, Ambassador E. Aguilar Cruz, Florencio R. Jacela, Jr., Mauro Malang,
Federico Aguilar Alcuaz, Lucrecia R. Urtula, Susano Gonzales, Steve Santos,
Ephraim Samson, Soler Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia
Kasilag, Ligaya David Perez, Virgilio Almario and Liwayway A. Arceo.
After the oral arguments of the parties on 9 January 1991, we issued
immediately our resolution denying the application for preliminary injunction
to restrain the scheduled sale of the artworks on the ground that petitioners had
not presented a clear legal right to a restraining order and that proper parties
had not been impleaded.
On 11 January 1991, the sale at public auction proceeded as scheduled and the
proceeds of $13,302,604.86 were turned over to the Bureau of Treasury. 5
On 5 February 1991, on motion of petitioners, the following were joined as
additional petitioners: Charito Planas, Helena Benitez, Ana Maria L. Harper,
Rosalinda Orosa, Susan Carlo Medina, Patricia Ruiz, Bonnie Ruiz, Nelson
Navarro, Mandy Navasero, Romeo Salvador, Josephine Darang and Paz Veto
Planas.
On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive
Secretary, the incumbent Executive Secretary, and Chairman Mateo A.T.
Caparas were impleaded as additional respondents.
Petitioners raise the following issues: (a) whether petitioners have legal
standing to file the instant petition; (b) whether the Old Masters Paintings and
antique silverware are embraced in the phrase "cultural treasure of the nation"
which is under the protection of the state pursuant to the 1987 Constitution
and/or "cultural properties" contemplated under R.A. 4846, otherwise known
as "The Cultural Properties Preservation and Protection Act;" (c) whether the
paintings and silverware are properties of public dominion on which can be
disposed of through the joint concurrence of the President and Congress;
(d) whether respondent, PCGG has the jurisdiction and authority to enter into
an agreement with Christie's of New York for the sale of the artworks; (e)
whether, PCGG has complied with the due process clause and other statutory
requirements for the exportation and sale of the subject items; and, (f) whether
the petition has become moot and academic, and if so, whether the above issues
warrant resolution from this Court.
The issues being interrelated, they will be discussed jointly hereunder.
However, before proceeding, we wish to emphasize that we admire and
commend petitioners' zealous concern to keep and preserve within the country
great works of art by well-known old masters. Indeed, the value of art cannot
be gainsaid. For, by serving as a creative medium through which man can
express his innermost thoughts and unbridled emotions while, at the same time,
reflecting his deep-seated ideals, art has become a true expression of beauty,
joy, and life itself. Such artistic creations give us insights into the artists' cultural
heritage — the historic past of the nation and the era to which they belong —
in their triumphant, glorious, as well as troubled and turbulent years. It must be
for this reason that the framers of the 1987 Constitution mandated in Art. XIV,
Sec. 14, that is the solemn duty of the state to "foster the preservation,
enrichment, and dynamic evolution of a Filipino national culture based on the
principle of unity in diversity in a climate of free artistic and intellectual
expression." And, in urging this Court to grant their petition, petitioners invoke
this policy of the state on the protection of the arts.
But, the altruistic and noble purpose of the petition notwithstanding, there is
that basic legal question which must first be resolved: whether the instant
petition complies with the legal requisites for this Court to exercise its power
of judicial review over this case.
The rule is settled that no question involving the constitutionality or validity of
a law or governmental act may be heard and decided by the court unless there
is compliance with the legal requisites for judicial inquiry, namely: that the
question must be raised by the proper party; that there must be an actual case
or controversy; that the question must be raised at the earliest possible
opportunity; and, that the decision on the constitutional or legal question must
131 of 692
be necessary to the determination of the case itself. 6 But the most important
are the first two (2) requisites.
On the first requisite, we have held that one having no right or interest to protect
cannot invoke the jurisdiction of the court as party-plaintiff in an
action. 7 This is premised on Sec. 2, Rule 3, of the Rules of Court which
provides that every action must be prosecuted and defended in the name of the
real party-in-interest, and that all persons having interest in the subject of the
action and in obtaining the relief demanded shall be joined as plaintiffs. The
Court will exercise its power of judicial review only if the case is brought before
it by a party who has the legal standing to raise the constitutional or legal
question. "Legal standing" means a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The term "interest" is material
interest, an interest in issue and to be affected by the decree, as distinguished
from mere interest in the question involved, or a mere incidental interest. 8
Moreover, the interest of the party plaintiff must be personal and not one based
on a desire to vindicate the constitutional right of some third and related party.
9 Museum of Manila and transferred to the Central Bank Museum. The
There are certain instances however when this Court has allowed exceptions to
the rule on legal standing, as when a citizen brings a case for mandamus to
procure the enforcement of a public duty for the fulfillment of a public right
recognized by the Constitution, 10 and when a taxpayer questions the validity
of a governmental act authorizing the disbursement of public funds. 11
Petitioners claim that as Filipino citizens, taxpayers and artists deeply
concerned with the preservation and protection of the country's artistic wealth,
they have the legal personality to restrain respondents Executive Secretary and
PCGG from acting contrary to their public duty to conserve the artistic creations
as mandated by the 1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on
Arts and Culture, and R.A. 4846 known as "The Cultural Properties
Preservation and Protection Act," governing the preservation and disposition of
national and important cultural properties. Petitioners also anchor their case on
the premise that the paintings and silverware are public properties collectively
owned by them and by the people in general to view and enjoy as great works
of art. They allege that with the unauthorized act of PCGG in selling the art
pieces, petitioners have been deprived of their right to public property without
due process of law in violation of the Constitution. 12
Petitioners' arguments are devoid of merit. They lack basis in fact and in law.
They themselves allege that the paintings were donated by private persons from
different parts of the world to the Metropolitan Museum of Manila Foundation,
which is a non-profit and non-stock corporations established to promote non-
Philippine arts. The foundation's chairman was former First Lady Imelda R.
Marcos, while its president was Bienvenido R. Tantoco. On this basis, the
ownership of these paintings legally belongs to the foundation or corporation
or the members thereof, although the public has been given the opportunity to
view and appreciate these paintings when they were placed on exhibit.
Similarly, as alleged in the petition, the pieces of antique silverware were given
to the Marcos couple as gifts from friends and dignitaries from foreign countries
on their silver wedding and anniversary, an occasion personal to them. When
the Marcos administration was toppled by the revolutionary government, these
paintings and silverware were taken from Malacañang and the Metropolitan
confiscation of these properties by the Aquino administration however should
not be understood to mean that the ownership of these paintings has
automatically passed on the government without complying with constitutional
and statutory requirements of due process and just compensation. If these
properties were already acquired by the government, any constitutional or
statutory defect in their acquisition and their subsequent disposition must be
raised only by the proper parties — the true owners thereof — whose authority
to recover emanates from their proprietary rights which are protected by statutes
and the Constitution. Having failed to show that they are the legal owners of
the artworks or that the valued pieces have become publicly owned, petitioners
do not possess any clear legal right whatsoever to question their alleged
unauthorized disposition.
Further, although this action is also one of mandamus filed by concerned
citizens, it does not fulfill the criteria for a mandamus suit. In Legaspi v. Civil
Service Commission, 13 this Court laid down the rule that a writ of mandamus
may be issued to a citizen only when the public right to be enforced and the
concomitant duty of the state are unequivocably set forth in the Constitution. In
the case at bar, petitioners are not after the fulfillment of a positive duty required
132 of 692
of respondent officials under the 1987 Constitution. What they seek is the
enjoining of an official act because it is constitutionally infirmed. Moreover,
petitioners' claim for the continued enjoyment and appreciation by the public
of the artworks is at most a privilege and is unenforceable as a constitutional
right in this action for mandamus.
Neither can this petition be allowed as a taxpayer's suit. Not every action filed
by a taxpayer can qualify to challenge the legality of official acts done by the
government. A taxpayer's suit can prosper only if the governmental acts being
questioned involve disbursement of public funds upon the theory that the
expenditure of public funds by an officer of the state for the purpose of
administering an unconstitutional act constitutes a misapplication of such
funds, which may be enjoined at the request of a taxpayer. 14 Obviously,
petitioners are not challenging any expenditure involving public funds but the
disposition of what they allege to be public properties. It is worthy to note that
petitioners admit that the paintings and antique silverware were acquired from
private sources and not with public money.
Anent the second requisite of actual controversy, petitioners argue that this case
should be resolved by this Court as an exception to the rule on moot and
academic cases; that although the sale of the paintings and silver has long been
consummated and the possibility of retrieving the treasure trove is nil, yet the
novelty and importance of the issues raised by the petition deserve this Court's
attention. They submit that the resolution by the Court of the issues in this case
will establish future guiding principles and doctrines on the preservation of the
nation's priceless artistic and cultural possessions for the benefit of the public
as a whole. 15
For a court to exercise its power of adjudication, there must be an actual case
of controversy — one which involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial resolution; the case must not be
moot or academic or based on extra-legal or other similar considerations not
cognizable by a court of justice. 16 A case becomes moot and academic when
its purpose has become stale, 17 such as the case before us. Since the purpose
of this petition for prohibition is to enjoin respondent public officials from
holding the auction sale of the artworks on a particular date — 11 January 1991
— which is long past, the issues raised in the petition have become moot and
academic.
At this point, however, we need to emphasize that this Court has the discretion
to take cognizance of a suit which does not satisfy the requirements of an actual
case or legal standing when paramount public interest is involved. 18 We find
however that there is no such justification in the petition at bar to warrant the
relaxation of the rule.
Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy of
the state to preserve and protect the important cultural properties and national
cultural treasures of the nation and to safeguard their intrinsic value. As to what
kind of artistic and cultural properties are considered by the State as involving
public interest which should therefore be protected, the answer can be gleaned
from reading of the reasons behind the enactment of R.A. 4846:
WHEREAS, the National Museum has the difficult task, under existing laws
and regulations, of preserving and protecting the cultural properties of the
nation;
WHEREAS, inumerable sites all over the country have since been excavated
for cultural relics, which have passed on to private hands, representing priceless
cultural treasure that properly belongs to the Filipino people as their heritage;
WHEREAS, it is perhaps impossible now to find an area in the Philippines,
whether government or private property, which has not been disturbed by
commercially-minded diggers and collectors, literally destroying part of our
historic past;
WHEREAS, because of this the Philippines has been charged as incapable of
preserving and protecting her cultural legacies;
WHEREAS, the commercialization of Philippine relics from the contact period,
the Neolithic Age, and the Paleolithic Age, has reached a point perilously
placing beyond reach of savants the study and reconstruction of Philippine
prehistory; and
WHEREAS, it is believed that more stringent regulation on movement and a
limited form of registration of important cultural properties and of designated
national cultural treasures is necessary, and that regardless of the item, any
133 of 692
cultural property exported or sold locally must be registered with the National
Museum to control the deplorable situation regarding our national cultural
properties and to implement the Cultural Properties Law (emphasis supplied).
Clearly, the cultural properties of the nation which shall be under the protection
of the state are classified as the "important cultural properties" and the "national
cultural treasures." "Important cultural properties" are cultural properties which
have been singled out from among the innumerable cultural properties as
having exceptional historical cultural significance to the Philippines but are not
sufficiently outstanding to merit the classification of national cultural treasures.
19 On the other hand, a "national cultural treasures" is a unique object found
locally, possessing outstanding historical, cultural, artistic and/or scientific
value which is highly significant and important to this country and nation. 20
This Court takes note of the certification issued by the Director of the Museum
that the Italian paintings and silverware subject of this petition do not constitute
protected cultural properties and are not among those listed in the Cultural
Properties Register of the National Museum.
We agree with the certification of the Director of the Museum. Under the law,
it is the Director of the Museum who is authorized to undertake the inventory,
registration, designation or classification, with the aid of competent experts, of
important cultural properties and national cultural treasures. 21 Findings of
administrative officials and agencies who have acquired expertise because their
jurisdiction is confined to specific matters are generally accorded not only
respect but at times even finality if such findings are supported by substantial
evidence and are controlling on the reviewing authorities because of their
acknowledged expertise in the fields of specialization to which they are
assigned. 22
In view of the foregoing, this Court finds no compelling reason to grant the
petition. Petitioners have failed to show that respondents Executive Secretary
and PCGG exercised their functions with grave abuse of discretion or in excess
of their jurisdiction.
WHEREFORE, for lack of merit, the petition for prohibition and mandamus is
DISMISSED.
SO ORDERED.
Agan v. PIATCO
G.R. No. 155001 (May 5, 2003)
[G.R. No. 155001. May 5, 2003]
DEMOSTHENES P. AGAN, JR., JOSEPH B. CATAHAN, JOSE MARI B.
REUNILLA, MANUEL ANTONIO B. BOE, MAMERTO S. CLARA,
REUEL E. DIMALANTA, MORY V. DOMALAON, CONRADO G.
DIMAANO, LOLITA R. HIZON, REMEDIOS P. ADOLFO, BIENVENIDO
C. HILARIO, MIASCOR WORKERS UNION - NATIONAL LABOR
UNION (MWU-NLU), and PHILIPPINE AIRLINES EMPLOYEES
ASSOCIATION (PALEA), petitioners, vs. PHILIPPINE INTERNATIONAL
AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT
AUTHORITY, DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS and SECRETARY LEANDRO M. MENDOZA, in his
capacity as Head of the Department of Transportation and Communications,
respondents,
MIASCOR GROUNDHANDLING CORPORATION, DNATA-WINGS
AVIATION SYSTEMS CORPORATION, MACROASIA-EUREST
SERVICES, INC., MACROASIA-MENZIES AIRPORT SERVICES
CORPORATION, MIASCOR CATERING SERVICES CORPORATION,
MIASCOR AIRCRAFT MAINTENANCE CORPORATION, and MIASCOR
LOGISTICS CORPORATION, petitioners-in-intervention,
[G.R. No. 155547. May 5, 2003]
SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and CONSTANTINO
G. JARAULA, petitioners, vs. PHILIPPINE INTERNATIONAL AIR
TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT
AUTHORITY, DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS, DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS, SECRETARY LEANDRO M. MENDOZA, in his capacity as
Head of the Department of Transportation and Communications, and
SECRETARY SIMEON A. DATUMANONG, in his capacity as Head of the
Department of Public Works and Highways, respondents,
JACINTO V. PARAS, RAFAEL P. NANTES, EDUARDO C. ZIALCITA,
WILLY BUYSON VILLARAMA, PROSPERO C. NOGRALES, PROSPERO
134 of 692
A. PICHAY, JR., HARLIN CAST ABAYON, and BENASING O.
MACARANBON, respondents-intervenors,
[G.R. No. 155661. May 5, 2003]
CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B. VALENCIA,
MA. TERESA V. GAERLAN, LEONARDO DE LA ROSA, DINA C. DE
LEON, VIRGIE CATAMIN RONALD SCHLOBOM, ANGELITO SANTOS,
MA. LUISA M. PALCON and SAMAHANG MANGGAGAWA SA
PALIPARAN NG PILIPINAS (SMPP), petitioners, vs. PHILIPPINE
INTERNATIONAL AIR TERMINALS CO., INC., MANILA
INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, SECRETARY
LEANDRO M. MENDOZA, in his capacity as Head of the Department of
Transportation and Communications, respondents.
DECISION
PUNO, J.:
Petitioners and petitioners-in-intervention filed the instant petitions for
prohibition under Rule 65 of the Revised Rules of Court seeking to prohibit the
Manila International Airport Authority (MIAA) and the Department of
Transportation and Communications (DOTC) and its Secretary from
implementing the following agreements executed by the Philippine
Government through the DOTC and the MIAA and the Philippine International
Air Terminals Co., Inc. (PIATCO): (1) the Concession Agreement signed on
July 12, 1997, (2) the Amended and Restated Concession Agreement dated
November 26, 1999, (3) the First Supplement to the Amended and Restated
Concession Agreement dated August 27, 1999, (4) the Second Supplement to
the Amended and Restated Concession Agreement dated September 4, 2000,
and (5) the Third Supplement to the Amended and Restated Concession
Agreement dated June 22, 2001 (collectively, the PIATCO Contracts).
The facts are as follows:
In August 1989, the DOTC engaged the services of Aeroport de Paris (ADP) to
conduct a comprehensive study of the Ninoy Aquino International Airport
(NAIA) and determine whether the present airport can cope with the traffic
development up to the year 2010. The study consisted of two parts: first, traffic
forecasts, capacity of existing facilities, NAIA future requirements, proposed
master plans and development plans; and second, presentation of the
preliminary design of the passenger terminal building. The ADP submitted a
Draft Final Report to the DOTC in December 1989.
Some time in 1993, six business leaders consisting of John Gokongwei, Andrew
Gotianun, Henry Sy, Sr., Lucio Tan, George Ty and Alfonso Yuchengco met
with then President Fidel V. Ramos to explore the possibility of investing in the
construction and operation of a new international airport terminal. To signify
their commitment to pursue the project, they formed the Asias Emerging
Dragon Corp. (AEDC) which was registered with the Securities and Exchange
Commission (SEC) on September 15, 1993.
On October 5, 1994, AEDC submitted an unsolicited proposal to the
Government through the DOTC/MIAA for the development of NAIA
International Passenger Terminal III (NAIA IPT III) under a build-operate-and-
transfer arrangement pursuant to RA 6957 as amended by RA 7718 (BOT
Law).[1]
On December 2, 1994, the DOTC issued Dept. Order No. 94-832 constituting
the Prequalification Bids and Awards Committee (PBAC) for the
implementation of the NAIA IPT III project.
On March 27, 1995, then DOTC Secretary Jose Garcia endorsed the proposal
of AEDC to the National Economic and Development Authority (NEDA). A
revised proposal, however, was forwarded by the DOTC to NEDA on
December 13, 1995. On January 5, 1996, the NEDA Investment Coordinating
Council (NEDA ICC) Technical Board favorably endorsed the project to the
ICC Cabinet Committee which approved the same, subject to certain
conditions, on January 19, 1996. On February 13, 1996, the NEDA passed
Board Resolution No. 2 which approved the NAIA IPT III project.
On June 7, 14, and 21, 1996, DOTC/MIAA caused the publication in two daily
newspapers of an invitation for competitive or comparative proposals on
AEDCs unsolicited proposal, in accordance with Sec. 4-A of RA 6957, as
amended. The alternative bidders were required to submit three (3) sealed
envelopes on or before 5:00 p.m. of September 20, 1996. The first envelope
should contain the Prequalification Documents, the second envelope the
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Technical Proposal, and the third envelope the Financial Proposal of the
proponent.
On June 20, 1996, PBAC Bulletin No. 1 was issued, postponing the availment
of the Bid Documents and the submission of the comparative bid proposals.
Interested firms were permitted to obtain the Request for Proposal Documents
beginning June 28, 1996, upon submission of a written application and payment
of a non-refundable fee of P50,000.00 (US$2,000).
The Bid Documents issued by the PBAC provided among others that the
proponent must have adequate capability to sustain the financing requirement
for the detailed engineering, design, construction, operation, and maintenance
phases of the project. The proponent would be evaluated based on its ability to
provide a minimum amount of equity to the project, and its capacity to secure
external financing for the project.
On July 23, 1996, the PBAC issued PBAC Bulletin No. 2 inviting all bidders
to a pre-bid conference on July 29, 1996.
On August 16, 1996, the PBAC issued PBAC Bulletin No. 3 amending the Bid
Documents. The following amendments were made on the Bid Documents:
a. Aside from the fixed Annual Guaranteed Payment, the proponent shall
include in its financial proposal an additional percentage of gross revenue share
of the Government, as follows:
i. First 5 years 5.0%
ii. Next 10 years 7.5%
iii. Next 10 years 10.0%
b. The amount of the fixed Annual Guaranteed Payment shall be subject of the
price challenge. Proponent may offer an Annual Guaranteed Payment which
need not be of equal amount, but payment of which shall start upon site
possession.
c. The project proponent must have adequate capability to sustain the financing
requirement for the detailed engineering, design, construction, and/or operation
and maintenance phases of the project as the case may be. For purposes of pre-
qualification, this capability shall be measured in terms of:
i. Proof of the availability of the project proponent and/or the consortium to
provide the minimum amount of equity for the project; and
ii. a letter testimonial from reputable banks attesting that the project proponent
and/or the members of the consortium are banking with them, that the project
proponent and/or the members are of good financial standing, and have
adequate resources.
d. The basis for the prequalification shall be the proponents compliance with
the minimum technical and financial requirements provided in the Bid
Documents and the IRR of the BOT Law. The minimum amount of equity shall
be 30% of the Project Cost.
e. Amendments to the draft Concession Agreement shall be issued from time to
time. Said amendments shall only cover items that would not materially affect
the preparation of the proponents proposal.
On August 29, 1996, the Second Pre-Bid Conference was held where certain
clarifications were made. Upon the request of prospective bidder Peoples Air
Cargo & Warehousing Co., Inc (Paircargo), the PBAC warranted that based on
Sec. 11.6, Rule 11 of the Implementing Rules and Regulations of the BOT Law,
only the proposed Annual Guaranteed Payment submitted by the challengers
would be revealed to AEDC, and that the challengers technical and financial
proposals would remain confidential. The PBAC also clarified that the list of
revenue sources contained in Annex 4.2a of the Bid Documents was merely
indicative and that other revenue sources may be included by the proponent,
subject to approval by DOTC/MIAA. Furthermore, the PBAC clarified that
only those fees and charges denominated as Public Utility Fees would be
subject to regulation, and those charges which would be actually deemed Public
Utility Fees could still be revised, depending on the outcome of PBACs query
on the matter with the Department of Justice.
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In September 1996, the PBAC issued Bid Bulletin No. 5, entitled Answers to
the Queries of PAIRCARGO as Per Letter Dated September 3 and 10, 1996.
Paircargos queries and the PBACs responses were as follows:
1. It is difficult for Paircargo and Associates to meet the required minimum
equity requirement as prescribed in Section 8.3.4 of the Bid Documents
considering that the capitalization of each member company is so structured to
meet the requirements and needs of their current respective business
undertaking/activities. In order to comply with this equity requirement,
Paircargo is requesting PBAC to just allow each member of (sic) corporation
of the Joint Venture to just execute an agreement that embodies a commitment
to infuse the required capital in case the project is awarded to the Joint Venture
instead of increasing each corporations current authorized capital stock just for
prequalification purposes.
In prequalification, the agency is interested in ones financial capability at the
time of prequalification, not future or potential capability.
A commitment to put up equity once awarded the project is not enough to
establish that present financial capability. However, total financial capability of
all member companies of the Consortium, to be established by submitting the
respective companies audited financial statements, shall be acceptable.
2. At present, Paircargo is negotiating with banks and other institutions for the
extension of a Performance Security to the joint venture in the event that the
Concessions Agreement (sic) is awarded to them. However, Paircargo is being
required to submit a copy of the draft concession as one of the documentary
requirements. Therefore, Paircargo is requesting that theyd (sic) be furnished
copy of the approved negotiated agreement between the PBAC and the AEDC
at the soonest possible time.
A copy of the draft Concession Agreement is included in the Bid Documents.
Any material changes would be made known to prospective challengers
through bid bulletins. However, a final version will be issued before the award
of contract.
The PBAC also stated that it would require AEDC to sign Supplement C of the
Bid Documents (Acceptance of Criteria and Waiver of Rights to Enjoin Project)
and to submit the same with the required Bid Security.
On September 20, 1996, the consortium composed of Peoples Air Cargo and
Warehousing Co., Inc. (Paircargo), Phil. Air and Grounds Services, Inc.
(PAGS) and Security Bank Corp. (Security Bank) (collectively, Paircargo
Consortium) submitted their competitive proposal to the PBAC. On September
23, 1996, the PBAC opened the first envelope containing the prequalification
documents of the Paircargo Consortium. On the following day, September 24,
1996, the PBAC prequalified the Paircargo Consortium.
On September 26, 1996, AEDC informed the PBAC in writing of its
reservations as regards the Paircargo Consortium, which include:
a. The lack of corporate approvals and financial capability of PAIRCARGO;
b. The lack of corporate approvals and financial capability of PAGS;
c. The prohibition imposed by RA 337, as amended (the General Banking Act)
on the amount that Security Bank could legally invest in the project;
d. The inclusion of Siemens as a contractor of the PAIRCARGO Joint Venture,
for prequalification purposes; and
e. The appointment of Lufthansa as the facility operator, in view of the
Philippine requirement in the operation of a public utility.
The PBAC gave its reply on October 2, 1996, informing AEDC that it had
considered the issues raised by the latter, and that based on the documents
submitted by Paircargo and the established prequalification criteria, the PBAC
had found that the challenger, Paircargo, had prequalified to undertake the
project. The Secretary of the DOTC approved the finding of the PBAC.
The PBAC then proceeded with the opening of the second envelope of the
Paircargo Consortium which contained its Technical Proposal.
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On October 3, 1996, AEDC reiterated its objections, particularly with respect
to Paircargos financial capability, in view of the restrictions imposed by Section
21-B of the General Banking Act and Sections 1380 and 1381 of the Manual
Regulations for Banks and Other Financial Intermediaries. On October 7, 1996,
AEDC again manifested its objections and requested that it be furnished with
excerpts of the PBAC meeting and the accompanying technical evaluation
report where each of the issues they raised were addressed.
On October 16, 1996, the PBAC opened the third envelope submitted by AEDC
and the Paircargo Consortium containing their respective financial proposals.
Both proponents offered to build the NAIA Passenger Terminal III for at least
$350 million at no cost to the government and to pay the government: 5% share
in gross revenues for the first five years of operation, 7.5% share in gross
revenues for the next ten years of operation, and 10% share in gross revenues
for the last ten years of operation, in accordance with the Bid Documents.
However, in addition to the foregoing, AEDC offered to pay the government a
total of P135 million as guaranteed payment for 27 years while Paircargo
Consortium offered to pay the government a total of P17.75 billion for the same
period.
Thus, the PBAC formally informed AEDC that it had accepted the price
proposal submitted by the Paircargo Consortium, and gave AEDC 30 working
days or until November 28, 1996 within which to match the said bid, otherwise,
the project would be awarded to Paircargo.
As AEDC failed to match the proposal within the 30-day period, then DOTC
Secretary Amado Lagdameo, on December 11, 1996, issued a notice to
Paircargo Consortium regarding AEDCs failure to match the proposal.
On February 27, 1997, Paircargo Consortium incorporated into Philippine
International Airport Terminals Co., Inc. (PIATCO).
AEDC subsequently protested the alleged undue preference given to PIATCO
and reiterated its objections as regards the prequalification of PIATCO.
On April 11, 1997, the DOTC submitted the concession agreement for the
second-pass approval of the NEDA-ICC.
On April 16, 1997, AEDC filed with the Regional Trial Court of Pasig a Petition
for Declaration of Nullity of the Proceedings, Mandamus and Injunction against
the Secretary of the DOTC, the Chairman of the PBAC, the voting members of
the PBAC and Pantaleon D. Alvarez, in his capacity as Chairman of the PBAC
Technical Committee.
On April 17, 1997, the NEDA-ICC conducted an ad referendum to facilitate the
approval, on a no-objection basis, of the BOT agreement between the DOTC
and PIATCO. As the ad referendum gathered only four (4) of the required six
(6) signatures, the NEDA merely noted the agreement.
On July 9, 1997, the DOTC issued the notice of award for the project to
PIATCO.
On July 12, 1997, the Government, through then DOTC Secretary Arturo T.
Enrile, and PIATCO, through its President, Henry T. Go, signed the Concession
Agreement for the Build-Operate-and-Transfer Arrangement of the Ninoy
Aquino International Airport Passenger Terminal III (1997 Concession
Agreement). The Government granted PIATCO the franchise to operate and
maintain the said terminal during the concession period and to collect the fees,
rentals and other charges in accordance with the rates or schedules stipulated in
the 1997 Concession Agreement. The Agreement provided that the concession
period shall be for twenty-five (25) years commencing from the in-service date,
and may be renewed at the option of the Government for a period not exceeding
twenty-five (25) years. At the end of the concession period, PIATCO shall
transfer the development facility to MIAA.
On November 26, 1998, the Government and PIATCO signed an Amended and
Restated Concession Agreement (ARCA). Among the provisions of the 1997
Concession Agreement that were amended by the ARCA were: Sec. 1.11
pertaining to the definition of certificate of completion; Sec. 2.05 pertaining to
the Special Obligations of GRP; Sec. 3.02 (a) dealing with the exclusivity of
the franchise given to the Concessionaire; Sec. 4.04 concerning the assignment
by Concessionaire of its interest in the Development Facility; Sec. 5.08 (c)
dealing with the proceeds of Concessionaires insurance; Sec. 5.10 with respect
to the temporary take-over of operations by GRP; Sec. 5.16 pertaining to the
taxes, duties and other imposts that may be levied on the Concessionaire; Sec.
6.03 as regards the periodic adjustment of public utility fees and charges; the
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entire Article VIII concerning the provisions on the termination of the contract;
and Sec. 10.02 providing for the venue of the arbitration proceedings in case a
dispute or controversy arises between the parties to the agreement.
Subsequently, the Government and PIATCO signed three Supplements to the
ARCA. The First Supplement was signed on August 27, 1999; the Second
Supplement on September 4, 2000; and the Third Supplement on June 22, 2001
(collectively, Supplements).
The First Supplement to the ARCA amended Sec. 1.36 of the ARCA defining
Revenues or Gross Revenues; Sec. 2.05 (d) of the ARCA referring to the
obligation of MIAA to provide sufficient funds for the upkeep, maintenance,
repair and/or replacement of all airport facilities and equipment which are
owned or operated by MIAA; and further providing additional special
obligations on the part of GRP aside from those already enumerated in Sec.
2.05 of the ARCA. The First Supplement also provided a stipulation as regards
the construction of a surface road to connect NAIA Terminal II and Terminal
III in lieu of the proposed access tunnel crossing Runway 13/31; the swapping
of obligations between GRP and PIATCO regarding the improvement of Sales
Road; and the changes in the timetable. It also amended Sec. 6.01 (c) of the
ARCA pertaining to the Disposition of Terminal Fees; Sec. 6.02 of the ARCA
by inserting an introductory paragraph; and Sec. 6.02 (a) (iii) of the ARCA
referring to the Payments of Percentage Share in Gross Revenues.
The Second Supplement to the ARCA contained provisions concerning the
clearing, removal, demolition or disposal of subterranean structures uncovered
or discovered at the site of the construction of the terminal by the
Concessionaire. It defined the scope of works; it provided for the procedure for
the demolition of the said structures and the consideration for the same which
the GRP shall pay PIATCO; it provided for time extensions, incremental and
consequential costs and losses consequent to the existence of such structures;
and it provided for some additional obligations on the part of PIATCO as
regards the said structures.
Finally, the Third Supplement provided for the obligations of the
Concessionaire as regards the construction of the surface road connecting
Terminals II and III.
Meanwhile, the MIAA which is charged with the maintenance and operation of
the NAIA Terminals I and II, had existing concession contracts with various
service providers to offer international airline airport services, such as in-flight
catering, passenger handling, ramp and ground support, aircraft maintenance
and provisions, cargo handling and warehousing, and other services, to several
international airlines at the NAIA. Some of these service providers are the
Miascor Group, DNATA-Wings Aviation Systems Corp., and the MacroAsia
Group. Miascor, DNATA and MacroAsia, together with Philippine Airlines
(PAL), are the dominant players in the industry with an aggregate market share
of 70%.
On September 17, 2002, the workers of the international airline service
providers, claiming that they stand to lose their employment upon the
implementation of the questioned agreements, filed before this Court a petition
for prohibition to enjoin the enforcement of said agreements.[2]
On October 15, 2002, the service providers, joining the cause of the petitioning
workers, filed a motion for intervention and a petition-in-intervention.
On October 24, 2002, Congressmen Salacnib Baterina, Clavel Martinez and
Constantino Jaraula filed a similar petition with this Court.[3]
On November 6, 2002, several employees of the MIAA likewise filed a petition
assailing the legality of the various agreements.[4]
On December 11, 2002. another group of Congressmen, Hon. Jacinto V. Paras,
Rafael P. Nantes, Eduardo C. Zialcita, Willie B. Villarama, Prospero C.
Nograles, Prospero A. Pichay, Jr., Harlin Cast Abayon and Benasing O.
Macaranbon, moved to intervene in the case as Respondents-Intervenors. They
filed their Comment-In-Intervention defending the validity of the assailed
agreements and praying for the dismissal of the petitions.
During the pendency of the case before this Court, President Gloria Macapagal
Arroyo, on November 29, 2002, in her speech at the 2002 Golden Shell Export
Awards at Malacaang Palace, stated that she will not honor (PIATCO) contracts
which the Executive Branchs legal offices have concluded (as) null and void.[5]
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Respondent PIATCO filed its Comments to the present petitions on November
7 and 27, 2002. The Office of the Solicitor General and the Office of the
Government Corporate Counsel filed their respective Comments in behalf of
the public respondents.
On December 10, 2002, the Court heard the case on oral argument. After the
oral argument, the Court then resolved in open court to require the parties to
file simultaneously their respective Memoranda in amplification of the issues
heard in the oral arguments within 30 days and to explore the possibility of
arbitration or mediation as provided in the challenged contracts.
In their consolidated Memorandum, the Office of the Solicitor General and the
Office of the Government Corporate Counsel prayed that the present petitions
be given due course and that judgment be rendered declaring the 1997
Concession Agreement, the ARCA and the Supplements thereto void for being
contrary to the Constitution, the BOT Law and its Implementing Rules and
Regulations.
On March 6, 2003, respondent PIATCO informed the Court that on March 4,
2003 PIATCO commenced arbitration proceedings before the International
Chamber of Commerce, International Court of Arbitration (ICC) by filing a
Request for Arbitration with the Secretariat of the ICC against the Government
of the Republic of the Philippines acting through the DOTC and MIAA.
In the present cases, the Court is again faced with the task of resolving
complicated issues made difficult by their intersecting legal and economic
implications. The Court is aware of the far reaching fall out effects of the ruling
which it makes today. For more than a century and whenever the exigencies of
the times demand it, this Court has never shirked from its solemn duty to
dispense justice and resolve actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has
been grave abuse of discretion amounting to lack or excess of jurisdiction.[6]
To be sure, this Court will not begin to do otherwise today.
We shall first dispose of the procedural issues raised by respondent PIATCO
which they allege will bar the resolution of the instant controversy.
Petitioners Legal Standing to File
the present Petitions
a. G.R. Nos. 155001 and 155661
In G.R. No. 155001 individual petitioners are employees of various service
providers[7] having separate concession contracts with MIAA and continuing
service agreements with various international airlines to provide in-flight
catering, passenger handling, ramp and ground support, aircraft maintenance
and provisions, cargo handling and warehousing and other services. Also
included as petitioners are labor unions MIASCOR Workers Union-National
Labor Union and Philippine Airlines Employees Association. These petitioners
filed the instant action for prohibition as taxpayers and as parties whose rights
and interests stand to be violated by the implementation of the PIATCO
Contracts.
Petitioners-Intervenors in the same case are all corporations organized and
existing under Philippine laws engaged in the business of providing in-flight
catering, passenger handling, ramp and ground support, aircraft maintenance
and provisions, cargo handling and warehousing and other services to several
international airlines at the Ninoy Aquino International Airport. Petitioners-
Intervenors allege that as tax-paying international airline and airport-related
service operators, each one of them stands to be irreparably injured by the
implementation of the PIATCO Contracts. Each of the petitioners-intervenors
have separate and subsisting concession agreements with MIAA and with
various international airlines which they allege are being interfered with and
violated by respondent PIATCO.
In G.R. No. 155661, petitioners constitute employees of MIAA and Samahang
Manggagawa sa Paliparan ng Pilipinas - a legitimate labor union and accredited
as the sole and exclusive bargaining agent of all the employees in MIAA.
Petitioners anchor their petition for prohibition on the nullity of the contracts
entered into by the Government and PIATCO regarding the build-operate-and-
transfer of the NAIA IPT III. They filed the petition as taxpayers and persons
who have a legitimate interest to protect in the implementation of the PIATCO
Contracts.
Petitioners in both cases raise the argument that the PIATCO Contracts contain
stipulations which directly contravene numerous provisions of the Constitution,
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specific provisions of the BOT Law and its Implementing Rules and
Regulations, and public policy. Petitioners contend that the DOTC and the
MIAA, by entering into said contracts, have committed grave abuse of
discretion amounting to lack or excess of jurisdiction which can be remedied
only by a writ of prohibition, there being no plain, speedy or adequate remedy
in the ordinary course of law.
In particular, petitioners assail the provisions in the 1997 Concession
Agreement and the ARCA which grant PIATCO the exclusive right to operate
a commercial international passenger terminal within the Island of Luzon,
except those international airports already existing at the time of the execution
of the agreement. The contracts further provide that upon the commencement
of operations at the NAIA IPT III, the Government shall cause the closure of
Ninoy Aquino International Airport Passenger Terminals I and II as
international passenger terminals. With respect to existing concession
agreements between MIAA and international airport service providers
regarding certain services or operations, the 1997 Concession Agreement and
the ARCA uniformly provide that such services or operations will not be carried
over to the NAIA IPT III and PIATCO is under no obligation to permit such
carry over except through a separate agreement duly entered into with
PIATCO.[8]
With respect to the petitioning service providers and their employees, upon the
commencement of operations of the NAIA IPT III, they allege that they will be
effectively barred from providing international airline airport services at the
NAIA Terminals I and II as all international airlines and passengers will be
diverted to the NAIA IPT III. The petitioning service providers will thus be
compelled to contract with PIATCO alone for such services, with no assurance
that subsisting contracts with MIAA and other international airlines will be
respected. Petitioning service providers stress that despite the very competitive
market, the substantial capital investments required and the high rate of fees,
they entered into their respective contracts with the MIAA with the
understanding that the said contracts will be in force for the stipulated period,
and thereafter, renewed so as to allow each of the petitioning service providers
to recoup their investments and obtain a reasonable return thereon.
Petitioning employees of various service providers at the NAIA Terminals I
and II and of MIAA on the other hand allege that with the closure of the NAIA
Terminals I and II as international passenger terminals under the PIATCO
Contracts, they stand to lose employment.
The question on legal standing is whether such parties have alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions.[9]
Accordingly, it has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about
to be subjected to some burdens or penalties by reason of the statute or act
complained of.[10]
We hold that petitioners have the requisite standing. In the above-mentioned
cases, petitioners have a direct and substantial interest to protect by reason of
the implementation of the PIATCO Contracts. They stand to lose their source
of livelihood, a property right which is zealously protected by the Constitution.
Moreover, subsisting concession agreements between MIAA and petitioners-
intervenors and service contracts between international airlines and petitioners-
intervenors stand to be nullified or terminated by the operation of the NAIA
IPT III under the PIATCO Contracts. The financial prejudice brought about by
the PIATCO Contracts on petitioners and petitioners-intervenors in these cases
are legitimate interests sufficient to confer on them the requisite standing to file
the instant petitions.
b. G.R. No. 155547
In G.R. No. 155547, petitioners filed the petition for prohibition as members of
the House of Representatives, citizens and taxpayers. They allege that as
members of the House of Representatives, they are especially interested in the
PIATCO Contracts, because the contracts compel the Government and/or the
House of Representatives to appropriate funds necessary to comply with the
provisions therein.[11] They cite provisions of the PIATCO Contracts which
require disbursement of unappropriated amounts in compliance with the
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contractual obligations of the Government. They allege that the Government
obligations in the PIATCO Contracts which compel government expenditure
without appropriation is a curtailment of their prerogatives as legislators,
contrary to the mandate of the Constitution that [n]o money shall be paid out of
the treasury except in pursuance of an appropriation made by law.[12]
Standing is a peculiar concept in constitutional law because in some cases, suits
are not brought by parties who have been personally injured by the operation
of a law or any other government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest. Although we are not unmindful
of the cases of Imus Electric Co. v. Municipality of Imus[13] and Gonzales v.
Raquiza[14] wherein this Court held that appropriation must be made only on
amounts immediately demandable, public interest demands that we take a more
liberal view in determining whether the petitioners suing as legislators,
taxpayers and citizens have locus standi to file the instant petition. In
Kilosbayan, Inc. v. Guingona,[15] this Court held [i]n line with the liberal
policy of this Court on locus standi, ordinary taxpayers, members of Congress,
and even association of planters, and non-profit civic organizations were
allowed to initiate and prosecute actions before this Court to question the
constitutionality or validity of laws, acts, decisions, rulings, or orders of various
government agencies or instrumentalities.[16] Further, insofar as taxpayers'
suits are concerned . . . (this Court) is not devoid of discretion as to whether or
not it should be entertained.[17] As such . . . even if, strictly speaking, they [the
petitioners] 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.[18] In
view of the serious legal questions involved and their impact on public interest,
we resolve to grant standing to the petitioners.
Other Procedural Matters
Respondent PIATCO further alleges that this Court is without jurisdiction to
review the instant cases as factual issues are involved which this Court is ill-
equipped to resolve. Moreover, PIATCO alleges that submission of this
controversy to this Court at the first instance is a violation of the rule on
hierarchy of courts. They contend that trial courts have concurrent jurisdiction
with this Court with respect to a special civil action for prohibition and hence,
following the rule on hierarchy of courts, resort must first be had before the trial
courts.
After a thorough study and careful evaluation of the issues involved, this Court
is of the view that the crux of the instant controversy involves significant legal
questions. The facts necessary to resolve these legal questions are well
established and, hence, need not be determined by a trial court.
The rule on hierarchy of courts will not also prevent this Court from assuming
jurisdiction over the cases at bar. The said rule may be relaxed when the redress
desired cannot be obtained in the appropriate courts or where exceptional and
compelling circumstances justify availment of a remedy within and calling for
the exercise of this Courts primary jurisdiction.[19]
It is easy to discern that exceptional circumstances exist in the cases at bar that
call for the relaxation of the rule. Both petitioners and respondents agree that
these cases are of transcendental importance as they involve the construction
and operation of the countrys premier international airport. Moreover, the
crucial issues submitted for resolution are of first impression and they entail the
proper legal interpretation of key provisions of the Constitution, the BOT Law
and its Implementing Rules and Regulations. Thus, considering the nature of
the controversy before the Court, procedural bars may be lowered to give way
for the speedy disposition of the instant cases.
Legal Effect of the Commencement
of Arbitration Proceedings by
PIATCO
There is one more procedural obstacle which must be overcome. The Court is
aware that arbitration proceedings pursuant to Section 10.02 of the ARCA have
been filed at the instance of respondent PIATCO. Again, we hold that the
arbitration step taken by PIATCO will not oust this Court of its jurisdiction over
the cases at bar.
In Del Monte Corporation-USA v. Court of Appeals,[20] even after finding that
the arbitration clause in the Distributorship Agreement in question is valid and
the dispute between the parties is arbitrable, this Court affirmed the trial courts
decision denying petitioners Motion to Suspend Proceedings pursuant to the
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arbitration clause under the contract. In so ruling, this Court held that as
contracts produce legal effect between the parties, their assigns and heirs, only
the parties to the Distributorship Agreement are bound by its terms, including
the arbitration clause stipulated therein. This Court ruled that arbitration
proceedings could be called for but only with respect to the parties to the
contract in question. Considering that there are parties to the case who are
neither parties to the Distributorship Agreement nor heirs or assigns of the
parties thereto, this Court, citing its previous ruling in Salas, Jr. v. Laperal
Realty Corporation,[21] held that to tolerate the splitting of proceedings by
allowing arbitration as to some of the parties on the one hand and trial for the
others on the other hand would, in effect, result in multiplicity of suits,
duplicitous procedure and unnecessary delay.[22] Thus, we ruled that the
interest of justice would best be served if the trial court hears and adjudicates
the case in a single and complete proceeding.
It is established that petitioners in the present cases who have presented
legitimate interests in the resolution of the controversy are not parties to the
PIATCO Contracts. Accordingly, they cannot be bound by the arbitration
clause provided for in the ARCA and hence, cannot be compelled to submit to
arbitration proceedings. A speedy and decisive resolution of all the critical
issues in the present controversy, including those raised by petitioners, cannot
be made before an arbitral tribunal. The object of arbitration is precisely to
allow an expeditious determination of a dispute. This objective would not be
met if this Court were to allow the parties to settle the cases by arbitration as
there are certain issues involving non-parties to the PIATCO Contracts which
the arbitral tribunal will not be equipped to resolve.
Now, to the merits of the instant controversy.
I
Is PIATCO a qualified bidder?
Public respondents argue that the Paircargo Consortium, PIATCOs
predecessor, was not a duly pre-qualified bidder on the unsolicited proposal
submitted by AEDC as the Paircargo Consortium failed to meet the financial
capability required under the BOT Law and the Bid Documents. They allege
that in computing the ability of the Paircargo Consortium to meet the minimum
equity requirements for the project, the entire net worth of Security Bank, a
member of the consortium, should not be considered.
PIATCO relies, on the other hand, on the strength of the Memorandum dated
October 14, 1996 issued by the DOTC Undersecretary Primitivo C. Cal stating
that the Paircargo Consortium is found to have a combined net worth of
P3,900,000,000.00, sufficient to meet the equity requirements of the project.
The said Memorandum was in response to a letter from Mr. Antonio Henson of
AEDC to President Fidel V. Ramos questioning the financial capability of the
Paircargo Consortium on the ground that it does not have the financial resources
to put up the required minimum equity of P2,700,000,000.00. This contention
is based on the restriction under R.A. No. 337, as amended or the General
Banking Act that a commercial bank cannot invest in any single enterprise in
an amount more than 15% of its net worth. In the said Memorandum,
Undersecretary Cal opined:
The Bid Documents, as clarified through Bid Bulletin Nos. 3 and 5, require that
financial capability will be evaluated based on total financial capability of all
the member companies of the [Paircargo] Consortium. In this connection, the
Challenger was found to have a combined net worth of P3,926,421,242.00 that
could support a project costing approximately P13 Billion.
It is not a requirement that the net worth must be unrestricted. To impose that
as a requirement now will be nothing less than unfair.
The financial statement or the net worth is not the sole basis in establishing
financial capability. As stated in Bid Bulletin No. 3, financial capability may
also be established by testimonial letters issued by reputable banks. The
Challenger has complied with this requirement.
To recap, net worth reflected in the Financial Statement should not be taken as
the amount of the money to be used to answer the required thirty percent (30%)
equity of the challenger but rather to be used in establishing if there is enough
basis to believe that the challenger can comply with the required 30% equity.
In fact, proof of sufficient equity is required as one of the conditions for award
of contract (Section 12.1 IRR of the BOT Law) but not for pre-qualification
(Section 5.4 of the same document).[23]
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Under the BOT Law, in case of a build-operate-and-transfer arrangement, the
contract shall be awarded to the bidder who, having satisfied the minimum
financial, technical, organizational and legal standards required by the law, has
submitted the lowest bid and most favorable terms of the project.[24] Further,
the 1994 Implementing Rules and Regulations of the BOT Law provide:
Section 5.4 Pre-qualification Requirements.
. from reputable banks attesting that the project proponent or members of the
c. Financial Capability: The project proponent must have adequate capability
to sustain the financing requirements for the detailed engineering design,
construction and/or operation and maintenance phases of the project, as the case
may be. For purposes of pre-qualification, this capability shall be measured in
terms of (i) proof of the ability of the project proponent and/or the consortium
to provide a minimum amount of equity to the project, and (ii) a letter
testimonial from reputable banks attesting that the project proponent and/or
members of the consortium are banking with them, that they are in good
financial standing, and that they have adequate resources. The government
agency/LGU concerned shall determine on a project-to-project basis and before
pre-qualification, the minimum amount of equity needed. (emphasis supplied)
Pursuant to this provision, the PBAC issued PBAC Bulletin No. 3 dated August
16, 1996 amending the financial capability requirements for pre-qualification
of the project proponent as follows:
6. Basis of Pre-qualification
The basis for the pre-qualification shall be on the compliance of the proponent
to the minimum technical and financial requirements provided in the Bid
Documents and in the IRR of the BOT Law, R.A. No. 6957, as amended by
R.A. 7718.
The minimum amount of equity to which the proponents financial capability
will be based shall be thirty percent (30%) of the project cost instead of the
twenty percent (20%) specified in Section 3.6.4 of the Bid Documents. This is
to correlate with the required debt-to-equity ratio of 70:30 in Section 2.01a of
the draft concession agreement. The debt portion of the project financing should
not exceed 70% of the actual project cost.
Accordingly, based on the above provisions of law, the Paircargo Consortium
or any challenger to the unsolicited proposal of AEDC has to show that it
possesses the requisite financial capability to undertake the project in the
minimum amount of 30% of the project cost through (i) proof of the ability to
provide a minimum amount of equity to the project, and (ii) a letter testimonial
consortium are banking with them, that they are in good financial standing, and
that they have adequate resources.
As the minimum project cost was estimated to be US$350,000,000.00 or
roughly P9,183,650,000.00,[25] the Paircargo Consortium had to show to the
satisfaction of the PBAC that it had the ability to provide the minimum equity
for the project in the amount of at least P2,755,095,000.00.
Paircargos Audited Financial Statements as of 1993 and 1994 indicated that it
had a net worth of P2,783,592.00 and P3,123,515.00 respectively.[26] PAGS
Audited Financial Statements as of 1995 indicate that it has approximately
P26,735,700.00 to invest as its equity for the project.[27] Security Banks
Audited Financial Statements as of 1995 show that it has a net worth equivalent
to its capital funds in the amount of P3,523,504,377.00.[28]
We agree with public respondents that with respect to Security Bank, the entire
amount of its net worth could not be invested in a single undertaking or
enterprise, whether allied or non-allied in accordance with the provisions of
R.A. No. 337, as amended or the General Banking Act:
Sec. 21-B. The provisions in this or in any other Act to the contrary
notwithstanding, the Monetary Board, whenever it shall deem appropriate and
necessary to further national development objectives or support national
priority projects, may authorize a commercial bank, a bank authorized to
provide commercial banking services, as well as a government-owned and
controlled bank, to operate under an expanded commercial banking authority
and by virtue thereof exercise, in addition to powers authorized for commercial
banks, the powers of an Investment House as provided in Presidential Decree
No. 129, invest in the equity of a non-allied undertaking, or own a majority or
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all of the equity in a financial intermediary other than a commercial bank or a
bank authorized to provide commercial banking services: Provided, That (a) the
total investment in equities shall not exceed fifty percent (50%) of the net worth
of the bank; (b) the equity investment in any one enterprise whether allied or
non-allied shall not exceed fifteen percent (15%) of the net worth of the bank;
(c) the equity investment of the bank, or of its wholly or majority-owned
subsidiary, in a single non-allied undertaking shall not exceed thirty-five
percent (35%) of the total equity in the enterprise nor shall it exceed thirty-five
percent (35%) of the voting stock in that enterprise; and (d) the equity
investment in other banks shall be deducted from the investing bank's net worth
for purposes of computing the prescribed ratio of net worth to risk assets.
. result in a proper evaluation of whether or not a bidder is pre-qualified to
Further, the 1993 Manual of Regulations for Banks provides:
SECTION X383. Other Limitations and Restrictions. The following limitations
and restrictions shall also apply regarding equity investments of banks.
a. In any single enterprise. The equity investments of banks in any single
enterprise shall not exceed at any time fifteen percent (15%) of the net worth of
the investing bank as defined in Sec. X106 and Subsec. X121.5.
Thus, the maximum amount that Security Bank could validly invest in the
Paircargo Consortium is only P528,525,656.55, representing 15% of its entire
net worth. The total net worth therefore of the Paircargo Consortium, after
considering the maximum amounts that may be validly invested by each of its
members is P558,384,871.55 or only 6.08% of the project cost,[29] an amount
substantially less than the prescribed minimum equity investment required for
the project in the amount of P2,755,095,000.00 or 30% of the project cost.
The purpose of pre-qualification in any public bidding is to determine, at the
earliest opportunity, the ability of the bidder to undertake the project. Thus,
with respect to the bidders financial capacity at the pre-qualification stage, the
law requires the government agency to examine and determine the ability of the
bidder to fund the entire cost of the project by considering the maximum
amounts that each bidder may invest in the project at the time of pre-
qualification.
The PBAC has determined that any prospective bidder for the construction,
operation and maintenance of the NAIA IPT III project should prove that it has
the ability to provide equity in the minimum amount of 30% of the project cost,
in accordance with the 70:30 debt-to-equity ratio prescribed in the Bid
Documents. Thus, in the case of Paircargo Consortium, the PBAC should
determine the maximum amounts that each member of the consortium may
commit for the construction, operation and maintenance of the NAIA IPT III
project at the time of pre-qualification. With respect to Security Bank, the
maximum amount which may be invested by it would only be 15% of its net
worth in view of the restrictions imposed by the General Banking Act.
Disregarding the investment ceilings provided by applicable law would not
undertake the project as for all intents and purposes, such ceiling or legal
restriction determines the true maximum amount which a bidder may invest in
the project.
Further, the determination of whether or not a bidder is pre-qualified to
undertake the project requires an evaluation of the financial capacity of the said
bidder at the time the bid is submitted based on the required documents
presented by the bidder. The PBAC should not be allowed to speculate on the
future financial ability of the bidder to undertake the project on the basis of
documents submitted. This would open doors to abuse and defeat the very
purpose of a public bidding. This is especially true in the case at bar which
involves the investment of billions of pesos by the project proponent. The
relevant government authority is duty-bound to ensure that the awardee of the
contract possesses the minimum required financial capability to complete the
project. To allow the PBAC to estimate the bidders future financial capability
would not secure the viability and integrity of the project. A restrictive and
conservative application of the rules and procedures of public bidding is
necessary not only to protect the impartiality and regularity of the proceedings
but also to ensure the financial and technical reliability of the project. It has
been held that:
The basic rule in public bidding is that bids should be evaluated based on the
required documents submitted before and not after the opening of bids.
Otherwise, the foundation of a fair and competitive public bidding would be
defeated. Strict observance of the rules, regulations, and guidelines of the
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bidding process is the only safeguard to a fair, honest and competitive public
bidding.[30]
Thus, if the maximum amount of equity that a bidder may invest in the project
at the time the bids are submitted falls short of the minimum amounts required
to be put up by the bidder, said bidder should be properly disqualified.
Considering that at the pre-qualification stage, the maximum amounts which
the Paircargo Consortium may invest in the project fell short of the minimum
amounts prescribed by the PBAC, we hold that Paircargo Consortium was not
a qualified bidder. Thus the award of the contract by the PBAC to the Paircargo
Consortium, a disqualified bidder, is null and void.
While it would be proper at this juncture to end the resolution of the instant
controversy, as the legal effects of the disqualification of respondent PIATCOs
predecessor would come into play and necessarily result in the nullity of all the
subsequent contracts entered by it in pursuance of the project, the Court feels
that it is necessary to discuss in full the pressing issues of the present
controversy for a complete resolution thereof.
II
Is the 1997 Concession Agreement valid?
Petitioners and public respondents contend that the 1997 Concession
Agreement is invalid as it contains provisions that substantially depart from the
draft Concession Agreement included in the Bid Documents. They maintain
that a substantial departure from the draft Concession Agreement is a violation
of public policy and renders the 1997 Concession Agreement null and void.
PIATCO maintains, however, that the Concession Agreement attached to the
Bid Documents is intended to be a draft, i.e., subject to change, alteration or
modification, and that this intention was clear to all participants, including
AEDC, and DOTC/MIAA. It argued further that said intention is expressed in
Part C (6) of Bid Bulletin No. 3 issued by the PBAC which states:
6. Amendments to the Draft Concessions Agreement
Amendments to the Draft Concessions Agreement shall be issued from time to
time. Said amendments shall only cover items that would not materially affect
the preparation of the proponents proposal.
By its very nature, public bidding aims to protect the public interest by giving
the public the best possible advantages through open competition. Thus:
Competition must be legitimate, fair and honest. In the field of government
contract law, competition requires, not only `bidding upon a common standard,
a common basis, upon the same thing, the same subject matter, the same
undertaking,' but also that it be legitimate, fair and honest; and not designed to
injure or defraud the government.[31]
An essential element of a publicly bidded contract is that all bidders must be on
equal footing. Not simply in terms of application of the procedural rules and
regulations imposed by the relevant government agency, but more importantly,
on the contract bidded upon. Each bidder must be able to bid on the same thing.
The rationale is obvious. If the winning bidder is allowed to later include or
modify certain provisions in the contract awarded such that the contract is
altered in any material respect, then the essence of fair competition in the public
bidding is destroyed. A public bidding would indeed be a farce if after the
contract is awarded, the winning bidder may modify the contract and include
provisions which are favorable to it that were not previously made available to
the other bidders. Thus:
It is inherent in public biddings that there shall be a fair competition among the
bidders. The specifications in such biddings provide the common ground or
basis for the bidders. The specifications should, accordingly, operate equally or
indiscriminately upon all bidders.[32]
The same rule was restated by Chief Justice Stuart of the Supreme Court of
Minnesota:
The law is well settled that where, as in this case, municipal authorities can only
let a contract for public work to the lowest responsible bidder, the proposals
and specifications therefore must be so framed as to permit free and full
competition. Nor can they enter into a contract with the best bidder containing
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substantial provisions beneficial to him, not included or contemplated in the
terms and specifications upon which the bids were invited.[33]
In fact, in the PBAC Bid Bulletin No. 3 cited by PIATCO to support its
argument that the draft concession agreement is subject to amendment, the
pertinent portion of which was quoted above, the PBAC also clarified that [s]aid
amendments shall only cover items that would not materially affect the
preparation of the proponents proposal.
While we concede that a winning bidder is not precluded from modifying or
amending certain provisions of the contract bidded upon, such changes must
not constitute substantial or material amendments that would alter the basic
parameters of the contract and would constitute a denial to the other bidders of
the opportunity to bid on the same terms. Hence, the determination of whether
or not a modification or amendment of a contract bidded out constitutes a
substantial amendment rests on whether the contract, when taken as a whole,
would contain substantially different terms and conditions that would have the
effect of altering the technical and/or financial proposals previously submitted
by other bidders. The alterations and modifications in the contract executed
between the government and the winning bidder must be such as to render such
executed contract to be an entirely different contract from the one that was
bidded upon.
In the case of Caltex (Philippines), Inc. v. Delgado Brothers, Inc.,[34] this Court
quoted with approval the ruling of the trial court that an amendment to a
contract awarded through public bidding, when such subsequent amendment
was made without a new public bidding, is null and void:
The Court agrees with the contention of counsel for the plaintiffs that the due
execution of a contract after public bidding is a limitation upon the right of the
contracting parties to alter or amend it without another public bidding, for
otherwise what would a public bidding be good for if after the execution of a
contract after public bidding, the contracting parties may alter or amend the
contract, or even cancel it, at their will? Public biddings are held for the
protection of the public, and to give the public the best possible advantages by
means of open competition between the bidders. He who bids or offers the best
terms is awarded the contract subject of the bid, and it is obvious that such
protection and best possible advantages to the public will disappear if the
parties to a contract executed after public bidding may alter or amend it without
another previous public bidding.[35]
Hence, the question that comes to fore is this: is the 1997 Concession
Agreement the same agreement that was offered for public bidding, i.e., the
draft Concession Agreement attached to the Bid Documents? A close
comparison of the draft Concession Agreement attached to the Bid Documents
and the 1997 Concession Agreement reveals that the documents differ in at least
two material respects:
a. Modification on the Public
Utility Revenues and Non-Public
Utility Revenues that may be
collected by PIATCO
The fees that may be imposed and collected by PIATCO under the draft
Concession Agreement and the 1997 Concession Agreement may be classified
into three distinct categories: (1) fees which are subject to periodic adjustment
of once every two years in accordance with a prescribed parametric formula
and adjustments are made effective only upon written approval by MIAA; (2)
fees other than those included in the first category which maybe adjusted by
PIATCO whenever it deems necessary without need for consent of
DOTC/MIAA; and (3) new fees and charges that may be imposed by PIATCO
which have not been previously imposed or collected at the Ninoy Aquino
International Airport Passenger Terminal I, pursuant to Administrative Order
No. 1, Series of 1993, as amended. The glaring distinctions between the draft
Concession Agreement and the 1997 Concession Agreement lie in the types of
fees included in each category and the extent of the supervision and regulation
which MIAA is allowed to exercise in relation thereto.
For fees under the first category, i.e., those which are subject to periodic
adjustment in accordance with a prescribed parametric formula and effective
only upon written approval by MIAA, the draft Concession Agreement includes
the following:[36]
(1) aircraft parking fees;
(2) aircraft tacking fees;
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(3) groundhandling fees;
(4) rentals and airline offices;
(5) check-in counter rentals; and
(6) porterage fees.
Under the 1997 Concession Agreement, fees which are subject to adjustment
and effective upon MIAA approval are classified as Public Utility Revenues
and include:[37]
(1) aircraft parking fees;
(2) aircraft tacking fees;
(3) check-in counter fees; and
(4) Terminal Fees.
The implication of the reduced number of fees that are subject to MIAA
approval is best appreciated in relation to fees included in the second category
identified above. Under the 1997 Concession Agreement, fees which PIATCO
may adjust whenever it deems necessary without need for consent of
DOTC/MIAA are Non-Public Utility Revenues and is defined as all other
income not classified as Public Utility Revenues derived from operations of the
Terminal and the Terminal Complex.[38] Thus, under the 1997 Concession
Agreement, groundhandling fees, rentals from airline offices and porterage fees
are no longer subject to MIAA regulation.
Further, under Section 6.03 of the draft Concession Agreement, MIAA reserves
the right to regulate (1) lobby and vehicular parking fees and (2) other new fees
and charges that may be imposed by PIATCO. Such regulation may be made
by periodic adjustment and is effective only upon written approval of MIAA.
The full text of said provision is quoted below:
Section 6.03. Periodic Adjustment in Fees and Charges. Adjustments in the
aircraft parking fees, aircraft tacking fees, groundhandling fees, rentals and
airline offices, check-in-counter rentals and porterage fees shall be allowed only
once every two years and in accordance with the Parametric Formula attached
hereto as Annex F. Provided that adjustments shall be made effective only after
the written express approval of the MIAA. Provided, further, that such approval
of the MIAA, shall be contingent only on the conformity of the adjustments
with the above said parametric formula. The first adjustment shall be made prior
to the In-Service Date of the Terminal.
The MIAA reserves the right to regulate under the foregoing terms and
conditions the lobby and vehicular parking fees and other new fees and charges
as contemplated in paragraph 2 of Section 6.01 if in its judgment the users of
the airport shall be deprived of a free option for the services they cover.[39]
On the other hand, the equivalent provision under the 1997 Concession
Agreement reads:
Section 6.03 Periodic Adjustment in Fees and Charges.
.
(c) Concessionaire shall at all times be judicious in fixing fees and charges
constituting Non-Public Utility Revenues in order to ensure that End Users are
not unreasonably deprived of services. While the vehicular parking fee,
porterage fee and greeter/well wisher fee constitute Non-Public Utility
Revenues of Concessionaire, GRP may intervene and require Concessionaire
to explain and justify the fee it may set from time to time, if in the reasonable
opinion of GRP the said fees have become exorbitant resulting in the
unreasonable deprivation of End Users of such services.[40]
Thus, under the 1997 Concession Agreement, with respect to (1) vehicular
parking fee, (2) porterage fee and (3) greeter/well wisher fee, all that MIAA can
do is to require PIATCO to explain and justify the fees set by PIATCO. In the
draft Concession Agreement, vehicular parking fee is subject to MIAA
regulation and approval under the second paragraph of Section 6.03 thereof
while porterage fee is covered by the first paragraph of the same provision.
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There is an obvious relaxation of the extent of control and regulation by MIAA
with respect to the particular fees that may be charged by PIATCO.
Moreover, with respect to the third category of fees that may be imposed and
collected by PIATCO, i.e., new fees and charges that may be imposed by
PIATCO which have not been previously imposed or collected at the Ninoy
Aquino International Airport Passenger Terminal I, under Section 6.03 of the
draft Concession Agreement MIAA has reserved the right to regulate the same
under the same conditions that MIAA may regulate fees under the first
category, i.e., periodic adjustment of once every two years in accordance with
a prescribed parametric formula and effective only upon written approval by
MIAA. However, under the 1997 Concession Agreement, adjustment of fees
under the third category is not subject to MIAA regulation.
With respect to terminal fees that may be charged by PIATCO,[41] as shown
earlier, this was included within the category of Public Utility Revenues under
the 1997 Concession Agreement. This classification is significant because
under the 1997 Concession Agreement, Public Utility Revenues are subject to
an Interim Adjustment of fees upon the occurrence of certain extraordinary
events specified in the agreement.[42] However, under the draft Concession
Agreement, terminal fees are not included in the types of fees that may be
subject to Interim Adjustment.[43]
Finally, under the 1997 Concession Agreement, Public Utility Revenues,
except terminal fees, are denominated in US Dollars[44] while payments to the
Government are in Philippine Pesos. In the draft Concession Agreement, no
such stipulation was included. By stipulating that Public Utility Revenues will
be paid to PIATCO in US Dollars while payments by PIATCO to the
Government are in Philippine currency under the 1997 Concession Agreement,
PIATCO is able to enjoy the benefits of depreciations of the Philippine Peso,
while being effectively insulated from the detrimental effects of exchange rate
fluctuations.
When taken as a whole, the changes under the 1997 Concession Agreement
with respect to reduction in the types of fees that are subject to MIAA regulation
and the relaxation of such regulation with respect to other fees are significant
amendments that substantially distinguish the draft Concession Agreement
from the 1997 Concession Agreement. The 1997 Concession Agreement, in this
respect, clearly gives PIATCO more favorable terms than what was available
to other bidders at the time the contract was bidded out. It is not very difficult
to see that the changes in the 1997 Concession Agreement translate to direct
and concrete financial advantages for PIATCO which were not available at the
time the contract was offered for bidding. It cannot be denied that under the
1997 Concession Agreement only Public Utility Revenues are subject to MIAA
regulation. Adjustments of all other fees imposed and collected by PIATCO are
entirely within its control. Moreover, with respect to terminal fees, under the
1997 Concession Agreement, the same is further subject to Interim Adjustments
not previously stipulated in the draft Concession Agreement. Finally, the
change in the currency stipulated for Public Utility Revenues under the 1997
Concession Agreement, except terminal fees, gives PIATCO an added benefit
which was not available at the time of bidding.
b. Assumption by the
Government of the liabilities of
PIATCO in the event of the latters
default thereof
Under the draft Concession Agreement, default by PIATCO of any of its
obligations to creditors who have provided, loaned or advanced funds for the
NAIA IPT III project does not result in the assumption by the Government of
these liabilities. In fact, nowhere in the said contract does default of PIATCOs
loans figure in the agreement. Such default does not directly result in any
concomitant right or obligation in favor of the Government.
However, the 1997 Concession Agreement provides:
Section 4.04 Assignment.
.
(b) In the event Concessionaire should default in the payment of an Attendant
Liability, and the default has resulted in the acceleration of the payment due
date of the Attendant Liability prior to its stated date of maturity, the Unpaid
Creditors and Concessionaire shall immediately inform GRP in writing of such
default. GRP shall, within one hundred eighty (180) Days from receipt of the
joint written notice of the Unpaid Creditors and Concessionaire, either (i) take
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over the Development Facility and assume the Attendant Liabilities, or (ii)
allow the Unpaid Creditors, if qualified, to be substituted as concessionaire and
operator of the Development Facility in accordance with the terms and
conditions hereof, or designate a qualified operator acceptable to GRP to
operate the Development Facility, likewise under the terms and conditions of
this Agreement; Provided that if at the end of the 180-day period GRP shall not
have served the Unpaid Creditors and Concessionaire written notice of its
choice, GRP shall be deemed to have elected to take over the Development
Facility with the concomitant assumption of Attendant Liabilities.
(c) If GRP should, by written notice, allow the Unpaid Creditors to be
substituted as concessionaire, the latter shall form and organize a concession
company qualified to take over the operation of the Development Facility. If
the concession company should elect to designate an operator for the
Development Facility, the concession company shall in good faith identify and
designate a qualified operator acceptable to GRP within one hundred eighty
(180) days from receipt of GRPs written notice. If the concession company,
acting in good faith and with due diligence, is unable to designate a qualified
operator within the aforesaid period, then GRP shall at the end of the 180-day
period take over the Development Facility and assume Attendant Liabilities.
The term Attendant Liabilities under the 1997 Concession Agreement is
defined as:
Attendant Liabilities refer to all amounts recorded and from time to time
outstanding in the books of the Concessionaire as owing to Unpaid Creditors
who have provided, loaned or advanced funds actually used for the Project,
including all interests, penalties, associated fees, charges, surcharges,
indemnities, reimbursements and other related expenses, and further including
amounts owed by Concessionaire to its suppliers, contractors and sub-
contractors.
Under the above quoted portions of Section 4.04 in relation to the definition of
Attendant Liabilities, default by PIATCO of its loans used to finance the NAIA
IPT III project triggers the occurrence of certain events that leads to the
assumption by the Government of the liability for the loans. Only in one
instance may the Government escape the assumption of PIATCOs liabilities,
i.e., when the Government so elects and allows a qualified operator to take over
as Concessionaire. However, this circumstance is dependent on the existence
and availability of a qualified operator who is willing to take over the rights and
obligations of PIATCO under the contract, a circumstance that is not entirely
within the control of the Government.
Without going into the validity of this provision at this juncture, suffice it to
state that Section 4.04 of the 1997 Concession Agreement may be considered a
form of security for the loans PIATCO has obtained to finance the project, an
option that was not made available in the draft Concession Agreement. Section
4.04 is an important amendment to the 1997 Concession Agreement because it
grants PIATCO a financial advantage or benefit which was not previously made
available during the bidding process. This financial advantage is a significant
modification that translates to better terms and conditions for PIATCO.
PIATCO, however, argues that the parties to the bidding procedure
acknowledge that the draft Concession Agreement is subject to amendment
because the Bid Documents permit financing or borrowing. They claim that it
was the lenders who proposed the amendments to the draft Concession
Agreement which resulted in the 1997 Concession Agreement.
We agree that it is not inconsistent with the rationale and purpose of the BOT
Law to allow the project proponent or the winning bidder to obtain financing
for the project, especially in this case which involves the construction, operation
and maintenance of the NAIA IPT III. Expectedly, compliance by the project
proponent of its undertakings therein would involve a substantial amount of
investment. It is therefore inevitable for the awardee of the contract to seek
alternate sources of funds to support the project. Be that as it may, this Court
maintains that amendments to the contract bidded upon should always conform
to the general policy on public bidding if such procedure is to be faithful to its
real nature and purpose. By its very nature and characteristic, competitive
public bidding aims to protect the public interest by giving the public the best
possible advantages through open competition.[45] It has been held that the
three principles in public bidding are (1) the offer to the public; (2) opportunity
for competition; and (3) a basis for the exact comparison of bids. A regulation
of the matter which excludes any of these factors destroys the distinctive
character of the system and thwarts the purpose of its adoption.[46] These are
the basic parameters which every awardee of a contract bidded out must
conform to, requirements of financing and borrowing notwithstanding. Thus,
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upon a concrete showing that, as in this case, the contract signed by the
government and the contract-awardee is an entirely different contract from the
contract bidded, courts should not hesitate to strike down said contract in its
entirety for violation of public policy on public bidding. A strict adherence on
the principles, rules and regulations on public bidding must be sustained if only
to preserve the integrity and the faith of the general public on the procedure.
Public bidding is a standard practice for procuring government contracts for
public service and for furnishing supplies and other materials. It aims to secure
for the government the lowest possible price under the most favorable terms
and conditions, to curtail favoritism in the award of government contracts and
avoid suspicion of anomalies and it places all bidders in equal footing.[47] Any
government action which permits any substantial variance between the
conditions under which the bids are invited and the contract executed after the
award thereof is a grave abuse of discretion amounting to lack or excess of
jurisdiction which warrants proper judicial action.
In view of the above discussion, the fact that the foregoing substantial
amendments were made on the 1997 Concession Agreement renders the same
null and void for being contrary to public policy. These amendments convert
the 1997 Concession Agreement to an entirely different agreement from the
contract bidded out or the draft Concession Agreement. It is not difficult to see
that the amendments on (1) the types of fees or charges that are subject to MIAA
regulation or control and the extent thereof and (2) the assumption by the
Government, under certain conditions, of the liabilities of PIATCO directly
translates concrete financial advantages to PIATCO that were previously not
available during the bidding process. These amendments cannot be taken as
merely supplements to or implementing provisions of those already existing in
the draft Concession Agreement. The amendments discussed above present
new terms and conditions which provide financial benefit to PIATCO which
may have altered the technical and financial parameters of other bidders had
they known that such terms were available.
III
Direct Government Guarantee
Article IV, Section 4.04(b) and (c), in relation to Article 1.06, of the 1997
Concession Agreement provides:
Section 4.04 Assignment
.
(b) In the event Concessionaire should default in the payment of an Attendant
Liability, and the default resulted in the acceleration of the payment due date of
the Attendant Liability prior to its stated date of maturity, the Unpaid Creditors
and Concessionaire shall immediately inform GRP in writing of such default.
GRP shall within one hundred eighty (180) days from receipt of the joint written
notice of the Unpaid Creditors and Concessionaire, either (i) take over the
Development Facility and assume the Attendant Liabilities, or (ii) allow the
Unpaid Creditors, if qualified to be substituted as concessionaire and operator
of the Development facility in accordance with the terms and conditions hereof,
or designate a qualified operator acceptable to GRP to operate the Development
Facility, likewise under the terms and conditions of this Agreement; Provided,
that if at the end of the 180-day period GRP shall not have served the Unpaid
Creditors and Concessionaire written notice of its choice, GRP shall be deemed
to have elected to take over the Development Facility with the concomitant
assumption of Attendant Liabilities.
(c) If GRP, by written notice, allow the Unpaid Creditors to be substituted as
concessionaire, the latter shall form and organize a concession company
qualified to takeover the operation of the Development Facility. If the
concession company should elect to designate an operator for the Development
Facility, the concession company shall in good faith identify and designate a
qualified operator acceptable to GRP within one hundred eighty (180) days
from receipt of GRPs written notice. If the concession company, acting in good
faith and with due diligence, is unable to designate a qualified operator within
the aforesaid period, then GRP shall at the end of the 180-day period take over
the Development Facility and assume Attendant Liabilities.
.
Section 1.06. Attendant Liabilities
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Attendant Liabilities refer to all amounts recorded and from time to time
outstanding in the books of the Concessionaire as owing to Unpaid Creditors
who have provided, loaned or advanced funds actually used for the Project,
including all interests, penalties, associated fees, charges, surcharges,
indemnities, reimbursements and other related expenses, and further including
amounts owed by Concessionaire to its suppliers, contractors and sub-
contractors.[48]
It is clear from the above-quoted provisions that Government, in the event that
PIATCO defaults in its loan obligations, is obligated to pay all amounts
recorded and from time to time outstanding from the books of PIATCO which
the latter owes to its creditors.[49] These amounts include all interests,
penalties, associated fees, charges, surcharges, indemnities, reimbursements
and other related expenses.[50] This obligation of the Government to pay
PIATCOs creditors upon PIATCOs default would arise if the Government opts
to take over NAIA IPT III. It should be noted, however, that even if the
Government chooses the second option, which is to allow PIATCOs unpaid
creditors operate NAIA IPT III, the Government is still at a risk of being liable
to PIATCOs creditors should the latter be unable to designate a qualified
operator within the prescribed period.[51] In effect, whatever option the
Government chooses to take in the event of PIATCOs failure to fulfill its loan
obligations, the Government is still at a risk of assuming PIATCOs outstanding
loans. This is due to the fact that the Government would only be free from
assuming PIATCOs debts if the unpaid creditors would be able to designate a
qualified operator within the period provided for in the contract. Thus, the
Governments assumption of liability is virtually out of its control. The
Government under the circumstances provided for in the 1997 Concession
Agreement is at the mercy of the existence, availability and willingness of a
qualified operator. The above contractual provisions constitute a direct
government guarantee which is prohibited by law.
One of the main impetus for the enactment of the BOT Law is the lack of
government funds to construct the infrastructure and development projects
necessary for economic growth and development. This is why private sector
resources are being tapped in order to finance these projects. The BOT law
allows the private sector to participate, and is in fact encouraged to do so by
way of incentives, such as minimizing the unstable flow of returns,[52]
provided that the government would not have to unnecessarily expend scarcely
available funds for the project itself. As such, direct guarantee, subsidy and
equity by the government in these projects are strictly prohibited.[53] This is
but logical for if the government would in the end still be at a risk of paying the
debts incurred by the private entity in the BOT projects, then the purpose of the
law is subverted.
Section 2(n) of the BOT Law defines direct guarantee as follows:
(n) Direct government guarantee An agreement whereby the government or any
of its agencies or local government units assume responsibility for the
repayment of debt directly incurred by the project proponent in implementing
the project in case of a loan default.
Clearly by providing that the Government assumes the attendant liabilities,
which consists of PIATCOs unpaid debts, the 1997 Concession Agreement
provided for a direct government guarantee for the debts incurred by PIATCO
in the implementation of the NAIA IPT III project. It is of no moment that the
relevant sections are subsumed under the title of assignment. The provisions
providing for direct government guarantee which is prohibited by law is clear
from the terms thereof.
The fact that the ARCA superseded the 1997 Concession Agreement did not
cure this fatal defect. Article IV, Section 4.04(c), in relation to Article I, Section
1.06, of the ARCA provides:
Section 4.04 Security
.
(c) GRP agrees with Concessionaire (PIATCO) that it shall negotiate in good
faith and enter into direct agreement with the Senior Lenders, or with an agent
of such Senior Lenders (which agreement shall be subject to the approval of the
Bangko Sentral ng Pilipinas), in such form as may be reasonably acceptable to
both GRP and Senior Lenders, with regard, inter alia, to the following
parameters:
.
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(iv) If the Concessionaire [PIATCO] is in default under a payment obligation
owed to the Senior Lenders, and as a result thereof the Senior Lenders have
become entitled to accelerate the Senior Loans, the Senior Lenders shall have
the right to notify GRP of the same, and without prejudice to any other rights
of the Senior Lenders or any Senior Lenders agent may have (including without
limitation under security interests granted in favor of the Senior Lenders), to
either in good faith identify and designate a nominee which is qualified under
sub-clause (viii)(y) below to operate the Development Facility [NAIA Terminal
3] or transfer the Concessionaires [PIATCO] rights and obligations under this
Agreement to a transferee which is qualified under sub-clause (viii) below;
. Government is obligated to directly negotiate and enter into an agreement
(vi) if the Senior Lenders, acting in good faith and using reasonable efforts, are
unable to designate a nominee or effect a transfer in terms and conditions
satisfactory to the Senior Lenders within one hundred eighty (180) days after
giving GRP notice as referred to respectively in (iv) or (v) above, then GRP and
the Senior Lenders shall endeavor in good faith to enter into any other
arrangement relating to the Development Facility [NAIA Terminal 3] (other
than a turnover of the Development Facility [NAIA Terminal 3] to GRP) within
the following one hundred eighty (180) days. If no agreement relating to the
Development Facility [NAIA Terminal 3] is arrived at by GRP and the Senior
Lenders within the said 180-day period, then at the end thereof the
Development Facility [NAIA Terminal 3] shall be transferred by the
Concessionaire [PIATCO] to GRP or its designee and GRP shall make a
termination payment to Concessionaire [PIATCO] equal to the Appraised
Value (as hereinafter defined) of the Development Facility [NAIA Terminal 3]
or the sum of the Attendant Liabilities, if greater. Notwithstanding Section
8.01(c) hereof, this Agreement shall be deemed terminated upon the transfer of
the Development Facility [NAIA Terminal 3] to GRP pursuant hereto;
. It is clear from the foregoing that the ARCA provides for a direct guarantee by
Section 1.06. Attendant Liabilities
Attendant Liabilities refer to all amounts in each case supported by verifiable
evidence from time to time owed or which may become owing by
Concessionaire [PIATCO] to Senior Lenders or any other persons or entities
who have provided, loaned, or advanced funds or provided financial facilities
to Concessionaire [PIATCO] for the Project [NAIA Terminal 3], including,
without limitation, all principal, interest, associated fees, charges,
reimbursements, and other related expenses (including the fees, charges and
expenses of any agents or trustees of such persons or entities), whether payable
at maturity, by acceleration or otherwise, and further including amounts owed
by Concessionaire [PIATCO] to its professional consultants and advisers,
suppliers, contractors and sub-contractors.[54]
It is clear from the foregoing contractual provisions that in the event that
PIATCO fails to fulfill its loan obligations to its Senior Lenders, the
relating to NAIA IPT III with the Senior Lenders, should the latter fail to
appoint a qualified nominee or transferee who will take the place of PIATCO.
If the Senior Lenders and the Government are unable to enter into an agreement
after the prescribed period, the Government must then pay PIATCO, upon
transfer of NAIA IPT III to the Government, termination payment equal to the
appraised value of the project or the value of the attendant liabilities whichever
is greater. Attendant liabilities as defined in the ARCA includes all amounts
owed or thereafter may be owed by PIATCO not only to the Senior Lenders
with whom PIATCO has defaulted in its loan obligations but to all other persons
who may have loaned, advanced funds or provided any other type of financial
facilities to PIATCO for NAIA IPT III. The amount of PIATCOs debt that the
Government would have to pay as a result of PIATCOs default in its loan
obligations -- in case no qualified nominee or transferee is appointed by the
Senior Lenders and no other agreement relating to NAIA IPT III has been
reached between the Government and the Senior Lenders -- includes, but is not
limited to, all principal, interest, associated fees, charges, reimbursements, and
other related expenses . . . whether payable at maturity, by acceleration or
otherwise.[55]
the government to pay PIATCOs loans not only to its Senior Lenders but all
other entities who provided PIATCO funds or services upon PIATCOs default
in its loan obligation with its Senior Lenders. The fact that the Governments
obligation to pay PIATCOs lenders for the latters obligation would only arise
after the Senior Lenders fail to appoint a qualified nominee or transferee does
not detract from the fact that, should the conditions as stated in the contract
153 of 692
occur, the ARCA still obligates the Government to pay any and all amounts
owed by PIATCO to its lenders in connection with NAIA IPT III. Worse, the
conditions that would make the Government liable for PIATCOs debts is
triggered by PIATCOs own default of its loan obligations to its Senior Lenders
to which loan contracts the Government was never a party to. The Government
was not even given an option as to what course of action it should take in case
PIATCO defaulted in the payment of its senior loans. The Government, upon
PIATCOs default, would be merely notified by the Senior Lenders of the same
and it is the Senior Lenders who are authorized to appoint a qualified nominee
or transferee. Should the Senior Lenders fail to make such an appointment, the
Government is then automatically obligated to directly deal and negotiate with
the Senior Lenders regarding NAIA IPT III. The only way the Government
would not be liable for PIATCOs debt is for a qualified nominee or transferee
to be appointed in place of PIATCO to continue the construction, operation and
maintenance of NAIA IPT III. This pre-condition, however, will not take the
contract out of the ambit of a direct guarantee by the government as the
existence, availability and willingness of a qualified nominee or transferee is
totally out of the governments control. As such the Government is virtually at
the mercy of PIATCO (that it would not default on its loan obligations to its
Senior Lenders), the Senior Lenders (that they would appoint a qualified
nominee or transferee or agree to some other arrangement with the
Government) and the existence of a qualified nominee or transferee who is able
and willing to take the place of PIATCO in NAIA IPT III.
The proscription against government guarantee in any form is one of the policy
considerations behind the BOT Law. Clearly, in the present case, the ARCA
obligates the Government to pay for all loans, advances and obligations arising
out of financial facilities extended to PIATCO for the implementation of the
NAIA IPT III project should PIATCO default in its loan obligations to its
Senior Lenders and the latter fails to appoint a qualified nominee or transferee.
This in effect would make the Government liable for PIATCOs loans should
the conditions as set forth in the ARCA arise. This is a form of direct
government guarantee.
The BOT Law and its implementing rules provide that in order for an
unsolicited proposal for a BOT project may be accepted, the following
conditions must first be met: (1) the project involves a new concept in
technology and/or is not part of the list of priority projects, (2) no direct
government guarantee, subsidy or equity is required, and (3) the government
agency or local government unit has invited by publication other interested
parties to a public bidding and conducted the same.[56] The failure to meet any
of the above conditions will result in the denial of the proposal. It is further
provided that the presence of direct government guarantee, subsidy or equity
will necessarily disqualify a proposal from being treated and accepted as an
unsolicited proposal.[57] The BOT Law clearly and strictly prohibits direct
government guarantee, subsidy and equity in unsolicited proposals that the
mere inclusion of a provision to that effect is fatal and is sufficient to deny the
proposal. It stands to reason therefore that if a proposal can be denied by reason
of the existence of direct government guarantee, then its inclusion in the
contract executed after the said proposal has been accepted is likewise sufficient
to invalidate the contract itself. A prohibited provision, the inclusion of which
would result in the denial of a proposal cannot, and should not, be allowed to
later on be inserted in the contract resulting from the said proposal. The basic
rules of justice and fair play alone militate against such an occurrence and must
not, therefore, be countenanced particularly in this instance where the
government is exposed to the risk of shouldering hundreds of million of dollars
in debt.
This Court has long and consistently adhered to the legal maxim that those that
cannot be done directly cannot be done indirectly.[58] To declare the PIATCO
contracts valid despite the clear statutory prohibition against a direct
government guarantee would not only make a mockery of what the BOT Law
seeks to prevent -- which is to expose the government to the risk of incurring a
monetary obligation resulting from a contract of loan between the project
proponent and its lenders and to which the Government is not a party to -- but
would also render the BOT Law useless for what it seeks to achieve - to make
use of the resources of the private sector in the financing, operation and
maintenance of infrastructure and development projects[59] which are
necessary for national growth and development but which the government,
unfortunately, could ill-afford to finance at this point in time.
IV
Temporary takeover of business affected with public interest
Article XII, Section 17 of the 1987 Constitution provides:
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Section 17. In times of national emergency, when the public interest so requires,
the State may, during the emergency and under reasonable terms prescribed by
it, temporarily take over or direct the operation of any privately owned public
utility or business affected with public interest.
The above provision pertains to the right of the State in times of national
emergency, and in the exercise of its police power, to temporarily take over the
operation of any business affected with public interest. In the 1986
Constitutional Commission, the term national emergency was defined to
include threat from external aggression, calamities or national disasters, but not
strikes unless it is of such proportion that would paralyze government
service.[60] The duration of the emergency itself is the determining factor as to
how long the temporary takeover by the government would last.[61] The
temporary takeover by the government extends only to the operation of the
business and not to the ownership thereof. As such the government is not
required to compensate the private entity-owner of the said business as there is
no transfer of ownership, whether permanent or temporary. The private entity-
owner affected by the temporary takeover cannot, likewise, claim just
compensation for the use of the said business and its properties as the temporary
takeover by the government is in exercise of its police power and not of its
power of eminent domain.
Article V, Section 5.10 (c) of the 1997 Concession Agreement provides:
Section 5.10 Temporary Take-over of operations by GRP.
. property pursuant to the operation of the business contravenes the Constitution.
(c) In the event the development Facility or any part thereof and/or the
operations of Concessionaire or any part thereof, become the subject matter of
or be included in any notice, notification, or declaration concerning or relating
to acquisition, seizure or appropriation by GRP in times of war or national
emergency, GRP shall, by written notice to Concessionaire, immediately take
over the operations of the Terminal and/or the Terminal Complex. During such
take over by GRP, the Concession Period shall be suspended; provided, that
upon termination of war, hostilities or national emergency, the operations shall
be returned to Concessionaire, at which time, the Concession period shall
commence to run again. Concessionaire shall be entitled to reasonable
compensation for the duration of the temporary take over by GRP, which
compensation shall take into account the reasonable cost for the use of the
Terminal and/or Terminal Complex, (which is in the amount at least equal to
the debt service requirements of Concessionaire, if the temporary take over
should occur at the time when Concessionaire is still servicing debts owed to
project lenders), any loss or damage to the Development Facility, and other
consequential damages. If the parties cannot agree on the reasonable
compensation of Concessionaire, or on the liability of GRP as aforesaid, the
matter shall be resolved in accordance with Section 10.01 [Arbitration]. Any
amount determined to be payable by GRP to Concessionaire shall be offset
from the amount next payable by Concessionaire to GRP.[62]
PIATCO cannot, by mere contractual stipulation, contravene the Constitutional
provision on temporary government takeover and obligate the government to
pay reasonable cost for the use of the Terminal and/or Terminal Complex.[63]
Article XII, section 17 of the 1987 Constitution envisions a situation wherein
the exigencies of the times necessitate the government to temporarily take over
or direct the operation of any privately owned public utility or business affected
with public interest. It is the welfare and interest of the public which is the
paramount consideration in determining whether or not to temporarily take over
a particular business. Clearly, the State in effecting the temporary takeover is
exercising its police power. Police power is the most essential, insistent, and
illimitable of powers.[64] Its exercise therefore must not be unreasonably
hampered nor its exercise be a source of obligation by the government in the
absence of damage due to arbitrariness of its exercise.[65] Thus, requiring the
government to pay reasonable compensation for the reasonable use of the
V
Regulation of Monopolies
A monopoly is a privilege or peculiar advantage vested in one or more persons
or companies, consisting in the exclusive right (or power) to carry on a
particular business or trade, manufacture a particular article, or control the sale
of a particular commodity.[66] The 1987 Constitution strictly regulates
monopolies, whether private or public, and even provides for their prohibition
155 of 692
if public interest so requires. Article XII, Section 19 of the 1987 Constitution
states:
Sec. 19. The state shall regulate or prohibit monopolies when the public interest
so requires. No combinations in restraint of trade or unfair competition shall be
allowed.
Clearly, monopolies are not per se prohibited by the Constitution but may be
permitted to exist to aid the government in carrying on an enterprise or to aid
in the performance of various services and functions in the interest of the
public.[67] Nonetheless, a determination must first be made as to whether
public interest requires a monopoly. As monopolies are subject to abuses that
can inflict severe prejudice to the public, they are subject to a higher level of
State regulation than an ordinary business undertaking.
In the cases at bar, PIATCO, under the 1997 Concession Agreement and the
ARCA, is granted the exclusive right to operate a commercial international
passenger terminal within the Island of Luzon at the NAIA IPT III.[68] This is
with the exception of already existing international airports in Luzon such as
those located in the Subic Bay Freeport Special Economic Zone (SBFSEZ),
Clark Special Economic Zone (CSEZ) and in Laoag City.[69] As such, upon
commencement of PIATCOs operation of NAIA IPT III, Terminals 1 and 2 of
NAIA would cease to function as international passenger terminals. This,
however, does not prevent MIAA to use Terminals 1 and 2 as domestic
passenger terminals or in any other manner as it may deem appropriate except
those activities that would compete with NAIA IPT III in the latters operation
as an international passenger terminal.[70] The right granted to PIATCO to
exclusively operate NAIA IPT III would be for a period of twenty-five (25)
years from the In-Service Date[71] and renewable for another twenty-five (25)
years at the option of the government.[72] Both the 1997 Concession
Agreement and the ARCA further provide that, in view of the exclusive right
granted to PIATCO, the concession contracts of the service providers currently
servicing Terminals 1 and 2 would no longer be renewed and those concession
contracts whose expiration are subsequent to the In-Service Date would cease
to be effective on the said date.[73]
The operation of an international passenger airport terminal is no doubt an
undertaking imbued with public interest. In entering into a BuildOperate-and-
Transfer contract for the construction, operation and maintenance of NAIA IPT
III, the government has determined that public interest would be served better
if private sector resources were used in its construction and an exclusive right
to operate be granted to the private entity undertaking the said project, in this
case PIATCO. Nonetheless, the privilege given to PIATCO is subject to
reasonable regulation and supervision by the Government through the MIAA,
which is the government agency authorized to operate the NAIA complex, as
well as DOTC, the department to which MIAA is attached.[74]
This is in accord with the Constitutional mandate that a monopoly which is not
prohibited must be regulated.[75] While it is the declared policy of the BOT
Law to encourage private sector participation by providing a climate of
minimum government regulations,[76] the same does not mean that
Government must completely surrender its sovereign power to protect public
interest in the operation of a public utility as a monopoly. The operation of said
public utility can not be done in an arbitrary manner to the detriment of the
public which it seeks to serve. The right granted to the public utility may be
exclusive but the exercise of the right cannot run riot. Thus, while PIATCO
may be authorized to exclusively operate NAIA IPT III as an international
passenger terminal, the Government, through the MIAA, has the right and the
duty to ensure that it is done in accord with public interest. PIATCOs right to
operate NAIA IPT III cannot also violate the rights of third parties.
Section 3.01(e) of the 1997 Concession Agreement and the ARCA provide:
3.01 Concession Period
.
(e) GRP confirms that certain concession agreements relative to certain services
and operations currently being undertaken at the Ninoy Aquino International
Airport passenger Terminal I have a validity period extending beyond the In-
Service Date. GRP through DOTC/MIAA, confirms that these services and
operations shall not be carried over to the Terminal and the Concessionaire is
under no legal obligation to permit such carry-over except through a separate
agreement duly entered into with Concessionaire. In the event Concessionaire
becomes involved in any litigation initiated by any such concessionaire or
operator, GRP undertakes and hereby holds Concessionaire free and harmless
156 of 692
on full indemnity basis from and against any loss and/or any liability resulting
from any such litigation, including the cost of litigation and the reasonable fees
paid or payable to Concessionaires counsel of choice, all such amounts shall be
fully deductible by way of an offset from any amount which the Concessionaire
is bound to pay GRP under this Agreement.
During the oral arguments on December 10, 2002, the counsel for the
petitioners-in-intervention for G.R. No. 155001 stated that there are two service
providers whose contracts are still existing and whose validity extends beyond
the In-Service Date. One contract remains valid until 2008 and the other until
2010.[77]
We hold that while the service providers presently operating at NAIA Terminal
1 do not have an absolute right for the renewal or the extension of their
respective contracts, those contracts whose duration extends beyond NAIA IPT
IIIs In-Service-Date should not be unduly prejudiced. These contracts must be
respected not just by the parties thereto but also by third parties. PIATCO
cannot, by law and certainly not by contract, render a valid and binding contract
nugatory. PIATCO, by the mere expedient of claiming an exclusive right to
operate, cannot require the Government to break its contractual obligations to
the service providers. In contrast to the arrastre and stevedoring service
providers in the case of Anglo-Fil Trading Corporation v. Lazaro[78] whose
contracts consist of temporary hold-over permits, the affected service providers
in the cases at bar, have a valid and binding contract with the Government,
through MIAA, whose period of effectivity, as well as the other terms and
conditions thereof, cannot be violated.
In fine, the efficient functioning of NAIA IPT III is imbued with public interest.
The provisions of the 1997 Concession Agreement and the ARCA did not strip
government, thru the MIAA, of its right to supervise the operation of the whole
NAIA complex, including NAIA IPT III. As the primary government agency
tasked with the job,[79] it is MIAAs responsibility to ensure that whoever by
contract is given the right to operate NAIA IPT III will do so within the bounds
of the law and with due regard to the rights of third parties and above all, the
interest of the public.
VI
CONCLUSION
In sum, this Court rules that in view of the absence of the requisite financial
capacity of the Paircargo Consortium, predecessor of respondent PIATCO, the
award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that the
1997 Concession Agreement contains material and substantial amendments,
which amendments had the effect of converting the 1997 Concession
Agreement into an entirely different agreement from the contract bidded upon,
the 1997 Concession Agreement is similarly null and void for being contrary to
public policy. The provisions under Sections 4.04(b) and (c) in relation to
Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in relation
to Section 1.06 of the ARCA, which constitute a direct government guarantee
expressly prohibited by, among others, the BOT Law and its Implementing
Rules and Regulations are also null and void. The Supplements, being
accessory contracts to the ARCA, are likewise null and void.
WHEREFORE, the 1997 Concession Agreement, the Amended and Restated
Concession Agreement and the Supplements thereto are set aside for being null
and void.
SO ORDERED.
Gamboa v. Teves
G.R. No. 176579 (June 28, 2011)
WILSON P. GAMBOA,
Petitioner,
G.R. No. 176579
Present:
- versus -
157 of 692
 ABAD,

FINANCE SECRETARY MARGARITO B. TEVES, FINANCE VILLARAMA, JR.,

UNDERSECRETARY JOHN P. SEVILLA, AND COMMISSIONER
RICARDO ABCEDE OF THE PRESIDENTIAL COMMISSION ON GOOD PEREZ,
GOVERNMENT (PCGG) IN THEIR CAPACITIES AS CHAIR AND
MEMBERS, RESPECTIVELY, OF THE PRIVATIZATION COUNCIL, MENDOZA, and

CHAIRMAN ANTHONI SALIM OF FIRST PACIFIC CO., LTD. IN HIS SERENO, JJ.
CAPACITY AS DIRECTOR OF METRO PACIFIC ASSET HOLDINGS
INC., CHAIRMAN MANUEL V. PANGILINAN OF PHILIPPINE LONG
DISTANCE TELEPHONE COMPANY (PLDT) IN HIS CAPACITY AS
MANAGING DIRECTOR OF FIRST PACIFIC CO., LTD., PRESIDENT
NAPOLEON L. NAZARENO OF PHILIPPINE LONG DISTANCE
TELEPHONE COMPANY, CHAIR FE BARIN OF THE SECURITIES
EXCHANGE COMMISSION, and PRESIDENT FRANCIS LIM OF THE
PHILIPPINE STOCK EXCHANGE,

Respondents.

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,
158 of 692
 This is an original petition for prohibition, injunction, declaratory relief and
declaration of nullity of the sale of shares of stock of Philippine
Telecommunications Investment Corporation (PTIC) by the government of the
Republic of the Philippines to Metro Pacific Assets Holdings, Inc. (MPAH), an
PABLITO V. SANIDAD and affiliate of First Pacific Company Limited (First Pacific).

ARNO V. SANIDAD,

Petitioners-in-Intervention. The Antecedents

Promulgated:

The facts, according to petitioner Wilson P. Gamboa, a stockholder of

Philippine Long Distance Telephone Company (PLDT), are as follows:1
June 28, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
On 28 November 1928, the Philippine Legislature enacted Act No. 3436 which
granted PLDT a franchise and the right to engage in telecommunications
business. In 1969, General Telephone and Electronics Corporation (GTE), an
American company and a major PLDT stockholder, sold 26 percent of the
outstanding common shares of PLDT to PTIC. In 1977, Prime Holdings, Inc.
DECISION (PHI) was incorporated by several persons, including Roland Gapud and Jose
Campos, Jr. Subsequently, PHI became the owner of 111,415 shares of stock
of PTIC by virtue of three Deeds of Assignment executed by PTIC stockholders
Ramon Cojuangco and Luis Tirso Rivilla. In 1986, the 111,415 shares of stock
of PTIC held by PHI were sequestered by the Presidential Commission on Good
Government (PCGG). The 111,415 PTIC shares, which represent about 46.125
CARPIO, J.: percent of the outstanding capital stock of PTIC, were later declared by this
Court to be owned by the Republic of the Philippines.2

In 1999, First Pacific, a Bermuda-registered, Hong Kong-based investment

The Case firm, acquired the remaining 54 percent of the outstanding capital stock of
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PTIC. On 20 November 2006, the Inter-Agency Privatization Council (IPC) of
the Philippine Government announced that it would sell the 111,415 PTIC
shares, or 46.125 percent of the outstanding capital stock of PTIC, through a
public bidding to be conducted on 4 December 2006. Subsequently, the public
bidding was reset to 8 December 2006, and only two bidders, Parallax Venture
Fund XXVII (Parallax) and Pan-Asia Presidio Capital, submitted their bids.
Parallax won with a bid of P25.6 billion or US$510 million.
Thereafter, First Pacific announced that it would exercise its right of first refusal
as a PTIC stockholder and buy the 111,415 PTIC shares by matching the bid
price of Parallax. However, First Pacific failed to do so by the 1 February 2007
deadline set by IPC and instead, yielded its right to PTIC itself which was then
given by IPC until 2 March 2007 to buy the PTIC shares. On 14 February 2007,
First Pacific, through its subsidiary, MPAH, entered into a Conditional Sale and
Purchase Agreement of the 111,415 PTIC shares, or 46.125 percent of the
outstanding capital stock of PTIC, with the Philippine Government for the price
of P25,217,556,000 or US$510,580,189. The sale was completed on 28
February 2007.
Since PTIC is a stockholder of PLDT, the sale by the Philippine Government
of 46.125 percent of PTIC shares is actually an indirect sale of 12 million shares
or about 6.3 percent of the outstanding common shares of PLDT. With the sale,
First Pacifics common shareholdings in PLDT increased from 30.7 percent to
37 percent, thereby increasing the common shareholdings of foreigners in
PLDT to about 81.47 percent. This violates Section 11, Article XII of the 1987
Philippine Constitution which limits foreign ownership of the capital of a public
utility to not more than 40 percent.3
On the other hand, public respondents Finance Secretary Margarito B. Teves,
Undersecretary John P. Sevilla, and PCGG Commissioner Ricardo Abcede
allege the following relevant facts:
On 9 November 1967, PTIC was incorporated and had since engaged in the
business of investment holdings. PTIC held 26,034,263 PLDT common shares,
or 13.847 percent of the total PLDT outstanding common shares. PHI, on the
other hand, was incorporated in 1977, and became the owner of 111,415 PTIC
shares or 46.125 percent of the outstanding capital stock of PTIC by virtue of
three Deeds of Assignment executed by Ramon Cojuangco and Luis Tirso
Rivilla. In 1986, the 111,415 PTIC shares held by PHI were sequestered by the
PCGG, and subsequently declared by this Court as part of the ill-gotten wealth
of former President Ferdinand Marcos. The sequestered PTIC shares were
reconveyed to the Republic of the Philippines in accordance with this Courts
decision4 which became final and executory on 8 August 2006.
The Philippine Government decided to sell the 111,415 PTIC shares, which
represent 6.4 percent of the outstanding common shares of stock of PLDT, and
designated the Inter-Agency Privatization Council (IPC), composed of the
Department of Finance and the PCGG, as the disposing entity. An invitation to
bid was published in seven different newspapers from 13 to 24 November 2006.
On 20 November 2006, a pre-bid conference was held, and the original deadline
for bidding scheduled on 4 December 2006 was reset to 8 December 2006. The
extension was published in nine different newspapers.
During the 8 December 2006 bidding, Parallax Capital Management LP
emerged as the highest bidder with a bid of P25,217,556,000. The government
notified First Pacific, the majority owner of PTIC shares, of the bidding results
and gave First Pacific until 1 February 2007 to exercise its right of first refusal
in accordance with PTICs Articles of Incorporation. First Pacific announced its
intention to match Parallaxs bid.
On 31 January 2007, the House of Representatives (HR) Committee on Good
Government conducted a public hearing on the particulars of the then
impending sale of the 111,415 PTIC shares. Respondents Teves and Sevilla
were among those who attended the public hearing. The HR Committee Report
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No. 2270 concluded that: (a) the auction of the governments 111,415 PTIC
shares bore due diligence, transparency and conformity with existing legal
procedures; and (b) First Pacifics intended acquisition of the governments
111,415 PTIC shares resulting in First Pacifics 100% ownership of PTIC will
not violate the 40 percent constitutional limit on foreign ownership of a public
utility since PTIC holds only 13.847 percent of the total outstanding common
shares of PLDT.5 On 28 February 2007, First Pacific completed the acquisition
of the 111,415 shares of stock of PTIC.
Respondent Manuel V. Pangilinan admits the following facts: (a) the IPC
conducted a public bidding for the sale of 111,415 PTIC shares or 46 percent
of the outstanding capital stock of PTIC (the remaining 54 percent of PTIC
shares was already owned by First Pacific and its affiliates); (b) Parallax offered
the highest bid amounting to P25,217,556,000; (c) pursuant to the right of first
refusal in favor of PTIC and its shareholders granted in PTICs Articles of
Incorporation, MPAH, a First Pacific affiliate, exercised its right of first refusal
by matching the highest bid offered for PTIC shares on 13 February 2007; and
(d) on 28 February 2007, the sale was consummated when MPAH paid IPC
P25,217,556,000 and the government delivered the certificates for the 111,415
PTIC shares. Respondent Pangilinan denies the other allegations of facts of
petitioner.
On 28 February 2007, petitioner filed the instant petition for prohibition,
injunction, declaratory relief, and declaration of nullity of sale of the 111,415
PTIC shares. Petitioner claims, among others, that the sale of the 111,415 PTIC
shares would result in an increase in First Pacifics common shareholdings in
PLDT from 30.7 percent to 37 percent, and this, combined with Japanese NTT
DoCoMos common shareholdings in PLDT, would result to a total foreign
common shareholdings in PLDT of 51.56 percent which is over the 40 percent
constitutional limit.6 Petitioner asserts:
If and when the sale is completed, First Pacifics equity in PLDT will go up from
30.7 percent to 37.0 percent of its common or voting- stockholdings, x x x.
Hence, the consummation of the sale will put the two largest foreign investors
in PLDT First Pacific and Japans NTT DoCoMo, which is the worlds largest
wireless telecommunications firm, owning 51.56 percent of PLDT common
equity. x x x With the completion of the sale, data culled from the official
website of the New York Stock Exchange (www.nyse.com) showed that those
foreign entities, which own at least five percent of common equity, will
collectively own 81.47 percent of PLDTs common equity. x x x
x x x as the annual disclosure reports, also referred to as Form 20-K reports x x
x which PLDT submitted to the New York Stock Exchange for the period 2003-
2005, revealed that First Pacific and several other foreign entities breached the
constitutional limit of 40 percent ownership as early as 2003. x x x7
Petitioner raises the following issues: (1) whether the consummation of the then
impending sale of 111,415 PTIC shares to First Pacific violates the
constitutional limit on foreign ownership of a public utility; (2) whether public
respondents committed grave abuse of discretion in allowing the sale of the
111,415 PTIC shares to First Pacific; and (3) whether the sale of common shares
to foreigners in excess of 40 percent of the entire subscribed common capital
stock violates the constitutional limit on foreign ownership of a public utility.8
On 13 August 2007, Pablito V. Sanidad and Arno V. Sanidad filed a Motion
for Leave to Intervene and Admit Attached Petition-in-Intervention. In the
Resolution of 28 August 2007, the Court granted the motion and noted the
Petition-in-Intervention.
Petitioners-in-intervention join petitioner Wilson Gamboa x x x in seeking,
among others, to enjoin and/or nullify the sale by respondents of the 111,415
PTIC shares to First Pacific or assignee. Petitioners-in-intervention claim that,
as PLDT subscribers, they have a stake in the outcome of the controversy x x x
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where the Philippine Government is completing the sale of government owned
assets in [PLDT], unquestionably a public utility, in violation of the nationality
restrictions of the Philippine Constitution.
The Issue
This Court is not a trier of facts. Factual questions such as those raised by
petitioner,9 which indisputably demand a thorough examination of the evidence
of the parties, are generally beyond this Courts jurisdiction. Adhering to this
well-settled principle, the Court shall confine the resolution of the instant
controversy solely on the threshold and purely legal issue of whether the term
capital in Section 11, Article XII of the Constitution refers to the total common
shares only or to the total outstanding capital stock (combined total of common
and non-voting preferred shares) of PLDT, a public utility.
The Ruling of the Court
The petition is partly meritorious.
Petition for declaratory relief treated as petition for mandamus
At the outset, petitioner is faced with a procedural barrier. Among the remedies
petitioner seeks, only the petition for prohibition is within the original
jurisdiction of this court, which however is not exclusive but is concurrent with
the Regional Trial Court and the Court of Appeals. The actions for declaratory
relief,10 injunction, and annulment of sale are not embraced within the original
jurisdiction of the Supreme Court. On this ground alone, the petition could have
been dismissed outright.
While direct resort to this Court may be justified in a petition for prohibition,11
the Court shall nevertheless refrain from discussing the grounds in support of
the petition for prohibition since on 28 February 2007, the questioned sale was
consummated when MPAH paid IPC P25,217,556,000 and the government
delivered the certificates for the 111,415 PTIC shares.
However, since the threshold and purely legal issue on the definition of the term
capital in Section 11, Article XII of the Constitution has far-reaching
implications to the national economy, the Court treats the petition for
declaratory relief as one for mandamus.12
In Salvacion v. Central Bank of the Philippines,13 the Court treated the petition
for declaratory relief as one for mandamus considering the grave injustice that
would result in the interpretation of a banking law. In that case, which involved
the crime of rape committed by a foreign tourist against a Filipino minor and
the execution of the final judgment in the civil case for damages on the tourists
dollar deposit with a local bank, the Court declared Section 113 of Central Bank
Circular No. 960, exempting foreign currency deposits from attachment,
garnishment or any other order or process of any court, inapplicable due to the
peculiar circumstances of the case. The Court held that injustice would result
especially to a citizen aggrieved by a foreign guest like accused x x x that would
negate Article 10 of the Civil Code which provides that in case of doubt in the
interpretation or application of laws, it is presumed that the lawmaking body
intended right and justice to prevail. The Court therefore required respondents
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Central Bank of the Philippines, the local bank, and the accused to comply with
the writ of execution issued in the civil case for damages and to release the
dollar deposit of the accused to satisfy the judgment.
In Alliance of Government Workers v. Minister of Labor,14 the Court similarly
brushed aside the procedural infirmity of the petition for declaratory relief and
treated the same as one for mandamus. In Alliance, the issue was whether the
government unlawfully excluded petitioners, who were government
employees, from the enjoyment of rights to which they were entitled under the
law. Specifically, the question was: Are the branches, agencies, subdivisions,
and instrumentalities of the Government, including government owned or
controlled corporations included among the four employers under Presidential
Decree No. 851 which are required to pay their employees x x x a thirteenth
(13th) month pay x x x ? The Constitutional principle involved therein affected
all government employees, clearly justifying a relaxation of the technical rules
of procedure, and certainly requiring the interpretation of the assailed
presidential decree.
In short, it is well-settled that this Court may treat a petition for declaratory
relief as one for mandamus if the issue involved has far-reaching implications.
As this Court held in Salvacion:
The Court has no original and exclusive jurisdiction over a petition for
declaratory relief. However, exceptions to this rule have been recognized. Thus,
where the petition has far-reaching implications and raises questions that should
be resolved, it may be treated as one for mandamus.15 (Emphasis supplied)
In the present case, petitioner seeks primarily the interpretation of the term
capital in Section 11, Article XII of the Constitution. He prays that this Court
declare that the term capital refers to common shares only, and that such shares
constitute the sole basis in determining foreign equity in a public utility.
Petitioner further asks this Court to declare any ruling inconsistent with such
interpretation unconstitutional.
The interpretation of the term capital in Section 11, Article XII of the
Constitution has far-reaching implications to the national economy. In fact, a
resolution of this issue will determine whether Filipinos are masters, or second
class citizens, in their own country. What is at stake here is whether Filipinos
or foreigners will have effective control of the national economy. Indeed, if ever
there is a legal issue that has far-reaching implications to the entire nation, and
to future generations of Filipinos, it is the threshhold legal issue presented in
this case.
The Court first encountered the issue on the definition of the term capital in
Section 11, Article XII of the Constitution in the case of Fernandez v.
Cojuangco, docketed as G.R. No. 157360.16 That case involved the same
public utility (PLDT) and substantially the same private respondents. Despite
the importance and novelty of the constitutional issue raised therein and despite
the fact that the petition involved a purely legal question, the Court declined to
resolve the case on the merits, and instead denied the same for disregarding the
hierarchy of courts.17 There, petitioner Fernandez assailed on a pure question
of law the Regional Trial Courts Decision of 21 February 2003 via a petition
for review under Rule 45. The Courts Resolution, denying the petition, became
final on 21 December 2004.
The instant petition therefore presents the Court with another opportunity to
finally settle this purely legal issue which is of transcendental importance to the
national economy and a fundamental requirement to a faithful adherence to our
Constitution. The Court must forthwith seize such opportunity, not only for the
benefit of the litigants, but more significantly for the benefit of the entire
Filipino people, to ensure, in the words of the Constitution, a self-reliant and
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independent national economy effectively controlled by Filipinos.18 Besides,
in the light of vague and confusing positions taken by government agencies on
this purely legal issue, present and future foreign investors in this country
deserve, as a matter of basic fairness, a categorical ruling from this Court on
the extent of their participation in the capital of public utilities and other
nationalized businesses.
Despite its far-reaching implications to the national economy, this purely legal
issue has remained unresolved for over 75 years since the 1935 Constitution.
There is no reason for this Court to evade this ever recurring fundamental issue
and delay again defining the term capital, which appears not only in Section 11,
Article XII of the Constitution, but also in Section 2, Article XII on co-
production and joint venture agreements for the development of our natural
resources,19 in Section 7, Article XII on ownership of private lands,20 in
Section 10, Article XII on the reservation of certain investments to Filipino
citizens,21 in Section 4(2), Article XIV on the ownership of educational
institutions,22 and in Section 11(2), Article XVI on the ownership of
advertising companies.23
Petitioner has locus standi
There is no dispute that petitioner is a stockholder of PLDT. As such, he has
the right to question the subject sale, which he claims to violate the nationality
requirement prescribed in Section 11, Article XII of the Constitution. If the sale
indeed violates the Constitution, then there is a possibility that PLDTs franchise
could be revoked, a dire consequence directly affecting petitioners interest as a
stockholder.
More importantly, there is no question that the instant petition raises matters of
transcendental importance to the public. The fundamental and threshold legal
issue in this case, involving the national economy and the economic welfare of
the Filipino people, far outweighs any perceived impediment in the legal
personality of the petitioner to bring this action.
In Chavez v. PCGG,24 the Court upheld the right of a citizen to bring a suit on
matters of transcendental importance to the public, thus:
In Taada v. Tuvera, the Court asserted that when the issue concerns a public
right and the object of mandamus is to obtain the enforcement of a public duty,
the people are regarded as the real parties in interest; and because it is sufficient
that petitioner is a citizen and as such is interested in the execution of the laws,
he need not show that he has any legal or special interest in the result of the
action. In the aforesaid case, the petitioners sought to enforce their right to be
informed on matters of public concern, a right then recognized in Section 6,
Article IV of the 1973 Constitution, in connection with the rule that laws in
order to be valid and enforceable must be published in the Official Gazette or
otherwise effectively promulgated. In ruling for the petitioners legal standing,
the Court declared that the right they sought to be enforced is a public right
recognized by no less than the fundamental law of the land.
Legaspi v. Civil Service Commission, while reiterating Taada, further declared
that when a mandamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that petitioner is a
citizen and, therefore, part of the general public which possesses the right.
Further, in Albano v. Reyes, we said that while expenditure of public funds may
not have been involved under the questioned contract for the development,
management and operation of the Manila International Container Terminal,
public interest [was] definitely involved considering the important role [of the
subject contract] . . . in the economic development of the country and the
magnitude of the financial consideration involved. We concluded that, as a
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consequence, the disclosure provision in the Constitution would constitute
sufficient authority for upholding the petitioners standing. (Emphasis supplied)
Clearly, since the instant petition, brought by a citizen, involves matters of
transcendental public importance, the petitioner has the requisite locus standi.
Definition of the Term Capital in
Section 11, Article XII of the 1987 Constitution
Section 11, Article XII (National Economy and Patrimony) of the 1987
Constitution mandates the Filipinization of public utilities, to wit:
Section 11. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines
or to corporations or associations organized under the laws of the Philippines,
at least sixty per centum of whose capital is owned by such citizens; nor shall
such franchise, certificate, or authorization be exclusive in character or for a
longer period than fifty years. Neither shall any such franchise or right be
granted except under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the common good so requires. The
State shall encourage equity participation in public utilities by the general
public. The participation of foreign investors in the governing body of any
public utility enterprise shall be limited to their proportionate share in its
capital, and all the executive and managing officers of such corporation or
association must be citizens of the Philippines. (Emphasis supplied)
The above provision substantially reiterates Section 5, Article XIV of the 1973
Constitution, thus:
Section 5. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines
or to corporations or associations organized under the laws of the Philippines
at least sixty per centum of the capital of which is owned by such citizens, nor
shall such franchise, certificate, or authorization be exclusive in character or for
a longer period than fifty years. Neither shall any such franchise or right be
granted except under the condition that it shall be subject to amendment,
alteration, or repeal by the National Assembly when the public interest so
requires. The State shall encourage equity participation in public utilities by the
general public. The participation of foreign investors in the governing body of
any public utility enterprise shall be limited to their proportionate share in the
capital thereof. (Emphasis supplied)
The foregoing provision in the 1973 Constitution reproduced Section 8, Article
XIV of the 1935 Constitution, viz:
Section 8. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines
or to corporations or other entities organized under the laws of the Philippines
sixty per centum of the capital of which is owned by citizens of the Philippines,
nor shall such franchise, certificate, or authorization be exclusive in character
or for a longer period than fifty years. No franchise or right shall be granted to
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any individual, firm, or corporation, except under the condition that it shall be
subject to amendment, alteration, or repeal by the Congress when the public
interest so requires. (Emphasis supplied)
Father Joaquin G. Bernas, S.J., a leading member of the 1986 Constitutional
Commission, reminds us that the Filipinization provision in the 1987
Constitution is one of the products of the spirit of nationalism which gripped
the 1935 Constitutional Convention.25 The 1987 Constitution provides for the
Filipinization of public utilities by requiring that any form of authorization for
the operation of public utilities should be granted only to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such citizens.
The provision is [an express] recognition of the sensitive and vital position of
public utilities both in the national economy and for national security.26 The
evident purpose of the citizenship requirement is to prevent aliens from
assuming control of public utilities, which may be inimical to the national
interest.27 This specific provision explicitly reserves to Filipino citizens control
of public utilities, pursuant to an overriding economic goal of the 1987
Constitution: to conserve and develop our patrimony28 and ensure a self-reliant
and independent national economy effectively controlled by Filipinos.29
Any citizen or juridical entity desiring to operate a public utility must therefore
meet the minimum nationality requirement prescribed in Section 11, Article XII
of the Constitution. Hence, for a corporation to be granted authority to operate
a public utility, at least 60 percent of its capital must be owned by Filipino
citizens.
The crux of the controversy is the definition of the term capital. Does the term
capital in Section 11, Article XII of the Constitution refer to common shares or
to the total outstanding capital stock (combined total of common and non-
voting preferred shares)?
Petitioner submits that the 40 percent foreign equity limitation in domestic
public utilities refers only to common shares because such shares are entitled
to vote and it is through voting that control over a corporation is exercised.
Petitioner posits that the term capital in Section 11, Article XII of the
Constitution refers to the ownership of common capital stock subscribed and
outstanding, which class of shares alone, under the corporate set-up of PLDT,
can vote and elect members of the board of directors. It is undisputed that
PLDTs non-voting preferred shares are held mostly by Filipino citizens.30 This
arose from Presidential Decree No. 217,31 issued on 16 June 1973 by then
President Ferdinand Marcos, requiring every applicant of a PLDT telephone
line to subscribe to non-voting preferred shares to pay for the investment cost
of installing the telephone line.32
Petitioners-in-intervention basically reiterate petitioners arguments and adopt
petitioners definition of the term capital.33 Petitioners-in-intervention allege
that the approximate foreign ownership of common capital stock of PLDT x x
x already amounts to at least 63.54% of the total outstanding common stock,
which means that foreigners exercise significant control over PLDT, patently
violating the 40 percent foreign equity limitation in public utilities prescribed
by the Constitution.
Respondents, on the other hand, do not offer any definition of the term capital
in Section 11, Article XII of the Constitution. More importantly, private
respondents Nazareno and Pangilinan of PLDT do not dispute that more than
40 percent of the common shares of PLDT are held by foreigners.
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In particular, respondent Nazarenos Memorandum, consisting of 73 pages,
harps mainly on the procedural infirmities of the petition and the supposed
violation of the due process rights of the affected foreign common shareholders.
Respondent Nazareno does not deny petitioners allegation of foreigners
dominating the common shareholdings of PLDT. Nazareno stressed mainly that
the petition seeks to divest foreign common shareholders purportedly exceeding
40% of the total common shareholdings in PLDT of their ownership over their
shares. Thus, the foreign natural and juridical PLDT shareholders must be
impleaded in this suit so that they can be heard.34 Essentially, Nazareno
invokes denial of due process on behalf of the foreign common shareholders.
While Nazareno does not introduce any definition of the term capital, he states
that among the factual assertions that need to be established to counter
petitioners allegations is the uniform interpretation by government agencies
(such as the SEC), institutions and corporations (such as the Philippine National
Oil Company-Energy Development Corporation or PNOC-EDC) of including
both preferred shares and common shares in controlling interest in view of
testing compliance with the 40% constitutional limitation on foreign ownership
in public utilities.35
Similarly, respondent Manuel V. Pangilinan does not define the term capital in
Section 11, Article XII of the Constitution. Neither does he refute petitioners
claim of foreigners holding more than 40 percent of PLDTs common shares.
Instead, respondent Pangilinan focuses on the procedural flaws of the petition
and the alleged violation of the due process rights of foreigners. Respondent
Pangilinan emphasizes in his Memorandum (1) the absence of this Courts
jurisdiction over the petition; (2) petitioners lack of standing; (3) mootness of
the petition; (4) non-availability of declaratory relief; and (5) the denial of due
process rights. Moreover, respondent Pangilinan alleges that the issue should
be whether owners of shares in PLDT as well as owners of shares in companies
holding shares in PLDT may be required to relinquish their shares in PLDT and
in those companies without any law requiring them to surrender their shares
and also without notice and trial.
Respondent Pangilinan further asserts that Section 11, [Article XII of the
Constitution] imposes no nationality requirement on the shareholders of the
utility company as a condition for keeping their shares in the utility company.
According to him, Section 11 does not authorize taking one persons property
(the shareholders stock in the utility company) on the basis of another partys
alleged failure to satisfy a requirement that is a condition only for that other
partys retention of another piece of property (the utility company being at least
60% Filipino-owned to keep its franchise).36
The OSG, representing public respondents Secretary Margarito Teves,
Undersecretary John P. Sevilla, Commissioner Ricardo Abcede, and Chairman
Fe Barin, is likewise silent on the definition of the term capital. In its
Memorandum37 dated 24 September 2007, the OSG also limits its discussion
on the supposed procedural defects of the petition, i.e. lack of standing, lack of
jurisdiction, non-inclusion of interested parties, and lack of basis for injunction.
The OSG does not present any definition or interpretation of the term capital in
Section 11, Article XII of the Constitution. The OSG contends that the petition
actually partakes of a collateral attack on PLDTs franchise as a public utility,
which in effect requires a full-blown trial where all the parties in interest are
given their day in court.38
Respondent Francisco Ed Lim, impleaded as President and Chief Executive
Officer of the Philippine Stock Exchange (PSE), does not also define the term
capital and seeks the dismissal of the petition on the following grounds: (1)
failure to state a cause of action against Lim; (2) the PSE allegedly implemented
its rules and required all listed companies, including PLDT, to make proper and
timely disclosures; and (3) the reliefs prayed for in the petition would adversely
impact the stock market.
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In the earlier case of Fernandez v. Cojuangco, petitioner Fernandez who
claimed to be a stockholder of record of PLDT, contended that the term capital
in the 1987 Constitution refers to shares entitled to vote or the common shares.
Fernandez explained thus:
The forty percent (40%) foreign equity limitation in public utilities prescribed
by the Constitution refers to ownership of shares of stock entitled to vote, i.e.,
common shares, considering that it is through voting that control is being
exercised. x x x
Obviously, the intent of the framers of the Constitution in imposing limitations
and restrictions on fully nationalized and partially nationalized activities is for
Filipino nationals to be always in control of the corporation undertaking said
activities. Otherwise, if the Trial Courts ruling upholding respondents
arguments were to be given credence, it would be possible for the ownership
structure of a public utility corporation to be divided into one percent (1%)
common stocks and ninety-nine percent (99%) preferred stocks. Following the
Trial Courts ruling adopting respondents arguments, the common shares can be
owned entirely by foreigners thus creating an absurd situation wherein
foreigners, who are supposed to be minority shareholders, control the public
utility corporation.
xxxx
Thus, the 40% foreign ownership limitation should be interpreted to apply to
both the beneficial ownership and the controlling interest.
xxxx
Clearly, therefore, the forty percent (40%) foreign equity limitation in public
utilities prescribed by the Constitution refers to ownership of shares of stock
entitled to vote, i.e., common shares. Furthermore, ownership of record of
shares will not suffice but it must be shown that the legal and beneficial
ownership rests in the hands of Filipino citizens. Consequently, in the case of
petitioner PLDT, since it is already admitted that the voting interests of
foreigners which would gain entry to petitioner PLDT by the acquisition of
SMART shares through the Questioned Transactions is equivalent to 82.99%,
and the nominee arrangements between the foreign principals and the Filipino
owners is likewise admitted, there is, therefore, a violation of Section 11,
Article XII of the Constitution.
Parenthetically, the Opinions dated February 15, 1988 and April 14, 1987 cited
by the Trial Court to support the proposition that the meaning of the word
capital as used in Section 11, Article XII of the Constitution allegedly refers to
the sum total of the shares subscribed and paid-in by the shareholder and it
allegedly is immaterial how the stock is classified, whether as common or
preferred, cannot stand in the face of a clear legislative policy as stated in the
FIA which took effect in 1991 or way after said opinions were rendered, and as
clarified by the above-quoted Amendments. In this regard, suffice it to state that
as between the law and an opinion rendered by an administrative agency, the
law indubitably prevails. Moreover, said Opinions are merely advisory and
cannot prevail over the clear intent of the framers of the Constitution.
In the same vein, the SECs construction of Section 11, Article XII of the
Constitution is at best merely advisory for it is the courts that finally determine
what a law means.39
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On the other hand, respondents therein, Antonio O. Cojuangco, Manuel V.
Pangilinan, Carlos A. Arellano, Helen Y. Dee, Magdangal B. Elma, Mariles
Cacho-Romulo, Fr. Bienvenido F. Nebres, Ray C. Espinosa, Napoleon L.
Nazareno, Albert F. Del Rosario, and Orlando B. Vea, argued that the term
capital in Section 11, Article XII of the Constitution includes preferred shares
since the Constitution does not distinguish among classes of stock, thus:
16. The Constitution applies its foreign ownership limitation on the
corporations capital, without distinction as to classes of shares. x x x
In this connection, the Corporation Code which was already in force at the time
the present (1987) Constitution was drafted defined outstanding capital stock
as follows:
Section 137. Outstanding capital stock defined. The term outstanding capital
stock, as used in this Code, means the total shares of stock issued under binding
subscription agreements to subscribers or stockholders, whether or not fully or
partially paid, except treasury shares.
Section 137 of the Corporation Code also does not distinguish between
common and preferred shares, nor exclude either class of shares, in determining
the outstanding capital stock (the capital) of a corporation. Consequently,
petitioners suggestion to reckon PLDTs foreign equity only on the basis of
PLDTs outstanding common shares is without legal basis. The language of the
Constitution should be understood in the sense it has in common use.
xxxx
17. But even assuming that resort to the proceedings of the Constitutional
Commission is necessary, there is nothing in the Record of the Constitutional
Commission (Vol. III) which petitioner misleadingly cited in the Petition x x x
which supports petitioners view that only common shares should form the basis
for computing a public utilitys foreign equity.
xxxx
18. In addition, the SEC the government agency primarily responsible for
implementing the Corporation Code, and which also has the responsibility of
ensuring compliance with the Constitutions foreign equity restrictions as
regards nationalized activities x x x has categorically ruled that both common
and preferred shares are properly considered in determining outstanding capital
stock and the nationality composition thereof.40
We agree with petitioner and petitioners-in-intervention. The term capital in
Section 11, Article XII of the Constitution refers only to shares of stock entitled
to vote in the election of directors, and thus in the present case only to common
shares,41 and not to the total outstanding capital stock comprising both
common and non-voting preferred shares.
The Corporation Code of the Philippines42 classifies shares as common or
preferred, thus:
Sec. 6. Classification of shares. - The shares of stock of stock corporations may
be divided into classes or series of shares, or both, any of which classes or series
of shares may have such rights, privileges or restrictions as may be stated in the
articles of incorporation: Provided, That no share may be deprived of voting
rights except those classified and issued as preferred or redeemable shares,
unless otherwise provided in this Code: Provided, further, That there shall
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always be a class or series of shares which have complete voting rights. Any or
all of the shares or series of shares may have a par value or have no par value
as may be provided for in the articles of incorporation: Provided, however, That
banks, trust companies, insurance companies, public utilities, and building and
loan associations shall not be permitted to issue no-par value shares of stock.
Preferred shares of stock issued by any corporation may be given preference in
the distribution of the assets of the corporation in case of liquidation and in the
distribution of dividends, or such other preferences as may be stated in the
articles of incorporation which are not violative of the provisions of this Code:
Provided, That preferred shares of stock may be issued only with a stated par
value. The Board of Directors, where authorized in the articles of incorporation,
may fix the terms and conditions of preferred shares of stock or any series
thereof: Provided, That such terms and conditions shall be effective upon the
filing of a certificate thereof with the Securities and Exchange Commission.
Shares of capital stock issued without par value shall be deemed fully paid and
non-assessable and the holder of such shares shall not be liable to the
corporation or to its creditors in respect thereto: Provided; That shares without
par value may not be issued for a consideration less than the value of five
(P5.00) pesos per share: Provided, further, That the entire consideration
received by the corporation for its no-par value shares shall be treated as capital
and shall not be available for distribution as dividends.
A corporation may, furthermore, classify its shares for the purpose of insuring
compliance with constitutional or legal requirements.
Except as otherwise provided in the articles of incorporation and stated in the
certificate of stock, each share shall be equal in all respects to every other share.
Where the articles of incorporation provide for non-voting shares in the cases
allowed by this Code, the holders of such shares shall nevertheless be entitled
to vote on the following matters:
1. Amendment of the articles of incorporation;
2. Adoption and amendment of by-laws;
3. Sale, lease, exchange, mortgage, pledge or other disposition of all or
substantially all of the corporate property;
4. Incurring, creating or increasing bonded indebtedness;
5. Increase or decrease of capital stock;
6. Merger or consolidation of the corporation with another corporation or other
corporations;
7. Investment of corporate funds in another corporation or business in
accordance with this Code; and
8. Dissolution of the corporation.
Except as provided in the immediately preceding paragraph, the vote necessary
to approve a particular corporate act as provided in this Code shall be deemed
to refer only to stocks with voting rights.
Indisputably, one of the rights of a stockholder is the right to participate in the
control or management of the corporation.43 This is exercised through his vote
in the election of directors because it is the board of directors that controls or
manages the corporation.44 In the absence of provisions in the articles of
incorporation denying voting rights to preferred shares, preferred shares have
the same voting rights as common shares. However, preferred shareholders are
often excluded from any control, that is, deprived of the right to vote in the
election of directors and on other matters, on the theory that the preferred
shareholders are merely investors in the corporation for income in the same
manner as bondholders.45 In fact, under the Corporation Code only preferred
or redeemable shares can be deprived of the right to vote.46 Common shares
cannot be deprived of the right to vote in any corporate meeting, and any
provision in the articles of incorporation restricting the right of common
shareholders to vote is invalid.47
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Considering that common shares have voting rights which translate to control,
as opposed to preferred shares which usually have no voting rights, the term
capital in Section 11, Article XII of the Constitution refers only to common
shares. However, if the preferred shares also have the right to vote in the
election of directors, then the term capital shall include such preferred shares
because the right to participate in the control or management of the corporation
is exercised through the right to vote in the election of directors. In short, the
term capital in Section 11, Article XII of the Constitution refers only to shares
of stock that can vote in the election of directors.
MR. VILLEGAS. We have just had a long discussion with the members of the
team from the UP Law Center who provided us a draft. The phrase that is
contained here which we adopted from the UP draft is 60 percent of voting
stock.
MR. NOLLEDO. That must be based on the subscribed capital stock, because
unless declared delinquent, unpaid capital stock shall be entitled to vote.

MR. VILLEGAS. That is right.

This interpretation is consistent with the intent of the framers of the
Constitution to place in the hands of Filipino citizens the control and
management of public utilities. As revealed in the deliberations of the
Constitutional Commission, capital refers to the voting stock or controlling MR. NOLLEDO. Thank you.
interest of a corporation, to wit:

With respect to an investment by one corporation in another corporation, say, a

MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated local or Filipino corporation with 60-40 percent equity invests in another corporation which is
equity and foreign equity; namely, 60-40 in Section 3, 60-40 in Section 9 and permitted by the Corporation Code, does the Committee adopt the grandfather
2/3-1/3 in Section 15. rule?

MR. VILLEGAS. That is right. MR. VILLEGAS. Yes, that is the understanding of the Committee.

MR. NOLLEDO. In teaching law, we are always faced with this question: MR. NOLLEDO. Therefore, we need additional Filipino capital?
Where do we base the equity requirement, is it on the authorized capital stock,
on the subscribed capital stock, or on the paid-up capital stock of a corporation?
Will the Committee please enlighten me on this?
MR. VILLEGAS. Yes.48

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xxxx
MR. AZCUNA. May I be clarified as to that portion that was accepted by the
Committee.
MR. VILLEGAS. The portion accepted by the Committee is the deletion of the
phrase voting stock or controlling interest.
MR. AZCUNA. Hence, without the Davide amendment, the committee report
would read: corporations or associations at least sixty percent of whose
CAPITAL is owned by such citizens.
MR. VILLEGAS. Yes.
MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60
percent of the capital to be owned by citizens.
MR. VILLEGAS. That is right.
MR. AZCUNA. But the control can be with the foreigners even if they are the
minority. Let us say 40 percent of the capital is owned by them, but it is the
voting capital, whereas, the Filipinos own the nonvoting shares. So we can have
a situation where the corporation is controlled by foreigners despite being the
minority because they have the voting capital. That is the anomaly that would
result here.
MR. BENGZON. No, the reason we eliminated the word stock as stated in the
1973 and 1935 Constitutions is that according to Commissioner Rodrigo, there
are associations that do not have stocks. That is why we say CAPITAL.
MR. AZCUNA. We should not eliminate the phrase controlling interest.
MR. BENGZON. In the case of stock corporations, it is assumed.49 (Emphasis
supplied)
Thus, 60 percent of the capital assumes, or should result in, controlling interest
in the corporation. Reinforcing this interpretation of the term capital, as
referring to controlling interest or shares entitled to vote, is the definition of a
Philippine national in the Foreign Investments Act of 1991,50 to wit:
SEC. 3. Definitions. - As used in this Act:
a. The term Philippine national shall mean a citizen of the Philippines; or a
domestic partnership or association wholly owned by citizens of the
Philippines; or a corporation organized under the laws of the Philippines of
which at least sixty percent (60%) of the capital stock outstanding and entitled
to vote is owned and held by citizens of the Philippines; or a corporation
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organized abroad and registered as doing business in the Philippines under the
Corporation Code of which one hundred percent (100%) of the capital stock
outstanding and entitled to vote is wholly owned by Filipinos or a trustee of
funds for pension or other employee retirement or separation benefits, where
the trustee is a Philippine national and at least sixty percent (60%) of the fund
will accrue to the benefit of Philippine nationals: Provided, That where a
corporation and its non-Filipino stockholders own stocks in a Securities and
Exchange Commission (SEC) registered enterprise, at least sixty percent (60%)
of the capital stock outstanding and entitled to vote of each of both corporations
must be owned and held by citizens of the Philippines and at least sixty percent
(60%) of the members of the Board of Directors of each of both corporations
must be citizens of the Philippines, in order that the corporation, shall be
considered a Philippine national. (Emphasis supplied)
Compliance with the required Filipino ownership of a corporation shall be
determined on the basis of outstanding capital stock whether fully paid or not,
but only such stocks which are generally entitled to vote are considered.
For stocks to be deemed owned and held by Philippine citizens or Philippine
nationals, mere legal title is not enough to meet the required Filipino equity.
Full beneficial ownership of the stocks, coupled with appropriate voting rights
is essential. Thus, stocks, the voting rights of which have been assigned or
transferred to aliens cannot be considered held by Philippine citizens or
Philippine nationals.

In explaining the definition of a Philippine national, the Implementing Rules Individuals or juridical entities not meeting the aforementioned qualifications
and Regulations of the Foreign Investments Act of 1991 provide: are considered as non-Philippine nationals. (Emphasis supplied)

b. Philippine national shall mean a citizen of the Philippines or a domestic

partnership or association wholly owned by the citizens of the Philippines; or a
corporation organized under the laws of the Philippines of which at least sixty
percent [60%] of the capital stock outstanding and entitled to vote is owned and
held by citizens of the Philippines; or a trustee of funds for pension or other
employee retirement or separation benefits, where the trustee is a Philippine
national and at least sixty percent [60%] of the fund will accrue to the benefit
of the Philippine nationals; Provided, that where a corporation its non-Filipino
stockholders own stocks in a Securities and Exchange Commission [SEC]
registered enterprise, at least sixty percent [60%] of the capital stock
outstanding and entitled to vote of both corporations must be owned and held Mere legal title is insufficient to meet the 60 percent Filipino-owned capital
by citizens of the Philippines and at least sixty percent [60%] of the members required in the Constitution. Full beneficial ownership of 60 percent of the
of the Board of Directors of each of both corporation must be citizens of the outstanding capital stock, coupled with 60 percent of the voting rights, is
Philippines, in order that the corporation shall be considered a Philippine required. The legal and beneficial ownership of 60 percent of the outstanding
national. The control test shall be applied for this purpose. capital stock must rest in the hands of Filipino nationals in accordance with the
constitutional mandate. Otherwise, the corporation is considered as non-
Philippine national[s].
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Under Section 10, Article XII of the Constitution, Congress may reserve to
citizens of the Philippines or to corporations or associations at least sixty per
centum of whose capital is owned by such citizens, or such higher percentage
as Congress may prescribe, certain areas of investments. Thus, in numerous
laws Congress has reserved certain areas of investments to Filipino citizens or
to corporations at least sixty percent of the capital of which is owned by Filipino
citizens. Some of these laws are: (1) Regulation of Award of Government
Contracts or R.A. No. 5183; (2) Philippine Inventors Incentives Act or R.A.
No. 3850; (3) Magna Carta for Micro, Small and Medium Enterprises or R.A.
No. 6977; (4) Philippine Overseas Shipping Development Act or R.A. No.
7471; (5) Domestic Shipping Development Act of 2004 or R.A. No. 9295; (6)
Philippine Technology Transfer Act of 2009 or R.A. No. 10055; and (7) Ship
Mortgage Decree or P.D. No. 1521. Hence, the term capital in Section 11,
Article XII of the Constitution is also used in the same context in numerous
laws reserving certain areas of investments to Filipino citizens.
To construe broadly the term capital as the total outstanding capital stock,
including both common and non-voting preferred shares, grossly contravenes
the intent and letter of the Constitution that the State shall develop a self-reliant
and independent national economy effectively controlled by Filipinos. A broad
definition unjustifiably disregards who owns the all-important voting stock,
which necessarily equates to control of the public utility.
We shall illustrate the glaring anomaly in giving a broad definition to the term
capital. Let us assume that a corporation has 100 common shares owned by
foreigners and 1,000,000 non-voting preferred shares owned by Filipinos, with
both classes of share having a par value of one peso (P1.00) per share. Under
the broad definition of the term capital, such corporation would be considered
compliant with the 40 percent constitutional limit on foreign equity of public
utilities since the overwhelming majority, or more than 99.999 percent, of the
total outstanding capital stock is Filipino owned. This is obviously absurd.
In the example given, only the foreigners holding the common shares have
voting rights in the election of directors, even if they hold only 100 shares. The
foreigners, with a minuscule equity of less than 0.001 percent, exercise control
over the public utility. On the other hand, the Filipinos, holding more than
99.999 percent of the equity, cannot vote in the election of directors and hence,
have no control over the public utility. This starkly circumvents the intent of
the framers of the Constitution, as well as the clear language of the Constitution,
to place the control of public utilities in the hands of Filipinos. It also renders
illusory the State policy of an independent national economy effectively
controlled by Filipinos.
The example given is not theoretical but can be found in the real world, and in
fact exists in the present case.
Holders of PLDT preferred shares are explicitly denied of the right to vote in
the election of directors. PLDTs Articles of Incorporation expressly state that
the holders of Serial Preferred Stock shall not be entitled to vote at any meeting
of the stockholders for the election of directors or for any other purpose or
otherwise participate in any action taken by the corporation or its stockholders,
or to receive notice of any meeting of stockholders.51
On the other hand, holders of common shares are granted the exclusive right to
vote in the election of directors. PLDTs Articles of Incorporation52 state that
each holder of Common Capital Stock shall have one vote in respect of each
share of such stock held by him on all matters voted upon by the stockholders,
and the holders of Common Capital Stock shall have the exclusive right to vote
for the election of directors and for all other purposes.53
174 of 692

In short, only holders of common shares can vote in the election of directors,
meaning only common shareholders exercise control over PLDT. Conversely,
holders of preferred shares, who have no voting rights in the election of
directors, do not have any control over PLDT. In fact, under PLDTs Articles of
Incorporation, holders of common shares have voting rights for all purposes,
while holders of preferred shares have no voting right for any purpose
whatsoever.
It must be stressed, and respondents do not dispute, that foreigners hold a
majority of the common shares of PLDT. In fact, based on PLDTs 2010 General
Information Sheet (GIS),54 which is a document required to be submitted
annually to the Securities and Exchange Commission,55 foreigners hold
120,046,690 common shares of PLDT whereas Filipinos hold only 66,750,622
common shares.56 In other words, foreigners hold 64.27% of the total number
of PLDTs common shares, while Filipinos hold only 35.73%. Since holding a
majority of the common shares equates to control, it is clear that foreigners
exercise control over PLDT. Such amount of control unmistakably exceeds the
allowable 40 percent limit on foreign ownership of public utilities expressly
mandated in Section 11, Article XII of the Constitution.
Moreover, the Dividend Declarations of PLDT for 2009,57 as submitted to the
SEC, shows that per share the SIP58 preferred shares earn a pittance in
dividends compared to the common shares. PLDT declared dividends for the
common shares at P70.00 per share, while the declared dividends for the
preferred shares amounted to a measly P1.00 per share.59 So the preferred
shares not only cannot vote in the election of directors, they also have very little
and obviously negligible dividend earning capacity compared to common
shares.
As shown in PLDTs 2010 GIS,60 as submitted to the SEC, the par value of
PLDT common shares is P5.00 per share, whereas the par value of preferred
shares is P10.00 per share. In other words, preferred shares have twice the par
value of common shares but cannot elect directors and have only 1/70 of the
dividends of common shares. Moreover, 99.44% of the preferred shares are
owned by Filipinos while foreigners own only a minuscule 0.56% of the
preferred shares.61 Worse, preferred shares constitute 77.85% of the authorized
capital stock of PLDT while common shares constitute only 22.15%.62 This
undeniably shows that beneficial interest in PLDT is not with the non-voting
preferred shares but with the common shares, blatantly violating the
constitutional requirement of 60 percent Filipino control and Filipino beneficial
ownership in a public utility.
The legal and beneficial ownership of 60 percent of the outstanding capital
stock must rest in the hands of Filipinos in accordance with the constitutional
mandate. Full beneficial ownership of 60 percent of the outstanding capital
stock, coupled with 60 percent of the voting rights, is constitutionally required
for the States grant of authority to operate a public utility. The undisputed fact
that the PLDT preferred shares, 99.44% owned by Filipinos, are non-voting and
earn only 1/70 of the dividends that PLDT common shares earn, grossly violates
the constitutional requirement of 60 percent Filipino control and Filipino
beneficial ownership of a public utility.
In short, Filipinos hold less than 60 percent of the voting stock, and earn less
than 60 percent of the dividends, of PLDT. This directly contravenes the
express command in Section 11, Article XII of the Constitution that [n]o
franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to x x x corporations x x x organized under
the laws of the Philippines, at least sixty per centum of whose capital is owned
by such citizens x x x.
To repeat, (1) foreigners own 64.27% of the common shares of PLDT, which
class of shares exercises the sole right to vote in the election of directors, and
thus exercise control over PLDT; (2) Filipinos own only 35.73% of PLDTs
common shares, constituting a minority of the voting stock, and thus do not
exercise control over PLDT; (3) preferred shares, 99.44% owned by Filipinos,
175 of 692
have no voting rights; (4) preferred shares earn only 1/70 of the dividends that legislation to implement these self-executing provisions of the Constitution.
common shares earn;63 (5) preferred shares have twice the par value of The rationale why these constitutional provisions are self-executing was
common shares; and (6) preferred shares constitute 77.85% of the authorized explained in Manila Prince Hotel v. GSIS,66 thus:
capital stock of PLDT and common shares only 22.15%. This kind of
ownership and control of a public utility is a mockery of the Constitution. x x x Hence, unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all provisions of
the constitution are self-executing. If the constitutional provisions are treated
as requiring legislation instead of self-executing, the legislature would have the
Incidentally, the fact that PLDT common shares with a par value of P5.00 have power to ignore and practically nullify the mandate of the fundamental law.
a current stock market value of P2,328.00 per share,64 while PLDT preferred This can be cataclysmic. That is why the prevailing view is, as it has always
shares with a par value of P10.00 per share have a current stock market value been, that
ranging from only P10.92 to P11.06 per share,65 is a glaring confirmation by
the market that control and beneficial ownership of PLDT rest with the common
shares, not with the preferred shares.
. . . in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing. . . . Unless the contrary is clearly intended, the
provisions of the Constitution should be considered self-executing, as a
Indisputably, construing the term capital in Section 11, Article XII of the contrary rule would give the legislature discretion to determine when, or
Constitution to include both voting and non-voting shares will result in the whether, they shall be effective. These provisions would be subordinated to the
abject surrender of our telecommunications industry to foreigners, amounting will of the lawmaking body, which could make them entirely meaningless by
to a clear abdication of the States constitutional duty to limit control of public simply refusing to pass the needed implementing statute. (Emphasis supplied)
utilities to Filipino citizens. Such an interpretation certainly runs counter to the
constitutional provision reserving certain areas of investment to Filipino
citizens, such as the exploitation of natural resources as well as the ownership
of land, educational institutions and advertising businesses. The Court should
never open to foreign control what the Constitution has expressly reserved to
Filipinos for that would be a betrayal of the Constitution and of the national
interest. The Court must perform its solemn duty to defend and uphold the
intent and letter of the Constitution to ensure, in the words of the Constitution,
a self-reliant and independent national economy effectively controlled by
Filipinos.

In Manila Prince Hotel, even the Dissenting Opinion of then Associate Justice
Reynato S. Puno, later Chief Justice, agreed that constitutional provisions are
Section 11, Article XII of the Constitution, like other provisions of the presumed to be self-executing. Justice Puno stated:
Constitution expressly reserving to Filipinos specific areas of investment, such
as the development of natural resources and ownership of land, educational
institutions and advertising business, is self-executing. There is no need for
176 of 692
Courts as a rule consider the provisions of the Constitution as self-executing,
rather than as requiring future legislation for their enforcement. The reason is
not difficult to discern. For if they are not treated as self-executing, the mandate
of the fundamental law ratified by the sovereign people can be easily ignored
and nullified by Congress. Suffused with wisdom of the ages is the unyielding
rule that legislative actions may give breath to constitutional rights but
congressional inaction should not suffocate them.
Thus, we have treated as self-executing the provisions in the Bill of Rights on
arrests, searches and seizures, the rights of a person under custodial
investigation, the rights of an accused, and the privilege against self-
incrimination. It is recognized that legislation is unnecessary to enable courts
to effectuate constitutional provisions guaranteeing the fundamental rights of
life, liberty and the protection of property. The same treatment is accorded to
constitutional provisions forbidding the taking or damaging of property for
public use without just compensation. (Emphasis supplied)
Thus, in numerous cases,67 this Court, even in the absence of implementing
legislation, applied directly the provisions of the 1935, 1973 and 1987
Constitutions limiting land ownership to Filipinos. In Soriano v. Ong Hoo,68
this Court ruled:
x x x As the Constitution is silent as to the effects or consequences of a sale by
a citizen of his land to an alien, and as both the citizen and the alien have
violated the law, none of them should have a recourse against the other, and it
should only be the State that should be allowed to intervene and determine what
is to be done with the property subject of the violation. We have said that what
the State should do or could do in such matters is a matter of public policy,
entirely beyond the scope of judicial authority. (Dinglasan, et al. vs. Lee Bun
Ting, et al., 6 G. R. No. L-5996, June 27, 1956.) While the legislature has not
definitely decided what policy should be followed in cases of violations against
the constitutional prohibition, courts of justice cannot go beyond by declaring
the disposition to be null and void as violative of the Constitution. x x x
(Emphasis supplied)
To treat Section 11, Article XII of the Constitution as not self-executing would
mean that since the 1935 Constitution, or over the last 75 years, not one of the
constitutional provisions expressly reserving specific areas of investments to
corporations, at least 60 percent of the capital of which is owned by Filipinos,
was enforceable. In short, the framers of the 1935, 1973 and 1987 Constitutions
miserably failed to effectively reserve to Filipinos specific areas of investment,
like the operation by corporations of public utilities, the exploitation by
corporations of mineral resources, the ownership by corporations of real estate,
and the ownership of educational institutions. All the legislatures that convened
since 1935 also miserably failed to enact legislations to implement these vital
constitutional provisions that determine who will effectively control the
national economy, Filipinos or foreigners. This Court cannot allow such an
absurd interpretation of the Constitution.
This Court has held that the SEC has both regulatory and adjudicative
functions.69 Under its regulatory functions, the SEC can be compelled by
mandamus to perform its statutory duty when it unlawfully neglects to perform
the same. Under its adjudicative or quasi-judicial functions, the SEC can be also
be compelled by mandamus to hear and decide a possible violation of any law
it administers or enforces when it is mandated by law to investigate such
violation.
177 of 692
Under Section 17(4)70 of the Corporation Code, the SEC has the regulatory
function to reject or disapprove the Articles of Incorporation of any corporation
where the required percentage of ownership of the capital stock to be owned by
citizens of the Philippines has not been complied with as required by existing
laws or the Constitution. Thus, the SEC is the government agency tasked with
the statutory duty to enforce the nationality requirement prescribed in Section
11, Article XII of the Constitution on the ownership of public utilities. This
Court, in a petition for declaratory relief that is treated as a petition for
mandamus as in the present case, can direct the SEC to perform its statutory
duty under the law, a duty that the SEC has apparently unlawfully neglected to
do based on the 2010 GIS that respondent PLDT submitted to the SEC.
Under Section 5(m) of the Securities Regulation Code,71 the SEC is vested
with the power and function to suspend or revoke, after proper notice and
hearing, the franchise or certificate of registration of corporations, partnerships
or associations, upon any of the grounds provided by law. The SEC is mandated
under Section 5(d) of the same Code with the power and function to investigate
x x x the activities of persons to ensure compliance with the laws and
regulations that SEC administers or enforces. The GIS that all corporations are
required to submit to SEC annually should put the SEC on guard against
violations of the nationality requirement prescribed in the Constitution and
existing laws. This Court can compel the SEC, in a petition for declaratory relief
that is treated as a petition for mandamus as in the present case, to hear and
decide a possible violation of Section 11, Article XII of the Constitution in view
of the ownership structure of PLDTs voting shares, as admitted by respondents
and as stated in PLDTs 2010 GIS that PLDT submitted to SEC.
WHEREFORE, we PARTLY GRANT the petition and rule that the term capital
in Section 11, Article XII of the 1987 Constitution refers only to shares of stock
entitled to vote in the election of directors, and thus in the present case only to
common shares, and not to the total outstanding capital stock (common and
non-voting preferred shares). Respondent Chairperson of the Securities and
Exchange Commission is DIRECTED to apply this definition of the term
capital in determining the extent of allowable foreign ownership in respondent
Philippine Long Distance Telephone Company, and if there is a violation of
Section 11, Article XII of the Constitution, to impose the appropriate sanctions
under the law.
SO ORDERED.
Tañada v. Tuvera
136 SCRA 27 (1985)
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT
OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the
President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive
Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity
as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his
capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right
recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as
well as the principle that laws to be valid and enforceable must be published in
the Official Gazette or otherwise effectively promulgated, petitioners seek a
writ of mandamus to compel respondent public officials to publish, and/or
cause the publication in the Official Gazette of various presidential decrees,
letters of instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
178 of 692

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184,
197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360,
361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528,
551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835,
836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166,
1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817,
1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141,
150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-
213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-
273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327,
343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440,
444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602,
609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879,
881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-
1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595,
1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-
1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787,
1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826,
1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-
1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161,
2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-
492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-
553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677,
679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51,
59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433,
436-439.
The respondents, through the Solicitor General, would have this case dismissed
outright on the ground that petitioners have no legal personality or standing to
bring the instant petition. The view is submitted that in the absence of any
showing that petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in question 2 said
petitioners are without the requisite legal personality to institute this mandamus
proceeding, they are not being "aggrieved parties" within the meaning of
Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use a rd enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty and praying that judgment
be rendered commanding the defendant, immediately or at some other specified
time, to do the act required to be done to Protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful acts
of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition
concerns a public right and its object is to compel the performance of a public
duty, they need not show any specific interest for their petition to be given due
course.
The issue posed is not one of first impression. As early as the 1910 case of
Severino vs. Governor General, 3 this Court held that while the general rule is
that "a writ of mandamus would be granted to a private individual only in those
cases where he has some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the
writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e.,
469]," nevertheless, "when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the people are
179 of 692
regarded as the real party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special interest
in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec.
431].
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to compel
the Governor General to call a special election for the position of municipal
president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the
proposition that the relator is a proper party to proceedings of this character
when a public right is sought to be enforced. If the general rule in America were
otherwise, we think that it would not be applicable to the case at bar for the
reason 'that it is always dangerous to apply a general rule to a particular case
without keeping in mind the reason for the rule, because, if under the particular
circumstances the reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon
by counsel for the respondent. The circumstances which surround this case are
different from those in the United States, inasmuch as if the relator is not a
proper party to these proceedings no other person could be, as we have seen
that it is not the duty of the law officer of the Government to appear and
represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present petition.
Clearly, the right sought to be enforced by petitioners herein is a public right
recognized by no less than the fundamental law of the land. If petitioners were
not allowed to institute this proceeding, it would indeed be difficult to conceive
of any other person to initiate the same, considering that the Solicitor General,
the government officer generally empowered to represent the people, has
entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a
sine qua non requirement for the effectivity of laws where the laws themselves
provide for their own effectivity dates. It is thus submitted that since the
presidential issuances in question contain special provisions as to the date they
are to take effect, publication in the Official Gazette is not indispensable for
their effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions, 4 this Court has ruled
that publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the
fifteenth day following its publication-but not when the law itself provides for
the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates
the effectivity of laws with the fact of publication. Considered in the light of
other statutes applicable to the issue at hand, the conclusion is easily reached
that said Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity.
Thus, Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all
important legisiative acts and resolutions of a public nature of the, Congress of
the Philippines; [2] all executive and administrative orders and proclamations,
except such as have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as may be deemed by
said courts of sufficient importance to be so published; [4] such documents or
classes of documents as may be required so to be published by law; and [5]
such documents or classes of documents as the President of the Philippines shall
determine from time to time to have general applicability and legal effect, or
which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and
180 of 692
conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim "ignorantia legis non excusat." It would
be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a
constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people
have bestowed upon the President a power heretofore enjoyed solely by the
legislature. While the people are kept abreast by the mass media of the debates
and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-
making process of the President. Thus, without publication, the people have no
means of knowing what presidential decrees have actually been promulgated,
much less a definite way of informing themselves of the specific contents and
texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos,
Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall
be published in the Official Gazette ... ." The word "shall" used therein imposes
upon respondent officials an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters of public concern
is to be given substance and reality. The law itself makes a list of what should
be published in the Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must be included or
excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide
for fines, forfeitures or penalties for their violation or otherwise impose a
burden or. the people, such as tax and revenue measures, fall within this
category. Other presidential issuances which apply only to particular persons
or class of persons such as administrative and executive orders need not be
published on the assumption that they have been circularized to all concerned.
6 policy in the light of the nature both of the statute and of its previous
It is needless to add that the publication of presidential issuances "of a public
nature" or "of general applicability" is a requirement of due process. It is a rule
of law that before a person may be bound by law, he must first be officially and
specifically informed of its contents. As Justice Claudio Teehankee said in
Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all
form part of the law of the land, the requirement of due process and the Rule of
Law demand that the Official Gazette as the official government repository
promulgate and publish the texts of all such decrees, orders and instructions so
that the people may know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application,
which have not been published, shall have no force and effect. Some members
of the Court, quite apprehensive about the possible unsettling effect this
decision might have on acts done in reliance of the validity of those presidential
decrees which were published only during the pendency of this petition, have
put the question as to whether the Court's declaration of invalidity apply to
P.D.s which had been enforced or implemented prior to their publication. The
answer is all too familiar. In similar situations in the past this Court had taken
the pragmatic and realistic course set forth in Chicot County Drainage District
vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative,
conferring no rights and imposing no duties, and hence affording no basis for
the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago,
1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that
such broad statements as to the effect of a determination of unconstitutionality
must be taken with qualifications. The actual existence of a statute, prior to such
a determination, is an operative fact and may have consequences which cannot
justly be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular conduct, private and
official. Questions of rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon accordingly, of public
application, demand examination. These questions are among the most difficult
181 of 692
of those which have engaged the attention of courts, state and federal and it is
manifest from numerous decisions that an all-inclusive statement of a principle
of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9
sustained the right of a party under the Moratorium Law, albeit said right had
accrued in his favor before said law was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their
publication in the Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The past cannot always be erased
by a new judicial declaration ... that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of
the presidential decrees sought by petitioners to be published in the Official
Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and
1937 to 1939, inclusive, have not been so published. 10 Neither the subject
matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none
of these unpublished PDs has ever been implemented or enforced by the
government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the public of the contents
of [penal] regulations and make the said penalties binding on the persons
affected thereby. " The cogency of this holding is apparently recognized by
respondent officials considering the manifestation in their comment that "the
government, as a matter of policy, refrains from prosecuting violations of
criminal laws until the same shall have been published in the Official Gazette
or in some other publication, even though some criminal laws provide that they
shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official
Gazette all unpublished presidential issuances which are of general application,
and unless so published, they shall have no binding force and effect.
SO ORDERED.
Chavez v. PEA and Amari
G.R. No. 133250 (July 9, 2002)
[G.R. No. 133250. July 9, 2002]
FRANCISCO I. CHAVEZ, petitioner, vs. PUBLIC ESTATES AUTHORITY
and AMARI COASTAL BAY DEVELOPMENT CORPORATION,
respondents.
DECISION
CARPIO, J.:
This is an original Petition for Mandamus with prayer for a writ of preliminary
injunction and a temporary restraining order. The petition seeks to compel the
Public Estates Authority (PEA for brevity) to disclose all facts on PEAs then
on-going renegotiations with Amari Coastal Bay and Development Corporation
(AMARI for brevity) to reclaim portions of Manila Bay. The petition further
seeks to enjoin PEA from signing a new agreement with AMARI involving
such reclamation.
The Facts
On November 20, 1973, the government, through the Commissioner of Public
Highways, signed a contract with the Construction and Development
Corporation of the Philippines (CDCP for brevity) to reclaim certain foreshore
and offshore areas of Manila Bay. The contract also included the construction
of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to
carry out all the works in consideration of fifty percent of the total reclaimed
land.
On February 4, 1977, then President Ferdinand E. Marcos issued Presidential
Decree No. 1084 creating PEA. PD No. 1084 tasked PEA to reclaim land,
including foreshore and submerged areas, and to develop, improve, acquire, x
x x lease and sell any and all kinds of lands.[1] On the same date, then President
Marcos issued Presidential Decree No. 1085 transferring to PEA the lands
reclaimed in the foreshore and offshore of the Manila Bay[2] under the Manila-
Cavite Coastal Road and Reclamation Project (MCCRRP).
182 of 692
On December 29, 1981, then President Marcos issued a memorandum directing
PEA to amend its contract with CDCP, so that [A]ll future works in MCCRRP
x x x shall be funded and owned by PEA. Accordingly, PEA and CDCP
executed a Memorandum of Agreement dated December 29, 1981, which
stated:
(i) CDCP shall undertake all reclamation, construction, and such other works
in the MCCRRP as may be agreed upon by the parties, to be paid according to
progress of works on a unit price/lump sum basis for items of work to be agreed
upon, subject to price escalation, retention and other terms and conditions
provided for in Presidential Decree No. 1594. All the financing required for
such works shall be provided by PEA.
xxx
(iii) x x x CDCP shall give up all its development rights and hereby agrees to
cede and transfer in favor of PEA, all of the rights, title, interest and
participation of CDCP in and to all the areas of land reclaimed by CDCP in the
MCCRRP as of December 30, 1981 which have not yet been sold, transferred
or otherwise disposed of by CDCP as of said date, which areas consist of
approximately Ninety-Nine Thousand Four Hundred Seventy Three (99,473)
square meters in the Financial Center Area covered by land pledge No. 5 and
approximately Three Million Three Hundred Eighty Two Thousand Eight
Hundred Eighty Eight (3,382,888) square meters of reclaimed areas at varying
elevations above Mean Low Water Level located outside the Financial Center
Area and the First Neighborhood Unit.[3]
On January 19, 1988, then President Corazon C. Aquino issued Special Patent
No. 3517, granting and transferring to PEA the parcels of land so reclaimed
under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP)
containing a total area of one million nine hundred fifteen thousand eight
hundred ninety four (1,915,894) square meters. Subsequently, on April 9, 1988,
the Register of Deeds of the Municipality of Paraaque issued Transfer
Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA, covering
the three reclaimed islands known as the Freedom Islands located at the
southern portion of the Manila-Cavite Coastal Road, Paraaque City. The
Freedom Islands have a total land area of One Million Five Hundred Seventy
Eight Thousand Four Hundred and Forty One (1,578,441) square meters or
157.841 hectares.
On April 25, 1995, PEA entered into a Joint Venture Agreement (JVA for
brevity) with AMARI, a private corporation, to develop the Freedom Islands.
The JVA also required the reclamation of an additional 250 hectares of
submerged areas surrounding these islands to complete the configuration in the
Master Development Plan of the Southern Reclamation Project-MCCRRP.
PEA and AMARI entered into the JVA through negotiation without public
bidding.[4] On April 28, 1995, the Board of Directors of PEA, in its Resolution
No. 1245, confirmed the JVA. [5] On June 8, 1995, then President Fidel V.
Ramos, through then Executive Secretary Ruben Torres, approved the JVA.[6]
On November 29, 1996, then Senate President Ernesto Maceda delivered a
privilege speech in the Senate and denounced the JVA as the grandmother of
all scams. As a result, the Senate Committee on Government Corporations and
Public Enterprises, and the Committee on Accountability of Public Officers and
Investigations, conducted a joint investigation. The Senate Committees
reported the results of their investigation in Senate Committee Report No. 560
dated September 16, 1997.[7] Among the conclusions of their report are: (1)
the reclaimed lands PEA seeks to transfer to AMARI under the JVA are lands
of the public domain which the government has not classified as alienable lands
and therefore PEA cannot alienate these lands; (2) the certificates of title
covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.
On December 5, 1997, then President Fidel V. Ramos issued Presidential
Administrative Order No. 365 creating a Legal Task Force to conduct a study
on the legality of the JVA in view of Senate Committee Report No. 560. The
members of the Legal Task Force were the Secretary of Justice,[8] the Chief
Presidential Legal Counsel,[9] and the Government Corporate Counsel.[10]
The Legal Task Force upheld the legality of the JVA, contrary to the
conclusions reached by the Senate Committees.[11]
On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published
reports that there were on-going renegotiations between PEA and AMARI
under an order issued by then President Fidel V. Ramos. According to these
reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired
Navy Officer Sergio Cruz composed the negotiating panel of PEA.
183 of 692

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for
Prohibition with Application for the Issuance of a Temporary Restraining Order
and Preliminary Injunction docketed as G.R. No. 132994 seeking to nullify the
JVA. The Court dismissed the petition for unwarranted disregard of judicial
hierarchy, without prejudice to the refiling of the case before the proper
court.[12]
On April 27, 1998, petitioner Frank I. Chavez (Petitioner for brevity) as a
taxpayer, filed the instant Petition for Mandamus with Prayer for the Issuance
of a Writ of Preliminary Injunction and Temporary Restraining Order.
Petitioner contends the government stands to lose billions of pesos in the sale
by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA publicly
disclose the terms of any renegotiation of the JVA, invoking Section 28, Article
II, and Section 7, Article III, of the 1987 Constitution on the right of the people
to information on matters of public concern. Petitioner assails the sale to
AMARI of lands of the public domain as a blatant violation of Section 3, Article
XII of the 1987 Constitution prohibiting the sale of alienable lands of the public
domain to private corporations. Finally, petitioner asserts that he seeks to enjoin
the loss of billions of pesos in properties of the State that are of public dominion.
After several motions for extension of time,[13] PEA and AMARI filed their
Comments on October 19, 1998 and June 25, 1998, respectively. Meanwhile,
on December 28, 1998, petitioner filed an Omnibus Motion: (a) to require PEA
to submit the terms of the renegotiated PEA-AMARI contract; (b) for issuance
of a temporary restraining order; and (c) to set the case for hearing on oral
argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated
May 26, 1999, which the Court denied in a Resolution dated June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave due course to the petition
and required the parties to file their respective memoranda.
On March 30, 1999, PEA and AMARI signed the Amended Joint Venture
Agreement (Amended JVA, for brevity). On May 28, 1999, the Office of the
President under the administration of then President Joseph E. Estrada approved
the Amended JVA.
Due to the approval of the Amended JVA by the Office of the President,
petitioner now prays that on constitutional and statutory grounds the
renegotiated contract be declared null and void.[14]
The Issues
The issues raised by petitioner, PEA[15] and AMARI[16] are as follows:
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE
PETITION ARE MOOT AND ACADEMIC BECAUSE OF SUBSEQUENT
EVENTS;
II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO
OBSERVE THE PRINCIPLE GOVERNING THE HIERARCHY OF
COURTS;
III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-
EXHAUSTION OF ADMINISTRATIVE REMEDIES;
IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS
SUIT;
V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION
INCLUDES OFFICIAL INFORMATION ON ON-GOING NEGOTIATIONS
BEFORE A FINAL AGREEMENT;
VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT
VENTURE AGREEMENT FOR THE TRANSFER TO AMARI OF
CERTAIN LANDS, RECLAIMED AND STILL TO BE RECLAIMED,
VIOLATE THE 1987 CONSTITUTION; AND
VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING
THE ISSUE OF WHETHER THE AMENDED JOINT VENTURE
AGREEMENT IS GROSSLY DISADVANTAGEOUS TO THE
GOVERNMENT.
The Courts Ruling
184 of 692
First issue: whether the principal reliefs prayed for in the petition are moot and
academic because of subsequent events.
The petition prays that PEA publicly disclose the terms and conditions of the
on-going negotiations for a new agreement. The petition also prays that the
Court enjoin PEA from privately entering into, perfecting and/or executing any
new agreement with AMARI.
PEA and AMARI claim the petition is now moot and academic because
AMARI furnished petitioner on June 21, 1999 a copy of the signed Amended
JVA containing the terms and conditions agreed upon in the renegotiations.
Thus, PEA has satisfied petitioners prayer for a public disclosure of the
renegotiations. Likewise, petitioners prayer to enjoin the signing of the
Amended JVA is now moot because PEA and AMARI have already signed the
Amended JVA on March 30, 1999. Moreover, the Office of the President has
approved the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the constitutional issue
by simply fast-tracking the signing and approval of the Amended JVA before
the Court could act on the issue. Presidential approval does not resolve the
constitutional issue or remove it from the ambit of judicial review.
We rule that the signing of the Amended JVA by PEA and AMARI and its
approval by the President cannot operate to moot the petition and divest the
Court of its jurisdiction. PEA and AMARI have still to implement the Amended
JVA. The prayer to enjoin the signing of the Amended JVA on constitutional
grounds necessarily includes preventing its implementation if in the meantime
PEA and AMARI have signed one in violation of the Constitution. Petitioners
principal basis in assailing the renegotiation of the JVA is its violation of
Section 3, Article XII of the Constitution, which prohibits the government from
alienating lands of the public domain to private corporations. If the Amended
JVA indeed violates the Constitution, it is the duty of the Court to enjoin its
implementation, and if already implemented, to annul the effects of such
unconstitutional contract.
The Amended JVA is not an ordinary commercial contract but one which seeks
to transfer title and ownership to 367.5 hectares of reclaimed lands and
submerged areas of Manila Bay to a single private corporation. It now becomes
more compelling for the Court to resolve the issue to insure the government
itself does not violate a provision of the Constitution intended to safeguard the
national patrimony. Supervening events, whether intended or accidental, cannot
prevent the Court from rendering a decision if there is a grave violation of the
Constitution. In the instant case, if the Amended JVA runs counter to the
Constitution, the Court can still prevent the transfer of title and ownership of
alienable lands of the public domain in the name of AMARI. Even in cases
where supervening events had made the cases moot, the Court did not hesitate
to resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar, and the public.[17]
Also, the instant petition is a case of first impression. All previous decisions of
the Court involving Section 3, Article XII of the 1987 Constitution, or its
counterpart provision in the 1973 Constitution,[18] covered agricultural lands
sold to private corporations which acquired the lands from private parties. The
transferors of the private corporations claimed or could claim the right to
judicial confirmation of their imperfect titles[19] under Title II of
Commonwealth Act. 141 (CA No. 141 for brevity). In the instant case, AMARI
seeks to acquire from PEA, a public corporation, reclaimed lands and
submerged areas for non-agricultural purposes by purchase under PD No. 1084
(charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI
under the Amended JVA constitute the consideration for the purchase. Neither
AMARI nor PEA can claim judicial confirmation of their titles because the
lands covered by the Amended JVA are newly reclaimed or still to be
reclaimed. Judicial confirmation of imperfect title requires open, continuous,
exclusive and notorious occupation of agricultural lands of the public domain
for at least thirty years since June 12, 1945 or earlier. Besides, the deadline for
filing applications for judicial confirmation of imperfect title expired on
December 31, 1987.[20]
Lastly, there is a need to resolve immediately the constitutional issue raised in
this petition because of the possible transfer at any time by PEA to AMARI of
title and ownership to portions of the reclaimed lands. Under the Amended
JVA, PEA is obligated to transfer to AMARI the latters seventy percent
proportionate share in the reclaimed areas as the reclamation progresses. The
Amended JVA even allows AMARI to mortgage at any time the entire
reclaimed area to raise financing for the reclamation project.[21]
185 of 692
Second issue: whether the petition merits dismissal for failing to observe the
principle governing the hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking
relief directly from the Court. The principle of hierarchy of courts applies
generally to cases involving factual questions. As it is not a trier of facts, the
Court cannot entertain cases involving factual issues. The instant case,
however, raises constitutional issues of transcendental importance to the
public.[22] The Court can resolve this case without determining any factual
issue related to the case. Also, the instant case is a petition for mandamus which
falls under the original jurisdiction of the Court under Section 5, Article VIII of
the Constitution. We resolve to exercise primary jurisdiction over the instant
case.
Third issue: whether the petition merits dismissal for non-exhaustion of
administrative remedies.
PEA faults petitioner for seeking judicial intervention in compelling PEA to
disclose publicly certain information without first asking PEA the needed
information. PEA claims petitioners direct resort to the Court violates the
principle of exhaustion of administrative remedies. It also violates the rule that
mandamus may issue only if there is no other plain, speedy and adequate
remedy in the ordinary course of law.
PEA distinguishes the instant case from Taada v. Tuvera[23] where the Court
granted the petition for mandamus even if the petitioners there did not initially
demand from the Office of the President the publication of the presidential
decrees. PEA points out that in Taada, the Executive Department had an
affirmative statutory duty under Article 2 of the Civil Code[24] and Section 1
of Commonwealth Act No. 638[25] to publish the presidential decrees. There
was, therefore, no need for the petitioners in Taada to make an initial demand
from the Office of the President. In the instant case, PEA claims it has no
affirmative statutory duty to disclose publicly information about its
renegotiation of the JVA. Thus, PEA asserts that the Court must apply the
principle of exhaustion of administrative remedies to the instant case in view of
the failure of petitioner here to demand initially from PEA the needed
information.
The original JVA sought to dispose to AMARI public lands held by PEA, a
government corporation. Under Section 79 of the Government Auditing
Code,[26]2 the disposition of government lands to private parties requires
public bidding. PEA was under a positive legal duty to disclose to the public
the terms and conditions for the sale of its lands. The law obligated PEA to
make this public disclosure even without demand from petitioner or from
anyone. PEA failed to make this public disclosure because the original JVA,
like the Amended JVA, was the result of a negotiated contract, not of a public
bidding. Considering that PEA had an affirmative statutory duty to make the
public disclosure, and was even in breach of this legal duty, petitioner had the
right to seek direct judicial intervention.
Moreover, and this alone is determinative of this issue, the principle of
exhaustion of administrative remedies does not apply when the issue involved
is a purely legal or constitutional question.[27] The principal issue in the instant
case is the capacity of AMARI to acquire lands held by PEA in view of the
constitutional ban prohibiting the alienation of lands of the public domain to
private corporations. We rule that the principle of exhaustion of administrative
remedies does not apply in the instant case.
Fourth issue: whether petitioner has locus standi to bring this suit
PEA argues that petitioner has no standing to institute mandamus proceedings
to enforce his constitutional right to information without a showing that PEA
refused to perform an affirmative duty imposed on PEA by the Constitution.
PEA also claims that petitioner has not shown that he will suffer any concrete
injury because of the signing or implementation of the Amended JVA. Thus,
there is no actual controversy requiring the exercise of the power of judicial
review.
The petitioner has standing to bring this taxpayers suit because the petition
seeks to compel PEA to comply with its constitutional duties. There are two
constitutional issues involved here. First is the right of citizens to information
on matters of public concern. Second is the application of a constitutional
provision intended to insure the equitable distribution of alienable lands of the
public domain among Filipino citizens. The thrust of the first issue is to compel
PEA to disclose publicly information on the sale of government lands worth
billions of pesos, information which the Constitution and statutory law mandate
186 of 692
PEA to disclose. The thrust of the second issue is to prevent PEA from
alienating hundreds of hectares of alienable lands of the public domain in
violation of the Constitution, compelling PEA to comply with a constitutional
duty to the nation.
Moreover, the petition raises matters of transcendental importance to the public.
In Chavez v. PCGG,[28] the Court upheld the right of a citizen to bring a
taxpayers suit on matters of transcendental importance to the public, thus -
Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of
the Marcoses is an issue of transcendental importance to the public. He asserts
that ordinary taxpayers have a right to initiate and prosecute actions questioning
the validity of acts or orders of government agencies or instrumentalities, if the
issues raised are of paramount public interest, and if they immediately affect
the social, economic and moral well being of the people.
Moreover, the mere fact that he is a citizen satisfies the requirement of personal
interest, when the proceeding involves the assertion of a public right, such as in
this case. He invokes several decisions of this Court which have set aside the
procedural matter of locus standi, when the subject of the case involved public
interest.
xxx
In Taada v. Tuvera, the Court asserted that when the issue concerns a public
right and the object of mandamus is to obtain the enforcement of a public duty,
the people are regarded as the real parties in interest; and because it is sufficient
that petitioner is a citizen and as such is interested in the execution of the laws,
he need not show that he has any legal or special interest in the result of the
action. In the aforesaid case, the petitioners sought to enforce their right to be
informed on matters of public concern, a right then recognized in Section 6,
Article IV of the 1973 Constitution, in connection with the rule that laws in
order to be valid and enforceable must be published in the Official Gazette or
otherwise effectively promulgated. In ruling for the petitioners' legal standing,
the Court declared that the right they sought to be enforced is a public right
recognized by no less than the fundamental law of the land.
Legaspi v. Civil Service Commission, while reiterating Taada, further declared
that when a mandamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that petitioner is a
citizen and, therefore, part of the general 'public' which possesses the right.
Further, in Albano v. Reyes, we said that while expenditure of public funds may
not have been involved under the questioned contract for the development,
management and operation of the Manila International Container Terminal,
public interest [was] definitely involved considering the important role [of the
subject contract] . . . in the economic development of the country and the
magnitude of the financial consideration involved. We concluded that, as a
consequence, the disclosure provision in the Constitution would constitute
sufficient authority for upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of the people to
information and access to official records, documents and papers a right
guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a
former solicitor general, is a Filipino citizen. Because of the satisfaction of the
two basic requisites laid down by decisional law to sustain petitioner's legal
standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino
citizen, we rule that the petition at bar should be allowed.
We rule that since the instant petition, brought by a citizen, involves the
enforcement of constitutional rights - to information and to the equitable
diffusion of natural resources - matters of transcendental public importance, the
petitioner has the requisite locus standi.
Fifth issue: whether the constitutional right to information includes official
information on on-going negotiations before a final agreement.
Section 7, Article III of the Constitution explains the peoples right to
information on matters of public concern in this manner:
Sec. 7. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law. (Emphasis supplied)
187 of 692

The State policy of full transparency in all transactions involving public interest
reinforces the peoples right to information on matters of public concern. This
State policy is expressed in Section 28, Article II of the Constitution, thus:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions
involving public interest. (Emphasis supplied)
These twin provisions of the Constitution seek to promote transparency in
policy-making and in the operations of the government, as well as provide the
people sufficient information to exercise effectively other constitutional rights.
These twin provisions are essential to the exercise of freedom of expression. If
the government does not disclose its official acts, transactions and decisions to
citizens, whatever citizens say, even if expressed without any restraint, will be
speculative and amount to nothing. These twin provisions are also essential to
hold public officials at all times x x x accountable to the people,[29] for unless
citizens have the proper information, they cannot hold public officials
accountable for anything. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government
policies and their effective implementation. An informed citizenry is essential
to the existence and proper functioning of any democracy. As explained by the
Court in Valmonte v. Belmonte, Jr.[30]
An essential element of these freedoms is to keep open a continuing dialogue
or process of communication between the government and the people. It is in
the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to
the peoples will. Yet, this open dialogue can be effective only to the extent that
the citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have access
to information relating thereto can such bear fruit.
PEA asserts, citing Chavez v. PCGG,[31] that in cases of on-going negotiations
the right to information is limited to definite propositions of the government.
PEA maintains the right does not include access to intra-agency or inter-agency
recommendations or communications during the stage when common
assertions are still in the process of being formulated or are in the exploratory
stage.
Also, AMARI contends that petitioner cannot invoke the right at the pre-
decisional stage or before the closing of the transaction. To support its
contention, AMARI cites the following discussion in the 1986 Constitutional
Commission:
Mr. Suarez. And when we say transactions which should be distinguished from
contracts, agreements, or treaties or whatever, does the Gentleman refer to the
steps leading to the consummation of the contract, or does he refer to the
contract itself?
Mr. Ople: The transactions used here, I suppose is generic and therefore, it can
cover both steps leading to a contract and already a consummated contract, Mr.
Presiding Officer.
Mr. Suarez: This contemplates inclusion of negotiations leading to the
consummation of the transaction.
Mr. Ople: Yes, subject only to reasonable safeguards on the national interest.
Mr. Suarez: Thank you.[32] (Emphasis supplied)
AMARI argues there must first be a consummated contract before petitioner
can invoke the right. Requiring government officials to reveal their
deliberations at the pre-decisional stage will degrade the quality of decision-
making in government agencies. Government officials will hesitate to express
their real sentiments during deliberations if there is immediate public
dissemination of their discussions, putting them under all kinds of pressure
before they decide.
We must first distinguish between information the law on public bidding
requires PEA to disclose publicly, and information the constitutional right to
information requires PEA to release to the public. Before the consummation of
the contract, PEA must, on its own and without demand from anyone, disclose
to the public matters relating to the disposition of its property. These include
the size, location, technical description and nature of the property being
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disposed of, the terms and conditions of the disposition, the parties qualified to
bid, the minimum price and similar information. PEA must prepare all these
data and disclose them to the public at the start of the disposition process, long
before the consummation of the contract, because the Government Auditing
Code requires public bidding. If PEA fails to make this disclosure, any citizen
can demand from PEA this information at any time during the bidding process.
Information, however, on on-going evaluation or review of bids or proposals
being undertaken by the bidding or review committee is not immediately
accessible under the right to information. While the evaluation or review is still
on-going, there are no official acts, transactions, or decisions on the bids or
proposals. However, once the committee makes its official recommendation,
there arises a definite proposition on the part of the government. From this
moment, the publics right to information attaches, and any citizen can access
all the non-proprietary information leading to such definite proposition. In
Chavez v. PCGG,[33] the Court ruled as follows:
Considering the intent of the framers of the Constitution, we believe that it is
incumbent upon the PCGG and its officers, as well as other government
representatives, to disclose sufficient public information on any proposed
settlement they have decided to take up with the ostensible owners and holders
of ill-gotten wealth. Such information, though, must pertain to definite
propositions of the government, not necessarily to intra-agency or inter-agency
recommendations or communications during the stage when common
assertions are still in the process of being formulated or are in the exploratory
stage. There is need, of course, to observe the same restrictions on disclosure
of information in general, as discussed earlier such as on matters involving
national security, diplomatic or foreign relations, intelligence and other
classified information. (Emphasis supplied)
Contrary to AMARIs contention, the commissioners of the 1986 Constitutional
Commission understood that the right to information contemplates inclusion of
negotiations leading to the consummation of the transaction. Certainly, a
consummated contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no contract is
consummated, and if one is consummated, it may be too late for the public to
expose its defects.
Requiring a consummated contract will keep the public in the dark until the
contract, which may be grossly disadvantageous to the government or even
illegal, becomes a fait accompli. This negates the State policy of full
transparency on matters of public concern, a situation which the framers of the
Constitution could not have intended. Such a requirement will prevent the
citizenry from participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can allow
neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed policy of full disclosure of all its transactions involving public interest.
The right covers three categories of information which are matters of public
concern, namely: (1) official records; (2) documents and papers pertaining to
official acts, transactions and decisions; and (3) government research data used
in formulating policies. The first category refers to any document that is part of
the public records in the custody of government agencies or officials. The
second category refers to documents and papers recording, evidencing,
establishing, confirming, supporting, justifying or explaining official acts,
transactions or decisions of government agencies or officials. The third
category refers to research data, whether raw, collated or processed, owned by
the government and used in formulating government policies.
The information that petitioner may access on the renegotiation of the JVA
includes evaluation reports, recommendations, legal and expert opinions,
minutes of meetings, terms of reference and other documents attached to such
reports or minutes, all relating to the JVA. However, the right to information
does not compel PEA to prepare lists, abstracts, summaries and the like relating
to the renegotiation of the JVA.[34] The right only affords access to records,
documents and papers, which means the opportunity to inspect and copy them.
One who exercises the right must copy the records, documents and papers at
his expense. The exercise of the right is also subject to reasonable regulations
to protect the integrity of the public records and to minimize disruption to
government operations, like rules specifying when and how to conduct the
inspection and copying.[35]
The right to information, however, does not extend to matters recognized as
privileged information under the separation of powers.[36] The right does not
also apply to information on military and diplomatic secrets, information
affecting national security, and information on investigations of crimes by law
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enforcement agencies before the prosecution of the accused, which courts have
long recognized as confidential.[37] The right may also be subject to other
limitations that Congress may impose by law.
There is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The information does
not cover Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like internal deliberations of the Supreme
Court and other collegiate courts, or executive sessions of either house of
Congress,[38] are recognized as confidential. This kind of information cannot
be pried open by a co-equal branch of government. A frank exchange of
exploratory ideas and assessments, free from the glare of publicity and pressure
by interested parties, is essential to protect the independence of decision-
making of those tasked to exercise Presidential, Legislative and Judicial
power.[39] This is not the situation in the instant case.
We rule, therefore, that the constitutional right to information includes official
information on on-going negotiations before a final contract. The information,
however, must constitute definite propositions by the government and should
not cover recognized exceptions like privileged information, military and
diplomatic secrets and similar matters affecting national security and public
order.[40] Congress has also prescribed other limitations on the right to
information in several legislations.[41]
Sixth issue: whether stipulations in the Amended JVA for the transfer to
AMARI of lands, reclaimed or to be reclaimed, violate the Constitution.
The Regalian Doctrine
The ownership of lands reclaimed from foreshore and submerged areas is
rooted in the Regalian doctrine which holds that the State owns all lands and
waters of the public domain. Upon the Spanish conquest of the Philippines,
ownership of all lands, territories and possessions in the Philippines passed to
the Spanish Crown.[42] The King, as the sovereign ruler and representative of
the people, acquired and owned all lands and territories in the Philippines
except those he disposed of by grant or sale to private individuals.
The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine
substituting, however, the State, in lieu of the King, as the owner of all lands
and waters of the public domain. The Regalian doctrine is the foundation of the
time-honored principle of land ownership that all lands that were not acquired
from the Government, either by purchase or by grant, belong to the public
domain.[43] Article 339 of the Civil Code of 1889, which is now Article 420
of the Civil Code of 1950, incorporated the Regalian doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first statutory law governing the
ownership and disposition of reclaimed lands in the Philippines. On May 18,
1907, the Philippine Commission enacted Act No. 1654 which provided for the
lease, but not the sale, of reclaimed lands of the government to corporations and
individuals. Later, on November 29, 1919, the Philippine Legislature approved
Act No. 2874, the Public Land Act, which authorized the lease, but not the sale,
of reclaimed lands of the government to corporations and individuals. On
November 7, 1936, the National Assembly passed Commonwealth Act No.
141, also known as the Public Land Act, which authorized the lease, but not the
sale, of reclaimed lands of the government to corporations and individuals. CA
No. 141 continues to this day as the general law governing the classification
and disposition of lands of the public domain.
The Spanish Law of Waters of 1866 and the Civil Code of 1889
Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and
all waters within the maritime zone of the Spanish territory belonged to the
public domain for public use.[44] The Spanish Law of Waters of 1866 allowed
the reclamation of the sea under Article 5, which provided as follows:
Article 5. Lands reclaimed from the sea in consequence of works constructed
by the State, or by the provinces, pueblos or private persons, with proper
permission, shall become the property of the party constructing such works,
unless otherwise provided by the terms of the grant of authority.
Under the Spanish Law of Waters, land reclaimed from the sea belonged to the
party undertaking the reclamation, provided the government issued the
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necessary permit and did not reserve ownership of the reclaimed land to the
State.
Article 339 of the Civil Code of 1889 defined property of public dominion as
follows:
Art. 339. Property of public dominion is
1. That devoted to public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, riverbanks, shores, roadsteads, and that of a
similar character;
2. That belonging exclusively to the State which, without being of general
public use, is employed in some public service, or in the development of the
national wealth, such as walls, fortresses, and other works for the defense of the
territory, and mines, until granted to private individuals.
Property devoted to public use referred to property open for use by the public.
In contrast, property devoted to public service referred to property used for
some specific public service and open only to those authorized to use the
property.
Property of public dominion referred not only to property devoted to public use,
but also to property not so used but employed to develop the national wealth.
This class of property constituted property of public dominion although
employed for some economic or commercial activity to increase the national
wealth.
Article 341 of the Civil Code of 1889 governed the re-classification of property
of public dominion into private property, to wit:
Art. 341. Property of public dominion, when no longer devoted to public use or
to the defense of the territory, shall become a part of the private property of the
State.
This provision, however, was not self-executing. The legislature, or the
executive department pursuant to law, must declare the property no longer
needed for public use or territorial defense before the government could lease
or alienate the property to private parties.[45]
Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act No. 1654 which
regulated the lease of reclaimed and foreshore lands. The salient provisions of
this law were as follows:
Section 1. The control and disposition of the foreshore as defined in existing
law, and the title to all Government or public lands made or reclaimed by the
Government by dredging or filling or otherwise throughout the Philippine
Islands, shall be retained by the Government without prejudice to vested rights
and without prejudice to rights conceded to the City of Manila in the Luneta
Extension.
Section 2. (a) The Secretary of the Interior shall cause all Government or public
lands made or reclaimed by the Government by dredging or filling or otherwise
to be divided into lots or blocks, with the necessary streets and alleyways
located thereon, and shall cause plats and plans of such surveys to be prepared
and filed with the Bureau of Lands.
(b) Upon completion of such plats and plans the Governor-General shall give
notice to the public that such parts of the lands so made or reclaimed as are not
needed for public purposes will be leased for commercial and business
purposes, x x x.
xxx
(e) The leases above provided for shall be disposed of to the highest and best
bidder therefore, subject to such regulations and safeguards as the Governor-
General may by executive order prescribe. (Emphasis supplied)
Act No. 1654 mandated that the government should retain title to all lands
reclaimed by the government. The Act also vested in the government control
and disposition of foreshore lands. Private parties could lease lands reclaimed
by the government only if these lands were no longer needed for public purpose.
Act No. 1654 mandated public bidding in the lease of government reclaimed
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lands. Act No. 1654 made government reclaimed lands sui generis in that unlike
other public lands which the government could sell to private parties, these
reclaimed lands were available only for lease to private parties.
Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters
of 1866. Act No. 1654 did not prohibit private parties from reclaiming parts of
the sea under Section 5 of the Spanish Law of Waters. Lands reclaimed from
the sea by private parties with government permission remained private lands.
Act No. 2874 of the Philippine Legislature
On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the
Public Land Act.[46] The salient provisions of Act No. 2874, on reclaimed
lands, were as follows:
Sec. 6. The Governor-General, upon the recommendation of the Secretary of
Agriculture and Natural Resources, shall from time to time classify the lands of
the public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the government and disposition of alienable or
disposable public lands, the Governor-General, upon recommendation by the
Secretary of Agriculture and Natural Resources, shall from time to time declare
what lands are open to disposition or concession under this Act.
Sec. 8. Only those lands shall be declared open to disposition or concession
which have been officially delimited or classified x x x.
xxx
Sec. 55. Any tract of land of the public domain which, being neither timber nor
mineral land, shall be classified as suitable for residential purposes or for
commercial, industrial, or other productive purposes other than agricultural
purposes, and shall be open to disposition or concession, shall be disposed of
under the provisions of this chapter, and not otherwise.
Sec. 56. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the Government by dredging, filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water bordering upon the shores or
banks of navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
x x x.
Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall
be disposed of to private parties by lease only and not otherwise, as soon as the
Governor-General, upon recommendation by the Secretary of Agriculture and
Natural Resources, shall declare that the same are not necessary for the public
service and are open to disposition under this chapter. The lands included in
class (d) may be disposed of by sale or lease under the provisions of this Act.
(Emphasis supplied)
Section 6 of Act No. 2874 authorized the Governor-General to classify lands of
the public domain into x x x alienable or disposable[47] lands. Section 7 of the
Act empowered the Governor-General to declare what lands are open to
disposition or concession. Section 8 of the Act limited alienable or disposable
lands only to those lands which have been officially delimited and classified.
Section 56 of Act No. 2874 stated that lands disposable under this title[48] shall
be classified as government reclaimed, foreshore and marshy lands, as well as
other lands. All these lands, however, must be suitable for residential,
commercial, industrial or other productive non-agricultural purposes. These
provisions vested upon the Governor-General the power to classify inalienable
lands of the public domain into disposable lands of the public domain. These
provisions also empowered the Governor-General to classify further such
disposable lands of the public domain into government reclaimed, foreshore or
marshy lands of the public domain, as well as other non-agricultural lands.
Section 58 of Act No. 2874 categorically mandated that disposable lands of the
public domain classified as government reclaimed, foreshore and marshy lands
shall be disposed of to private parties by lease only and not otherwise. The
Governor-General, before allowing the lease of these lands to private parties,
must formally declare that the lands were not necessary for the public service.
Act No. 2874 reiterated the State policy to lease and not to sell government
reclaimed, foreshore and marshy lands of the public domain, a policy first
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enunciated in 1907 in Act No. 1654. Government reclaimed, foreshore and
marshy lands remained sui generis, as the only alienable or disposable lands of
the public domain that the government could not sell to private parties.
The rationale behind this State policy is obvious. Government reclaimed,
foreshore and marshy public lands for non-agricultural purposes retain their
inherent potential as areas for public service. This is the reason the government
prohibited the sale, and only allowed the lease, of these lands to private parties.
The State always reserved these lands for some future public service.
Act No. 2874 did not authorize the reclassification of government reclaimed,
foreshore and marshy lands into other non-agricultural lands under Section 56
(d). Lands falling under Section 56 (d) were the only lands for non-agricultural
purposes the government could sell to private parties. Thus, under Act No.
2874, the government could not sell government reclaimed, foreshore and
marshy lands to private parties, unless the legislature passed a law allowing
their sale.[49]
Act No. 2874 did not prohibit private parties from reclaiming parts of the sea
pursuant to Section 5 of the Spanish Law of Waters of 1866. Lands reclaimed
from the sea by private parties with government permission remained private
lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect upon its ratification by the
Filipino people. The 1935 Constitution, in adopting the Regalian doctrine,
declared in Section 1, Article XIII, that
Section 1. All agricultural, timber, and mineral lands of the public domain,
waters, minerals, coal, petroleum, and other mineral oils, all forces of potential
energy and other natural resources of the Philippines belong to the State, and
their disposition, exploitation, development, or utilization shall be limited to
citizens of the Philippines or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, subject to any existing
right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the
exception of public agricultural land, shall not be alienated, and no license,
concession, or lease for the exploitation, development, or utilization of any of
the natural resources shall be granted for a period exceeding twenty-five years,
renewable for another twenty-five years, except as to water rights for irrigation,
water supply, fisheries, or industrial uses other than the development of water
power, in which cases beneficial use may be the measure and limit of the grant.
(Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources except
public agricultural lands, which were the only natural resources the State could
alienate. Thus, foreshore lands, considered part of the States natural resources,
became inalienable by constitutional fiat, available only for lease for 25 years,
renewable for another 25 years. The government could alienate foreshore lands
only after these lands were reclaimed and classified as alienable agricultural
lands of the public domain. Government reclaimed and marshy lands of the
public domain, being neither timber nor mineral lands, fell under the
classification of public agricultural lands.[50] However, government reclaimed
and marshy lands, although subject to classification as disposable public
agricultural lands, could only be leased and not sold to private parties because
of Act No. 2874.
The prohibition on private parties from acquiring ownership of government
reclaimed and marshy lands of the public domain was only a statutory
prohibition and the legislature could therefore remove such prohibition. The
1935 Constitution did not prohibit individuals and corporations from acquiring
government reclaimed and marshy lands of the public domain that were
classified as agricultural lands under existing public land laws. Section 2,
Article XIII of the 1935 Constitution provided as follows:
Section 2. No private corporation or association may acquire, lease, or hold
public agricultural lands in excess of one thousand and twenty four hectares,
nor may any individual acquire such lands by purchase in excess of one hundred
and forty hectares, or by lease in excess of one thousand and twenty-four
hectares, or by homestead in excess of twenty-four hectares. Lands adapted to
grazing, not exceeding two thousand hectares, may be leased to an individual,
private corporation, or association. (Emphasis supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did not repeal
Section 58 of Act No. 2874 to open for sale to private parties government
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reclaimed and marshy lands of the public domain. On the contrary, the
legislature continued the long established State policy of retaining for the
government title and ownership of government reclaimed and marshy lands of
the public domain.
Commonwealth Act No. 141 of the Philippine National Assembly
On November 7, 1936, the National Assembly approved Commonwealth Act
No. 141, also known as the Public Land Act, which compiled the then existing
laws on lands of the public domain. CA No. 141, as amended, remains to this
day the existing general law governing the classification and disposition of
lands of the public domain other than timber and mineral lands.[51]
Section 6 of CA No. 141 empowers the President to classify lands of the public
domain into alienable or disposable[52] lands of the public domain, which prior
to such classification are inalienable and outside the commerce of man. Section
7 of CA No. 141 authorizes the President to declare what lands are open to
disposition or concession. Section 8 of CA No. 141 states that the government
can declare open for disposition or concession only lands that are officially
delimited and classified. Sections 6, 7 and 8 of CA No. 141 read as follows:
Sec. 6. The President, upon the recommendation of the Secretary of Agriculture
and Commerce, shall from time to time classify the lands of the public domain
into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands,
and may at any time and in like manner transfer such lands from one class to
another,[53] for the purpose of their administration and disposition.
Sec. 7. For the purposes of the administration and disposition of alienable or
disposable public lands, the President, upon recommendation by the Secretary
of Agriculture and Commerce, shall from time to time declare what lands are
open to disposition or concession under this Act.
Sec. 8. Only those lands shall be declared open to disposition or concession
which have been officially delimited and classified and, when practicable,
surveyed, and which have not been reserved for public or quasi-public uses, nor
appropriated by the Government, nor in any manner become private property,
nor those on which a private right authorized and recognized by this Act or any
other valid law may be claimed, or which, having been reserved or
appropriated, have ceased to be so. x x x.
Thus, before the government could alienate or dispose of lands of the public
domain, the President must first officially classify these lands as alienable or
disposable, and then declare them open to disposition or concession. There must
be no law reserving these lands for public or quasi-public uses.
The salient provisions of CA No. 141, on government reclaimed, foreshore and
marshy lands of the public domain, are as follows:
Sec. 58. Any tract of land of the public domain which, being neither timber nor
mineral land, is intended to be used for residential purposes or for commercial,
industrial, or other productive purposes other than agricultural, and is open to
disposition or concession, shall be disposed of under the provisions of this
chapter and not otherwise.
Sec. 59. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the Government by dredging, filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water bordering upon the shores or
banks of navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
Sec. 60. Any tract of land comprised under this title may be leased or sold, as
the case may be, to any person, corporation, or association authorized to
purchase or lease public lands for agricultural purposes. x x x.
Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine
shall be disposed of to private parties by lease only and not otherwise, as soon
as the President, upon recommendation by the Secretary of Agriculture, shall
declare that the same are not necessary for the public service and are open to
disposition under this chapter. The lands included in class (d) may be disposed
of by sale or lease under the provisions of this Act. (Emphasis supplied)
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Section 61 of CA No. 141 readopted, after the effectivity of the 1935
Constitution, Section 58 of Act No. 2874 prohibiting the sale of government
reclaimed, foreshore and marshy disposable lands of the public domain. All
these lands are intended for residential, commercial, industrial or other non-
agricultural purposes. As before, Section 61 allowed only the lease of such
lands to private parties. The government could sell to private parties only lands
falling under Section 59 (d) of CA No. 141, or those lands for non-agricultural
purposes not classified as government reclaimed, foreshore and marshy
disposable lands of the public domain. Foreshore lands, however, became
inalienable under the 1935 Constitution which only allowed the lease of these
lands to qualified private parties.
Section 58 of CA No. 141 expressly states that disposable lands of the public
domain intended for residential, commercial, industrial or other productive
purposes other than agricultural shall be disposed of under the provisions of this
chapter and not otherwise. Under Section 10 of CA No. 141, the term
disposition includes lease of the land. Any disposition of government
reclaimed, foreshore and marshy disposable lands for non-agricultural purposes
must comply with Chapter IX, Title III of CA No. 141,[54] unless a subsequent
law amended or repealed these provisions.
In his concurring opinion in the landmark case of Republic Real Estate
Corporation v. Court of Appeals,[55] Justice Reynato S. Puno summarized
succinctly the law on this matter, as follows:
Foreshore lands are lands of public dominion intended for public use. So too
are lands reclaimed by the government by dredging, filling, or other means. Act
1654 mandated that the control and disposition of the foreshore and lands under
water remained in the national government. Said law allowed only the leasing
of reclaimed land. The Public Land Acts of 1919 and 1936 also declared that
the foreshore and lands reclaimed by the government were to be disposed of to
private parties by lease only and not otherwise. Before leasing, however, the
Governor-General, upon recommendation of the Secretary of Agriculture and
Natural Resources, had first to determine that the land reclaimed was not
necessary for the public service. This requisite must have been met before the
land could be disposed of. But even then, the foreshore and lands under water
were not to be alienated and sold to private parties. The disposition of the
reclaimed land was only by lease. The land remained property of the State.
(Emphasis supplied)
As observed by Justice Puno in his concurring opinion, Commonwealth Act
No. 141 has remained in effect at present.
The State policy prohibiting the sale to private parties of government reclaimed,
foreshore and marshy alienable lands of the public domain, first implemented
in 1907 was thus reaffirmed in CA No. 141 after the 1935 Constitution took
effect. The prohibition on the sale of foreshore lands, however, became a
constitutional edict under the 1935 Constitution. Foreshore lands became
inalienable as natural resources of the State, unless reclaimed by the
government and classified as agricultural lands of the public domain, in which
case they would fall under the classification of government reclaimed lands.
After the effectivity of the 1935 Constitution, government reclaimed and
marshy disposable lands of the public domain continued to be only leased and
not sold to private parties.[56] These lands remained sui generis, as the only
alienable or disposable lands of the public domain the government could not
sell to private parties.
Since then and until now, the only way the government can sell to private
parties government reclaimed and marshy disposable lands of the public
domain is for the legislature to pass a law authorizing such sale. CA No. 141
does not authorize the President to reclassify government reclaimed and marshy
lands into other non-agricultural lands under Section 59 (d). Lands classified
under Section 59 (d) are the only alienable or disposable lands for non-
agricultural purposes that the government could sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires congressional authority
before lands under Section 59 that the government previously transferred to
government units or entities could be sold to private parties. Section 60 of CA
No. 141 declares that
Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment
of the Secretary of Agriculture and Natural Resources, be reasonably necessary
for the purposes for which such sale or lease is requested, and shall not exceed
one hundred and forty-four hectares: Provided, however, That this limitation
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shall not apply to grants, donations, or transfers made to a province,
municipality or branch or subdivision of the Government for the purposes
deemed by said entities conducive to the public interest; but the land so granted,
donated, or transferred to a province, municipality or branch or subdivision of
the Government shall not be alienated, encumbered, or otherwise disposed of
in a manner affecting its title, except when authorized by Congress: x x x.
(Emphasis supplied)
The congressional authority required in Section 60 of CA No. 141 mirrors the
legislative authority required in Section 56 of Act No. 2874.
One reason for the congressional authority is that Section 60 of CA No. 141
exempted government units and entities from the maximum area of public lands
that could be acquired from the State. These government units and entities
should not just turn around and sell these lands to private parties in violation of
constitutional or statutory limitations. Otherwise, the transfer of lands for non-
agricultural purposes to government units and entities could be used to
circumvent constitutional limitations on ownership of alienable or disposable
lands of the public domain. In the same manner, such transfers could also be
used to evade the statutory prohibition in CA No. 141 on the sale of government
reclaimed and marshy lands of the public domain to private parties. Section 60
of CA No. 141 constitutes by operation of law a lien on these lands.[57]
In case of sale or lease of disposable lands of the public domain falling under
Section 59 of CA No. 141, Sections 63 and 67 require a public bidding. Sections
63 and 67 of CA No. 141 provide as follows:
Sec. 63. Whenever it is decided that lands covered by this chapter are not
needed for public purposes, the Director of Lands shall ask the Secretary of
Agriculture and Commerce (now the Secretary of Natural Resources) for
authority to dispose of the same. Upon receipt of such authority, the Director
of Lands shall give notice by public advertisement in the same manner as in the
case of leases or sales of agricultural public land, x x x.
Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall
be made to the highest bidder. x x x. (Emphasis supplied)
Thus, CA No. 141 mandates the Government to put to public auction all leases
or sales of alienable or disposable lands of the public domain.[58]
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal
Section 5 of the Spanish Law of Waters of 1866. Private parties could still
reclaim portions of the sea with government permission. However, the
reclaimed land could become private land only if classified as alienable
agricultural land of the public domain open to disposition under CA No. 141.
The 1935 Constitution prohibited the alienation of all natural resources except
public agricultural lands.
The Civil Code of 1950
The Civil Code of 1950 readopted substantially the definition of property of
public dominion found in the Civil Code of 1889. Articles 420 and 422 of the
Civil Code of 1950 state that
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports
and bridges constructed by the State, banks, shores, roadsteads, and others of
similar character;
(2) Those which belong to the State, without being for public use, and are
intended for some public service or for the development of the national wealth.
x x x.
Art. 422. Property of public dominion, when no longer intended for public use
or for public service, shall form part of the patrimonial property of the State.
Again, the government must formally declare that the property of public
dominion is no longer needed for public use or public service, before the same
could be classified as patrimonial property of the State.[59] In the case of
government reclaimed and marshy lands of the public domain, the declaration
of their being disposable, as well as the manner of their disposition, is governed
by the applicable provisions of CA No. 141.
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Like the Civil Code of 1889, the Civil Code of 1950 included as property of
public dominion those properties of the State which, without being for public
use, are intended for public service or the development of the national wealth.
Thus, government reclaimed and marshy lands of the State, even if not
employed for public use or public service, if developed to enhance the national
wealth, are classified as property of public dominion.
Dispositions under the 1973 Constitution
The 1973 Constitution, which took effect on January 17, 1973, likewise adopted
the Regalian doctrine. Section 8, Article XIV of the 1973 Constitution stated
that
Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, fisheries, wildlife, and other
natural resources of the Philippines belong to the State. With the exception of
agricultural, industrial or commercial, residential, and resettlement lands of the
public domain, natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development, exploitation, or
utilization of any of the natural resources shall be granted for a period exceeding
twenty-five years, renewable for not more than twenty-five years, except as to
water rights for irrigation, water supply, fisheries, or industrial uses other than
the development of water power, in which cases, beneficial use may be the
measure and the limit of the grant. (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural resources with the
exception of agricultural, industrial or commercial, residential, and resettlement
lands of the public domain. In contrast, the 1935 Constitution barred the
alienation of all natural resources except public agricultural lands. However,
the term public agricultural lands in the 1935 Constitution encompassed
industrial, commercial, residential and resettlement lands of the public
domain.[60] If the land of public domain were neither timber nor mineral land,
it would fall under the classification of agricultural land of the public domain.
Both the 1935 and 1973 Constitutions, therefore, prohibited the alienation of
all natural resources except agricultural lands of the public domain.
The 1973 Constitution, however, limited the alienation of lands of the public
domain to individuals who were citizens of the Philippines. Private
corporations, even if wholly owned by Philippine citizens, were no longer
allowed to acquire alienable lands of the public domain unlike in the 1935
Constitution. Section 11, Article XIV of the 1973 Constitution declared that
Sec. 11. The Batasang Pambansa, taking into account conservation, ecological,
and development requirements of the natural resources, shall determine by law
the size of land of the public domain which may be developed, held or acquired
by, or leased to, any qualified individual, corporation, or association, and the
conditions therefor. No private corporation or association may hold alienable
lands of the public domain except by lease not to exceed one thousand hectares
in area nor may any citizen hold such lands by lease in excess of five hundred
hectares or acquire by purchase, homestead or grant, in excess of twenty-four
hectares. No private corporation or association may hold by lease, concession,
license or permit, timber or forest lands and other timber or forest resources in
excess of one hundred thousand hectares. However, such area may be increased
by the Batasang Pambansa upon recommendation of the National Economic
and Development Authority. (Emphasis supplied)
Thus, under the 1973 Constitution, private corporations could hold alienable
lands of the public domain only through lease. Only individuals could now
acquire alienable lands of the public domain, and private corporations became
absolutely barred from acquiring any kind of alienable land of the public
domain. The constitutional ban extended to all kinds of alienable lands of the
public domain, while the statutory ban under CA No. 141 applied only to
government reclaimed, foreshore and marshy alienable lands of the public
domain.
PD No. 1084 Creating the Public Estates Authority
On February 4, 1977, then President Ferdinand Marcos issued Presidential
Decree No. 1084 creating PEA, a wholly government owned and controlled
corporation with a special charter. Sections 4 and 8 of PD No. 1084, vests PEA
with the following purposes and powers:
Sec. 4. Purpose. The Authority is hereby created for the following purposes:
(a) To reclaim land, including foreshore and submerged areas, by dredging,
filling or other means, or to acquire reclaimed land;
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(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease
and sell any and all kinds of lands, buildings, estates and other forms of real
property, owned, managed, controlled and/or operated by the government;
(c) To provide for, operate or administer such service as may be necessary for
the efficient, economical and beneficial utilization of the above properties.
Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying
out the purposes for which it is created, have the following powers and
functions:
(a)To prescribe its by-laws.
xxx
(i) To hold lands of the public domain in excess of the area permitted to private
corporations by statute.
(j) To reclaim lands and to construct work across, or otherwise, any stream,
watercourse, canal, ditch, flume x x x.
xxx
(o) To perform such acts and exercise such functions as may be necessary for
the attainment of the purposes and objectives herein specified. (Emphasis
supplied)
PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of
the public domain. Foreshore areas are those covered and uncovered by the ebb
and flow of the tide.[61] Submerged areas are those permanently under water
regardless of the ebb and flow of the tide.[62] Foreshore and submerged areas
indisputably belong to the public domain[63] and are inalienable unless
reclaimed, classified as alienable lands open to disposition, and further declared
no longer needed for public service.
The ban in the 1973 Constitution on private corporations from acquiring
alienable lands of the public domain did not apply to PEA since it was then, and
until today, a fully owned government corporation. The constitutional ban
applied then, as it still applies now, only to private corporations and
associations. PD No. 1084 expressly empowers PEA to hold lands of the public
domain even in excess of the area permitted to private corporations by statute.
Thus, PEA can hold title to private lands, as well as title to lands of the public
domain.
In order for PEA to sell its reclaimed foreshore and submerged alienable lands
of the public domain, there must be legislative authority empowering PEA to
sell these lands. This legislative authority is necessary in view of Section 60 of
CA No.141, which states
Sec. 60. x x x; but the land so granted, donated or transferred to a province,
municipality, or branch or subdivision of the Government shall not be alienated,
encumbered or otherwise disposed of in a manner affecting its title, except
when authorized by Congress; x x x. (Emphasis supplied)
Without such legislative authority, PEA could not sell but only lease its
reclaimed foreshore and submerged alienable lands of the public domain.
Nevertheless, any legislative authority granted to PEA to sell its reclaimed
alienable lands of the public domain would be subject to the constitutional ban
on private corporations from acquiring alienable lands of the public domain.
Hence, such legislative authority could only benefit private individuals.
Dispositions under the 1987 Constitution
The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has
adopted the Regalian doctrine. The 1987 Constitution declares that all natural
resources are owned by the State, and except for alienable agricultural lands of
the public domain, natural resources cannot be alienated. Sections 2 and 3,
Article XII of the 1987 Constitution state that
Section 2. All lands of the public domain, waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. x x x.
Section 3. Lands of the public domain are classified into agricultural, forest or
timber, mineral lands, and national parks. Agricultural lands of the public
domain may be further classified by law according to the uses which they may
be devoted. Alienable lands of the public domain shall be limited to agricultural
lands. Private corporations or associations may not hold such alienable lands of
the public domain except by lease, for a period not exceeding twenty-five years,
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renewable for not more than twenty-five years, and not to exceed one thousand
hectares in area. Citizens of the Philippines may lease not more than five
hundred hectares, or acquire not more than twelve hectares thereof by purchase,
homestead, or grant.
Taking into account the requirements of conservation, ecology, and
development, and subject to the requirements of agrarian reform, the Congress
shall determine, by law, the size of lands of the public domain which may be
acquired, developed, held, or leased and the conditions therefor. (Emphasis
supplied)
The 1987 Constitution continues the State policy in the 1973 Constitution
banning private corporations from acquiring any kind of alienable land of the
public domain. Like the 1973 Constitution, the 1987 Constitution allows private
corporations to hold alienable lands of the public domain only through lease.
As in the 1935 and 1973 Constitutions, the general law governing the lease to
private corporations of reclaimed, foreshore and marshy alienable lands of the
public domain is still CA No. 141.
The Rationale behind the Constitutional Ban
The rationale behind the constitutional ban on corporations from acquiring,
except through lease, alienable lands of the public domain is not well
understood. During the deliberations of the 1986 Constitutional Commission,
the commissioners probed the rationale behind this ban, thus:
FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line
5 which says:
`No private corporation or association may hold alienable lands of the public
domain except by lease, not to exceed one thousand hectares in area.
If we recall, this provision did not exist under the 1935 Constitution, but this
was introduced in the 1973 Constitution. In effect, it prohibits private
corporations from acquiring alienable public lands. But it has not been very
clear in jurisprudence what the reason for this is. In some of the cases decided
in 1982 and 1983, it was indicated that the purpose of this is to prevent large
landholdings. Is that the intent of this provision?
MR. VILLEGAS: I think that is the spirit of the provision.
FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were
instances where the Iglesia ni Cristo was not allowed to acquire a mere 313-
square meter land where a chapel stood because the Supreme Court said it
would be in violation of this. (Emphasis supplied)
In Ayog v. Cusi,[64] the Court explained the rationale behind this constitutional
ban in this way:
Indeed, one purpose of the constitutional prohibition against purchases of
public agricultural lands by private corporations is to equitably diffuse land
ownership or to encourage owner-cultivatorship and the economic family-size
farm and to prevent a recurrence of cases like the instant case. Huge
landholdings by corporations or private persons had spawned social unrest.
However, if the constitutional intent is to prevent huge landholdings, the
Constitution could have simply limited the size of alienable lands of the public
domain that corporations could acquire. The Constitution could have followed
the limitations on individuals, who could acquire not more than 24 hectares of
alienable lands of the public domain under the 1973 Constitution, and not more
than 12 hectares under the 1987 Constitution.
If the constitutional intent is to encourage economic family-size farms, placing
the land in the name of a corporation would be more effective in preventing the
break-up of farmlands. If the farmland is registered in the name of a
corporation, upon the death of the owner, his heirs would inherit shares in the
corporation instead of subdivided parcels of the farmland. This would prevent
the continuing break-up of farmlands into smaller and smaller plots from one
generation to the next.
In actual practice, the constitutional ban strengthens the constitutional
limitation on individuals from acquiring more than the allowed area of alienable
lands of the public domain. Without the constitutional ban, individuals who
already acquired the maximum area of alienable lands of the public domain
could easily set up corporations to acquire more alienable public lands. An
individual could own as many corporations as his means would allow him. An
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individual could even hide his ownership of a corporation by putting his
nominees as stockholders of the corporation. The corporation is a convenient
vehicle to circumvent the constitutional limitation on acquisition by individuals
of alienable lands of the public domain.
The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer
ownership of only a limited area of alienable land of the public domain to a
qualified individual. This constitutional intent is safeguarded by the provision
prohibiting corporations from acquiring alienable lands of the public domain,
since the vehicle to circumvent the constitutional intent is removed. The
available alienable public lands are gradually decreasing in the face of an ever-
growing population. The most effective way to insure faithful adherence to this
constitutional intent is to grant or sell alienable lands of the public domain only
to individuals. This, it would seem, is the practical benefit arising from the
constitutional ban.
The Amended Joint Venture Agreement
The subject matter of the Amended JVA, as stated in its second Whereas clause,
consists of three properties, namely:
1. [T]hree partially reclaimed and substantially eroded islands along Emilio
Aguinaldo Boulevard in Paranaque and Las Pinas, Metro Manila, with a
combined titled area of 1,578,441 square meters;
2. [A]nother area of 2,421,559 square meters contiguous to the three islands;
and
3. [A]t AMARIs option as approved by PEA, an additional 350 hectares more
or less to regularize the configuration of the reclaimed area.[65]
PEA confirms that the Amended JVA involves the development of the Freedom
Islands and further reclamation of about 250 hectares x x x, plus an option
granted to AMARI to subsequently reclaim another 350 hectares x x x.[66]
In short, the Amended JVA covers a reclamation area of 750 hectares. Only
157.84 hectares of the 750-hectare reclamation project have been reclaimed,
and the rest of the 592.15 hectares are still submerged areas forming part of
Manila Bay.
Under the Amended JVA, AMARI will reimburse PEA the sum of
P1,894,129,200.00 for PEAs actual cost in partially reclaiming the Freedom
Islands. AMARI will also complete, at its own expense, the reclamation of the
Freedom Islands. AMARI will further shoulder all the reclamation costs of all
the other areas, totaling 592.15 hectares, still to be reclaimed. AMARI and PEA
will share, in the proportion of 70 percent and 30 percent, respectively, the total
net usable area which is defined in the Amended JVA as the total reclaimed
area less 30 percent earmarked for common areas. Title to AMARIs share in
the net usable area, totaling 367.5 hectares, will be issued in the name of
AMARI. Section 5.2 (c) of the Amended JVA provides that
x x x, PEA shall have the duty to execute without delay the necessary deed of
transfer or conveyance of the title pertaining to AMARIs Land share based on
the Land Allocation Plan. PEA, when requested in writing by AMARI, shall
then cause the issuance and delivery of the proper certificates of title covering
AMARIs Land Share in the name of AMARI, x x x; provided, that if more than
seventy percent (70%) of the titled area at any given time pertains to AMARI,
PEA shall deliver to AMARI only seventy percent (70%) of the titles pertaining
to AMARI, until such time when a corresponding proportionate area of
additional land pertaining to PEA has been titled. (Emphasis supplied)
Indisputably, under the Amended JVA AMARI will acquire and own a
maximum of 367.5 hectares of reclaimed land which will be titled in its name.
To implement the Amended JVA, PEA delegated to the unincorporated PEA-
AMARI joint venture PEAs statutory authority, rights and privileges to reclaim
foreshore and submerged areas in Manila Bay. Section 3.2.a of the Amended
JVA states that
PEA hereby contributes to the joint venture its rights and privileges to perform
Rawland Reclamation and Horizontal Development as well as own the
Reclamation Area, thereby granting the Joint Venture the full and exclusive
right, authority and privilege to undertake the Project in accordance with the
Master Development Plan.
The Amended JVA is the product of a renegotiation of the original JVA dated
April 25, 1995 and its supplemental agreement dated August 9, 1995.
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The Threshold Issue
The threshold issue is whether AMARI, a private corporation, can acquire and
own under the Amended JVA 367.5 hectares of reclaimed foreshore and
submerged areas in Manila Bay in view of Sections 2 and 3, Article XII of the
1987 Constitution which state that:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands, all other natural resources shall not be
alienated. x x x.
xxx
Section 3. x x x Alienable lands of the public domain shall be limited to
agricultural lands. Private corporations or associations may not hold such
alienable lands of the public domain except by lease, x x x.(Emphasis supplied)
Classification of Reclaimed Foreshore and Submerged Areas
PEA readily concedes that lands reclaimed from foreshore or submerged areas
of Manila Bay are alienable or disposable lands of the public domain. In its
Memorandum,[67] PEA admits that
Under the Public Land Act (CA 141, as amended), reclaimed lands are
classified as alienable and disposable lands of the public domain:
Sec. 59. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the government by dredging, filling, or other means;
x x x. (Emphasis supplied)
Likewise, the Legal Task Force[68] constituted under Presidential
Administrative Order No. 365 admitted in its Report and Recommendation to
then President Fidel V. Ramos, [R]eclaimed lands are classified as alienable
and disposable lands of the public domain.[69] The Legal Task Force
concluded that
D. Conclusion
Reclaimed lands are lands of the public domain. However, by statutory
authority, the rights of ownership and disposition over reclaimed lands have
been transferred to PEA, by virtue of which PEA, as owner, may validly convey
the same to any qualified person without violating the Constitution or any
statute.
The constitutional provision prohibiting private corporations from holding
public land, except by lease (Sec. 3, Art. XVII,[70] 1987 Constitution), does
not apply to reclaimed lands whose ownership has passed on to PEA by
statutory grant.
Under Section 2, Article XII of the 1987 Constitution, the foreshore and
submerged areas of Manila Bay are part of the lands of the public domain,
waters x x x and other natural resources and consequently owned by the State.
As such, foreshore and submerged areas shall not be alienated, unless they are
classified as agricultural lands of the public domain. The mere reclamation of
these areas by PEA does not convert these inalienable natural resources of the
State into alienable or disposable lands of the public domain. There must be a
law or presidential proclamation officially classifying these reclaimed lands as
alienable or disposable and open to disposition or concession. Moreover, these
reclaimed lands cannot be classified as alienable or disposable if the law has
reserved them for some public or quasi-public use.[71]
Section 8 of CA No. 141 provides that only those lands shall be declared open
to disposition or concession which have been officially delimited and
classified.[72] The President has the authority to classify inalienable lands of
the public domain into alienable or disposable lands of the public domain,
pursuant to Section 6 of CA No. 141. In Laurel vs. Garcia,[73] the Executive
Department attempted to sell the Roppongi property in Tokyo, Japan, which
was acquired by the Philippine Government for use as the Chancery of the
Philippine Embassy. Although the Chancery had transferred to another location
thirteen years earlier, the Court still ruled that, under Article 422[74] of the
Civil Code, a property of public dominion retains such character until formally
declared otherwise. The Court ruled that
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The fact that the Roppongi site has not been used for a long time for actual
Embassy service does not automatically convert it to patrimonial property. Any
such conversion happens only if the property is withdrawn from public use
(Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]. A
property continues to be part of the public domain, not available for private
appropriation or ownership until there is a formal declaration on the part of the
government to withdraw it from being such (Ignacio v. Director of Lands, 108
Phil. 335 [1960]. (Emphasis supplied)
PD No. 1085, issued on February 4, 1977, authorized the issuance of special
land patents for lands reclaimed by PEA from the foreshore or submerged areas
of Manila Bay. On January 19, 1988 then President Corazon C. Aquino issued
Special Patent No. 3517 in the name of PEA for the 157.84 hectares comprising
the partially reclaimed Freedom Islands. Subsequently, on April 9, 1999 the
Register of Deeds of the Municipality of Paranaque issued TCT Nos. 7309,
7311 and 7312 in the name of PEA pursuant to Section 103 of PD No. 1529
authorizing the issuance of certificates of title corresponding to land patents. To
this day, these certificates of title are still in the name of PEA.
PD No. 1085, coupled with President Aquinos actual issuance of a special
patent covering the Freedom Islands, is equivalent to an official proclamation
classifying the Freedom Islands as alienable or disposable lands of the public
domain. PD No. 1085 and President Aquinos issuance of a land patent also
constitute a declaration that the Freedom Islands are no longer needed for public
service. The Freedom Islands are thus alienable or disposable lands of the
public domain, open to disposition or concession to qualified parties.
At the time then President Aquino issued Special Patent No. 3517, PEA had
already reclaimed the Freedom Islands although subsequently there were partial
erosions on some areas. The government had also completed the necessary
surveys on these islands. Thus, the Freedom Islands were no longer part of
Manila Bay but part of the land mass. Section 3, Article XII of the 1987
Constitution classifies lands of the public domain into agricultural, forest or
timber, mineral lands, and national parks. Being neither timber, mineral, nor
national park lands, the reclaimed Freedom Islands necessarily fall under the
classification of agricultural lands of the public domain. Under the 1987
Constitution, agricultural lands of the public domain are the only natural
resources that the State may alienate to qualified private parties. All other
natural resources, such as the seas or bays, are waters x x x owned by the State
forming part of the public domain, and are inalienable pursuant to Section 2,
Article XII of the 1987 Constitution.
AMARI claims that the Freedom Islands are private lands because CDCP, then
a private corporation, reclaimed the islands under a contract dated November
20, 1973 with the Commissioner of Public Highways. AMARI, citing Article 5
of the Spanish Law of Waters of 1866, argues that if the ownership of reclaimed
lands may be given to the party constructing the works, then it cannot be said
that reclaimed lands are lands of the public domain which the State may not
alienate.[75] Article 5 of the Spanish Law of Waters reads as follows:
Article 5. Lands reclaimed from the sea in consequence of works constructed
by the State, or by the provinces, pueblos or private persons, with proper
permission, shall become the property of the party constructing such works,
unless otherwise provided by the terms of the grant of authority. (Emphasis
supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties could
reclaim from the sea only with proper permission from the State. Private parties
could own the reclaimed land only if not otherwise provided by the terms of the
grant of authority. This clearly meant that no one could reclaim from the sea
without permission from the State because the sea is property of public
dominion. It also meant that the State could grant or withhold ownership of the
reclaimed land because any reclaimed land, like the sea from which it emerged,
belonged to the State. Thus, a private person reclaiming from the sea without
permission from the State could not acquire ownership of the reclaimed land
which would remain property of public dominion like the sea it replaced.[76]
Article 5 of the Spanish Law of Waters of 1866 adopted the time-honored
principle of land ownership that all lands that were not acquired from the
government, either by purchase or by grant, belong to the public domain.[77]
Article 5 of the Spanish Law of Waters must be read together with laws
subsequently enacted on the disposition of public lands. In particular, CA No.
141 requires that lands of the public domain must first be classified as alienable
or disposable before the government can alienate them. These lands must not
be reserved for public or quasi-public purposes.[78] Moreover, the contract
between CDCP and the government was executed after the effectivity of the
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1973 Constitution which barred private corporations from acquiring any kind
of alienable land of the public domain. This contract could not have converted
the Freedom Islands into private lands of a private corporation.
Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws
authorizing the reclamation of areas under water and revested solely in the
National Government the power to reclaim lands. Section 1 of PD No. 3-A
declared that
The provisions of any law to the contrary notwithstanding, the reclamation of
areas under water, whether foreshore or inland, shall be limited to the National
Government or any person authorized by it under a proper contract. (Emphasis
supplied)
x x x.
PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because
reclamation of areas under water could now be undertaken only by the National
Government or by a person contracted by the National Government. Private
parties may reclaim from the sea only under a contract with the National
Government, and no longer by grant or permission as provided in Section 5 of
the Spanish Law of Waters of 1866.
Executive Order No. 525, issued on February 14, 1979, designated PEA as the
National Governments implementing arm to undertake all reclamation projects
of the government, which shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity. Under such contract, a private
party receives compensation for reclamation services rendered to PEA.
Payment to the contractor may be in cash, or in kind consisting of portions of
the reclaimed land, subject to the constitutional ban on private corporations
from acquiring alienable lands of the public domain. The reclaimed land can be
used as payment in kind only if the reclaimed land is first classified as alienable
or disposable land open to disposition, and then declared no longer needed for
public service.
The Amended JVA covers not only the Freedom Islands, but also an additional
592.15 hectares which are still submerged and forming part of Manila Bay.
There is no legislative or Presidential act classifying these submerged areas as
alienable or disposable lands of the public domain open to disposition. These
submerged areas are not covered by any patent or certificate of title. There can
be no dispute that these submerged areas form part of the public domain, and
in their present state are inalienable and outside the commerce of man. Until
reclaimed from the sea, these submerged areas are, under the Constitution,
waters x x x owned by the State, forming part of the public domain and
consequently inalienable. Only when actually reclaimed from the sea can these
submerged areas be classified as public agricultural lands, which under the
Constitution are the only natural resources that the State may alienate. Once
reclaimed and transformed into public agricultural lands, the government may
then officially classify these lands as alienable or disposable lands open to
disposition. Thereafter, the government may declare these lands no longer
needed for public service. Only then can these reclaimed lands be considered
alienable or disposable lands of the public domain and within the commerce of
man.
The classification of PEAs reclaimed foreshore and submerged lands into
alienable or disposable lands open to disposition is necessary because PEA is
tasked under its charter to undertake public services that require the use of lands
of the public domain. Under Section 5 of PD No. 1084, the functions of PEA
include the following: [T]o own or operate railroads, tramways and other kinds
of land transportation, x x x; [T]o construct, maintain and operate such systems
of sanitary sewers as may be necessary; [T]o construct, maintain and operate
such storm drains as may be necessary. PEA is empowered to issue rules and
regulations as may be necessary for the proper use by private parties of any or
all of the highways, roads, utilities, buildings and/or any of its properties and to
impose or collect fees or tolls for their use. Thus, part of the reclaimed foreshore
and submerged lands held by the PEA would actually be needed for public use
or service since many of the functions imposed on PEA by its charter constitute
essential public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA shall be
primarily responsible for integrating, directing, and coordinating all
reclamation projects for and on behalf of the National Government. The same
section also states that [A]ll reclamation projects shall be approved by the
President upon recommendation of the PEA, and shall be undertaken by the
PEA or through a proper contract executed by it with any person or entity; x x
x. Thus, under EO No. 525, in relation to PD No. 3-A and PD No.1084, PEA
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became the primary implementing agency of the National Government to
reclaim foreshore and submerged lands of the public domain. EO No. 525
recognized PEA as the government entity to undertake the reclamation of lands
and ensure their maximum utilization in promoting public welfare and
interests.[79] Since large portions of these reclaimed lands would obviously be
needed for public service, there must be a formal declaration segregating
reclaimed lands no longer needed for public service from those still needed for
public service.
Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA shall
belong to or be owned by the PEA, could not automatically operate to classify
inalienable lands into alienable or disposable lands of the public domain.
Otherwise, reclaimed foreshore and submerged lands of the public domain
would automatically become alienable once reclaimed by PEA, whether or not
classified as alienable or disposable.
The Revised Administrative Code of 1987, a later law than either PD No. 1084
or EO No. 525, vests in the Department of Environment and Natural Resources
(DENR for brevity) the following powers and functions:
Sec. 4. Powers and Functions. The Department shall:
(1) x x x
xxx
(4) Exercise supervision and control over forest lands, alienable and disposable
public lands, mineral resources and, in the process of exercising such control,
impose appropriate taxes, fees, charges, rentals and any such form of levy and
collect such revenues for the exploration, development, utilization or gathering
of such resources;
xxx
(14) Promulgate rules, regulations and guidelines on the issuance of licenses,
permits, concessions, lease agreements and such other privileges concerning
the development, exploration and utilization of the countrys marine, freshwater,
and brackish water and over all aquatic resources of the country and shall
continue to oversee, supervise and police our natural resources; cancel or cause
to cancel such privileges upon failure, non-compliance or violations of any
regulation, order, and for all other causes which are in furtherance of the
conservation of natural resources and supportive of the national interest;
(15) Exercise exclusive jurisdiction on the management and disposition of all
lands of the public domain and serve as the sole agency responsible for
classification, sub-classification, surveying and titling of lands in consultation
with appropriate agencies.[80] (Emphasis supplied)
As manager, conservator and overseer of the natural resources of the State,
DENR exercises supervision and control over alienable and disposable public
lands. DENR also exercises exclusive jurisdiction on the management and
disposition of all lands of the public domain. Thus, DENR decides whether
areas under water, like foreshore or submerged areas of Manila Bay, should be
reclaimed or not. This means that PEA needs authorization from DENR before
PEA can undertake reclamation projects in Manila Bay, or in any part of the
country.
DENR also exercises exclusive jurisdiction over the disposition of all lands of
the public domain. Hence, DENR decides whether reclaimed lands of PEA
should be classified as alienable under Sections 6[81] and 7[82] of CA No. 141.
Once DENR decides that the reclaimed lands should be so classified, it then
recommends to the President the issuance of a proclamation classifying the
lands as alienable or disposable lands of the public domain open to disposition.
We note that then DENR Secretary Fulgencio S. Factoran, Jr. countersigned
Special Patent No. 3517 in compliance with the Revised Administrative Code
and Sections 6 and 7 of CA No. 141.
In short, DENR is vested with the power to authorize the reclamation of areas
under water, while PEA is vested with the power to undertake the physical
reclamation of areas under water, whether directly or through private
contractors. DENR is also empowered to classify lands of the public domain
into alienable or disposable lands subject to the approval of the President. On
the other hand, PEA is tasked to develop, sell or lease the reclaimed alienable
lands of the public domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or submerged
areas does not make the reclaimed lands alienable or disposable lands of the
public domain, much less patrimonial lands of PEA. Likewise, the mere transfer
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by the National Government of lands of the public domain to PEA does not
make the lands alienable or disposable lands of the public domain, much less
patrimonial lands of PEA.
Absent two official acts a classification that these lands are alienable or
disposable and open to disposition and a declaration that these lands are not
needed for public service, lands reclaimed by PEA remain inalienable lands of
the public domain. Only such an official classification and formal declaration
can convert reclaimed lands into alienable or disposable lands of the public
domain, open to disposition under the Constitution, Title I and Title III[83] of
CA No. 141 and other applicable laws.[84]
PEAs Authority to Sell Reclaimed Lands
PEA, like the Legal Task Force, argues that as alienable or disposable lands of
the public domain, the reclaimed lands shall be disposed of in accordance with
CA No. 141, the Public Land Act. PEA, citing Section 60 of CA No. 141,
admits that reclaimed lands transferred to a branch or subdivision of the
government shall not be alienated, encumbered, or otherwise disposed of in a
manner affecting its title, except when authorized by Congress: x x x.[85]
(Emphasis by PEA)
In Laurel vs. Garcia,[86] the Court cited Section 48 of the Revised
Administrative Code of 1987, which states that
Sec. 48. Official Authorized to Convey Real Property. Whenever real property
of the Government is authorized by law to be conveyed, the deed of conveyance
shall be executed in behalf of the government by the following: x x x.
Thus, the Court concluded that a law is needed to convey any real property
belonging to the Government. The Court declared that -
It is not for the President to convey real property of the government on his or
her own sole will. Any such conveyance must be authorized and approved by a
law enacted by the Congress. It requires executive and legislative concurrence.
(Emphasis supplied)
PEA contends that PD No. 1085 and EO No. 525 constitute the legislative
authority allowing PEA to sell its reclaimed lands. PD No. 1085, issued on
February 4, 1977, provides that
The land reclaimed in the foreshore and offshore area of Manila Bay pursuant
to the contract for the reclamation and construction of the Manila-Cavite
Coastal Road Project between the Republic of the Philippines and the
Construction and Development Corporation of the Philippines dated November
20, 1973 and/or any other contract or reclamation covering the same area is
hereby transferred, conveyed and assigned to the ownership and administration
of the Public Estates Authority established pursuant to PD No. 1084; Provided,
however, That the rights and interests of the Construction and Development
Corporation of the Philippines pursuant to the aforesaid contract shall be
recognized and respected.
Henceforth, the Public Estates Authority shall exercise the rights and assume
the obligations of the Republic of the Philippines (Department of Public
Highways) arising from, or incident to, the aforesaid contract between the
Republic of the Philippines and the Construction and Development Corporation
of the Philippines.
In consideration of the foregoing transfer and assignment, the Public Estates
Authority shall issue in favor of the Republic of the Philippines the
corresponding shares of stock in said entity with an issued value of said shares
of stock (which) shall be deemed fully paid and non-assessable.
The Secretary of Public Highways and the General Manager of the Public
Estates Authority shall execute such contracts or agreements, including
appropriate agreements with the Construction and Development Corporation of
the Philippines, as may be necessary to implement the above.
Special land patent/patents shall be issued by the Secretary of Natural
Resources in favor of the Public Estates Authority without prejudice to the
subsequent transfer to the contractor or his assignees of such portion or portions
of the land reclaimed or to be reclaimed as provided for in the above-mentioned
contract. On the basis of such patents, the Land Registration Commission shall
issue the corresponding certificate of title. (Emphasis supplied)
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On the other hand, Section 3 of EO No. 525, issued on February 14, 1979,
provides that -
Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA
which shall be responsible for its administration, development, utilization or
disposition in accordance with the provisions of Presidential Decree No. 1084.
Any and all income that the PEA may derive from the sale, lease or use of
reclaimed lands shall be used in accordance with the provisions of Presidential
Decree No. 1084.
There is no express authority under either PD No. 1085 or EO No. 525 for PEA
to sell its reclaimed lands. PD No. 1085 merely transferred ownership and
administration of lands reclaimed from Manila Bay to PEA, while EO No. 525
declared that lands reclaimed by PEA shall belong to or be owned by PEA. EO
No. 525 expressly states that PEA should dispose of its reclaimed lands in
accordance with the provisions of Presidential Decree No. 1084, the charter of
PEA.
PEAs charter, however, expressly tasks PEA to develop, improve, acquire,
administer, deal in, subdivide, dispose, lease and sell any and all kinds of lands
x x x owned, managed, controlled and/or operated by the government.[87]
(Emphasis supplied) There is, therefore, legislative authority granted to PEA to
sell its lands, whether patrimonial or alienable lands of the public domain. PEA
may sell to private parties its patrimonial properties in accordance with the PEA
charter free from constitutional limitations. The constitutional ban on private
corporations from acquiring alienable lands of the public domain does not apply
to the sale of PEAs patrimonial lands.
PEA may also sell its alienable or disposable lands of the public domain to
private individuals since, with the legislative authority, there is no longer any
statutory prohibition against such sales and the constitutional ban does not
apply to individuals. PEA, however, cannot sell any of its alienable or
disposable lands of the public domain to private corporations since Section 3,
Article XII of the 1987 Constitution expressly prohibits such sales. The
legislative authority benefits only individuals. Private corporations remain
barred from acquiring any kind of alienable land of the public domain,
including government reclaimed lands.
The provision in PD No. 1085 stating that portions of the reclaimed lands could
be transferred by PEA to the contractor or his assignees (Emphasis supplied)
would not apply to private corporations but only to individuals because of the
constitutional ban. Otherwise, the provisions of PD No. 1085 would violate
both the 1973 and 1987 Constitutions.
The requirement of public auction in the sale of reclaimed lands
Assuming the reclaimed lands of PEA are classified as alienable or disposable
lands open to disposition, and further declared no longer needed for public
service, PEA would have to conduct a public bidding in selling or leasing these
lands. PEA must observe the provisions of Sections 63 and 67 of CA No. 141
requiring public auction, in the absence of a law exempting PEA from holding
a public auction.[88] Special Patent No. 3517 expressly states that the patent is
issued by authority of the Constitution and PD No. 1084, supplemented by
Commonwealth Act No. 141, as amended. This is an acknowledgment that the
provisions of CA No. 141 apply to the disposition of reclaimed alienable lands
of the public domain unless otherwise provided by law. Executive Order No.
654,[89] which authorizes PEA to determine the kind and manner of payment
for the transfer of its assets and properties, does not exempt PEA from the
requirement of public auction. EO No. 654 merely authorizes PEA to decide
the mode of payment, whether in kind and in installment, but does not authorize
PEA to dispense with public auction.
Moreover, under Section 79 of PD No. 1445, otherwise known as the
Government Auditing Code, the government is required to sell valuable
government property through public bidding. Section 79 of PD No. 1445
mandates that
Section 79. When government property has become unserviceable for any
cause, or is no longer needed, it shall, upon application of the officer
accountable therefor, be inspected by the head of the agency or his duly
authorized representative in the presence of the auditor concerned and, if found
to be valueless or unsaleable, it may be destroyed in their presence. If found to
be valuable, it may be sold at public auction to the highest bidder under the
supervision of the proper committee on award or similar body in the presence
of the auditor concerned or other authorized representative of the Commission,
after advertising by printed notice in the Official Gazette, or for not less than
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three consecutive days in any newspaper of general circulation, or where the
value of the property does not warrant the expense of publication, by notices
posted for a like period in at least three public places in the locality where the
property is to be sold. In the event that the public auction fails, the property may
be sold at a private sale at such price as may be fixed by the same committee or
body concerned and approved by the Commission.
It is only when the public auction fails that a negotiated sale is allowed, in which
case the Commission on Audit must approve the selling price.[90] The
Commission on Audit implements Section 79 of the Government Auditing
Code through Circular No. 89-296[91] dated January 27, 1989. This circular
emphasizes that government assets must be disposed of only through public
auction, and a negotiated sale can be resorted to only in case of failure of public
auction.
At the public auction sale, only Philippine citizens are qualified to bid for PEAs
reclaimed foreshore and submerged alienable lands of the public domain.
Private corporations are barred from bidding at the auction sale of any kind of
alienable land of the public domain.
PEA originally scheduled a public bidding for the Freedom Islands on
December 10, 1991. PEA imposed a condition that the winning bidder should
reclaim another 250 hectares of submerged areas to regularize the shape of the
Freedom Islands, under a 60-40 sharing of the additional reclaimed areas in
favor of the winning bidder.[92] No one, however, submitted a bid. On
December 23, 1994, the Government Corporate Counsel advised PEA it could
sell the Freedom Islands through negotiation, without need of another public
bidding, because of the failure of the public bidding on December 10, 1991.[93]
However, the original JVA dated April 25, 1995 covered not only the Freedom
Islands and the additional 250 hectares still to be reclaimed, it also granted an
option to AMARI to reclaim another 350 hectares. The original JVA, a
negotiated contract, enlarged the reclamation area to 750 hectares.[94] The
failure of public bidding on December 10, 1991, involving only 407.84
hectares,[95] is not a valid justification for a negotiated sale of 750 hectares,
almost double the area publicly auctioned. Besides, the failure of public bidding
happened on December 10, 1991, more than three years before the signing of
the original JVA on April 25, 1995. The economic situation in the country had
greatly improved during the intervening period.
Reclamation under the BOT Law and the Local Government Code
The constitutional prohibition in Section 3, Article XII of the 1987 Constitution
is absolute and clear: Private corporations or associations may not hold such
alienable lands of the public domain except by lease, x x x. Even Republic Act
No. 6957 (BOT Law, for brevity), cited by PEA and AMARI as legislative
authority to sell reclaimed lands to private parties, recognizes the constitutional
ban. Section 6 of RA No. 6957 states
Sec. 6. Repayment Scheme. - For the financing, construction, operation and
maintenance of any infrastructure projects undertaken through the build-
operate-and-transfer arrangement or any of its variations pursuant to the
provisions of this Act, the project proponent x x x may likewise be repaid in the
form of a share in the revenue of the project or other non-monetary payments,
such as, but not limited to, the grant of a portion or percentage of the reclaimed
land, subject to the constitutional requirements with respect to the ownership of
the land: x x x. (Emphasis supplied)
A private corporation, even one that undertakes the physical reclamation of a
government BOT project, cannot acquire reclaimed alienable lands of the
public domain in view of the constitutional ban.
Section 302 of the Local Government Code, also mentioned by PEA and
AMARI, authorizes local governments in land reclamation projects to pay the
contractor or developer in kind consisting of a percentage of the reclaimed land,
to wit:
Section 302. Financing, Construction, Maintenance, Operation, and
Management of Infrastructure Projects by the Private Sector. x x x
xxx
In case of land reclamation or construction of industrial estates, the repayment
plan may consist of the grant of a portion or percentage of the reclaimed land
or the industrial estate constructed.
207 of 692
Although Section 302 of the Local Government Code does not contain a
proviso similar to that of the BOT Law, the constitutional restrictions on land
ownership automatically apply even though not expressly mentioned in the
Local Government Code.
Thus, under either the BOT Law or the Local Government Code, the contractor
or developer, if a corporate entity, can only be paid with leaseholds on portions
of the reclaimed land. If the contractor or developer is an individual, portions
of the reclaimed land, not exceeding 12 hectares[96] of non-agricultural lands,
may be conveyed to him in ownership in view of the legislative authority
allowing such conveyance. This is the only way these provisions of the BOT
Law and the Local Government Code can avoid a direct collision with Section
3, Article XII of the 1987 Constitution.
Registration of lands of the public domain
Finally, PEA theorizes that the act of conveying the ownership of the reclaimed
lands to public respondent PEA transformed such lands of the public domain to
private lands. This theory is echoed by AMARI which maintains that the
issuance of the special patent leading to the eventual issuance of title takes the
subject land away from the land of public domain and converts the property
into patrimonial or private property. In short, PEA and AMARI contend that
with the issuance of Special Patent No. 3517 and the corresponding certificates
of titles, the 157.84 hectares comprising the Freedom Islands have become
private lands of PEA. In support of their theory, PEA and AMARI cite the
following rulings of the Court:
1. Sumail v. Judge of CFI of Cotabato,[97] where the Court held
Once the patent was granted and the corresponding certificate of title was
issued, the land ceased to be part of the public domain and became private
property over which the Director of Lands has neither control nor jurisdiction.
2. Lee Hong Hok v. David,[98] where the Court declared -
After the registration and issuance of the certificate and duplicate certificate of
title based on a public land patent, the land covered thereby automatically
comes under the operation of Republic Act 496 subject to all the safeguards
provided therein.
3. Heirs of Gregorio Tengco v. Heirs of Jose Aliwalas,[99] where the Court
ruled -
While the Director of Lands has the power to review homestead patents, he may
do so only so long as the land remains part of the public domain and continues
to be under his exclusive control; but once the patent is registered and a
certificate of title is issued, the land ceases to be part of the public domain and
becomes private property over which the Director of Lands has neither control
nor jurisdiction.
4. Manalo v. Intermediate Appellate Court,[100] where the Court held
When the lots in dispute were certified as disposable on May 19, 1971, and free
patents were issued covering the same in favor of the private respondents, the
said lots ceased to be part of the public domain and, therefore, the Director of
Lands lost jurisdiction over the same.
5.Republic v. Court of Appeals,[101] where the Court stated
Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally
effected a land grant to the Mindanao Medical Center, Bureau of Medical
Services, Department of Health, of the whole lot, validly sufficient for initial
registration under the Land Registration Act. Such land grant is constitutive of
a fee simple title or absolute title in favor of petitioner Mindanao Medical
Center. Thus, Section 122 of the Act, which governs the registration of grants
or patents involving public lands, provides that Whenever public lands in the
Philippine Islands belonging to the Government of the United States or to the
Government of the Philippines are alienated, granted or conveyed to persons or
to public or private corporations, the same shall be brought forthwith under the
operation of this Act (Land Registration Act, Act 496) and shall become
registered lands.
The first four cases cited involve petitions to cancel the land patents and the
corresponding certificates of titles issued to private parties. These four cases
uniformly hold that the Director of Lands has no jurisdiction over private lands
208 of 692
or that upon issuance of the certificate of title the land automatically comes
under the Torrens System. The fifth case cited involves the registration under
the Torrens System of a 12.8-hectare public land granted by the National
Government to Mindanao Medical Center, a government unit under the
Department of Health. The National Government transferred the 12.8-hectare
public land to serve as the site for the hospital buildings and other facilities of
Mindanao Medical Center, which performed a public service. The Court
affirmed the registration of the 12.8-hectare public land in the name of
Mindanao Medical Center under Section 122 of Act No. 496. This fifth case is
an example of a public land being registered under Act No. 496 without the
land losing its character as a property of public dominion.
In the instant case, the only patent and certificates of title issued are those in the
name of PEA, a wholly government owned corporation performing public as
well as proprietary functions. No patent or certificate of title has been issued to
any private party. No one is asking the Director of Lands to cancel PEAs patent
or certificates of title. In fact, the thrust of the instant petition is that PEAs
certificates of title should remain with PEA, and the land covered by these
certificates, being alienable lands of the public domain, should not be sold to a
private corporation.
Registration of land under Act No. 496 or PD No. 1529 does not vest in the
registrant private or public ownership of the land. Registration is not a mode of
acquiring ownership but is merely evidence of ownership previously conferred
by any of the recognized modes of acquiring ownership. Registration does not
give the registrant a better right than what the registrant had prior to the
registration.[102] The registration of lands of the public domain under the
Torrens system, by itself, cannot convert public lands into private lands.[103]
Jurisprudence holding that upon the grant of the patent or issuance of the
certificate of title the alienable land of the public domain automatically
becomes private land cannot apply to government units and entities like PEA.
The transfer of the Freedom Islands to PEA was made subject to the provisions
of CA No. 141 as expressly stated in Special Patent No. 3517 issued by then
President Aquino, to wit:
NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the
Philippines and in conformity with the provisions of Presidential Decree No.
1084, supplemented by Commonwealth Act No. 141, as amended, there are
hereby granted and conveyed unto the Public Estates Authority the aforesaid
tracts of land containing a total area of one million nine hundred fifteen
thousand eight hundred ninety four (1,915,894) square meters; the technical
description of which are hereto attached and made an integral part hereof.
(Emphasis supplied)
Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters
not covered by PD No. 1084. Section 60 of CA No. 141 prohibits, except when
authorized by Congress, the sale of alienable lands of the public domain that
are transferred to government units or entities. Section 60 of CA No. 141
constitutes, under Section 44 of PD No. 1529, a statutory lien affecting title of
the registered land even if not annotated on the certificate of title.[104]
Alienable lands of the public domain held by government entities under Section
60 of CA No. 141 remain public lands because they cannot be alienated or
encumbered unless Congress passes a law authorizing their disposition.
Congress, however, cannot authorize the sale to private corporations of
reclaimed alienable lands of the public domain because of the constitutional
ban. Only individuals can benefit from such law.
The grant of legislative authority to sell public lands in accordance with Section
60 of CA No. 141 does not automatically convert alienable lands of the public
domain into private or patrimonial lands. The alienable lands of the public
domain must be transferred to qualified private parties, or to government
entities not tasked to dispose of public lands, before these lands can become
private or patrimonial lands. Otherwise, the constitutional ban will become
illusory if Congress can declare lands of the public domain as private or
patrimonial lands in the hands of a government agency tasked to dispose of
public lands. This will allow private corporations to acquire directly from
government agencies limitless areas of lands which, prior to such law, are
concededly public lands.
Under EO No. 525, PEA became the central implementing agency of the
National Government to reclaim foreshore and submerged areas of the public
domain. Thus, EO No. 525 declares that
EXECUTIVE ORDER NO. 525
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Designating the Public Estates Authority as the Agency Primarily Responsible
for all Reclamation Projects
Whereas, there are several reclamation projects which are ongoing or being
proposed to be undertaken in various parts of the country which need to be
evaluated for consistency with national programs;
Whereas, there is a need to give further institutional support to the Governments
declared policy to provide for a coordinated, economical and efficient
reclamation of lands;
Whereas, Presidential Decree No. 3-A requires that all reclamation of areas
shall be limited to the National Government or any person authorized by it
under proper contract;
Whereas, a central authority is needed to act on behalf of the National
Government which shall ensure a coordinated and integrated approach in the
reclamation of lands;
Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as
a government corporation to undertake reclamation of lands and ensure their
maximum utilization in promoting public welfare and interests; and
Whereas, Presidential Decree No. 1416 provides the President with continuing
authority to reorganize the national government including the transfer,
abolition, or merger of functions and offices.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution and
pursuant to Presidential Decree No. 1416, do hereby order and direct the
following:
Section 1. The Public Estates Authority (PEA) shall be primarily responsible
for integrating, directing, and coordinating all reclamation projects for and on
behalf of the National Government. All reclamation projects shall be approved
by the President upon recommendation of the PEA, and shall be undertaken by
the PEA or through a proper contract executed by it with any person or entity;
Provided, that, reclamation projects of any national government agency or
entity authorized under its charter shall be undertaken in consultation with the
PEA upon approval of the President.
xxx.
As the central implementing agency tasked to undertake reclamation projects
nationwide, with authority to sell reclaimed lands, PEA took the place of DENR
as the government agency charged with leasing or selling reclaimed lands of
the public domain. The reclaimed lands being leased or sold by PEA are not
private lands, in the same manner that DENR, when it disposes of other
alienable lands, does not dispose of private lands but alienable lands of the
public domain. Only when qualified private parties acquire these lands will the
lands become private lands. In the hands of the government agency tasked and
authorized to dispose of alienable of disposable lands of the public domain,
these lands are still public, not private lands.
Furthermore, PEAs charter expressly states that PEA shall hold lands of the
public domain as well as any and all kinds of lands. PEA can hold both lands
of the public domain and private lands. Thus, the mere fact that alienable lands
of the public domain like the Freedom Islands are transferred to PEA and issued
land patents or certificates of title in PEAs name does not automatically make
such lands private.
To allow vast areas of reclaimed lands of the public domain to be transferred to
PEA as private lands will sanction a gross violation of the constitutional ban on
private corporations from acquiring any kind of alienable land of the public
domain. PEA will simply turn around, as PEA has now done under the
Amended JVA, and transfer several hundreds of hectares of these reclaimed
and still to be reclaimed lands to a single private corporation in only one
transaction. This scheme will effectively nullify the constitutional ban in
Section 3, Article XII of the 1987 Constitution which was intended to diffuse
equitably the ownership of alienable lands of the public domain among
Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural lands of
the public domain since PEA can acquire x x x any and all kinds of lands. This
will open the floodgates to corporations and even individuals acquiring
hundreds of hectares of alienable lands of the public domain under the guise
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that in the hands of PEA these lands are private lands. This will result in
corporations amassing huge landholdings never before seen in this country -
creating the very evil that the constitutional ban was designed to prevent. This
will completely reverse the clear direction of constitutional development in this
country. The 1935 Constitution allowed private corporations to acquire not
more than 1,024 hectares of public lands.[105] The 1973 Constitution
prohibited private corporations from acquiring any kind of public land, and the
1987 Constitution has unequivocally reiterated this prohibition.
The contention of PEA and AMARI that public lands, once registered under
Act No. 496 or PD No. 1529, automatically become private lands is contrary to
existing laws. Several laws authorize lands of the public domain to be registered
under the Torrens System or Act No. 496, now PD No. 1529, without losing
their character as public lands. Section 122 of Act No. 496, and Section 103 of
PD No. 1529, respectively, provide as follows:
Act No. 496
Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x
x Government of the Philippine Islands are alienated, granted, or conveyed to
persons or the public or private corporations, the same shall be brought
forthwith under the operation of this Act and shall become registered lands.
PD No. 1529
Sec. 103. Certificate of Title to Patents. Whenever public land is by the
Government alienated, granted or conveyed to any person, the same shall be
brought forthwith under the operation of this Decree. (Emphasis supplied)
Based on its legislative history, the phrase conveyed to any person in Section
103 of PD No. 1529 includes conveyances of public lands to public
corporations.
Alienable lands of the public domain granted, donated, or transferred to a
province, municipality, or branch or subdivision of the Government, as
provided in Section 60 of CA No. 141, may be registered under the Torrens
System pursuant to Section 103 of PD No. 1529. Such registration, however, is
expressly subject to the condition in Section 60 of CA No. 141 that the land
shall not be alienated, encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress. This provision refers to
government reclaimed, foreshore and marshy lands of the public domain that
have been titled but still cannot be alienated or encumbered unless expressly
authorized by Congress. The need for legislative authority prevents the
registered land of the public domain from becoming private land that can be
disposed of to qualified private parties.
The Revised Administrative Code of 1987 also recognizes that lands of the
public domain may be registered under the Torrens System. Section 48, Chapter
12, Book I of the Code states
Sec. 48. Official Authorized to Convey Real Property. Whenever real property
of the Government is authorized by law to be conveyed, the deed of conveyance
shall be executed in behalf of the government by the following:
(1) x x x
(2) For property belonging to the Republic of the Philippines, but titled in the
name of any political subdivision or of any corporate agency or instrumentality,
by the executive head of the agency or instrumentality. (Emphasis supplied)
Thus, private property purchased by the National Government for expansion of
a public wharf may be titled in the name of a government corporation regulating
port operations in the country. Private property purchased by the National
Government for expansion of an airport may also be titled in the name of the
government agency tasked to administer the airport. Private property donated
to a municipality for use as a town plaza or public school site may likewise be
titled in the name of the municipality.[106] All these properties become
properties of the public domain, and if already registered under Act No. 496 or
PD No. 1529, remain registered land. There is no requirement or provision in
any existing law for the de-registration of land from the Torrens System.
Private lands taken by the Government for public use under its power of
eminent domain become unquestionably part of the public domain.
Nevertheless, Section 85 of PD No. 1529 authorizes the Register of Deeds to
issue in the name of the National Government new certificates of title covering
such expropriated lands. Section 85 of PD No. 1529 states
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Sec. 85. Land taken by eminent domain. Whenever any registered land, or
interest therein, is expropriated or taken by eminent domain, the National
Government, province, city or municipality, or any other agency or
instrumentality exercising such right shall file for registration in the proper
Registry a certified copy of the judgment which shall state definitely by an
adequate description, the particular property or interest expropriated, the
number of the certificate of title, and the nature of the public use. A
memorandum of the right or interest taken shall be made on each certificate of
title by the Register of Deeds, and where the fee simple is taken, a new
certificate shall be issued in favor of the National Government, province, city,
municipality, or any other agency or instrumentality exercising such right for
the land so taken. The legal expenses incident to the memorandum of
registration or issuance of a new certificate of title shall be for the account of
the authority taking the land or interest therein. (Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD No. 1529 are not
exclusively private or patrimonial lands. Lands of the public domain may also
be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to AMARI
of the Freedom Islands or of the lands to be reclaimed from submerged areas of
Manila Bay. In the words of AMARI, the Amended JVA is not a sale but a joint
venture with a stipulation for reimbursement of the original cost incurred by
PEA for the earlier reclamation and construction works performed by the CDCP
under its 1973 contract with the Republic. Whether the Amended JVA is a sale
or a joint venture, the fact remains that the Amended JVA requires PEA to cause
the issuance and delivery of the certificates of title conveying AMARIs Land
Share in the name of AMARI.[107]
This stipulation still contravenes Section 3, Article XII of the 1987 Constitution
which provides that private corporations shall not hold such alienable lands of
the public domain except by lease. The transfer of title and ownership to
AMARI clearly means that AMARI will hold the reclaimed lands other than by
lease. The transfer of title and ownership is a disposition of the reclaimed lands,
a transaction considered a sale or alienation under CA No. 141,[108] the
Government Auditing Code,[109] and Section 3, Article XII of the 1987
Constitution.
The Regalian doctrine is deeply implanted in our legal system. Foreshore and
submerged areas form part of the public domain and are inalienable. Lands
reclaimed from foreshore and submerged areas also form part of the public
domain and are also inalienable, unless converted pursuant to law into alienable
or disposable lands of the public domain. Historically, lands reclaimed by the
government are sui generis, not available for sale to private parties unlike other
alienable public lands. Reclaimed lands retain their inherent potential as areas
for public use or public service. Alienable lands of the public domain,
increasingly becoming scarce natural resources, are to be distributed equitably
among our ever-growing population. To insure such equitable distribution, the
1973 and 1987 Constitutions have barred private corporations from acquiring
any kind of alienable land of the public domain. Those who attempt to dispose
of inalienable natural resources of the State, or seek to circumvent the
constitutional ban on alienation of lands of the public domain to private
corporations, do so at their own risk.
We can now summarize our conclusions as follows:
1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now
covered by certificates of title in the name of PEA, are alienable lands of the
public domain. PEA may lease these lands to private corporations but may not
sell or transfer ownership of these lands to private corporations. PEA may only
sell these lands to Philippine citizens, subject to the ownership limitations in
the 1987 Constitution and existing laws.
2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable
natural resources of the public domain until classified as alienable or disposable
lands open to disposition and declared no longer needed for public service. The
government can make such classification and declaration only after PEA has
reclaimed these submerged areas. Only then can these lands qualify as
agricultural lands of the public domain, which are the only natural resources the
government can alienate. In their present state, the 592.15 hectares of
submerged areas are inalienable and outside the commerce of man.
3. Since the Amended JVA seeks to transfer to AMARI, a private corporation,
ownership of 77.34 hectares[110] of the Freedom Islands, such transfer is void
for being contrary to Section 3, Article XII of the 1987 Constitution which
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prohibits private corporations from acquiring any kind of alienable land of the
public domain.
4. Since the Amended JVA also seeks to transfer to AMARI ownership of
290.156 hectares[111] of still submerged areas of Manila Bay, such transfer is
void for being contrary to Section 2, Article XII of the 1987 Constitution which
prohibits the alienation of natural resources other than agricultural lands of the
public domain. PEA may reclaim these submerged areas. Thereafter, the
government can classify the reclaimed lands as alienable or disposable, and
further declare them no longer needed for public service. Still, the transfer of
such reclaimed alienable lands of the public domain to AMARI will be void in
view of Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.
Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of
the 1987 Constitution. Under Article 1409[112] of the Civil Code, contracts
whose object or purpose is contrary to law, or whose object is outside the
commerce of men, are inexistent and void from the beginning. The Court must
perform its duty to defend and uphold the Constitution, and therefore declares
the Amended JVA null and void ab initio.
Seventh issue: whether the Court is the proper forum to raise the issue of
whether the Amended JVA is grossly disadvantageous to the government.
Considering that the Amended JVA is null and void ab initio, there is no
necessity to rule on this last issue. Besides, the Court is not a trier of facts, and
this last issue involves a determination of factual matters.
WHEREFORE, the petition is GRANTED. The Public Estates Authority and
Amari Coastal Bay Development Corporation are PERMANENTLY
ENJOINED from implementing the Amended Joint Venture Agreement which
is hereby declared NULL and VOID ab initio.
SO ORDERED.
KMU Labor Center v. Garcia
G.R. No. 115381 (December 23, 1994)
G.R. No. 115381 December 23, 1994
KILUSANG MAYO UNO LABOR CENTER, petitioner,
vs.
HON. JESUS B. GARCIA, JR., the LAND TRANSPORTATION
FRANCHISING AND REGULATORY BOARD, and the PROVINCIAL BUS
OPERATORS ASSOCIATION OF THE PHILIPPINES, respondents.
Potenciano A. Flores for petitioner.
Robert Anthony C. Sison, Cesar B. Brillantes and Jose Z. Galsim for private
respondent.
Jose F. Miravite for movants.
KAPUNAN, J.:
Public utilities are privately owned and operated businesses whose service are
essential to the general public. They are enterprises which specially cater to the
needs of the public and conduce to their comfort and convenience. As such,
public utility services are impressed with public interest and concern. The same
is true with respect to the business of common carrier which holds such a
peculiar relation to the public interest that there is superinduced upon it the right
of public regulation when private properties are affected with public interest,
hence, they cease to be juris privati only. When, therefore, one devotes his
property to a use in which the public has an interest, he, in effect grants to the
public an interest in that use, and must submit to the control by the public for
the common good, to the extent of the interest he has thus created. 1
An abdication of the licensing and regulatory government agencies of their
functions as the instant petition seeks to show, is indeed lamentable. Not only
is it an unsound administrative policy but it is inimical to public trust and public
interest as well.
213 of 692
The instant petition for certiorari assails the constitutionality and validity of
certain memoranda, circulars and/or orders of the Department of Transportation
and Communications (DOTC) and the Land Transportation Franchising and
Regulatory Board LTFRB) 2 which, among others, (a) authorize provincial bus
and jeepney operators to increase or decrease the prescribed transportation fares
without application therefor with the LTFRB and without hearing and approval
thereof by said agency in violation of Sec. 16(c) of Commonwealth Act No.
146, as amended, otherwise known as the Public Service Act, and in derogation
of LTFRB's duty to fix and determine just and reasonable fares by delegating
that function to bus operators, and (b) establish a presumption of public need in
favor of applicants for certificates of public convenience (CPC) and place on
the oppositor the burden of proving that there is no need for the proposed
service, in patent violation not only of Sec. 16(c) of CA 146, as amended, but
also of Sec. 20(a) of the same Act mandating that fares should be "just and
reasonable." It is, likewise, violative of the Rules of Court which places upon
each party the burden to prove his own affirmative allegations. 3 The offending
provisions contained in the questioned issuances pointed out by petitioner, have
resulted in the introduction into our highways and thoroughfares thousands of
old and smoke-belching buses, many of which are right-hand driven, and have
exposed our consumers to the burden of spiraling costs of public transportation
without hearing and due process.
The following memoranda, circulars and/or orders are sought to be nullified by
the instant petition, viz: (a) DOTC Memorandum Order 90-395, dated June 26,
1990 relative to the implementation of a fare range scheme for provincial bus
services in the country; (b) DOTC Department Order No.
92-587, dated March 30, 1992, defining the policy framework on the regulation
of transport services; (c) DOTC Memorandum dated October 8, 1992, laying
down rules and procedures to implement Department Order No. 92-587; (d)
LTFRB Memorandum Circular No. 92-009, providing implementing
guidelines on the DOTC Department Order No. 92-587; and (e) LTFRB Order
dated March 24, 1994 in Case No. 94-3112.
The relevant antecedents are as follows:
On June 26, 1990; then Secretary of DOTC, Oscar M. Orbos, issued
Memorandum Circular No. 90-395 to then LTFRB Chairman, Remedios A.S.
Fernando allowing provincial bus operators to charge passengers rates within a
range of 15% above and 15% below the LTFRB official rate for a period of one
(1) year. The text of the memorandum order reads in full:
One of the policy reforms and measures that is in line with the thrusts and the
priorities set out in the Medium-Term Philippine Development Plan (MTPDP)
1987 — 1992) is the liberalization of regulations in the transport sector. Along
this line, the Government intends to move away gradually from regulatory
policies and make progress towards greater reliance on free market forces.
Based on several surveys and observations, bus companies are already charging
passenger rates above and below the official fare declared by LTFRB on many
provincial routes. It is in this context that some form of liberalization on public
transport fares is to be tested on a pilot basis.
In view thereof, the LTFRB is hereby directed to immediately publicize a fare
range scheme for all provincial bus routes in country (except those operating
within Metro Manila). Transport Operators shall be allowed to charge
passengers within a range of fifteen percent (15%) above and fifteen percent
(15%) below the LTFRB official rate for a period of one year.
Guidelines and procedures for the said scheme shall be prepared by LTFRB in
coordination with the DOTC Planning Service.
The implementation of the said fare range scheme shall start on 6 August 1990.
For compliance. (Emphasis ours.)
Finding the implementation of the fare range scheme "not legally feasible,"
Remedios A.S. Fernando submitted the following memorandum to Oscar M.
Orbos on July 24, 1990, to wit:
With reference to DOTC Memorandum Order No. 90-395 dated 26 June 1990
which the LTFRB received on 19 July 1990, directing the Board "to
immediately publicize a fare range scheme for all provincial bus routes in the
country (except those operating within Metro Manila)" that will allow operators
"to charge passengers within a range of fifteen percent (15%) above and fifteen
percent (15%) below the LTFRB official rate for a period of one year" the
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undersigned is respectfully adverting the Secretary's attention to the following
for his consideration:
1. Section 16(c) of the Public Service Act prescribes the following for the
fixing and determination of rates — (a) the rates to be approved should be
proposed by public service operators; (b) there should be a publication and
notice to concerned or affected parties in the territory affected; (c) a public
hearing should be held for the fixing of the rates; hence, implementation of the
proposed fare range scheme on August 6 without complying with the
requirements of the Public Service Act may not be legally feasible.
2. To allow bus operators in the country to charge fares fifteen (15%)
above the present LTFRB fares in the wake of the devastation, death and
suffering caused by the July 16 earthquake will not be socially warranted and
will be politically unsound; most likely public criticism against the DOTC and
the LTFRB will be triggered by the untimely motu propio implementation of
the proposal by the mere expedient of publicizing the fare range scheme without
calling a public hearing, which scheme many as early as during the Secretary's
predecessor know through newspaper reports and columnists' comments to be
Asian Development Bank and World Bank inspired.
3. More than inducing a reduction in bus fares by fifteen percent (15%)
the implementation of the proposal will instead trigger an upward adjustment
in bus fares by fifteen percent (15%) at a time when hundreds of thousands of
people in Central and Northern Luzon, particularly in Central Pangasinan, La
Union, Baguio City, Nueva Ecija, and the Cagayan Valley are suffering from
the devastation and havoc caused by the recent earthquake.
On December 5, 1990, private respondent Provincial Bus Operators
Association of the Philippines, Inc. (PBOAP) filed an application for fare rate
increase. An across-the-board increase of eight and a half centavos (P0.085) per
kilometer for all types of provincial buses with a minimum-maximum fare
range of fifteen (15%) percent over and below the proposed basic per kilometer
fare rate, with the said minimum-maximum fare range applying only to
ordinary, first class and premium class buses and a fifty-centavo (P0.50)
minimum per kilometer fare for aircon buses, was sought.
On December 6, 1990, private respondent PBOAP reduced its applied proposed
fare to an across-the-board increase of six and a half (P0.065) centavos per
kilometer for ordinary buses. The decrease was due to the drop in the expected
price of diesel.
The application was opposed by the Philippine Consumers Foundation, Inc. and
Perla C. Bautista alleging that the proposed rates were exorbitant and
unreasonable and that the application contained no allegation on the rate of
return of the proposed increase in rates.
On December 14, 1990, public respondent LTFRB rendered a decision granting
the fare rate increase in accordance with the following schedule of fares on a
straight computation method, viz:
AUTHORIZED FARES
LUZON
MIN. OF 5 KMS. SUCCEEDING KM.

4. In lieu of the said proposal, the DOTC with its agencies involved in REGULAR P1.50 P0.37
public transportation can consider measures and reforms in the industry that STUDENT P1.15 P0.28
will be socially uplifting, especially for the people in the areas devastated by
the recent earthquake. VISAYAS/MINDANAO

In view of the foregoing considerations, the undersigned respectfully suggests REGULAR P1.60 P0.375
that the implementation of the proposed fare range scheme this year be further STUDENT P1.20 P0.285
studied and evaluated. FIRST CLASS (PER KM.)
LUZON P0.385
VISAYAS/
215 of 692
MINDANAO P0.395
PREMIERE CLASS (PER KM.)
LUZON P0.395
VISAYAS/
MINDANAO P0.405
AIRCON (PER KM.) P0.415. 4
On March 30, 1992, then Secretary of the Department of Transportation and
Communications Pete Nicomedes Prado issued Department Order No.
92-587 defining the policy framework on the regulation of transport services.
The full text of the said order is reproduced below in view of the importance of
the provisions contained therein:
WHEREAS, Executive Order No. 125 as amended, designates the Department
of Transportation and Communications (DOTC) as the primary policy,
planning, regulating and implementing agency on transportation;
WHEREAS, to achieve the objective of a viable, efficient, and dependable
transportation system, the transportation regulatory agencies under or attached
to the DOTC have to harmonize their decisions and adopt a common
philosophy and direction;
WHEREAS, the government proposes to build on the successful liberalization
measures pursued over the last five years and bring the transport sector nearer
to a balanced longer term regulatory framework;
NOW, THEREFORE, pursuant to the powers granted by laws to the DOTC,
the following policies and principles in the economic regulation of land, air,
and water transportation services are hereby adopted:
1. Entry into and exit out of the industry. Following the Constitutional
dictum against monopoly, no franchise holder shall be permitted to maintain a
monopoly on any route. A minimum of two franchise holders shall be permitted
to operate on any route.
The requirements to grant a certificate to operate, or certificate of public
convenience, shall be: proof of Filipino citizenship, financial capability, public
need, and sufficient insurance cover to protect the riding public.
In determining public need, the presumption of need for a service shall be
deemed in favor of the applicant. The burden of proving that there is no need
for a proposed service shall be with the oppositor(s).
In the interest of providing efficient public transport services, the use of the
"prior operator" and the "priority of filing" rules shall be discontinued. The
route measured capacity test or other similar tests of demand for vehicle/vessel
fleet on any route shall be used only as a guide in weighing the merits of each
franchise application and not as a limit to the services offered.
Where there are limitations in facilities, such as congested road space in urban
areas, or at airports and ports, the use of demand management measures in
conformity with market principles may be considered.
The right of an operator to leave the industry is recognized as a business
decision, subject only to the filing of appropriate notice and following a phase-
out period, to inform the public and to minimize disruption of services.
2. Rate and Fare Setting. Freight rates shall be freed gradually from
government controls. Passenger fares shall also be deregulated, except for the
lowest class of passenger service (normally third class passenger transport) for
which the government will fix indicative or reference fares. Operators of
particular services may fix their own fares within a range 15% above and below
the indicative or reference rate.
Where there is lack of effective competition for services, or on specific routes,
or for the transport of particular commodities, maximum mandatory freight
rates or passenger fares shall be set temporarily by the government pending
actions to increase the level of competition.
For unserved or single operator routes, the government shall contract such
services in the most advantageous terms to the public and the government,
following public bids for the services. The advisability of bidding out the
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services or using other kinds of incentives on such routes shall be studied by
the government. xxx xxx xxx

3. Special Incentives and Financing for Fleet Acquisition. As a matter of IV. Policy Guidelines on the Issuance of Certificate of Public Convenience.
policy, the government shall not engage in special financing and incentive
programs, including direct subsidies for fleet acquisition and expansion. Only The issuance of a Certificate of Public Convenience is determined by public
when the market situation warrants government intervention shall programs of need. The presumption of public need for a service shall be deemed in favor of
this type be considered. Existing programs shall be phased out gradually. the applicant, while burden of proving that there is no need for the proposed
service shall be the oppositor'(s).
The Land Transportation Franchising and Regulatory Board, the Civil
Aeronautics Board, the Maritime Industry Authority are hereby directed to xxx xxx xxx
submit to the Office of the Secretary, within forty-five (45) days of this Order,
the detailed rules and procedures for the Implementation of the policies herein V. Rate and Fare Setting
set forth. In the formulation of such rules, the concerned agencies shall be
guided by the most recent studies on the subjects, such as the Provincial Road The control in pricing shall be liberalized to introduce price competition
Passenger Transport Study, the Civil Aviation Master Plan, the Presidential complementary with the quality of service, subject to prior notice and public
Task Force on the Inter-island Shipping Industry, and the Inter-island Liner hearing. Fares shall not be provisionally authorized without public hearing.
Shipping Rate Rationalization Study.
A. On the General Structure of Rates
For the compliance of all concerned. (Emphasis ours)
1. The existing authorized fare range system of plus or minus 15 per cent
On October 8, 1992, public respondent Secretary of the Department of for provincial buses and jeepneys shall be widened to 20% and -25% limit in
Transportation and Communications Jesus B. Garcia, Jr. issued a memorandum 1994 with the authorized fare to be replaced by an indicative or reference rate
to the Acting Chairman of the LTFRB suggesting swift action on the adoption as the basis for the expanded fare range.
of rules and procedures to implement above-quoted Department Order No. 92-
587 that laid down deregulation and other liberalization policies for the 2. Fare systems for aircon buses are liberalized to cover first class and
transport sector. Attached to the said memorandum was a revised draft of the premier services.
required rules and procedures covering (i) Entry Into and Exit Out of the
Industry and (ii) Rate and Fare Setting, with comments and suggestions from xxx xxx xxx
the World Bank incorporated therein. Likewise, resplendent from the said
memorandum is the statement of the DOTC Secretary that the adoption of the (Emphasis ours).
rules and procedures is a pre-requisite to the approval of the Economic
Integration Loan from the World Bank. 5 Sometime in March, 1994, private respondent PBOAP, availing itself of the
deregulation policy of the DOTC allowing provincial bus operators to collect
On February 17, 1993, the LTFRB issued Memorandum Circular plus 20% and minus 25% of the prescribed fare without first having filed a
No. 92-009 promulgating the guidelines for the implementation of DOTC petition for the purpose and without the benefit of a public hearing, announced
Department Order No. 92-587. The Circular provides, among others, the a fare increase of twenty (20%) percent of the existing fares. Said increased
following challenged portions: fares were to be made effective on March 16, 1994.
217 of 692

On March 16, 1994, petitioner KMU filed a petition before the LTFRB
opposing the upward adjustment of bus fares.
On March 24, 1994, the LTFRB issued one of the assailed orders dismissing
the petition for lack of merit. The dispositive portion reads:
PREMISES CONSIDERED, this Board after considering the arguments of the
parties, hereby DISMISSES FOR LACK OF MERIT the petition filed in the
above-entitled case. This petition in this case was resolved with dispatch at the
request of petitioner to enable it to immediately avail of the legal remedies or
options it is entitled under existing laws.
SO ORDERED. 6
Hence, the instant petition for certiorari with an urgent prayer for issuance of a
temporary restraining order.
The Court, on June 20, 1994, issued a temporary restraining order enjoining,
prohibiting and preventing respondents from implementing the bus fare rate
increase as well as the questioned orders and memorandum circulars. This
meant that provincial bus fares were rolled back to the levels duly authorized
by the LTFRB prior to March 16, 1994. A moratorium was likewise enforced
on the issuance of franchises for the operation of buses, jeepneys, and taxicabs.
Petitioner KMU anchors its claim on two (2) grounds. First, the authority given
by respondent LTFRB to provincial bus operators to set a fare range of plus or
minus fifteen (15%) percent, later increased to plus twenty (20%) and minus
twenty-five (-25%) percent, over and above the existing authorized fare without
having to file a petition for the purpose, is unconstitutional, invalid and illegal.
Second, the establishment of a presumption of public need in favor of an
applicant for a proposed transport service without having to prove public
necessity, is illegal for being violative of the Public Service Act and the Rules
of Court.
In its Comment, private respondent PBOAP, while not actually touching upon
the issues raised by the petitioner, questions the wisdom and the manner by
which the instant petition was filed. It asserts that the petitioner has no legal
standing to sue or has no real interest in the case at bench and in obtaining the
reliefs prayed for.
In their Comment filed by the Office of the Solicitor General, public
respondents DOTC Secretary Jesus B. Garcia, Jr. and the LTFRB asseverate
that the petitioner does not have the standing to maintain the instant suit. They
further claim that it is within DOTC and LTFRB's authority to set a fare range
scheme and establish a presumption of public need in applications for
certificates of public convenience.
We find the instant petition impressed with merit.
At the outset, the threshold issue of locus standi must be struck. Petitioner KMU
has the standing to sue.
The requirement of locus standi inheres from the definition of judicial power.
Section 1 of Article VIII of the Constitution provides:
xxx xxx xxx
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
In Lamb v. Phipps, 7 we ruled that judicial power is the power to hear and
decide causes pending between parties who have the right to sue in the courts
of law and equity. Corollary to this provision is the principle of locus standi of
a party litigant. One who is directly affected by and whose interest is immediate
and substantial in the controversy has the standing to sue. The rule therefore
requires that a party must show a personal stake in the outcome of the case or
an injury to himself that can be redressed by a favorable decision so as to
warrant an invocation of the court's jurisdiction and to justify the exercise of
the court's remedial powers in his behalf. 8
In the case at bench, petitioner, whose members had suffered and continue to
suffer grave and irreparable injury and damage from the implementation of the
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questioned memoranda, circulars and/or orders, has shown that it has a clear
legal right that was violated and continues to be violated with the enforcement
of the challenged memoranda, circulars and/or orders. KMU members, who
avail of the use of buses, trains and jeepneys everyday, are directly affected by
the burdensome cost of arbitrary increase in passenger fares. They are part of
the millions of commuters who comprise the riding public. Certainly, their
rights must be protected, not neglected nor ignored.
Assuming arguendo that petitioner is not possessed of the standing to sue, this
court is ready to brush aside this barren procedural infirmity and recognize the
legal standing of the petitioner in view of the transcendental importance of the
issues raised. And this act of liberality is not without judicial precedent. As
early as the Emergency Powers Cases, this Court had exercised its discretion
and waived the requirement of proper party. In the recent case of Kilosbayan,
Inc., et al. v. Teofisto Guingona, Jr., et al., 9 we ruled in the same lines and
enumerated some of the cases where the same policy was adopted, viz:
. . . A party's standing before this Court is a procedural technicality which it
may, in the exercise of its discretion, set aside in view of the importance of the
issues raised. In the landmark Emergency Powers Cases, [G.R. No. L-2044
(Araneta v. Dinglasan); G.R. No. L-2756 (Araneta
v. Angeles); G.R. No. L-3054 (Rodriguez v. Tesorero de Filipinas); G.R. No.
L-3055 (Guerrero v. Commissioner of Customs); and G.R. No. L-3056
(Barredo v. Commission on Elections), 84 Phil. 368 (1949)], this Court brushed
aside this technicality because "the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No.
L-2621)." Insofar as taxpayers' suits are concerned, this Court had declared that
it "is not devoid of discretion as to whether or not it should be entertained,"
(Tan v. Macapagal, 43 SCRA 677, 680 [1972]) or that it "enjoys an open
discretion to entertain the same or not." [Sanidad v. COMELEC, 73 SCRA 333
(1976)].
xxx xxx xxx
In line with the liberal policy of this Court on locus standi, ordinary taxpayers,
members of Congress, and even association of planters, and
non-profit civic organizations were allowed to initiate and prosecute actions
before this court to question the constitutionality or validity of laws, acts,
decisions, rulings, or orders of various government agencies or
instrumentalities. Among such cases were those assailing the constitutionality
of (a) R.A. No. 3836 insofar as it allows retirement gratuity and commutation
of vacation and sick leave to Senators and Representatives and to elective
officials of both Houses of Congress (Philippine Constitution Association, Inc.
v. Gimenez, 15 SCRA 479 [1965]); (b) Executive Order No. 284, issued by
President Corazon C. Aquino on 25 July 1987, which allowed members of the
cabinet, their undersecretaries, and assistant secretaries to hold other
government offices or positions (Civil Liberties Union v. Executive Secretary,
194 SCRA 317 [1991]); (c) the automatic appropriation for debt service in the
General Appropriations Act (Guingona v. Carague, 196 SCRA 221 [1991]; (d)
R.A. No. 7056 on the holding of desynchronized elections (Osmeña v.
Commission on Elections, 199 SCRA 750 [1991]); (e) P.D. No. 1869 (the
charter of the Philippine Amusement and Gaming Corporation) on the ground
that it is contrary to morals, public policy, and order (Basco v. Philippine
Amusement and Gaming Corp., 197 SCRA 52 [1991]); and (f) R.A. No. 6975,
establishing the Philippine National Police. (Carpio v. Executive Secretary, 206
SCRA 290 [1992]).
Other cases where we have followed a liberal policy regarding locus standi
include those attacking the validity or legality of (a) an order allowing the
importation of rice in the light of the prohibition imposed by R.A. No. 3452
(Iloilo Palay and Corn Planters Association, Inc. v. Feliciano, 13 SCRA 377
[1965]; (b) P.D. Nos. 991 and 1033 insofar as they proposed amendments to
the Constitution and P.D. No. 1031 insofar as it directed the COMELEC to
supervise, control, hold, and conduct the referendum-plebiscite on 16 October
1976 (Sanidad v. Commission on Elections, supra); (c) the bidding for the sale
of the 3,179 square meters of land at Roppongi, Minato-ku, Tokyo, Japan
(Laurel v. Garcia, 187 SCRA 797 [1990]); (d) the approval without hearing by
the Board of Investments of the amended application of the Bataan
Petrochemical Corporation to transfer the site of its plant from Bataan to
Batangas and the validity of such transfer and the shift of feedstock from
naphtha only to naphtha and/or liquefied petroleum gas (Garcia v. Board of
Investments, 177 SCRA 374 [1989]; Garcia v. Board of Investments, 191
SCRA 288 [1990]); (e) the decisions, orders, rulings, and resolutions of the
Executive Secretary, Secretary of Finance, Commissioner of Internal Revenue,
219 of 692
Commissioner of Customs, and the Fiscal Incentives Review Board exempting
the National Power Corporation from indirect tax and duties (Maceda v.
Macaraig, 197 SCRA 771 [1991]); (f) the orders of the Energy Regulatory
Board of 5 and 6 December 1990 on the ground that the hearings conducted on
the second provisional increase in oil prices did not allow the petitioner
substantial cross-examination; (Maceda v. Energy Regulatory Board, 199
SCRA 454 [1991]); (g) Executive Order No. 478 which levied a special duty of
P0.95 per liter of imported oil products (Garcia v. Executive Secretary, 211
SCRA 219 [1992]); (h) resolutions of the Commission on Elections concerning
the apportionment, by district, of the number of elective members of
Sanggunians (De Guia vs. Commission on Elections, 208 SCRA 420 [1992]);
and (i) memorandum orders issued by a Mayor affecting the Chief of Police of
Pasay City (Pasay Law and Conscience Union, Inc. v. Cuneta, 101 SCRA 662
[1980]).
In the 1975 case of Aquino v. Commission on Elections (62 SCRA 275 [1975]),
this Court, despite its unequivocal ruling that the petitioners therein had no
personality to file the petition, resolved nevertheless to pass upon the issues
raised because of the far-reaching implications of the petition. We did no less
in De Guia v. COMELEC (Supra) where, although we declared that De Guia
"does not appear to have locus standi, a standing in law, a personal or
substantial interest," we brushed aside the procedural infirmity "considering the
importance of the issue involved, concerning as it does the political exercise of
qualified voters affected by the apportionment, and petitioner alleging abuse of
discretion and violation of the Constitution by respondent."
Now on the merits of the case.
On the fare range scheme.
Section 16(c) of the Public Service Act, as amended, reads:
Sec. 16. Proceedings of the Commission, upon notice and hearing. — The
Commission shall have power, upon proper notice and hearing in accordance
with the rules and provisions of this Act, subject to the limitations and
exceptions mentioned and saving provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, tolls, charges,
classifications, or schedules thereof, as well as commutation, mileage
kilometrage, and other special rates which shall be imposed, observed, and
followed thereafter by any public service: Provided, That the Commission may,
in its discretion, approve rates proposed by public services provisionally and
without necessity of any hearing; but it shall call a hearing thereon within thirty
days thereafter, upon publication and notice to the concerns operating in the
territory affected: Provided, further, That in case the public service equipment
of an operator is used principally or secondarily for the promotion of a private
business, the net profits of said private business shall be considered in relation
with the public service of such operator for the purpose of fixing the rates.
(Emphasis ours).
xxx xxx xxx
Under the foregoing provision, the Legislature delegated to the defunct Public
Service Commission the power of fixing the rates of public services.
Respondent LTFRB, the existing regulatory body today, is likewise vested with
the same under Executive Order No. 202 dated June 19, 1987. Section 5(c) of
the said executive order authorizes LTFRB "to determine, prescribe, approve
and periodically review and adjust, reasonable fares, rates and other related
charges, relative to the operation of public land transportation services provided
by motorized vehicles."
Such delegation of legislative power to an administrative agency is permitted
in order to adapt to the increasing complexity of modern life. As subjects for
governmental regulation multiply, so does the difficulty of administering the
laws. Hence, specialization even in legislation has become necessary. Given the
task of determining sensitive and delicate matters as
route-fixing and rate-making for the transport sector, the responsible regulatory
body is entrusted with the power of subordinate legislation. With this authority,
an administrative body and in this case, the LTFRB, may implement broad
policies laid down in a statute by "filling in" the details which the Legislature
may neither have time or competence to provide. However, nowhere under the
aforesaid provisions of law are the regulatory bodies, the PSC and LTFRB
alike, authorized to delegate that power to a common carrier, a transport
operator, or other public service.
220 of 692

In the case at bench, the authority given by the LTFRB to the provincial bus
operators to set a fare range over and above the authorized existing fare, is
illegal and invalid as it is tantamount to an undue delegation of legislative
authority. Potestas delegata non delegari potest. What has been delegated
cannot be delegated. This doctrine is based on the ethical principle that such a
delegated power constitutes not only a right but a duty to be performed by the
delegate through the instrumentality of his own judgment and not through the
intervening mind of another. 10 A further delegation of such power would
indeed constitute a negation of the duty in violation of the trust reposed in the
delegate mandated to discharge it directly. 11 The policy of allowing the
provincial bus operators to change and increase their fares at will would result
not only to a chaotic situation but to an anarchic state of affairs. This would
leave the riding public at the mercy of transport operators who may increase
fares every hour, every day, every month or every year, whenever it pleases
them or whenever they deem it "necessary" to do so. In Panay Autobus Co. v.
Philippine Railway Co., 12 where respondent Philippine Railway Co. was
granted by the Public Service Commission the authority to change its freight
rates at will, this Court categorically declared that:
In our opinion, the Public Service Commission was not authorized by law to
delegate to the Philippine Railway Co. the power of altering its freight rates
whenever it should find it necessary to do so in order to meet the competition
of road trucks and autobuses, or to change its freight rates at will, or to regard
its present rates as maximum rates, and to fix lower rates whenever in the
opinion of the Philippine Railway Co. it would be to its advantage to do so.
The mere recital of the language of the application of the Philippine Railway
Co. is enough to show that it is untenable. The Legislature has delegated to the
Public Service Commission the power of fixing the rates of public services, but
it has not authorized the Public Service Commission to delegate that power to
a common carrier or other public service. The rates of public services like the
Philippine Railway Co. have been approved or fixed by the Public Service
Commission, and any change in such rates must be authorized or approved by
the Public Service Commission after they have been shown to be just and
reasonable. The public service may, of course, propose new rates, as the
Philippine Railway Co. did in case No. 31827, but it cannot lawfully make said
new rates effective without the approval of the Public Service Commission, and
the Public Service Commission itself cannot authorize a public service to
enforce new rates without the prior approval of said rates by the commission.
The commission must approve new rates when they are submitted to it, if the
evidence shows them to be just and reasonable, otherwise it must disapprove
them. Clearly, the commission cannot determine in advance whether or not the
new rates of the Philippine Railway Co. will be just and reasonable, because it
does not know what those rates will be.
In the present case the Philippine Railway Co. in effect asked for permission to
change its freight rates at will. It may change them every day or every hour,
whenever it deems it necessary to do so in order to meet competition or
whenever in its opinion it would be to its advantage. Such a procedure would
create a most unsatisfactory state of affairs and largely defeat the purposes of
the public service law. 13 (Emphasis ours).
One veritable consequence of the deregulation of transport fares is a
compounded fare. If transport operators will be authorized to impose and
collect an additional amount equivalent to 20% over and above the authorized
fare over a period of time, this will unduly prejudice a commuter who will be
made to pay a fare that has been computed in a manner similar to those of
compounded bank interest rates.
Picture this situation. On December 14, 1990, the LTFRB authorized provincial
bus operators to collect a thirty-seven (P0.37) centavo per kilometer fare for
ordinary buses. At the same time, they were allowed to impose and collect a
fare range of plus or minus 15% over the authorized rate. Thus P0.37 centavo
per kilometer authorized fare plus P0.05 centavos (which is 15% of P0.37
centavos) is equivalent to P0.42 centavos, the allowed rate in 1990. Supposing
the LTFRB grants another five (P0.05) centavo increase per kilometer in 1994,
then, the base or reference for computation would have to be P0.47 centavos
(which is P0.42 + P0.05 centavos). If bus operators will exercise their authority
to impose an additional 20% over and above the authorized fare, then the fare
to be collected shall amount to P0.56 (that is, P0.47 authorized LTFRB rate plus
20% of P0.47 which is P0.29). In effect, commuters will be continuously
subjected, not only to a double fare adjustment but to a compounding fare as
well. On their part, transport operators shall enjoy a bigger chunk of the pie.
Aside from fare increase applied for, they can still collect an additional amount
221 of 692
by virtue of the authorized fare range. Mathematically, the situation translates
into the following:
Year** LTFRB authorized Fare Range Fare to be
rate*** collected per
kilometer
1990 P0.37 15% (P0.05) P0.42
1994 P0.42 + 0.05 = 0.47 20% (P0.09) P0.56
1998 P0.56 + 0.05 = 0.61 20% (P0.12) P0.73
2002 P0.73 + 0.05 = 0.78 20% (P0.16) P0.94
Moreover, rate making or rate fixing is not an easy task. It is a delicate and
sensitive government function that requires dexterity of judgment and sound
discretion with the settled goal of arriving at a just and reasonable rate
acceptable to both the public utility and the public. Several factors, in fact, have
to be taken into consideration before a balance could be achieved. A rate should
not be confiscatory as would place an operator in a situation where he will
continue to operate at a loss. Hence, the rate should enable public utilities to
generate revenues sufficient to cover operational costs and provide reasonable
return on the investments. On the other hand, a rate which is too high becomes
discriminatory. It is contrary to public interest. A rate, therefore, must be
reasonable and fair and must be affordable to the end user who will utilize the
services.
Given the complexity of the nature of the function of rate-fixing and its far-
reaching effects on millions of commuters, government must not relinquish this
important function in favor of those who would benefit and profit from the
industry. Neither should the requisite notice and hearing be done away with.
The people, represented by reputable oppositors, deserve to be given full
opportunity to be heard in their opposition to any fare increase.
The present administrative procedure, 14 to our mind, already mirrors an
orderly and satisfactory arrangement for all parties involved. To do away with
such a procedure and allow just one party, an interested party at that, to
determine what the rate should be, will undermine the right of the other parties
to due process. The purpose of a hearing is precisely to determine what a just
and reasonable rate is. 15 Discarding such procedural and constitutional right
is certainly inimical to our fundamental law and to public interest.
On the presumption of public need.
A certificate of public convenience (CPC) is an authorization granted by the
LTFRB for the operation of land transportation services for public use as
required by law. Pursuant to Section 16(a) of the Public Service Act, as
amended, the following requirements must be met before a CPC may be
granted, to wit: (i) the applicant must be a citizen of the Philippines, or a
corporation or co-partnership, association or joint-stock company constituted
and organized under the laws of the Philippines, at least 60 per centum of its
stock or paid-up capital must belong entirely to citizens of the Philippines; (ii)
the applicant must be financially capable of undertaking the proposed service
and meeting the responsibilities incident to its operation; and (iii) the applicant
must prove that the operation of the public service proposed and the
authorization to do business will promote the public interest in a proper and
suitable manner. It is understood that there must be proper notice and hearing
before the PSC can exercise its power to issue a CPC.
While adopting in toto the foregoing requisites for the issuance of a CPC,
LTFRB Memorandum Circular No. 92-009, Part IV, provides for yet
incongruous and contradictory policy guideline on the issuance of a CPC. The
guidelines states:
The issuance of a Certificate of Public Convenience is determined by public
need. The presumption of public need for a service shall be deemed in favor of
the applicant, while the burden of proving that there is no need for the proposed
service shall be the oppositor's. (Emphasis ours).
The above-quoted provision is entirely incompatible and inconsistent with
Section 16(c)(iii) of the Public Service Act which requires that before a CPC
will be issued, the applicant must prove by proper notice and hearing that the
operation of the public service proposed will promote public interest in a proper
and suitable manner. On the contrary, the policy guideline states that the
presumption of public need for a public service shall be deemed in favor of the
applicant. In case of conflict between a statute and an administrative order, the
former must prevail.
222 of 692

By its terms, public convenience or necessity generally means something fitting
or suited to the public need. 16 As one of the basic requirements for the grant
of a CPC, public convenience and necessity exists when the proposed facility
or service meets a reasonable want of the public and supply a need which the
existing facilities do not adequately supply. The existence or
non-existence of public convenience and necessity is therefore a question of
fact that must be established by evidence, real and/or testimonial; empirical
data; statistics and such other means necessary, in a public hearing conducted
for that purpose. The object and purpose of such procedure, among other things,
is to look out for, and protect, the interests of both the public and the existing
transport operators.
Verily, the power of a regulatory body to issue a CPC is founded on the
condition that after full-dress hearing and investigation, it shall find, as a fact,
that the proposed operation is for the convenience of the public. 17 Basic
convenience is the primary consideration for which a CPC is issued, and that
fact alone must be consistently borne in mind. Also, existing operators in
subject routes must be given an opportunity to offer proof and oppose the
application. Therefore, an applicant must, at all times, be required to prove his
capacity and capability to furnish the service which he has undertaken to
render. 18 And all this will be possible only if a public hearing were conducted
for that purpose.
Otherwise stated, the establishment of public need in favor of an applicant
reverses well-settled and institutionalized judicial, quasi-judicial and
administrative procedures. It allows the party who initiates the proceedings to
prove, by mere application, his affirmative allegations. Moreover, the offending
provisions of the LTFRB memorandum circular in question would in effect
amend the Rules of Court by adding another disputable presumption in the
enumeration of 37 presumptions under Rule 131, Section 5 of the Rules of
Court. Such usurpation of this Court's authority cannot be countenanced as only
this Court is mandated by law to promulgate rules concerning pleading, practice
and procedure. 19
Deregulation, while it may be ideal in certain situations, may not be ideal at all
in our country given the present circumstances. Advocacy of liberalized
franchising and regulatory process is tantamount to an abdication by the
government of its inherent right to exercise police power, that is, the right of
government to regulate public utilities for protection of the public and the
utilities themselves.
While we recognize the authority of the DOTC and the LTFRB to issue
administrative orders to regulate the transport sector, we find that they
committed grave abuse of discretion in issuing DOTC Department Order
No. 92-587 defining the policy framework on the regulation of transport
services and LTFRB Memorandum Circular No. 92-009 promulgating the
implementing guidelines on DOTC Department Order No. 92-587, the said
administrative issuances being amendatory and violative of the Public Service
Act and the Rules of Court. Consequently, we rule that the twenty (20%) per
centum fare increase imposed by respondent PBOAP on March 16, 1994
without the benefit of a petition and a public hearing is null and void and of no
force and effect. No grave abuse of discretion however was committed in the
issuance of DOTC Memorandum Order No. 90-395 and DOTC Memorandum
dated October 8, 1992, the same being merely internal communications
between administrative officers.
WHEREFORE, in view of the foregoing, the instant petition is hereby
GRANTED and the challenged administrative issuances and orders, namely:
DOTC Department Order No. 92-587, LTFRB Memorandum Circular
No. 92-009, and the order dated March 24, 1994 issued by respondent LTFRB
are hereby DECLARED contrary to law and invalid insofar as they affect
provisions therein (a) delegating to provincial bus and jeepney operators the
authority to increase or decrease the duly prescribed transportation fares; and
(b) creating a presumption of public need for a service in favor of the applicant
for a certificate of public convenience and placing the burden of proving that
there is no need for the proposed service to the oppositor.
The Temporary Restraining Order issued on June 20, 1994 is hereby MADE
PERMANENT insofar as it enjoined the bus fare rate increase granted under
the provisions of the aforementioned administrative circulars, memoranda
and/or orders declared invalid.
No pronouncement as to costs.
SO ORDERED.
223 of 692

John Hay PAC v. Lim
G.R. No. 119775 (Oct. 24, 2003)
[G. R. No. 119775. October 24, 2003]
JOHN HAY PEOPLES ALTERNATIVE COALITION, MATEO CARIO
FOUNDATION INC., CENTER FOR ALTERNATIVE SYSTEMS
FOUNDATION INC., REGINA VICTORIA A. BENAFIN REPRESENTED
AND JOINED BY HER MOTHER MRS. ELISA BENAFIN, IZABEL M.
LUYK REPRESENTED AND JOINED BY HER MOTHER MRS.
REBECCA MOLINA LUYK, KATHERINE PE REPRESENTED AND
JOINED BY HER MOTHER ROSEMARIE G. PE, SOLEDAD S. CAMILO,
ALICIA C. PACALSO ALIAS KEVAB, BETTY I. STRASSER, RUBY C.
GIRON, URSULA C. PEREZ ALIAS BA-YAY, EDILBERTO T.
CLARAVALL, CARMEN CAROMINA, LILIA G. YARANON, DIANE
MONDOC, petitioners, vs. VICTOR LIM, PRESIDENT, BASES
CONVERSION DEVELOPMENT AUTHORITY; JOHN HAY PORO POINT
DEVELOPMENT CORPORATION, CITY OF BAGUIO, TUNTEX (B.V.I.)
CO. LTD., ASIAWORLD INTERNATIONALE GROUP, INC.,
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
respondents.
DECISION
CARPIO MORALES, J.:
By the present petition for prohibition, mandamus and declaratory relief with
prayer for a temporary restraining order (TRO) and/or writ of preliminary
injunction, petitioners assail, in the main, the constitutionality of Presidential
Proclamation No. 420, Series of 1994, CREATING AND DESIGNATING A
PORTION OF THE AREA COVERED BY THE FORMER CAMP JOHN
[HAY] AS THE JOHN HAY SPECIAL ECONOMIC ZONE PURSUANT TO
REPUBLIC ACT NO. 7227.
Republic Act No. 7227, AN ACT ACCELERATING THE CONVERSION OF
MILITARY RESERVATIONS INTO OTHER PRODUCTIVE USES,
CREATING THE BASES CONVERSION AND DEVELOPMENT
AUTHORITY FOR THIS PURPOSE, PROVIDING FUNDS THEREFOR
AND FOR OTHER PURPOSES, otherwise known as the Bases Conversion
and Development Act of 1992, which was enacted on March 13, 1992, set out
the policy of the government to accelerate the sound and balanced conversion
into alternative productive uses of the former military bases under the 1947
Philippines-United States of America Military Bases Agreement, namely, the
Clark and Subic military reservations as well as their extensions including the
John Hay Station (Camp John Hay or the camp) in the City of Baguio.[1]
As noted in its title, R.A. No. 7227 created public respondent Bases Conversion
and Development Authority[2] (BCDA), vesting it with powers pertaining to
the multifarious aspects of carrying out the ultimate objective of utilizing the
base areas in accordance with the declared government policy.
R.A. No. 7227 likewise created the Subic Special Economic [and Free Port]
Zone (Subic SEZ) the metes and bounds of which were to be delineated in a
proclamation to be issued by the President of the Philippines.[3]
R.A. No. 7227 granted the Subic SEZ incentives ranging from tax and duty-
free importations, exemption of businesses therein from local and national
taxes, to other hallmarks of a liberalized financial and business climate.[4]
And R.A. No. 7227 expressly gave authority to the President to create through
executive proclamation, subject to the concurrence of the local government
units directly affected, other Special Economic Zones (SEZ) in the areas
covered respectively by the Clark military reservation, the Wallace Air Station
in San Fernando, La Union, and Camp John Hay.[5]
On August 16, 1993, BCDA entered into a Memorandum of Agreement and
Escrow Agreement with private respondents Tuntex (B.V.I.) Co., Ltd
(TUNTEX) and Asiaworld Internationale Group, Inc. (ASIAWORLD), private
corporations registered under the laws of the British Virgin Islands, preparatory
to the formation of a joint venture for the development of Poro Point in La
Union and Camp John Hay as premier tourist destinations and recreation
centers. Four months later or on December 16, 1993, BCDA, TUNTEX and
ASIAWORD executed a Joint Venture Agreement[6] whereby they bound
themselves to put up a joint venture company known as the Baguio
International Development and Management Corporation which would lease
areas within Camp John Hay and Poro Point for the purpose of turning such
224 of 692
places into principal tourist and recreation spots, as originally envisioned by the
parties under their Memorandum of Agreement.
The Baguio City government meanwhile passed a number of resolutions in
response to the actions taken by BCDA as owner and administrator of Camp
John Hay.
By Resolution[7] of September 29, 1993, the Sangguniang Panlungsod of
Baguio City (the sanggunian) officially asked BCDA to exclude all the
barangays partly or totally located within Camp John Hay from the reach or
coverage of any plan or program for its development.
By a subsequent Resolution[8] dated January 19, 1994, the sanggunian sought
from BCDA an abdication, waiver or quitclaim of its ownership over the home
lots being occupied by residents of nine (9) barangays surrounding the military
reservation.
Still by another resolution passed on February 21, 1994, the sanggunian adopted
and submitted to BCDA a 15-point concept for the development of Camp John
Hay.[9] The sanggunians vision expressed, among other things, a kind of
development that affords protection to the environment, the making of a family-
oriented type of tourist destination, priority in employment opportunities for
Baguio residents and free access to the base area, guaranteed participation of
the city government in the management and operation of the camp, exclusion
of the previously named nine barangays from the area for development, and
liability for local taxes of businesses to be established within the camp.[10]
BCDA, TUNTEX and ASIAWORLD agreed to some, but rejected or modified
the other proposals of the sanggunian.[11] They stressed the need to declare
Camp John Hay a SEZ as a condition precedent to its full development in
accordance with the mandate of R.A. No. 7227.[12]
On May 11, 1994, the sanggunian passed a resolution requesting the Mayor to
order the determination of realty taxes which may otherwise be collected from
real properties of Camp John Hay.[13] The resolution was intended to
intelligently guide the sanggunian in determining its position on whether Camp
John Hay be declared a SEZ, it (the sanggunian) being of the view that such
declaration would exempt the camps property and the economic activity therein
from local or national taxation.
More than a month later, however, the sanggunian passed Resolution No. 255,
(Series of 1994),[14] seeking and supporting, subject to its concurrence, the
issuance by then President Ramos of a presidential proclamation declaring an
area of 288.1 hectares of the camp as a SEZ in accordance with the provisions
of R.A. No. 7227. Together with this resolution was submitted a draft of the
proposed proclamation for consideration by the President.[15]
On July 5, 1994 then President Ramos issued Proclamation No. 420,[16] the
title of which was earlier indicated, which established a SEZ on a portion of
Camp John Hay and which reads as follows:
xxx
Pursuant to the powers vested in me by the law and the resolution of
concurrence by the City Council of Baguio, I, FIDEL V. RAMOS, President of
the Philippines, do hereby create and designate a portion of the area covered by
the former John Hay reservation as embraced, covered, and defined by the 1947
Military Bases Agreement between the Philippines and the United States of
America, as amended, as the John Hay Special Economic Zone, and
accordingly order:
SECTION 1. Coverage of John Hay Special Economic Zone. The John Hay
Special Economic Zone shall cover the area consisting of Two Hundred Eighty
Eight and one/tenth (288.1) hectares, more or less, of the total of Six Hundred
Seventy-Seven (677) hectares of the John Hay Reservation, more or less, which
have been surveyed and verified by the Department of Environment and Natural
Resources (DENR) as defined by the following technical description:
A parcel of land, situated in the City of Baguio, Province of Benguet, Island of
Luzon, and particularly described in survey plans Psd-131102-002639 and Ccs-
131102-000030 as approved on 16 August 1993 and 26 August 1993,
respectively, by the Department of Environment and Natural Resources, in
detail containing :
225 of 692
Lot 1, Lot 2, Lot 3, Lot 4, Lot 5, Lot 6, Lot 7, Lot 13, Lot 14, Lot 15, and Lot
20 of Ccs-131102-000030
-and-
Lot 3, Lot 4, Lot 5, Lot 6, Lot 7, Lot 8, Lot 9, Lot 10, Lot 11, Lot 14, Lot 15,
Lot 16, Lot 17, and Lot 18 of Psd-131102-002639 being portions of TCT No.
T-3812, LRC Rec. No. 87.
With a combined area of TWO HUNDRED EIGHTY EIGHT AND
ONE/TENTH HECTARES (288.1 hectares); Provided that the area consisting
of approximately Six and two/tenth (6.2) hectares, more or less, presently
occupied by the VOA and the residence of the Ambassador of the United States,
shall be considered as part of the SEZ only upon turnover of the properties to
the government of the Republic of the Philippines.
Sec. 2. Governing Body of the John Hay Special Economic Zone. Pursuant to
Section 15 of Republic Act No. 7227, the Bases Conversion and Development
Authority is hereby established as the governing body of the John Hay Special
Economic Zone and, as such, authorized to determine the utilization and
disposition of the lands comprising it, subject to private rights, if any, and in
consultation and coordination with the City Government of Baguio after
consultation with its inhabitants, and to promulgate the necessary policies,
rules, and regulations to govern and regulate the zone thru the John Hay Poro
Point Development Corporation, which is its implementing arm for its
economic development and optimum utilization.
Sec. 3. Investment Climate in John Hay Special Economic Zone. Pursuant to
Section 5(m) and Section 15 of Republic Act No. 7227, the John Hay Poro Point
Development Corporation shall implement all necessary policies, rules, and
regulations governing the zone, including investment incentives, in
consultation with pertinent government departments. Among others, the zone
shall have all the applicable incentives of the Special Economic Zone under
Section 12 of Republic Act No. 7227 and those applicable incentives granted
in the Export Processing Zones, the Omnibus Investment Code of 1987, the
Foreign Investment Act of 1991, and new investment laws that may hereinafter
be enacted.
Sec. 4. Role of Departments, Bureaus, Offices, Agencies and Instrumentalities.
All Heads of departments, bureaus, offices, agencies, and instrumentalities of
the government are hereby directed to give full support to Bases Conversion
and Development Authority and/or its implementing subsidiary or joint venture
to facilitate the necessary approvals to expedite the implementation of various
projects of the conversion program.
Sec. 5. Local Authority. Except as herein provided, the affected local
government units shall retain their basic autonomy and identity.
Sec. 6. Repealing Clause. All orders, rules, and regulations, or parts thereof,
which are inconsistent with the provisions of this Proclamation, are hereby
repealed, amended, or modified accordingly.
Sec. 7. Effectivity. This proclamation shall take effect immediately.
Done in the City of Manila, this 5th day of July, in the year of Our Lord,
nineteen hundred and ninety-four.
The issuance of Proclamation No. 420 spawned the present petition[17] for
prohibition, mandamus and declaratory relief which was filed on April 25, 1995
challenging, in the main, its constitutionality or validity as well as the legality
of the Memorandum of Agreement and Joint Venture Agreement between
public respondent BCDA and private respondents TUNTEX and
ASIAWORLD.
Petitioners allege as grounds for the allowance of the petition the following:
I. PRESIDENTIAL PROCLAMATION NO. 420, SERIES OF 1990 (sic) IN
SO FAR AS IT GRANTS TAX EXEMPTIONS IS INVALID AND ILLEGAL
AS IT IS AN UNCONSTITUTIONAL EXERCISE BY THE PRESIDENT OF
A POWER GRANTED ONLY TO THE LEGISLATURE.
II. PRESIDENTIAL PROCLAMATION NO. 420, IN SO FAR AS IT LIMITS
THE POWERS AND INTERFERES WITH THE AUTONOMY OF THE
CITY OF BAGUIO IS INVALID, ILLEGAL AND UNCONSTITUTIONAL.
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III. PRESIDENTIAL PROCLAMATION NO. 420, SERIES OF 1994 IS
UNCONSTITUTIONAL IN THAT IT VIOLATES THE RULE THAT ALL
TAXES SHOULD BE UNIFORM AND EQUITABLE.
IV. THE MEMORANDUM OF AGREEMENT ENTERED INTO BY AND
BETWEEN PRIVATE AND PUBLIC RESPONDENTS BASES
CONVERSION DEVELOPMENT AUTHORITY HAVING BEEN
ENTERED INTO ONLY BY DIRECT NEGOTIATION IS ILLEGAL.
V. THE TERMS AND CONDITIONS OF THE MEMORANDUM OF
AGREEMENT ENTERED INTO BY AND BETWEEN PRIVATE AND
PUBLIC RESPONDENT BASES CONVERSION DEVELOPMENT
AUTHORITY IS (sic) ILLEGAL.
VI. THE CONCEPTUAL DEVELOPMENT PLAN OF RESPONDENTS
NOT HAVING UNDERGONE ENVIRONMENTAL IMPACT
ASSESSMENT IS BEING ILLEGALLY CONSIDERED WITHOUT A
VALID ENVIRONMENTAL IMPACT ASSESSMENT.
A temporary restraining order and/or writ of preliminary injunction was prayed
for to enjoin BCDA, John Hay Poro Point Development Corporation and the
city government from implementing Proclamation No. 420, and TUNTEX and
ASIAWORLD from proceeding with their plan respecting Camp John Hays
development pursuant to their Joint Venture Agreement with BCDA.[18]
Public respondents, by their separate Comments, allege as moot and academic
the issues raised by the petition, the questioned Memorandum of Agreement
and Joint Venture Agreement having already been deemed abandoned by the
inaction of the parties thereto prior to the filing of the petition as in fact, by
letter of November 21, 1995, BCDA formally notified TUNTEX and
ASIAWORLD of the revocation of their said agreements.[19]
In maintaining the validity of Proclamation No. 420, respondents contend that
by extending to the John Hay SEZ economic incentives similar to those enjoyed
by the Subic SEZ which was established under R.A. No. 7227, the proclamation
is merely implementing the legislative intent of said law to turn the US military
bases into hubs of business activity or investment. They underscore the point
that the governments policy of bases conversion can not be achieved without
extending the same tax exemptions granted by R.A. No. 7227 to Subic SEZ to
other SEZs.
Denying that Proclamation No. 420 is in derogation of the local autonomy of
Baguio City or that it is violative of the constitutional guarantee of equal
protection, respondents assail petitioners lack of standing to bring the present
suit even as taxpayers and in the absence of any actual case or controversy to
warrant this Courts exercise of its power of judicial review over the
proclamation.
Finally, respondents seek the outright dismissal of the petition for having been
filed in disregard of the hierarchy of courts and of the doctrine of exhaustion of
administrative remedies.
Replying,[20] petitioners aver that the doctrine of exhaustion of administrative
remedies finds no application herein since they are invoking the exclusive
authority of this Court under Section 21 of R.A. No. 7227 to enjoin or restrain
implementation of projects for conversion of the base areas; that the established
exceptions to the aforesaid doctrine obtain in the present petition; and that they
possess the standing to bring the petition which is a taxpayers suit.
Public respondents have filed their Rejoinder[21] and the parties have filed their
respective memoranda.
Before dwelling on the core issues, this Court shall first address the preliminary
procedural questions confronting the petition.
The judicial policy is and has always been that this Court will not entertain
direct resort to it except when the redress sought cannot be obtained in the
proper courts, or when exceptional and compelling circumstances warrant
availment of a remedy within and calling for the exercise of this Courts primary
jurisdiction.[22] Neither will it entertain an action for declaratory relief, which
is partly the nature of this petition, over which it has no original jurisdiction.
Nonetheless, as it is only this Court which has the power under Section 21[23]
of R.A. No. 7227 to enjoin implementation of projects for the development of
the former US military reservations, the issuance of which injunction
petitioners pray for, petitioners direct filing of the present petition with it is
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allowed. Over and above this procedural objection to the present suit, this Court
retains full discretionary power to take cognizance of a petition filed directly to
it if compelling reasons, or the nature and importance of the issues raised,
warrant.[24] Besides, remanding the case to the lower courts now would just
unduly prolong adjudication of the issues.
The transformation of a portion of the area covered by Camp John Hay into a
SEZ is not simply a re-classification of an area, a mere ascription of a status to
a place. It involves turning the former US military reservation into a focal point
for investments by both local and foreign entities. It is to be made a site of
vigorous business activity, ultimately serving as a spur to the countrys long
awaited economic growth. For, as R.A. No. 7227 unequivocally declares, it is
the governments policy to enhance the benefits to be derived from the base
areas in order to promote the economic and social development of Central
Luzon in particular and the country in general.[25] Like the Subic SEZ, the
John Hay SEZ should also be turned into a self-sustaining, industrial,
commercial, financial and investment center.[26]
More than the economic interests at stake, the development of Camp John Hay
as well as of the other base areas unquestionably has critical links to a host of
environmental and social concerns. Whatever use to which these lands will be
devoted will set a chain of events that can affect one way or another the social
and economic way of life of the communities where the bases are located, and
ultimately the nation in general.
Underscoring the fragility of Baguio Citys ecology with its problem on the
scarcity of its water supply, petitioners point out that the local and national
government are faced with the challenge of how to provide for an ecologically
sustainable, environmentally sound, equitable transition for the city in the wake
of Camp John Hays reversion to the mass of government property.[27] But that
is why R.A. No. 7227 emphasizes the sound and balanced conversion of the
Clark and Subic military reservations and their extensions consistent with
ecological and environmental standards.[28] It cannot thus be gainsaid that the
matter of conversion of the US bases into SEZs, in this case Camp John Hay,
assumes importance of a national magnitude.
Convinced then that the present petition embodies crucial issues, this Court
assumes jurisdiction over the petition.
As far as the questioned agreements between BCDA and TUNTEX and
ASIAWORLD are concerned, the legal questions being raised thereon by
petitioners have indeed been rendered moot and academic by the revocation of
such agreements. There are, however, other issues posed by the petition, those
which center on the constitutionality of Proclamation No. 420, which have not
been mooted by the said supervening event upon application of the rules for the
judicial scrutiny of constitutional cases. The issues boil down to:
(1) Whether the present petition complies with the requirements for this Courts
exercise of jurisdiction over constitutional issues;
(2) Whether Proclamation No. 420 is constitutional by providing for national
and local tax exemption within and granting other economic incentives to the
John Hay Special Economic Zone; and
(3) Whether Proclamation No. 420 is constitutional for limiting or interfering
with the local autonomy of Baguio City;
It is settled that when questions of constitutional significance are raised, the
court can exercise its power of judicial review only if the following requisites
are present: (1) the existence of an actual and appropriate case; (2) a personal
and substantial interest of the party raising the constitutional question; (3) the
exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.[29]
An actual case or controversy refers to an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory.[30] The
controversy needs to be definite and concrete, bearing upon the legal relations
of parties who are pitted against each other due to their adverse legal
interests.[31] There is in the present case a real clash of interests and rights
between petitioners and respondents arising from the issuance of a presidential
proclamation that converts a portion of the area covered by Camp John Hay
into a SEZ, the former insisting that such proclamation contains
unconstitutional provisions, the latter claiming otherwise.
R.A. No. 7227 expressly requires the concurrence of the affected local
government units to the creation of SEZs out of all the base areas in the
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country.[32] The grant by the law on local government units of the right of
concurrence on the bases conversion is equivalent to vesting a legal standing
on them, for it is in effect a recognition of the real interests that communities
nearby or surrounding a particular base area have in its utilization. Thus, the
interest of petitioners, being inhabitants of Baguio, in assailing the legality of
Proclamation No. 420, is personal and substantial such that they have sustained
or will sustain direct injury as a result of the government act being
challenged.[33] Theirs is a material interest, an interest in issue affected by the
proclamation and not merely an interest in the question involved or an
incidental interest,[34] for what is at stake in the enforcement of Proclamation
No. 420 is the very economic and social existence of the people of Baguio City.
Petitioners locus standi parallels that of the petitioner and other residents of
Bataan, specially of the town of Limay, in Garcia v. Board of Investments[35]
where this Court characterized their interest in the establishment of a
petrochemical plant in their place as actual, real, vital and legal, for it would
affect not only their economic life but even the air they breathe.
Moreover, petitioners Edilberto T. Claravall and Lilia G. Yaranon were duly
elected councilors of Baguio at the time, engaged in the local governance of
Baguio City and whose duties included deciding for and on behalf of their
constituents the question of whether to concur with the declaration of a portion
of the area covered by Camp John Hay as a SEZ. Certainly then, petitioners
Claravall and Yaranon, as city officials who voted against[36] the sanggunian
Resolution No. 255 (Series of 1994) supporting the issuance of the now
challenged Proclamation No. 420, have legal standing to bring the present
petition.
That there is herein a dispute on legal rights and interests is thus beyond doubt.
The mootness of the issues concerning the questioned agreements between
public and private respondents is of no moment.
By the mere enactment of the questioned law or the approval of the challenged
act, the dispute is deemed to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular violation of the Constitution
and/or the law is enough to awaken judicial duty.[37]
As to the third and fourth requisites of a judicial inquiry, there is likewise no
question that they have been complied with in the case at bar. This is an action
filed purposely to bring forth constitutional issues, ruling on which this Court
must take up. Besides, respondents never raised issues with respect to these
requisites, hence, they are deemed waived.
Having cleared the way for judicial review, the constitutionality of
Proclamation No. 420, as framed in the second and third issues above, must
now be addressed squarely.
The second issue refers to petitioners objection against the creation by
Proclamation No. 420 of a regime of tax exemption within the John Hay SEZ.
Petitioners argue that nowhere in R. A. No. 7227 is there a grant of tax
exemption to SEZs yet to be established in base areas, unlike the grant under
Section 12 thereof of tax exemption and investment incentives to the therein
established Subic SEZ. The grant of tax exemption to the John Hay SEZ,
petitioners conclude, thus contravenes Article VI, Section 28 (4) of the
Constitution which provides that No law granting any tax exemption shall be
passed without the concurrence of a majority of all the members of Congress.
Section 3 of Proclamation No. 420, the challenged provision, reads:
Sec. 3. Investment Climate in John Hay Special Economic Zone. Pursuant to
Section 5(m) and Section 15 of Republic Act No. 7227, the John Hay Poro Point
Development Corporation shall implement all necessary policies, rules, and
regulations governing the zone, including investment incentives, in
consultation with pertinent government departments. Among others, the zone
shall have all the applicable incentives of the Special Economic Zone under
Section 12 of Republic Act No. 7227 and those applicable incentives granted
in the Export Processing Zones, the Omnibus Investment Code of 1987, the
Foreign Investment Act of 1991, and new investment laws that may hereinafter
be enacted. (Emphasis and underscoring supplied)
Upon the other hand, Section 12 of R.A. No. 7227 provides:
xxx
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(a) Within the framework and subject to the mandate and limitations of the
Constitution and the pertinent provisions of the Local Government Code, the
Subic Special Economic Zone shall be developed into a self-sustaining,
industrial, commercial, financial and investment center to generate employment
opportunities in and around the zone and to attract and promote productive
foreign investments;
b) The Subic Special Economic Zone shall be operated and managed as a
separate customs territory ensuring free flow or movement of goods and capital
within, into and exported out of the Subic Special Economic Zone, as well as
provide incentives such as tax and duty free importations of raw materials,
capital and equipment. However, exportation or removal of goods from the
territory of the Subic Special Economic Zone to the other parts of the Philippine
territory shall be subject to customs duties and taxes under the Customs and
Tariff Code and other relevant tax laws of the Philippines;
(c) The provisions of existing laws, rules and regulations to the contrary
notwithstanding, no taxes, local and national, shall be imposed within the Subic
Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross
income earned by all businesses and enterprises within the Subic Special
Economic Zone shall be remitted to the National Government, one percent (1%)
each to the local government units affected by the declaration of the zone in
proportion to their population area, and other factors. In addition, there is
hereby established a development fund of one percent (1%) of the gross income
earned by all businesses and enterprises within the Subic Special Economic
Zone to be utilized for the Municipality of Subic, and other municipalities
contiguous to be base areas. In case of conflict between national and local laws
with respect to tax exemption privileges in the Subic Special Economic Zone,
the same shall be resolved in favor of the latter;
(d) No exchange control policy shall be applied and free markets for foreign
exchange, gold, securities and futures shall be allowed and maintained in the
Subic Special Economic Zone;
(e) The Central Bank, through the Monetary Board, shall supervise and regulate
the operations of banks and other financial institutions within the Subic Special
Economic Zone;
(f) Banking and Finance shall be liberalized with the establishment of foreign
currency depository units of local commercial banks and offshore banking units
of foreign banks with minimum Central Bank regulation;
(g) Any investor within the Subic Special Economic Zone whose continuing
investment shall not be less than Two Hundred fifty thousand dollars
($250,000), his/her spouse and dependent children under twenty-one (21) years
of age, shall be granted permanent resident status within the Subic Special
Economic Zone. They shall have freedom of ingress and egress to and from the
Subic Special Economic Zone without any need of special authorization from
the Bureau of Immigration and Deportation. The Subic Bay Metropolitan
Authority referred to in Section 13 of this Act may also issue working visas
renewable every two (2) years to foreign executives and other aliens possessing
highly-technical skills which no Filipino within the Subic Special Economic
Zone possesses, as certified by the Department of Labor and Employment. The
names of aliens granted permanent residence status and working visas by the
Subic Bay Metropolitan Authority shall be reported to the Bureau of
Immigration and Deportation within thirty (30) days after issuance thereof;
x x x (Emphasis supplied)
It is clear that under Section 12 of R.A. No. 7227 it is only the Subic SEZ which
was granted by Congress with tax exemption, investment incentives and the
like. There is no express extension of the aforesaid benefits to other SEZs still
to be created at the time via presidential proclamation.
The deliberations of the Senate confirm the exclusivity to Subic SEZ of the tax
and investment privileges accorded it under the law, as the following exchanges
between our lawmakers show during the second reading of the precursor bill of
R.A. No. 7227 with respect to the investment policies that would govern Subic
SEZ which are now embodied in the aforesaid Section 12 thereof:
xxx
Senator Maceda: This is what I was talking about. We get into problems here
because all of these following policies are centered around the concept of free
port. And in the main paragraph above, we have declared both Clark and Subic
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as special economic zones, subject to these policies which are, in effect, a free-
port arrangement.
Senator Angara: The Gentleman is absolutely correct, Mr. President. So we
must confine these policies only to Subic.
May I withdraw then my amendment, and instead provide that THE SPECIAL
ECONOMIC ZONE OF SUBIC SHALL BE ESTABLISHED IN
ACCORDANCE WITH THE FOLLOWING POLICIES. Subject to style, Mr.
President.
Thus, it is very clear that these principles and policies are applicable only to
Subic as a free port.
Senator Paterno: Mr. President.
The President: Senator Paterno is recognized.
Senator Paterno: I take it that the amendment suggested by Senator Angara
would then prevent the establishment of other special economic zones
observing these policies.
Senator Angara: No, Mr. President, because during our short caucus, Senator
Laurel raised the point that if we give this delegation to the President to
establish other economic zones, that may be an unwarranted delegation.
So we agreed that we will simply limit the definition of powers and description
of the zone to Subic, but that does not exclude the possibility of creating other
economic zones within the baselands.
Senator Paterno: But if that amendment is followed, no other special economic
zone may be created under authority of this particular bill. Is that correct, Mr.
President?
Senator Angara: Under this specific provision, yes, Mr. President. This
provision now will be confined only to Subic.[38]
x x x (Underscoring supplied).
As gathered from the earlier-quoted Section 12 of R.A. No. 7227, the privileges
given to Subic SEZ consist principally of exemption from tariff or customs
duties, national and local taxes of business entities therein (paragraphs (b) and
(c)), free market and trade of specified goods or properties (paragraph d),
liberalized banking and finance (paragraph f), and relaxed immigration rules
for foreign investors (paragraph g). Yet, apart from these, Proclamation No. 420
also makes available to the John Hay SEZ benefits existing in other laws such
as the privilege of export processing zone-based businesses of importing capital
equipment and raw materials free from taxes, duties and other restrictions;[39]
tax and duty exemptions, tax holiday, tax credit, and other incentives under the
Omnibus Investments Code of 1987;[40] and the applicability to the subject
zone of rules governing foreign investments in the Philippines.[41]
While the grant of economic incentives may be essential to the creation and
success of SEZs, free trade zones and the like, the grant thereof to the John Hay
SEZ cannot be sustained. The incentives under R.A. No. 7227 are exclusive
only to the Subic SEZ, hence, the extension of the same to the John Hay SEZ
finds no support therein. Neither does the same grant of privileges to the John
Hay SEZ find support in the other laws specified under Section 3 of
Proclamation No. 420, which laws were already extant before the issuance of
the proclamation or the enactment of R.A. No. 7227.
More importantly, the nature of most of the assailed privileges is one of tax
exemption. It is the legislature, unless limited by a provision of the state
constitution, that has full power to exempt any person or corporation or class of
property from taxation, its power to exempt being as broad as its power to
tax.[42] Other than Congress, the Constitution may itself provide for specific
tax exemptions,[43] or local governments may pass ordinances on exemption
only from local taxes.[44]
The challenged grant of tax exemption would circumvent the Constitutions
imposition that a law granting any tax exemption must have the concurrence of
a majority of all the members of Congress.[45] In the same vein, the other kinds
of privileges extended to the John Hay SEZ are by tradition and usage for
Congress to legislate upon.
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Contrary to public respondents suggestions, the claimed statutory exemption of
the John Hay SEZ from taxation should be manifest and unmistakable from the
language of the law on which it is based; it must be expressly granted in a statute
stated in a language too clear to be mistaken.[46] Tax exemption cannot be
implied as it must be categorically and unmistakably expressed.[47]
If it were the intent of the legislature to grant to the John Hay SEZ the same tax
exemption and incentives given to the Subic SEZ, it would have so expressly
provided in the R.A. No. 7227.
This Court no doubt can void an act or policy of the political departments of the
government on either of two groundsinfringement of the Constitution or grave
abuse of discretion.[48]
This Court then declares that the grant by Proclamation No. 420 of tax
exemption and other privileges to the John Hay SEZ is void for being violative
of the Constitution. This renders it unnecessary to still dwell on petitioners
claim that the same grant violates the equal protection guarantee.
With respect to the final issue raised by petitioners that Proclamation No. 420
is unconstitutional for being in derogation of Baguio Citys local autonomy,
objection is specifically mounted against Section 2 thereof in which BCDA is
set up as the governing body of the John Hay SEZ.[49]
Petitioners argue that there is no authority of the President to subject the John
Hay SEZ to the governance of BCDA which has just oversight functions over
SEZ; and that to do so is to diminish the city governments power over an area
within its jurisdiction, hence, Proclamation No. 420 unlawfully gives the
President power of control over the local government instead of just mere
supervision.
Petitioners arguments are bereft of merit. Under R.A. No. 7227, the BCDA is
entrusted with, among other things, the following purpose:[50]
xxx
(a) To own, hold and/or administer the military reservations of John Hay Air
Station, Wallace Air Station, ODonnell Transmitter Station, San Miguel Naval
Communications Station, Mt. Sta. Rita Station (Hermosa, Bataan) and those
portions of Metro Manila Camps which may be transferred to it by the
President;
x x x (Underscoring supplied)
With such broad rights of ownership and administration vested in BCDA over
Camp John Hay, BCDA virtually has control over it, subject to certain
limitations provided for by law. By designating BCDA as the governing agency
of the John Hay SEZ, the law merely emphasizes or reiterates the statutory role
or functions it has been granted.
The unconstitutionality of the grant of tax immunity and financial incentives as
contained in the second sentence of Section 3 of Proclamation No. 420
notwithstanding, the entire assailed proclamation cannot be declared
unconstitutional, the other parts thereof not being repugnant to law or the
Constitution. The delineation and declaration of a portion of the area covered
by Camp John Hay as a SEZ was well within the powers of the President to do
so by means of a proclamation.[51] The requisite prior concurrence by the
Baguio City government to such proclamation appears to have been given in
the form of a duly enacted resolution by the sanggunian. The other provisions
of the proclamation had been proven to be consistent with R.A. No. 7227.
Where part of a statute is void as contrary to the Constitution, while another
part is valid, the valid portion, if separable from the invalid, may stand and be
enforced.[52] This Court finds that the other provisions in Proclamation No.
420 converting a delineated portion of Camp John Hay into the John Hay SEZ
are separable from the invalid second sentence of Section 3 thereof, hence they
stand.
WHEREFORE, the second sentence of Section 3 of Proclamation No. 420 is
hereby declared NULL AND VOID and is accordingly declared of no legal
force and effect. Public respondents are hereby enjoined from implementing the
aforesaid void provision.
Proclamation No. 420, without the invalidated portion, remains valid and
effective.
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SO ORDERED.
IBP v. Zamora
G.R. No. 141284 (August 15, 2000)
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.
RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B.
AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for
issuance of a temporary restraining order seeking to nullify on constitutional
grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the Marines) to join the Philippine
National Police (the PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive,
ordered the PNP and the Marines to conduct joint visibility patrols for the
purpose of crime prevention and suppression. The Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines (the AFP),
the Chief of the PNP and the Secretary of the Interior and Local Government
were tasked to execute and implement the said order. In compliance with the
presidential mandate, the PNP Chief, through Police Chief Superintendent
Edgar B. Aglipay, formulated Letter of Instruction 02/2000[1] (the LOI) which
detailed the manner by which the joint visibility patrols, called Task Force
Tulungan, would be conducted.[2] Task Force Tulungan was placed under the
leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment
of the Marines in a Memorandum, dated 24 January 2000, addressed to the
Chief of Staff of the AFP and the PNP Chief.[3] In the Memorandum, the
President expressed his desire to improve the peace and order situation in Metro
Manila through a more effective crime prevention program including increased
police patrols.[4] The President further stated that to heighten police visibility
in the metropolis, augmentation from the AFP is necessary.[5] Invoking his
powers as Commander-in-Chief under Section 18, Article VII of the
Constitution, the President directed the AFP Chief of Staff and PNP Chief to
coordinate with each other for the proper deployment and utilization of the
Marines to assist the PNP in preventing or suppressing criminal or lawless
violence.[6] Finally, the President declared that the services of the Marines in
the anti-crime campaign are merely temporary in nature and for a reasonable
period only, until such time when the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility
patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and
the Philippine Marines partnership in the conduct of visibility patrols in Metro
Manila for the suppression of crime prevention and other serious threats to
national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and
former police/military personnel whose training, skill, discipline and firepower
prove well-above the present capability of the local police alone to handle. The
deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police
visibility patrol in urban areas will reduce the incidence of crimes specially
those perpetrated by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through
a sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose
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members include those that are well-trained, disciplined and well-armed active
or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National
Capital Regional Police Office] and the Philippine Marines to curb criminality
in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national security, although the primary
responsibility over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms
of high-profile crimes perpetrated by organized crime syndicates operating in
Metro Manila. This concept requires the military and police to work cohesively
and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police
aside from neutralizing crime syndicates is to bring a wholesome atmosphere
wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols,
local Police Units are responsible for the maintenance of peace and order in
their locality.
c. To ensure the effective implementation of this project, a provisional Task
Force TULUNGAN shall be organized to provide the mechanism, structure,
and procedures for the integrated planning, coordinating, monitoring and
assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA and Domestic
Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the
instant petition to annul LOI 02/2000 and to declare the deployment of the
Philippine Marines, null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO
MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS
WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF
SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF
THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY
THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4),
OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO
RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS
OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY
MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions
the validity of the deployment and utilization of the Marines to assist the PNP
in law enforcement.
Without granting due course to the petition, the Court in a Resolution,[11] dated
25 January 2000, required the Solicitor General to file his Comment on the
petition. On 8 February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner
234 of 692
has no legal standing; that the question of deployment of the Marines is not
proper for judicial scrutiny since the same involves a political question; that the
organization and conduct of police visibility patrols, which feature the team-up
of one police officer and one Philippine Marine soldier, does not violate the
civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has
legal standing; (2) Whether or not the Presidents factual determination of the
necessity of calling the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint
visibility patrols violates the constitutional provisions on civilian supremacy
over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the
requisites of standing to raise the issues in the petition. Second, the President
did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction nor did he commit a violation of the civilian supremacy clause of
the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the
Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise
its power of judicial review only if the following requisites are complied with,
namely: (1) the existence of an actual and appropriate case; (2) a personal and
substantial interest of the party raising the constitutional question; (3) the
exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this
case.
Legal standing or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury
as a result of the governmental act that is being challenged.[13] The term
interest means a material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental
interest.[14] The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.[15]
In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus
standi. The mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. Based on the standards above-stated, the IBP
has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules
of Court, is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment
of the Marines. It should also be noted that the interest of the National President
of the IBP who signed the petition, is his alone, absent a formal board resolution
authorizing him to file the present action. To be sure, members of the BAR,
those in the judiciary included, have varying opinions on the issue. Moreover,
the IBP, assuming that it has duly authorized the National President to file the
petition, has not shown any specific injury which it has suffered or may suffer
by virtue of the questioned governmental act. Indeed, none of its members,
whom the IBP purportedly represents, has sustained any form of injury as a
result of the operation of the joint visibility patrols. Neither is it alleged that any
of its members has been arrested or that their civil liberties have been violated
by the deployment of the Marines. What the IBP projects as injurious is the
235 of 692
supposed militarization of law enforcement which might threaten Philippine
democratic institutions and may cause more harm than good in the long run.
Not only is the presumed injury not personal in character, it is likewise too
vague, highly speculative and uncertain to satisfy the requirement of standing.
Since petitioner has not successfully established a direct and personal injury as
a consequence of the questioned act, it does not possess the personality to assail
the validity of the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to raise constitutional
issues now or in the future. The IBP must, by way of allegations and proof,
satisfy this Court that it has sufficient stake to obtain judicial resolution of the
controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement
of legal standing when paramount interest is involved.[16] In not a few cases,
the Court has adopted a liberal attitude on the locus standi of a petitioner where
the petitioner is able to craft an issue of transcendental significance to the
people.[17] Thus, when the issues raised are of paramount importance to the
public, the Court may brush aside technicalities of procedure.[18] In this case,
a reading of the petition shows that the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty
and weight as precedents. Moreover, because peace and order are under
constant threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy raised
in the petition almost certainly will not go away. It will stare us in the face
again. It, therefore, behooves the Court to relax the rules on standing and to
resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the
Marines.
In the case at bar, the bone of contention concerns the factual determination of
the President of the necessity of calling the armed forces, particularly the
Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that
the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion. What the IBP questions, however, is the
basis for the calling of the Marines under the aforestated provision. According
to the IBP, no emergency exists that would justify the need for the calling of
the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP
prays that this Court review the sufficiency of the factual basis for said troop
[Marine] deployment.[19]
The Solicitor General, on the other hand, contends that the issue pertaining to
the necessity of calling the armed forces is not proper for judicial scrutiny since
it involves a political question and the resolution of factual issues which are
beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential
powers and limits, and the extent of judicial review. But, while this Court gives
considerable weight to the parties formulation of the issues, the resolution of
the controversy may warrant a creative approach that goes beyond the narrow
confines of the issues raised. Thus, while the parties are in agreement that the
power exercised by the President is the power to call out the armed forces, the
Court is of the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare.[20] For
one, the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is
not brought upon the citizenry, a point discussed in the latter part of this
decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending
to the day-to-day problems of maintaining peace and order and ensuring
domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of
peace is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot be said to
exclude the Presidents exercising as Commander-in-Chief powers short of the
236 of 692
calling of the armed forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and maintain public
order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents
power to call out the armed forces to prevent or suppress lawless violence,
invasion or rebellion, the resolution of the controversy will reach a similar
result.
We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question,
and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter
which is appropriate for court review.[22] It pertains to issues which are
inherently susceptible of being decided on grounds recognized by law.
Nevertheless, the Court does not automatically assume jurisdiction over actual
constitutional cases brought before it even in instances that are ripe for
resolution. One class of cases wherein the Court hesitates to rule on are political
questions. The reason is that political questions are concerned with issues
dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the
separation of powers, the courts will not normally interfere with the workings
of another co-equal branch unless the case shows a clear need for the courts to
step in to uphold the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions
which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of government. Thus, if an issue is clearly
identified by the text of the Constitution as matters for discretionary action by
a particular branch of government or to the people themselves then it is held to
be a political question. In the classic formulation of Justice Brennan in Baker
v. Carr,[24] [p]rominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a courts undertaking independent resolution
without expressing lack of the respect due coordinate branches of government;
or an unusual need for unquestioning adherence to a political decision already
made; or the potentiality of embarassment from multifarious pronouncements
by various departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that
(T)he Judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law. Judicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.[25] Under this definition,
the Court cannot agree with the Solicitor General that the issue involved is a
political question beyond the jurisdiction of this Court to review. When the
grant of power is qualified, conditional or subject to limitations, the issue of
whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or
validity, not its wisdom.[26] Moreover, the jurisdiction to delimit constitutional
boundaries has been given to this Court.[27] When political questions are
involved, the Constitution limits the determination as to whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the official whose action is being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise
of judgment that is patent and gross as to amount to an evasion of positive duty
or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.[29] Under this definition, a
court is without power to directly decide matters over which full discretionary
authority has been delegated. But while this Court has no power to substitute
its judgment for that of Congress or of the President, it may look into the
question of whether such exercise has been made in grave abuse of
discretion.[30] A showing that plenary power is granted either department of
government, may not be an obstacle to judicial inquiry, for the improvident
exercise or abuse thereof may give rise to justiciable controversy.[31]
237 of 692

When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom. This is clear from the intent of the framers and
from the text of the Constitution itself. The Court, thus, cannot be called upon
to overrule the Presidents wisdom or substitute its own. However, this does not
prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling
out the armed forces, it is incumbent upon the petitioner to show that the
Presidents decision is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the assertion
that there exist no justification for calling out the armed forces. There is,
likewise, no evidence to support the proposition that grave abuse was
committed because the power to call was exercised in such a manner as to
violate the constitutional provision on civilian supremacy over the military. In
the performance of this Courts duty of purposeful hesitation[32] before
declaring an act of another branch as unconstitutional, only where such grave
abuse of discretion is clearly shown shall the Court interfere with the Presidents
judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to determine
the necessity for the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as Commander-in-
Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or
place the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for
the exercise of the calling out power is also implied and further reinforced in
the rest of Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress. The Congress, voting jointly, by a vote
of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined
by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need
of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law
or the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with
invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
238 of 692

Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the
revocation or review of the Presidents action to call out the armed forces. The
distinction places the calling out power in a different category from the power
to declare martial law and the power to suspend the privilege of the writ of
habeas corpus, otherwise, the framers of the Constitution would have simply
lumped together the three powers and provided for their revocation and review
without any qualification. Expressio unius est exclusio alterius. Where the
terms are expressly limited to certain matters, it may not, by interpretation or
construction, be extended to other matters.[33] That the intent of the
Constitution is exactly what its letter says, i.e., that the power to call is fully
discretionary to the President, is extant in the deliberation of the Constitutional
Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can call out
such Armed Forces as may be necessary to suppress lawless violence; then he
can suspend the privilege of the writ of habeas corpus, then he can impose
martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the
privilege of the writ of habeas corpus, his judgment is subject to review. We
are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser power
of calling on the Armed Forces, when he says it is necessary, it is my opinion
that his judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: The President may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion. So
we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent
danger, the matter can be handled by the First Sentence: The President....may
call out such Armed Forces to prevent or suppress lawless violence, invasion
or rebellion. So we feel that that is sufficient for handling imminent danger, of
invasion or rebellion, instead of imposing martial law or suspending the writ of
habeas corpus, he must necessarily have to call the Armed Forces of the
Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature
nor is it subject to judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the power to call out because it is considered as the lesser
and more benign power compared to the power to suspend the privilege of the
writ of habeas corpus and the power to impose martial law, both of which
involve the curtailment and suppression of certain basic civil rights and
individual freedoms, and thus necessitating safeguards by Congress and review
by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of
the power to suspend the privilege of the writ of habeas corpus or to impose
martial law, two conditions must concur: (1) there must be an actual invasion
or rebellion and, (2) public safety must require it. These conditions are not
required in the case of the power to call out the armed forces. The only criterion
is that whenever it becomes necessary, the President may call the armed forces
to prevent or suppress lawless violence, invasion or rebellion." The implication
is that the President is given full discretion and wide latitude in the exercise of
the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several
factors which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence upon which the
239 of 692
President might decide that there is a need to call out the armed forces may be
of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power
to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property.
Indeed, the decision to call out the military to prevent or suppress lawless
violence must be done swiftly and decisively if it were to have any effect at all.
Such a scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for
disaster, as such power may be unduly straitjacketed by an injunction or a
temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President,
as Commander-in-Chief of the Armed Forces, full discretion to call forth the
military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can show
that the exercise of such discretion was gravely abused, the Presidents exercise
of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling
the armed forces. In his Memorandum, he categorically asserted that, [V]iolent
crimes like bank/store robberies, holdups, kidnappings and carnappings
continue to occur in Metro Manila...[35] We do not doubt the veracity of the
Presidents assessment of the situation, especially in the light of present
developments. The Court takes judicial notice of the recent bombings
perpetrated by lawless elements in the shopping malls, public utilities, and other
public places. These are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President has sufficient
factual basis to call for military aid in law enforcement and in the exercise of
this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause
nor does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines,
the civilian task of law enforcement is militarized in violation of Section 3,
Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of
the civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The
participation of the Marines in the conduct of joint visibility patrols is
appropriately circumscribed. The limited participation of the Marines is evident
in the provisions of the LOI itself, which sufficiently provides the metes and
bounds of the Marines authority. It is noteworthy that the local police forces are
the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols.[37] Under the
LOI, the police forces are tasked to brief or orient the soldiers on police patrol
procedures.[38] It is their responsibility to direct and manage the deployment
of the Marines.[39] It is, likewise, their duty to provide the necessary equipment
to the Marines and render logistical support to these soldiers.[40] In view of the
foregoing, it cannot be properly argued that military authority is supreme over
civilian authority. Moreover, the deployment of the Marines to assist the PNP
does not unmake the civilian character of the police force. Neither does it
amount to an insidious incursion of the military in the task of law enforcement
in violation of Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff
of the AFP, by his alleged involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the aforecited provision.
The real authority in these operations, as stated in the LOI, is lodged with the
head of a civilian institution, the PNP, and not with the military. Such being the
case, it does not matter whether the AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority or control over the
same. Since none of the Marines was incorporated or enlisted as members of
the PNP, there can be no appointment to civilian position to speak of. Hence,
the deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.
240 of 692
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the
civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that
it is not averse to requesting the assistance of the military in the implementation
and execution of certain traditionally civil functions. As correctly pointed out
by the Solicitor General, some of the multifarious activities wherein military
aid has been rendered, exemplifying the activities that bring both the civilian
and the military together in a relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of
Congress and, yet, never before questioned.[59] What we have here is mutual
support and cooperation between the military and civilian authorities, not
derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards
the use of military force for domestic purposes has persisted,[60] and whose
Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act[61] of the US, the use of
the military in civilian law enforcement is generally prohibited, except in
certain allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air
Force as posse comitatus or otherwise to execute the laws shall be fined not
more than $10,000 or imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use
of military personnel, the US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433
241 of 692
(1986), which discusses the four divergent standards for assessing acceptable
involvement of military personnel in civil law enforcement. See likewise
HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp.
130-152, 1973. 64 in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the
Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those
claiming relief. A mere threat of some future injury would be insufficient.
(emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do
not control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67]
and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit
or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the
nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No.
8(c)[70] of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or
compulsory military power, the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for civilian law
enforcement.[71]
It appears that the present petition is anchored on fear that once the armed forces
are deployed, the military will gain ascendancy, and thus place in peril our
cherished liberties. Such apprehensions, however, are unfounded. The power to
call the armed forces is just that - calling out the armed forces. Unless, petitioner
IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule
the Presidents determination of the factual basis for the calling of the Marines
to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January,
2000, not a single citizen has complained that his political or civil rights have
been violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived. Freedom and democracy will be in full bloom
only when people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Executive Secretary v. CA
429 SCRA 781 (May 25, 2009)
G.R. No. 131719 May 25, 2004
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF LABOR AND EMPLOYMENT, AND THE SECRETARY
OF FOREIGN AFFAIRS, OWWA PUNO, ADMINISTRATOR, and POEA
ADMINISTRATOR, petitioners,
vs.
THE HON. COURT OF APPEALS and ASIAN RECRUITMENT COUNCIL
PHILIPPINE CHAPTER (ARCO-PHIL.), INC., representing its members:
Worldcare Services Internationale, Inc., Steadfast
International Recruitment Corporation, Dragon International Manpower
Services Corporation, Verdant Manpower Mobilization Corporation, Brent
Overseas Personnel, Inc., ARL Manpower Services, Inc., Dahlzhen
International Services, Inc., Interworld Placement Center, Inc., Lakas Tao
Contract Services, Ltd. Co., and SSC Multiservices, respondents.
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DECISION
CALLEJO, SR., J.:
In this petition for review on certiorari, the Executive Secretary of the President
of the Philippines, the Secretary of Justice, the Secretary of Foreign Affairs, the
Secretary of Labor and Employment, the POEA Administrator and the OWWA
Administrator, through the Office of the Solicitor General, assail the Decision1
of the Court of Appeals in CA-G.R. SP No. 38815 affirming the Order2 of the
Regional Trial Court of Quezon City dated August 21, 1995 in Civil Case No.
Q-95-24401, granting the plea of the petitioners therein for a writ of preliminary
injunction and of the writ of preliminary injunction issued by the trial court on
August 24, 1995.
The Antecedents
Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas
Filipinos Act of 1995, took effect on July 15, 1995. The Omnibus Rules and
Regulations Implementing the Migrant Workers and Overseas Filipino Act of
1995 was, thereafter, published in the April 7, 1996 issue of the Manila Bulletin.
However, even before the law took effect, the Asian Recruitment Council
Philippine Chapter, Inc. (ARCO-Phil.) filed, on July 17, 1995, a petition for
declaratory relief under Rule 63 of the Rules of Court with the Regional Trial
Court of Quezon City to declare as unconstitutional Section 2, paragraph (g),
Section 6, paragraphs (a) to (j), (l) and (m), Section 7, paragraphs (a) and (b),
and Sections 9 and 10 of the law, with a plea for the issuance of a temporary
restraining order and/or writ of preliminary injunction enjoining the
respondents therein from enforcing the assailed provisions of the law.
In a supplement to its petition, the ARCO-Phil. alleged that Rep. Act No. 8042
was self-executory and that no implementing rules were needed. It prayed that
the court issue a temporary restraining order to enjoin the enforcement of
Section 6, paragraphs (a) to (m) on illegal recruitment, Section 7 on penalties
for illegal recruitment, and Section 9 on venue of criminal actions for illegal
recruitments, viz:
Viewed in the light of the foregoing discussions, there appears to be urgent an
imperative need for this Honorable Court to maintain the status quo by
enjoining the implementation or effectivity of the questioned provisions of RA
8042, by way of a restraining order otherwise, the member recruitment agencies
of the petitioner will suffer grave or irreparable damage or injury. With the
effectivity of RA 8042, a great majority of the duly licensed recruitment
agencies have stopped or suspended their operations for fear of being
prosecuted under the provisions of a law that are unjust and unconstitutional.
This Honorable Court may take judicial notice of the fact that processing of
deployment papers of overseas workers for the past weeks have come to a
standstill at the POEA and this has affected thousands of workers everyday just
because of the enactment of RA 8042. Indeed, this has far reaching effects not
only to survival of the overseas manpower supply industry and the active
participating recruitment agencies, the country’s economy which has survived
mainly due to the dollar remittances of the overseas workers but more
importantly, to the poor and the needy who are in dire need of income-
generating jobs which can only be obtained from abroad. The loss or injury that
the recruitment agencies will suffer will then be immeasurable and irreparable.
As of now, even foreign employers have already reduced their manpower
requirements from the Philippines due to their knowledge that RA 8042
prejudiced and adversely affected the local recruitment agencies.3
On August 1, 1995, the trial court issued a temporary restraining order effective
for a period of only twenty (20) days therefrom.
After the petitioners filed their comment on the petition, the ARCO-Phil. filed
an amended petition, the amendments consisting in the inclusion in the caption
thereof eleven (11) other corporations which it alleged were its members and
which it represented in the suit, and a plea for a temporary restraining order
enjoining the respondents from enforcing Section 6 subsection (i), Section 6
subsection (k) and paragraphs 15 and 16 thereof, Section 8, Section 10,
paragraphs 1 and 2, and Sections 11 and 40 of Rep. Act No. 8042.
The respondent ARCO-Phil. assailed Section 2(g) and (i), Section 6 subsection
(a) to (m), Section 7(a) to (b), and Section 10 paragraphs (1) and (2), quoted as
follows:
(g) THE STATE RECOGNIZES THAT THE ULTIMATE PROTECTION TO
ALL MIGRANT WORKERS IS THE POSSESSION OF SKILLS.
PURSUANT TO THIS AND AS SOON AS PRACTICABLE, THE
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GOVERNMENT SHALL DEPLOY AND/OR ALLOW THE DEPLOYMENT
ONLY OF SKILLED FILIPINO WORKERS.4
Sec. 2 subsection (i, 2nd par.)
Nonetheless, the deployment of Filipino overseas workers, whether land-based
or sea-based, by local service contractors and manning agents employing them
shall be encourages (sic). Appropriate incentives may be extended to them.
…
II. ILLEGAL RECRUITMENT
SEC. 6. Definition. – For purposes of this Act, illegal recruitment shall mean
any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or
procuring workers and includes referring, contract services, promising or
advertising for employment abroad, whether for profit or not, when undertaken
by a non-licensee or non-holder of authority contemplated under Article 13(f)
of Presidential Decree No. 442, as amended, otherwise known as the Labor
Code of the Philippines: Provided, That any such non-licensee or non-holder
who, in any manner, offers or promises for a fee employment abroad to two or
more persons shall be deemed so engaged. It shall, likewise, include the
following acts, whether committed by any person, whether a non-licensee, non-
holder, licensee or holder of authority:
(a) To charge or accept directly or indirectly any amount greater than that
specified in the schedule of allowable fees prescribed by the Secretary of Labor
and Employment, or to make a worker pay any amount greater than that actually
received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation
to recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any
act of misrepresentation for the purpose of securing a license or authority under
the Labor Code;
(d) To induce or attempt to induce a worker already employed to quit his
employment in order to offer him another unless the transfer is designed to
liberate a worker from oppressive terms and conditions of employment;
(e) To influence or attempt to influence any person or entity not to employ any
worker who has not applied for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs harmful to
public health or morality or to the dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and
Employment or by his duly authorized representative;
(h) To fail to submit reports on the status of employment, placement vacancies,
remittance of foreign exchange earnings, separation from jobs, departures and
such other matters or information as may be required by the Secretary of Labor
and Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts
approved and verified by the Department of Labor and Employment from the
time of actual signing thereof by the parties up to and including the period of
the expiration of the same without the approval of the Department of Labor and
Employment;
(j) For an officer or agent of a recruitment or placement agency to become an
officer or member of the Board of any corporation engaged in travel agency or
to be engaged directly or indirectly in the management of a travel agency;
(k) To withhold or deny travel documents from applicant workers before
departure for monetary or financial considerations other than those authorized
under the Labor Code and its implementing rules and regulations;
(l) Failure to actually deploy without valid reason as determined by the
Department of Labor and Employment; and
(m) Failure to reimburse expenses incurred by the worker in connection with
his documentation and processing for purposes of deployment, in cases where
the deployment does not actually take place without the worker’s fault. Illegal
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recruitment when committed by a syndicate or in large scale shall be considered
an offense involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate if carried out by a group
of three (3) or more persons conspiring or confederating with one another. It is
deemed committed in large scale if committed against three (3) or more persons
individually or as a group.
The persons criminally liable for the above offenses are the principals,
accomplices and accessories. In case of juridical persons, the officers having
control, management or direction of their business shall be liable.
… employer-employee relationship or by virtue of any law or contract involving
SEC. 7. Penalties. –
(a) Any person found guilty of illegal recruitment shall suffer the penalty of
imprisonment of not less than six (6) years and one (1) day but not more than
twelve (12) years and a fine of not less than two hundred thousand pesos
(P200,000.00) nor more than five hundred thousand pesos (P500,000.00).
(b) The penalty of life imprisonment and a fine of not less than five hundred
thousand pesos (P500,000.00) nor more than one million pesos (P1,000,000.00)
shall be imposed if illegal recruitment constitutes economic sabotage as defined
herein.
Provided, however, That the maximum penalty shall be imposed if the person
illegally recruited is less than eighteen (18) years of age or committed by a non-
licensee or non-holder of authority.
Sec. 8.
Prohibition on Officials and Employees. – It shall be unlawful for any official
or employee of the Department of Labor and Employment, the Philippine
Overseas Employment Administration (POEA), or the Overseas Workers
Welfare Administration (OWWA), or the Department of Foreign Affairs, or
other government agencies involved in the implementation of this Act, or their
relatives within the fourth civil degree of consanguinity or affinity, to engage,
directly or indirectly, in the business of recruiting migrant workers as defined
in this Act. The penalties provided in the immediate preceding paragraph shall
be imposed upon them. (underscoring supplied)
…
Sec. 10, pars. 1 & 2.
Money Claims. – Notwithstanding any provision of law to the contrary, the
Labor Arbiters of the National Labor Relations Commission (NLRC) shall have
the original and exclusive jurisdiction to hear and decide, within ninety (90)
calendar days after the filing of the complaint, the claims arising out of an
Filipino workers for overseas deployment including claims for actual, moral,
exemplary and other forms of damages.
The liability of the principal/employer and the recruitment/placement agency
for any and all claims under this section shall be joint and several. This
provision shall be incorporated in the contract for overseas employment and
shall be a condition precedent for its approval. The performance bond to be
filed by the recruitment/placement agency, as provided by law, shall be
answerable for all money claims or damages that may be awarded to the
workers. If the recruitment/placement agency is a juridical being, the corporate
officers and directors and partners as the case may be, shall themselves be
jointly and solidarily liable with the corporation or partnership for the aforesaid
claims and damages.
…
SEC. 11. Mandatory Periods for Resolution of Illegal Recruitment Cases. – The
preliminary investigations of cases under this Act shall be terminated within a
period of thirty (30) calendar days from the date of their filing. Where the
preliminary investigation is conducted by a prosecution officer and a prima
facie case is established, the corresponding information shall be filed in court
within twenty-four (24) hours from the termination of the investigation. If the
preliminary investigation is conducted by a judge and a prima facie case is
found to exist, the corresponding information shall be filed by the proper
245 of 692
prosecution officer within forty-eight (48) hours from the date of receipt of the
records of the case.
The respondent averred that the aforequoted provisions of Rep. Act No. 8042
violate Section 1, Article III of the Constitution.5 According to the respondent,
Section 6(g) and (i) discriminated against unskilled workers and their families
and, as such, violated the equal protection clause, as well as Article II, Section
126 and Article XV, Sections 17 and 3(3) of the Constitution.8 As the law
encouraged the deployment of skilled Filipino workers, only overseas skilled
workers are granted rights. The respondent stressed that unskilled workers also
have the right to seek employment abroad. According to the respondent, the
right of unskilled workers to due process is violated because they are prevented
from finding employment and earning a living abroad. It cannot be argued that
skilled workers are immune from abuses by employers, while unskilled workers
are merely prone to such abuses. It was pointed out that both skilled and
unskilled workers are subjected to abuses by foreign employers. Furthermore,
the prohibition of the deployment of unskilled workers abroad would only
encourage fly-by-night illegal recruiters.
According to the respondent, the grant of incentives to service contractors and
manning agencies to the exclusion of all other licensed and authorized recruiters
is an invalid classification. Licensed and authorized recruiters are thus deprived
of their right to property and due process and to the "equality of the person." It
is understandable for the law to prohibit illegal recruiters, but to discriminate
against licensed and registered recruiters is unconstitutional.
The respondent, likewise, alleged that Section 6, subsections (a) to (m) is
unconstitutional because licensed and authorized recruitment agencies are
placed on equal footing with illegal recruiters. It contended that while the Labor
Code distinguished between recruiters who are holders of licenses and non-
holders thereof in the imposition of penalties, Rep. Act No. 8042 does not make
any distinction. The penalties in Section 7(a) and (b) being based on an invalid
classification are, therefore, repugnant to the equal protection clause, besides
being excessive; hence, such penalties are violative of Section 19(1), Article III
of the Constitution.9 It was also pointed out that the penalty for
officers/officials/employees of recruitment agencies who are found guilty of
economic sabotage or large-scale illegal recruitment under Rep. Act No. 8042
is life imprisonment. Since recruitment agencies usually operate with a
manpower of more than three persons, such agencies are forced to shut down,
lest their officers and/or employees be charged with large scale illegal
recruitment or economic sabotage and sentenced to life imprisonment. Thus,
the penalty imposed by law, being disproportionate to the prohibited acts,
discourages the business of licensed and registered recruitment agencies.
The respondent also posited that Section 6(m) and paragraphs (15) and (16),
Sections 8, 9 and 10, paragraph 2 of the law violate Section 22, Article III of
the Constitution10 prohibiting ex-post facto laws and bills of attainder. This is
because the provisions presume that a licensed and registered recruitment
agency is guilty of illegal recruitment involving economic sabotage, upon a
finding that it committed any of the prohibited acts under the law. Furthermore,
officials, employees and their relatives are presumed guilty of illegal
recruitment involving economic sabotage upon such finding that they
committed any of the said prohibited acts.
The respondent further argued that the 90-day period in Section 10, paragraph
(1) within which a labor arbiter should decide a money claim is relatively short,
and could deprive licensed and registered recruiters of their right to due process.
The period within which the summons and the complaint would be served on
foreign employees and, thereafter, the filing of the answer to the complaint
would take more than 90 days. This would thereby shift on local licensed and
authorized recruiters the burden of proving the defense of foreign employers.
Furthermore, the respondent asserted, Section 10, paragraph 2 of the law, which
provides for the joint and several liability of the officers and employees, is a
bill of attainder and a violation of the right of the said corporate officers and
employees to due process. Considering that such corporate officers and
employees act with prior approval of the board of directors of such corporation,
they should not be liable, jointly and severally, for such corporate acts.
The respondent asserted that the following provisions of the law are
unconstitutional:
SEC. 9. Venue. – A criminal action arising from illegal recruitment as defined
herein shall be filed with the Regional Trial Court of the province or city where
the offense was committed or where the offended party actually resides at the
time of the commission of the offense: Provided, That the court where the
criminal action is first filed shall acquire jurisdiction to the exclusion of other
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courts: Provided, however, That the aforestated provisions shall also apply to
those criminal actions that have already been filed in court at the time of the
effectivity of this Act.
… of a temporary restraining order and/or a writ of preliminary injunction prayed
SEC. 10. Money Claims. – Notwithstanding any provision of law to the
contrary, the Labor Arbiters of the National Labor Relations Commission
(NLRC) shall have the original and exclusive jurisdiction to hear and decide,
within ninety (90) calendar days after the filing of the complaint, the claims
arising out of an employer-employee relationship or by virtue of any law or
contract involving Filipino workers for overseas deployment including claims
for actual, moral, exemplary and other forms of damages.
Sec. 40.
The departments and agencies charged with carrying out the provisions of this
Act shall, within ninety (90) days after the effectiviy of this Act, formulate the
necessary rules and regulations for its effective implementation.
According to the respondent, the said provisions violate Section 5(5), Article
VIII of the Constitution11 because they impair the power of the Supreme Court
to promulgate rules of procedure.
In their answer to the petition, the petitioners alleged, inter alia, that (a) the
respondent has no cause of action for a declaratory relief; (b) the petition was
premature as the rules implementing Rep. Act No. 8042 not having been
released as yet; (c) the assailed provisions do not violate any provisions of the
Constitution; and, (d) the law was approved by Congress in the exercise of the
police power of the State. In opposition to the respondent’s plea for injunctive
relief, the petitioners averred that:
As earlier shown, the amended petition for declaratory relief is devoid of merit
for failure of petitioner to demonstrate convincingly that the assailed law is
unconstitutional, apart from the defect and impropriety of the petition. One who
attacks a statute, alleging unconstitutionality must prove its invalidity beyond
reasonable doubt (Caleon v. Agus Development Corporation, 207 SCRA 748).
All reasonable doubts should be resolved in favor of the constitutionality of a
statute (People v. Vera, 65 Phil. 56). This presumption of constitutionality is
based on the doctrine of separation of powers which enjoin upon each
department a becoming respect for the acts of the other departments (Garcia vs.
Executive Secretary, 204 SCRA 516 [1991]). Necessarily, the ancillary remedy
for must fall. Besides, an act of legislature approved by the executive is
presumed to be within constitutional bounds (National Press Club v.
Commission on Elections, 207 SCRA 1).12
After the respective counsels of the parties were heard on oral arguments, the
trial court issued on August 21, 1995, an order granting the petitioner’s plea for
a writ of preliminary injunction upon a bond of P50,000. The petitioner posted
the requisite bond and on August 24, 1995, the trial court issued a writ of
preliminary injunction enjoining the enforcement of the following provisions
of Rep. Act No. 8042 pending the termination of the proceedings:
… Section 2, subsections (g) and (i, 2nd par.); Section 6, subsections (a) to (m),
and pars. 15 & 16; Section 7, subsections (a) & (b); Section 8; Section 9;
Section 10; pars. 1 & 2; Section 11; and Section 40 of Republic Act No. 8042,
otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995.
…13
The petitioners filed a petition for certiorari with the Court of Appeals assailing
the order and the writ of preliminary injunction issued by the trial court on the
following grounds:
1. Respondent ARCO-PHIL. had utterly failed to show its clear right/s or that
of its member-agencies to be protected by the injunctive relief and/or violation
of said rights by the enforcement of the assailed sections of R.A. 8042;
2. Respondent Judge fixed a P50,000 injunction bond which is grossly
inadequate to answer for the damage which petitioner-officials may sustain,
should respondent ARCO-PHIL. be finally adjudged as not being entitled
thereto.14
The petitioners asserted that the respondent is not the real party-in-interest as
petitioner in the trial court. It is inconceivable how the respondent, a non-stock
and non-profit corporation, could sustain direct injury as a result of the
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enforcement of the law. They argued that if, at all, any damage would result in
the implementation of the law, it is the licensed and registered recruitment
agencies and/or the unskilled Filipino migrant workers discriminated against
who would sustain the said injury or damage, not the respondent. The
respondent, as petitioner in the trial court, was burdened to adduce preponderant
evidence of such irreparable injury, but failed to do so. The petitioners further
insisted that the petition a quo was premature since the rules and regulations
implementing the law had yet to be promulgated when such petition was filed.
Finally, the petitioners averred that the respondent failed to establish the
requisites for the issuance of a writ of preliminary injunction against the
enforcement of the law and the rules and regulations issued implementing the
same.
On December 5, 1997, the appellate court came out with a four-page decision
dismissing the petition and affirming the assailed order and writ of preliminary
injunction issued by the trial court. The appellate court, likewise, denied the
petitioners’ motion for reconsideration of the said decision.
The petitioners now come to this Court in a petition for review on certiorari on
the following grounds:
1. Private respondent ARCO-PHIL. had utterly failed to show its clear right/s
or that of its member-agencies to be protected by the injunctive relief and/or
violation of said rights by the enforcement of the assailed sections of R.A. 8042;
2. The P50,000 injunction bond fixed by the court a quo and sustained by the
Court of Appeals is grossly inadequate to answer for the damage which
petitioners-officials may sustain, should private respondent ARCO-PHIL. be
finally adjudged as not being entitled thereto.15
On February 16, 1998, this Court issued a temporary restraining order enjoining
the respondents from enforcing the assailed order and writ of preliminary
injunction.
The Issues
The core issue in this case is whether or not the trial court committed grave
abuse of its discretion amounting to excess or lack of jurisdiction in issuing the
assailed order and the writ of preliminary injunction on a bond of only P50,000
and whether or not the appellate court erred in affirming the trial court’s order
and the writ of preliminary injunction issued by it.
The petitioners contend that the respondent has no locus standi. It is a non-
stock, non-profit organization; hence, not the real party-in-interest as petitioner
in the action. Although the respondent filed the petition in the Regional Trial
Court in behalf of licensed and registered recruitment agencies, it failed to
adduce in evidence a certified copy of its Articles of Incorporation and the
resolutions of the said members authorizing it to represent the said agencies in
the proceedings. Neither is the suit of the respondent a class suit so as to vest in
it a personality to assail Rep. Act No. 8042; the respondent is service-oriented
while the recruitment agencies it purports to represent are profit-oriented. The
petitioners assert that the law is presumed constitutional and, as such, the
respondent was burdened to make a case strong enough to overcome such
presumption and establish a clear right to injunctive relief.
The petitioners bewail the P50,000 bond fixed by the trial court for the issuance
of a writ of preliminary injunction and affirmed by the appellate court. They
assert that the amount is grossly inadequate to answer for any damages that the
general public may suffer by reason of the non-enforcement of the assailed
provisions of the law. The trial court committed a grave abuse of its discretion
in granting the respondent’s plea for injunctive relief, and the appellate court
erred in affirming the order and the writ of preliminary injunction issued by the
trial court.
The respondent, for its part, asserts that it has duly established its locus standi
and its right to injunctive relief as gleaned from its pleadings and the
appendages thereto. Under Section 5, Rule 58 of the Rules of Court, it was
incumbent on the petitioners, as respondents in the RTC, to show cause why no
injunction should issue. It avers that the injunction bond posted by the
respondent was more than adequate to answer for any injury or damage the
petitioners may suffer, if any, by reason of the writ of preliminary injunction
issued by the RTC. In any event, the assailed provisions of Rep. Act No. 8042
exposed its members to the immediate and irreparable damage of being
deprived of their right to a livelihood without due process, a property right
protected under the Constitution.
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The respondent contends that the commendable purpose of the law to eradicate
illegal recruiters should not be done at the expense and to the prejudice of
licensed and authorized recruitment agencies. The writ of preliminary
injunction was necessitated by the great number of duly licensed recruitment
agencies that had stopped or suspended their business operations for fear that
their officers and employees would be indicted and prosecuted under the
assailed oppressive penal provisions of the law, and meted excessive penalties.
The respondent, likewise, urges that the Court should take judicial notice that
the processing of deployment papers of overseas workers have come to a virtual
standstill at the POEA.
The Court’s Ruling
The petition is meritorious.
The Respondent Has Locus Standi
To File the Petition in the RTC in Representation of the Eleven Licensed and
Registered Recruitment Agencies Impleaded in the Amended Petition
The modern view is that an association has standing to complain of injuries to
its members. This view fuses the legal identity of an association with that of its
members.16 An association has standing to file suit for its workers despite its
lack of direct interest if its members are affected by the action. An organization
has standing to assert the concerns of its constituents.17
In Telecommunications and Broadcast Attorneys of the Philippines v.
Commission on Elections,18 we held that standing jus tertii would be
recognized only if it can be shown that the party suing has some substantial
relation to the third party, or that the right of the third party would be diluted
unless the party in court is allowed to espouse the third party’s constitutional
claims.
In this case, the respondent filed the petition for declaratory relief under Rule
64 of the Rules of Court for and in behalf of its eleven (11) licensed and
registered recruitment agencies which are its members, and which approved
separate resolutions expressly authorizing the respondent to file the said suit for
and in their behalf. We note that, under its Articles of Incorporation, the
respondent was organized for the purposes inter alia of promoting and
supporting the growth and development of the manpower recruitment industry,
both in the local and international levels; providing, creating and exploring
employment opportunities for the exclusive benefit of its general membership;
enhancing and promoting the general welfare and protection of Filipino
workers; and, to act as the representative of any individual, company, entity or
association on matters related to the manpower recruitment industry, and to
perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert the
rights of its members, because it and its members are in every practical sense
identical. The respondent asserts that the assailed provisions violate the
constitutional rights of its members and the officers and employees thereof. The
respondent is but the medium through which its individual members seek to
make more effective the expression of their voices and the redress of their
grievances.19
However, the respondent has no locus standi to file the petition for and in behalf
of unskilled workers. We note that it even failed to implead any unskilled
workers in its petition. Furthermore, in failing to implead, as parties-petitioners,
the eleven licensed and registered recruitment agencies it claimed to represent,
the respondent failed to comply with Section 2 of Rule 6320 of the Rules of
Court. Nevertheless, since the eleven licensed and registered recruitment
agencies for which the respondent filed the suit are specifically named in the
petition, the amended petition is deemed amended to avoid multiplicity of
suits.21
The Assailed Order and Writ of
Preliminary Injunction Is Mooted
By Case Law
The respondent justified its plea for injunctive relief on the allegation in its
amended petition that its members are exposed to the immediate and irreparable
danger of being deprived of their right to a livelihood and other constitutional
rights without due process, on its claim that a great number of duly licensed
recruitment agencies have stopped or suspended their operations for fear that
(a) their officers and employees would be prosecuted under the unjust and
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unconstitutional penal provisions of Rep. Act No. 8042 and meted equally
unjust and excessive penalties, including life imprisonment, for illegal
recruitment and large scale illegal recruitment without regard to whether the
recruitment agencies involved are licensed and/or authorized; and, (b) if the
members of the respondent, which are licensed and authorized, decide to
continue with their businesses, they face the stigma and the curse of being
labeled "illegal recruiters." In granting the respondent’s plea for a writ of
preliminary injunction, the trial court held, without stating the factual and legal
basis therefor, that the enforcement of Rep. Act No. 8042, pendente lite, would
cause grave and irreparable injury to the respondent until the case is decided on
its merits.
We note, however, that since Rep. Act No. 8042 took effect on July 15, 1995,
the Court had, in a catena of cases, applied the penal provisions in Section 6,
including paragraph (m) thereof, and the last two paragraphs therein defining
large scale illegal recruitment committed by officers and/or employees of
recruitment agencies by themselves and in connivance with private individuals,
and imposed the penalties provided in Section 7 thereof, including the penalty
of life imprisonment.22 The Informations therein were filed after preliminary
investigations as provided for in Section 11 of Rep. Act No. 8042 and in venues
as provided for in Section 9 of the said act. In People v. Chowdury,23 we held
that illegal recruitment is a crime of economic sabotage and must be enforced.
In People v. Diaz,24 we held that Rep. Act No. 8042 is but an amendment of
the Labor Code of the Philippines and is not an ex-post facto law because it is
not applied retroactively. In JMM Promotion and Management, Inc. v. Court of
Appeals,25 the issue of the extent of the police power of the State to regulate a
business, profession or calling vis-à-vis the equal protection clause and the non-
impairment clause of the Constitution were raised and we held, thus:
A profession, trade or calling is a property right within the meaning of our
constitutional guarantees. One cannot be deprived of the right to work and the
right to make a living because these rights are property rights, the arbitrary and
unwarranted deprivation of which normally constitutes an actionable wrong.
Nevertheless, no right is absolute, and the proper regulation of a profession,
calling, business or trade has always been upheld as a legitimate subject of a
valid exercise of the police power by the state particularly when their conduct
affects either the execution of legitimate governmental functions, the
preservation of the State, the public health and welfare and public morals.
According to the maxim, sic utere tuo ut alienum non laedas, it must of course
be within the legitimate range of legislative action to define the mode and
manner in which every one may so use his own property so as not to pose injury
to himself or others.
In any case, where the liberty curtailed affects at most the rights of property,
the permissible scope of regulatory measures is certainly much wider. To
pretend that licensing or accreditation requirements violates the due process
clause is to ignore the settled practice, under the mantle of the police power, of
regulating entry to the practice of various trades or professions. Professionals
leaving for abroad are required to pass rigid written and practical exams before
they are deemed fit to practice their trade. Seamen are required to take tests
determining their seamanship. Locally, the Professional Regulation
Commission has begun to require previously licensed doctors and other
professionals to furnish documentary proof that they had either re-trained or
had undertaken continuing education courses as a requirement for renewal of
their licenses. It is not claimed that these requirements pose an unwarranted
deprivation of a property right under the due process clause. So long as
professionals and other workers meet reasonable regulatory standards no such
deprivation exists.
Finally, it is a futile gesture on the part of petitioners to invoke the non-
impairment clause of the Constitution to support their argument that the
government cannot enact the assailed regulatory measures because they abridge
the freedom to contract. In Philippine Association of Service Exporters, Inc. vs.
Drilon, we held that "[t]he non-impairment clause of the Constitution … must
yield to the loftier purposes targeted by the government." Equally important,
into every contract is read provisions of existing law, and always, a reservation
of the police power for so long as the agreement deals with a subject impressed
with the public welfare.
A last point. Petitioners suggest that the singling out of entertainers and
performing artists under the assailed department orders constitutes class
legislation which violates the equal protection clause of the Constitution. We
do not agree.
250 of 692
The equal protection clause is directed principally against undue favor and
individual or class privilege. It is not intended to prohibit legislation which is
limited to the object to which it is directed or by the territory in which it is to
operate. It does not require absolute equality, but merely that all persons be
treated alike under like conditions both as to privileges conferred and liabilities
imposed. We have held, time and again, that the equal protection clause of the
Constitution does not forbid classification for so long as such classification is
based on real and substantial differences having a reasonable relation to the
subject of the particular legislation. If classification is germane to the purpose
of the law, concerns all members of the class, and applies equally to present and
future conditions, the classification does not violate the equal protection
guarantee.26
The validity of Section 6 of R.A. No. 8042 which provides that employees of
recruitment agencies may be criminally liable for illegal recruitment has been
upheld in People v. Chowdury:27
As stated in the first sentence of Section 6 of RA 8042, the persons who may
be held liable for illegal recruitment are the principals, accomplices and
accessories. An employee of a company or corporation engaged in illegal
recruitment may be held liable as principal, together with his employer, if it is
shown that he actively and consciously participated in illegal recruitment. It has
been held that the existence of the corporate entity does not shield from
prosecution the corporate agent who knowingly and intentionally causes the
corporation to commit a crime. The corporation obviously acts, and can act,
only by and through its human agents, and it is their conduct which the law
must deter. The employee or agent of a corporation engaged in unlawful
business naturally aids and abets in the carrying on of such business and will
be prosecuted as principal if, with knowledge of the business, its purpose and
effect, he consciously contributes his efforts to its conduct and promotion,
however slight his contribution may be. …28
By its rulings, the Court thereby affirmed the validity of the assailed penal and
procedural provisions of Rep. Act No. 8042, including the imposable penalties
therefor. Until the Court, by final judgment, declares that the said provisions
are unconstitutional, the enforcement of the said provisions cannot be enjoined.
The RTC Committed Grave Abuse of Its Discretion Amounting to Excess or
Lack of Jurisdiction in Issuing the Assailed Order and the Writ of Preliminary
Injunction
The matter of whether to issue a writ of preliminary injunction or not is
addressed to the sound discretion of the trial court. However, if the court
commits grave abuse of its discretion in issuing the said writ amounting to
excess or lack of jurisdiction, the same may be nullified via a writ of certiorari
and prohibition.
In Social Security Commission v. Judge Bayona,29 we ruled that a law is
presumed constitutional until otherwise declared by judicial interpretation. The
suspension of the operation of the law is a matter of extreme delicacy because
it is an interference with the official acts not only of the duly elected
representatives of the people but also of the highest magistrate of the land.
In Younger v. Harris, Jr.,30 the Supreme Court of the United States
emphasized, thus:
Federal injunctions against state criminal statutes, either in their entirety or with
respect to their separate and distinct prohibitions, are not to be granted as a
matter of course, even if such statutes are unconstitutional. No citizen or
member of the community is immune from prosecution, in good faith, for his
alleged criminal acts. The imminence of such a prosecution even though alleged
to be unauthorized and, hence, unlawful is not alone ground for relief in equity
which exerts its extraordinary powers only to prevent irreparable injury to the
plaintiff who seeks its aid. 752 Beal v. Missouri Pacific Railroad Corp., 312
U.S. 45, 49, 61 S.Ct. 418, 420, 85 L.Ed. 577.
And similarly, in Douglas, supra, we made clear, after reaffirming this rule,
that:
"It does not appear from the record that petitioners have been threatened with
any injury other than that incidental to every criminal proceeding brought
lawfully and in good faith …" 319 U.S., at 164, 63 S.Ct., at 881.31
The possible unconstitutionality of a statute, on its face, does not of itself justify
an injunction against good faith attempts to enforce it, unless there is a showing
251 of 692
of bad faith, harassment, or any other unusual circumstance that would call for
equitable relief.32 The "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored.33
To be entitled to a preliminary injunction to enjoin the enforcement of a law
assailed to be unconstitutional, the party must establish that it will suffer
irreparable harm in the absence of injunctive relief and must demonstrate that
it is likely to succeed on the merits, or that there are sufficiently serious
questions going to the merits and the balance of hardships tips decidedly in its
favor.34 The higher standard reflects judicial deference toward "legislation or
regulations developed through presumptively reasoned democratic processes."
Moreover, an injunction will alter, rather than maintain, the status quo, or will
provide the movant with substantially all the relief sought and that relief cannot
be undone even if the defendant prevails at a trial on the merits.35 Considering
that injunction is an exercise of equitable relief and authority, in assessing
whether to issue a preliminary injunction, the courts must sensitively assess all
the equities of the situation, including the public interest.36 In litigations
between governmental and private parties, courts go much further both to give
and withhold relief in furtherance of public interest than they are accustomed
to go when only private interests are involved.37 Before the plaintiff may be
entitled to injunction against future enforcement, he is burdened to show some
substantial hardship.38
The fear or chilling-effect of the assailed penal provisions of the law on the
members of the respondent does not by itself justify prohibiting the State from
enforcing them against those whom the State believes in good faith to be
punishable under the laws:
… Just as the incidental "chilling effect" of such statutes does not automatically
render them unconstitutional, so the chilling effect that admittedly can result
from the very existence of certain laws on the statute books does not in itself
justify prohibiting the State from carrying out the important and necessary task
of enforcing these laws against socially harmful conduct that the State believes
in good faith to be punishable under its laws and the Constitution.39
It must be borne in mind that subject to constitutional limitations, Congress is
empowered to define what acts or omissions shall constitute a crime and to
prescribe punishments therefor.40 The power is inherent in Congress and is part
of the sovereign power of the State to maintain peace and order. Whatever
views may be entertained regarding the severity of punishment, whether one
believes in its efficiency or its futility, these are peculiarly questions of
legislative policy.41 The comparative gravity of crimes and whether their
consequences are more or less injurious are matters for the State and Congress
itself to determine.42 Specification of penalties involves questions of
legislative policy.43
Due process prohibits criminal stability from shifting the burden of proof to the
accused, punishing wholly passive conduct, defining crimes in vague or
overbroad language and failing to grant fair warning of illegal conduct.44 Class
legislation is such legislation which denies rights to one which are accorded to
others, or inflicts upon one individual a more severe penalty than is imposed
upon another in like case offending.45 Bills of attainder are legislative acts
which inflict punishment on individuals or members of a particular group
without a judicial trial. Essential to a bill of attainder are a specification of
certain individuals or a group of individuals, the imposition of a punishment,
penal or otherwise, and the lack of judicial trial.46
Penalizing unlicensed and licensed recruitment agencies and their officers and
employees and their relatives employed in government agencies charged with
the enforcement of the law for illegal recruitment and imposing life
imprisonment for those who commit large scale illegal recruitment is not
offensive to the Constitution. The accused may be convicted of illegal
recruitment and large scale illegal recruitment only if, after trial, the prosecution
is able to prove all the elements of the crime charged.47
The possibility that the officers and employees of the recruitment agencies,
which are members of the respondent, and their relatives who are employed in
the government agencies charged in the enforcement of the law, would be
indicted for illegal recruitment and, if convicted sentenced to life imprisonment
for large scale illegal recruitment, absent proof of irreparable injury, is not
sufficient on which to base the issuance of a writ of preliminary injunction to
suspend the enforcement of the penal provisions of Rep. Act No. 8042 and avert
any indictments under the law.48 The normal course of criminal prosecutions
cannot be blocked on the basis of allegations which amount to speculations
about the future.49
252 of 692

There is no allegation in the amended petition or evidence adduced by the
respondent that the officers and/or employees of its members had been
threatened with any indictments for violations of the penal provisions of Rep.
Act No. 8042. Neither is there any allegation therein that any of its members
and/or their officers and employees committed any of the acts enumerated in
Section 6(a) to (m) of the law for which they could be indicted. Neither did the
respondent adduce any evidence in the RTC that any or all of its members or a
great number of other duly licensed and registered recruitment agencies had to
stop their business operations because of fear of indictments under Sections 6
and 7 of Rep. Act No. 8042. The respondent merely speculated and surmised
that licensed and registered recruitment agencies would close shop and stop
business operations because of the assailed penal provisions of the law. A writ
of preliminary injunction to enjoin the enforcement of penal laws cannot be
based on such conjectures or speculations. The Court cannot take judicial notice
that the processing of deployment papers of overseas workers have come to a
virtual standstill at the POEA because of the assailed provisions of Rep. Act
No. 8042. The respondent must adduce evidence to prove its allegation, and the
petitioners accorded a chance to adduce controverting evidence.
The respondent even failed to adduce any evidence to prove irreparable injury
because of the enforcement of Section 10(1)(2) of Rep. Act No. 8042. Its fear
or apprehension that, because of time constraints, its members would have to
defend foreign employees in cases before the Labor Arbiter is based on
speculations. Even if true, such inconvenience or difficulty is hardly irreparable
injury.
The trial court even ignored the public interest involved in suspending the
enforcement of Rep. Act No. 8042 vis-à-vis the eleven licensed and registered
recruitment agencies represented by the respondent. In People v. Gamboa,50
we emphasized the primary aim of Rep. Act No. 8042:
Preliminarily, the proliferation of illegal job recruiters and syndicates preying
on innocent people anxious to obtain employment abroad is one of the primary
considerations that led to the enactment of The Migrant Workers and Overseas
Filipinos Act of 1995. Aimed at affording greater protection to overseas
Filipino workers, it is a significant improvement on existing laws in the
recruitment and placement of workers for overseas employment. Otherwise
known as the Magna Carta of OFWs, it broadened the concept of illegal
recruitment under the Labor Code and provided stiffer penalties thereto,
especially those that constitute economic sabotage, i.e., Illegal Recruitment in
Large Scale and Illegal Recruitment Committed by a Syndicate.51
By issuing the writ of preliminary injunction against the petitioners sans any
evidence, the trial court frustrated, albeit temporarily, the prosecution of illegal
recruiters and allowed them to continue victimizing hapless and innocent
people desiring to obtain employment abroad as overseas workers, and blocked
the attainment of the salutary policies52 embedded in Rep. Act No. 8042. It
bears stressing that overseas workers, land-based and sea-based, had been
remitting to the Philippines billions of dollars which over the years had propped
the economy.
In issuing the writ of preliminary injunction, the trial court considered
paramount the interests of the eleven licensed and registered recruitment
agencies represented by the respondent, and capriciously overturned the
presumption of the constitutionality of the assailed provisions on the barefaced
claim of the respondent that the assailed provisions of Rep. Act No. 8042 are
unconstitutional. The trial court committed a grave abuse of its discretion
amounting to excess or lack of jurisdiction in issuing the assailed order and writ
of preliminary injunction. It is for this reason that the Court issued a temporary
restraining order enjoining the enforcement of the writ of preliminary
injunction issued by the trial court.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
assailed decision of the appellate court is REVERSED AND SET ASIDE. The
Order of the Regional Trial Court dated August 21, 1995 in Civil Case No. Q-
95-24401 and the Writ of Preliminary Injunction issued by it in the said case on
August 24, 1995 are NULLIFIED. No costs.
SO ORDERED.
Kilosbayan v. Guingona
232 SCRA 110 (1994)
253 of 692
G.R. No. 113375 May 5, 1994
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A.
RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO,
EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE,
CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL
V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN.
FREDDIE WEBB, SEN. WIGBERTO TAÑADA, and REP. JOKER P.
ARROYO, petitioners,
vs.
TEOFISTO GUINGONA, JR., in his capacity as Executive Secretary, Office
of the President; RENATO CORONA, in his capacity as Assistant Executive
Secretary and Chairman of the Presidential review Committee on the Lotto,
Office of the President; PHILIPPINE CHARITY SWEEPSTAKES OFFICE;
and PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents.
Jovito R. Salonga, Fernando Santiago, Emilio C. Capulong, Jr. and Felipe L.
Gozon for petitioners.
Renato L. Cayetano and Eleazar B. Reyes for PGMC.
Gamaliel G. Bongco, Oscar Karaan and Jedideoh Sincero for intervenors.
DAVIDE, JR., J.:
This is a special civil action for prohibition and injunction, with a prayer for a
temporary restraining order and preliminary injunction, which seeks to prohibit
and restrain the implementation of the "Contract of Lease" executed by the
Philippine Charity Sweepstakes Office (PCSO) and the Philippine Gaming
Management Corporation (PGMC) in connection with the on- line lottery
system, also known as "lotto."
Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a non-
stock domestic corporation composed of civic-spirited citizens, pastors, priests,
nuns, and lay leaders who are committed to the cause of truth, justice, and
national renewal. The rest of the petitioners, except Senators Freddie Webb and
Wigberto Tañada and Representative Joker P. Arroyo, are suing in their
capacities as members of the Board of Trustees of KILOSBAYAN and as
taxpayers and concerned citizens. Senators Webb and Tañada and
Representative Arroyo are suing in their capacities as members of Congress and
as taxpayers and concerned citizens of the Philippines.
The pleadings of the parties disclose the factual antecedents which triggered off
the filing of this petition.
Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as amended
by B.P. Blg. 42) which grants it the authority to hold and conduct "charity
sweepstakes races, lotteries and other similar activities," the PCSO decided to
establish an on- line lottery system for the purpose of increasing its revenue
base and diversifying its sources of funds. Sometime before March 1993, after
learning that the PCSO was interested in operating an on-line lottery system,
the Berjaya Group Berhad, "a multinational company and one of the ten largest
public companies in Malaysia," long "engaged in, among others, successful
lottery operations in Asia, running both Lotto and Digit games, thru its
subsidiary, Sports Toto Malaysia," with its "affiliate, the International
Totalizator Systems, Inc., . . . an American public company engaged in the
international sale or provision of computer systems, softwares, terminals,
training and other technical services to the gaming industry," "became
interested to offer its services and resources to PCSO." As an initial step,
Berjaya Group Berhad (through its individual nominees) organized with some
Filipino investors in March 1993 a Philippine corporation known as the
Philippine Gaming Management Corporation (PGMC), which "was intended to
be the medium through which the technical and management services required
for the project would be offered and delivered to PCSO." 1
Before August 1993, the PCSO formally issued a Request for Proposal (RFP)
for the Lease Contract of an on-line lottery system for the PCSO. 2 Relevant
provisions of the RFP are the following:
1. EXECUTIVE SUMMARY
xxx xxx xxx
254 of 692
1.2. PCSO is seeking a suitable contractor which shall build, at its own The objectives of PCSO in leasing the Facilities from a private entity are as
expense, all the facilities ('Facilities') needed to operate and maintain a follows:
nationwide on-line lottery system. PCSO shall lease the Facilities for a fixed
percentage ofquarterly gross receipts. All receipts from ticket sales shall be xxx xxx xxx
turned over directly to PCSO. All capital, operating expenses and expansion
expenses and risks shall be for the exclusive account of the Lessor. 2.2.2. Enable PCSO to operate a nationwide on-line Lottery system at no
expense or risk to the government.
xxx xxx xxx
xxx xxx xxx
1.4. The lease shall be for a period not exceeding fifteen (15) years.
2.4. DUTIES AND RESPONSIBILITIES OF THE LESSOR
1.5. The Lessor is expected to submit a comprehensive nationwide lottery
development plan ("Development Plan") which will include the game, the xxx xxx xxx
marketing of the games, and the logistics to introduce the games to all the cities
and municipalities of the country within five (5) years. 2.4.2. THE LESSOR

xxx xxx xxx The Proponent is expected to furnish and maintain the Facilities, including the
personnel needed to operate the computers, the communications network and
1.7. The Lessor shall be selected based on its technical expertise, hardware sales offices under a build-lease basis. The printing of tickets shall be
and software capability, maintenance support, and financial resources. The undertaken under the supervision and control of PCSO. The Facilities shall
Development Plan shall have a substantial bearing on the choice of the Lessor. enable PCSO to computerize the entire gaming system.
The Lessor shall be a domestic corporation, with at least sixty percent (60%) of
its shares owned by Filipino shareholders. The Proponent is expected to formulate and design consumer-oriented Master
Games Plan suited to the marketplace, especially geared to Filipino gaming
xxx xxx xxx habits and preferences. In addition, the Master Games Plan is expected to
include a Product Plan for each game and explain how each will be introduced
The Office of the President, the National Disaster Control Coordinating into the market. This will be an integral part of the Development Plan which
Council, the Philippine National Police, and the National Bureau of PCSO will require from the Proponent.
Investigation shall be authorized to use the nationwide telecommunications
system of the Facilities Free of Charge. xxx xxx xxx

1.8. Upon expiration of the lease, the Facilities shall be owned by PCSO The Proponent is expected to provide upgrades to modernize the entire gaming
without any additional consideration. 3 system over the life ofthe lease contract.

xxx xxx xxx The Proponent is expected to provide technology transfer to PCSO technical
personnel. 4
2.2. OBJECTIVES
7. GENERAL GUIDELINES FOR PROPONENTS
255 of 692

xxx xxx xxx
Finally, the Proponent must be able to stand the acid test of proving that it is an
entity able to take on the role of responsible maintainer of the on-line lottery
system, and able to achieve PSCO's goal of formalizing an on-line lottery
system to achieve its mandated objective. 5
xxx xxx xxx
16. DEFINITION OF TERMS
Facilities: All capital equipment, computers, terminals, software, nationwide
telecommunication network, ticket sales offices, furnishings, and fixtures;
printing costs; cost of salaries and wages; advertising and promotion expenses;
maintenance costs; expansion and replacement costs; security and insurance,
and all other related expenses needed to operate nationwide on-line lottery
system. 6
Considering the above citizenship requirement, the PGMC claims that the
Berjaya Group "undertook to reduce its equity stakes in PGMC to 40%," by
selling 35% out of the original 75% foreign stockholdings to local investors.
On 15 August 1993, PGMC submitted its bid to the PCSO. 7
The bids were evaluated by the Special Pre-Qualification Bids and Awards
Committee (SPBAC) for the on-line lottery and its Bid Report was thereafter
submitted to the Office of the President. 8 The submission was preceded by
complaints by the Committee's Chairperson, Dr. Mita Pardo de Tavera. 9
On 21 October 1993, the Office of the President announced that it had given
the respondent PGMC the go-signal to operate the country's on-line lottery
system and that the corresponding implementing contract would be submitted
not later than 8 November 1993 "for final clearance and approval by the Chief
Executive." 10 This announcement was published in the Manila Standard,
Philippine Daily Inquirer, and the Manila Times on 29 October 1993. 11
On 4 November 1993, KILOSBAYAN sent an open letter to Presidential Fidel
V. Ramos strongly opposing the setting up to the on-line lottery system on the
basis of serious moral and ethical considerations. 12
At the meeting of the Committee on Games and Amusements of the Senate on
12 November 1993, KILOSBAYAN reiterated its vigorous opposition to the
on-line lottery on account of its immorality and illegality. 13
On 19 November 1993, the media reported that despite the opposition,
"Malacañang will push through with the operation of an on-line lottery system
nationwide" and that it is actually the respondent PCSO which will operate the
lottery while the winning corporate bidders are merely "lessors." 14
On 1 December 1993, KILOSBAYAN requested copies of all documents
pertaining to the lottery award from Executive Secretary Teofisto Guingona, Jr.
In his answer of 17 December 1993, the Executive Secretary informed
KILOSBAYAN that the requested documents would be duly transmitted before
the end of the month. 15. However, on that same date, an agreement
denominated as "Contract of Lease" was finally executed by respondent PCSO
and respondent PGMC. 16 The President, per the press statement issued by the
Office of the President, approved it on 20 December 1993. 17
In view of their materiality and relevance, we quote the following salient
provisions of the Contract of Lease:
1. DEFINITIONS
The following words and terms shall have the following respective meanings:
1.1 Rental Fee — Amount to be paid by PCSO to the LESSOR as
compensation for the fulfillment of the obligations of the LESSOR under this
Contract, including, but not limited to the lease of the Facilities.
xxx xxx xxx
1.3 Facilities — All capital equipment, computers, terminals, software
(including source codes for the On-Line Lottery application software for the
256 of 692
terminals, telecommunications and central systems), technology, intellectual
property rights, telecommunications network, and furnishings and fixtures.
1.4 Maintenance and Other Costs — All costs and expenses relating to
printing, manpower, salaries and wages, advertising and promotion,
maintenance, expansion and replacement, security and insurance, and all other
related expenses needed to operate an On-Line Lottery System, which shall be
for the account of the LESSOR. All expenses relating to the setting-up,
operation and maintenance of ticket sales offices of dealers and retailers shall
be borne by PCSO's dealers and retailers.
1.5 Development Plan — The detailed plan of all games, the marketing
thereof, number of players, value of winnings and the logistics required to
introduce the games, including the Master Games Plan as approved by PCSO,
attached hereto as Annex "A", modified as necessary by the provisions of this
Contract.
xxx xxx xxx
1.8 Escrow Deposit — The proposal deposit in the sum of Three Hundred
Million Pesos (P300,000,000.00) submitted by the LESSOR to PCSO pursuant
to the requirements of the Request for Proposals.
2. SUBJECT MATTER OF THE LEASE
The LESSOR shall build, furnish and maintain at its own expense and risk the
Facilities for the On-Line Lottery System of PCSO in the Territory on an
exclusive basis. The LESSOR shall bear all Maintenance and Other Costs as
defined herein.
xxx xxx xxx
3. RENTAL FEE
For and in consideration of the performance by the LESSOR of its obligations
herein, PCSO shall pay LESSOR a fixed Rental Fee equal to four point nine
percent (4.9%) of gross receipts from ticket sales, payable net of taxes required
by law to be withheld, on a semi-monthly basis. Goodwill, franchise and similar
fees shall belong to PCSO.
4. LEASE PERIOD
The period of the lease shall commence ninety (90) days from the date of
effectivity of this Contract and shall run for a period of eight (8) years
thereafter, unless sooner terminated in accordance with this Contract.
5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR OF THE
ON-LINE LOTTERY SYSTEM
PCSO shall be the sole and individual operator of the On-Line Lottery System.
Consequently:
5.1 PCSO shall have sole responsibility to decide whether to implement,
fully or partially, the Master Games Plan of the LESSOR. PCSO shall have the
sole responsibility to determine the time for introducing new games to the
market. The Master Games Plan included in Annex "A" hereof is hereby
approved by PCSO.
5.2 PCSO shall have control over revenues and receipts of whatever nature
from the On-Line Lottery System. After paying the Rental Fee to the LESSOR,
PCSO shall have exclusive responsibility to determine the Revenue Allocation
Plan; Provided, that the same shall be consistent with the requirement of R.A.
No. 1169, as amended, which fixes a prize fund of fifty five percent (55%) on
the average.
5.3 PCSO shall have exclusive control over the printing of tickets,
including but not limited to the design, text, and contents thereof.
5.4 PCSO shall have sole responsibility over the appointment of dealers or
retailers throughout the country. PCSO shall appoint the dealers and retailers in
a timely manner with due regard to the implementation timetable of the On-
Line Lottery System. Nothing herein shall preclude the LESSOR from
recommending dealers or retailers for appointment by PCSO, which shall act
on said recommendation within forty-eight (48) hours.
257 of 692
5.5 PCSO shall designate the necessary personnel to monitor and audit the
daily performance of the On-Line Lottery System. For this purpose, PCSO
designees shall be given, free of charge, suitable and adequate space, furniture
and fixtures, in all offices of the LESSOR, including but not limited to its
headquarters, alternate site, regional and area offices.
5.6 PCSO shall have the responsibility to resolve, and exclusive
jurisdiction over, all matters involving the operation of the On-Line Lottery
System not otherwise provided in this Contract.
5.7 PCSO shall promulgate procedural and coordinating rules governing
all activities relating to the On-Line Lottery System.
5.8 PCSO will be responsible for the payment of prize monies,
commissions to agents and dealers, and taxes and levies (if any) chargeable to
the operator of the On-Line Lottery System. The LESSOR will bear all other
Maintenance and Other Costs, except as provided in Section 1.4.
5.9 PCSO shall assist the LESSOR in the following:
5.9.1 Work permits for the LESSOR's staff;
5.9.2 Approvals for importation of the Facilities;
5.9.3 Approvals and consents for the On-Line Lottery System; and
5.9.4 Business and premises licenses for all offices of the LESSOR and
licenses for the telecommunications network.
5.10 In the event that PCSO shall pre-terminate this Contract or suspend the
operation of the On-Line Lottery System, in breach of this Contract and through
no fault of the LESSOR, PCSO shall promptly, and in any event not later than
sixty (60) days, reimburse the LESSOR the amount of its total investment cost
associated with the On-Line Lottery System, including but not limited to the
cost of the Facilities, and further compensate the LESSOR for loss of expected
net profit after tax, computed over the unexpired term of the lease.
6. DUTIES AND RESPONSIBILITIES OF THE LESSOR
The LESSOR is one of not more than three (3) lessors of similar facilities for
the nationwide On-Line Lottery System of PCSO. It is understood that the
rights of the LESSOR are primarily those of a lessor of the Facilities, and
consequently, all rights involving the business aspects of the use of the
Facilities are within the jurisdiction of PCSO. During the term of the lease, the
LESSOR shall.
6.1 Maintain and preserve its corporate existence, rights and privileges, and
conduct its business in an orderly, efficient, and customary manner.
6.2 Maintain insurance coverage with insurers acceptable to PCSO on all
Facilities.
6.3 Comply with all laws, statues, rules and regulations, orders and
directives, obligations and duties by which it is legally bound.
6.4 Duly pay and discharge all taxes, assessments and government charges
now and hereafter imposed of whatever nature that may be legally levied upon
it.
6.5 Keep all the Facilities in fail safe condition and, if necessary, upgrade,
replace and improve the Facilities from time to time as new technology
develops, in order to make the On-Line Lottery System more cost-effective
and/or competitive, and as may be required by PCSO shall not impose such
requirements unreasonably nor arbitrarily.
6.6 Provide PCSO with management terminals which will allow real-time
monitoring of the On-Line Lottery System.
6.7 Upon effectivity of this Contract, commence the training of PCSO and
other local personnel and the transfer of technology and expertise, such that at
the end of the term of this Contract, PCSO will be able to effectively take-over
the Facilities and efficiently operate the On-Line Lottery System.
6.8 Undertake a positive advertising and promotions campaign for both
institutional and product lines without engaging in negative advertising against
other lessors.
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6.9 Bear all expenses and risks relating to the Facilities including, but not
limited to, Maintenance and Other Costs and:
xxx xxx xxx
6.10 Bear all risks if the revenues from ticket sales, on an annualized basis,
are insufficient to pay the entire prize money.
6.11 Be, and is hereby, authorized to collect and retain for its own account,
a security deposit from dealers and retailers, in an amount determined with the
approval of PCSO, in respect of equipment supplied by the LESSOR. PCSO's
approval shall not be unreasonably withheld.
xxx xxx xxx
6.12 Comply with procedural and coordinating rules issued by PCSO.
7. REPRESENTATIONS AND WARRANTIES
The LESSOR represents and warrants that:
7.1 The LESSOR is corporation duly organized and existing under the laws
of the Republic of the Philippines, at least sixty percent (60%) of the
outstanding capital stock of which is owned by Filipino shareholders. The
minimum required Filipino equity participation shall not be impaired through
voluntary or involuntary transfer, disposition, or sale of shares of stock by the
present stockholders.
7.2 The LESSOR and its Affiliates have the full corporate and legal power
and authority to own and operate their properties and to carry on their business
in the place where such properties are now or may be conducted. . . .
7.3 The LESSOR has or has access to all the financing and funding
requirements to promptly and effectively carry out the terms of this Contract. .
..
7.4 The LESSOR has or has access to all the managerial and technical
expertise to promptly and effectively carry out the terms of this Contract. . . .
xxx xxx xxx
10. TELECOMMUNICATIONS NETWORK
The LESSOR shall establish a telecommunications network that will connect
all municipalities and cities in the Territory in accordance with, at the
LESSOR's option, either of the LESSOR's proposals (or a combinations of both
such proposals) attached hereto as Annex "B," and under the following PCSO
schedule:
xxx xxx xxx
PCSO may, at its option, require the LESSOR to establish the
telecommunications network in accordance with the above Timetable in
provinces where the LESSOR has not yet installed terminals. Provided, that
such provinces have existing nodes. Once a municipality or city is serviced by
land lines of a licensed public telephone company, and such lines are connected
to Metro Manila, then the obligation of the LESSOR to connect such
municipality or city through a telecommunications network shall cease with
respect to such municipality or city. The voice facility will cover the four offices
of the Office of the President, National Disaster Control Coordinating Council,
Philippine National Police and the National Bureau of Investigation, and each
city and municipality in the Territory except Metro Manila, and those cities and
municipalities which have easy telephone access from these four offices. Voice
calls from the four offices shall be transmitted via radio or VSAT to the remote
municipalities which will be connected to this voice facility through wired
network or by radio. The facility shall be designed to handle four private
conversations at any one time.
xxx xxx xxx
13. STOCK DISPERSAL PLAN
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Within two (2) years from the effectivity of this Contract, the LESSOR shall
cause itself to be listed in the local stock exchange and offer at least twenty five
percent (25%) of its equity to the public.
14. NON-COMPETITION
The LESSOR shall not, directly or indirectly, undertake any activity or business
in competition with or adverse to the On-Line Lottery System of PCSO unless
it obtains the latter's prior written consent thereto.
15. HOLD HARMLESS CLAUSE
15.1 The LESSOR shall at all times protect and defend, at its cost and
expense, PCSO from and against any and all liabilities and claims for damages
and/or suits for or by reason of any deaths of, or any injury or injuries to any
person or persons, or damages to property of any kind whatsoever, caused by
the LESSOR, its subcontractors, its authorized agents or employees, from any
cause or causes whatsoever.
15.2 The LESSOR hereby covenants and agrees to indemnify and hold
PCSO harmless from all liabilities, charges, expenses (including reasonable
counsel fees) and costs on account of or by reason of any such death or deaths,
injury or injuries, liabilities, claims, suits or losses caused by the LESSOR's
fault or negligence.
15.3 The LESSOR shall at all times protect and defend, at its own cost and
expense, its title to the facilities and PCSO's interest therein from and against
any and all claims for the duration of the Contract until transfer to PCSO of
ownership of the serviceable Facilities.
16. SECURITY
16.1 To ensure faithful compliance by the LESSOR with the terms of the
Contract, the LESSOR shall secure a Performance Bond from a reputable
insurance company or companies acceptable to PCSO.
16.2 The Performance Bond shall be in the initial amount of Three Hundred
Million Pesos (P300,000,000.00), to its U.S. dollar equivalent, and shall be
renewed to cover the duration of the Contract. However, the Performance Bond
shall be reduced proportionately to the percentage of unencumbered terminals
installed; Provided, that the Performance Bond shall in no case be less than One
Hundred Fifty Million Pesos (P150,000,000.00).
16.3 The LESSOR may at its option maintain its Escrow Deposit as the
Performance Bond. . . .
17. PENALTIES
17.1 Except as may be provided in Section 17.2, should the LESSOR fail to
take remedial measures within seven (7) days, and rectify the breach within
thirty (30) days, from written notice by PCSO of any wilfull or grossly
negligent violation of the material terms and conditions of this Contract, all
unencumbered Facilities shall automatically become the property of PCSO
without consideration and without need for further notice or demand by PCSO.
The Performance Bond shall likewise be forfeited in favor of PCSO.
17.2 Should the LESSOR fail to comply with the terms of the Timetables
provided in Section 9 and 10, it shall be subject to an initial Penalty of Twenty
Thousand Pesos (P20,000.00), per city or municipality per every month of
delay; Provided, that the Penalty shall increase, every ninety (90) days, by the
amount of Twenty Thousand Pesos (P20,000.00) per city or municipality per
month, whilst shall failure to comply persists. The penalty shall be deducted by
PCSO from the rental fee.
xxx xxx xxx
20. OWNERSHIP OF THE FACILITIES
After expiration of the term of the lease as provided in Section 4, the Facilities
directly required for the On-Line Lottery System mentioned in Section 1.3 shall
automatically belong in full ownership to PCSO without any further
consideration other than the Rental Fees already paid during the effectivity of
the lease.
21. TERMINATION OF THE LEASE
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PCSO may terminate this Contract for any breach of the material provisions of
this Contract, including the following:
21.1 The LESSOR is insolvent or bankrupt or unable to pay its debts, stops
or suspends or threatens to stop or suspend payment of all or a material part of
its debts, or proposes or makes a general assignment or an arrangement or
compositions with or for the benefit of its creditors; or
21.2 An order is made or an effective resolution passed for the winding up
or dissolution of the LESSOR or when it ceases or threatens to cease to carry
on all or a material part of its operations or business; or
21.3 Any material statement, representation or warranty made or furnished
by the LESSOR proved to be materially false or misleading;
said termination to take effect upon receipt of written notice of termination by
the LESSOR and failure to take remedial action within seven (7) days and cure
or remedy the same within thirty (30) days from notice.
Any suspension, cancellation or termination of this Contract shall not relieve
the LESSOR of any liability that may have already accrued hereunder.
xxx xxx xxx
Considering the denial by the Office of the President of its protest and the
statement of Assistant Executive Secretary Renato Corona that "only a court
injunction can stop Malacañang," and the imminent implementation of the
Contract of Lease in February 1994, KILOSBAYAN, with its co-petitioners,
filed on 28 January 1994 this petition.
In support of the petition, the petitioners claim that:
. . . X X THE OFFICE OF THE PRESIDENT, ACTING THROUGH
RESPONDENTS EXECUTIVE SECRETARY AND/OR ASSISTANT
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, AND THE PCSO
GRAVELY ABUSE[D] THEIR DISCRETION AND/OR FUNCTIONS
TANTAMOUNT TO LACK OF JURISDICTION AND/OR AUTHORITY IN
RESPECTIVELY: (A) APPROVING THE AWARD OF THE CONTRACT
TO, AND (B) ENTERING INTO THE SO-CALLED "CONTRACT OF
LEASE" WITH, RESPONDENT PGMC FOR THE INSTALLATION,
ESTABLISHMENT AND OPERATION OF THE ON-LINE LOTTERY AND
TELECOMMUNICATION SYSTEMS REQUIRED AND/OR
AUTHORIZED UNDER THE SAID CONTRACT, CONSIDERING THAT:
a) Under Section 1 of the Charter of the PCSO, the PCSO is prohibited
from holding and conducting lotteries "in collaboration, association or joint
venture with any person, association, company or entity";
b) Under Act No. 3846 and established jurisprudence, a Congressional
franchise is required before any person may be allowed to establish and operate
said telecommunications system;
c) Under Section 11, Article XII of the Constitution, a less than 60%
Filipino-owned and/or controlled corporation, like the PGMC, is disqualified
from operating a public service, like the said telecommunications system; and
d) Respondent PGMC is not authorized by its charter and under the
Foreign Investment Act (R.A. No. 7042) to install, establish and operate the on-
line lotto and telecommunications systems. 18
Petitioners submit that the PCSO cannot validly enter into the assailed Contract
of Lease with the PGMC because it is an arrangement wherein the PCSO would
hold and conduct the on-line lottery system in "collaboration" or "association"
with the PGMC, in violation of Section 1(B) of R.A. No. 1169, as amended by
B.P. Blg. 42, which prohibits the PCSO from holding and conducting charity
sweepstakes races, lotteries, and other similar activities "in collaboration,
association or joint venture with any person, association, company or entity,
foreign or domestic." Even granting arguendo that a lease of facilities is not
within the contemplation of "collaboration" or "association," an analysis,
however, of the Contract of Lease clearly shows that there is a "collaboration,
association, or joint venture between respondents PCSO and PGMC in the
holding of the On-Line Lottery System," and that there are terms and conditions
of the Contract "showing that respondent PGMC is the actual lotto operator and
not respondent PCSO." 19
261 of 692
The petitioners also point out that paragraph 10 of the Contract of Lease
requires or authorizes PGMC to establish a telecommunications network that
will connect all the municipalities and cities in the territory. However, PGMC
cannot do that because it has no franchise from Congress to construct, install,
establish, or operate the network pursuant to Section 1 of Act No. 3846, as
amended. Moreover, PGMC is a 75% foreign-owned or controlled corporation
and cannot, therefore, be granted a franchise for that purpose because of Section
11, Article XII of the 1987 Constitution. Furthermore, since "the subscribed
foreign capital" of the PGMC "comes to about 75%, as shown by paragraph
EIGHT of its Articles of Incorporation," it cannot lawfully enter into the
contract in question because all forms of gambling — and lottery is one of them
— are included in the so-called foreign investments negative list under the
Foreign Investments Act (R.A. No. 7042) where only up to 40% foreign capital
is allowed. 20
Finally, the petitioners insist that the Articles of Incorporation of PGMC do not
authorize it to establish and operate an on-line lottery and telecommunications
systems. 21
Accordingly, the petitioners pray that we issue a temporary restraining order
and a writ of preliminary injunction commanding the respondents or any person
acting in their places or upon their instructions to cease and desist from
implementing the challenged Contract of Lease and, after hearing the merits of
the petition, that we render judgment declaring the Contract of Lease void and
without effect and making the injunction permanent. 22
We required the respondents to comment on the petition.
In its Comment filed on 1 March 1994, private respondent PGMC asserts that
"(1) [it] is merely an independent contractor for a piece of work, (i.e., the
building and maintenance of a lottery system to be used by PCSO in the
operation of its lottery franchise); and (2) as such independent contractor,
PGMC is not a co-operator of the lottery franchise with PCSO, nor is PCSO
sharing its franchise, 'in collaboration, association or joint venture' with PGMC
— as such statutory limitation is viewed from the context, intent, and spirit of
Republic Act 1169, as amended by Batas Pambansa 42." It further claims that
as an independent contractor for a piece of work, it is neither engaged in
"gambling" nor in "public service" relative to the telecommunications network,
which the petitioners even consider as an "indispensable requirement" of an on-
line lottery system. Finally, it states that the execution and implementation of
the contract does not violate the Constitution and the laws; that the issue on the
"morality" of the lottery franchise granted to the PCSO is political and not
judicial or legal, which should be ventilated in another forum; and that the
"petitioners do not appear to have the legal standing or real interest in the
subject contract and in obtaining the reliefs sought." 23
In their Comment filed by the Office of the Solicitor General, public
respondents Executive Secretary Teofisto Guingona, Jr., Assistant Executive
Secretary Renato Corona, and the PCSO maintain that the contract of lease in
question does not violate Section 1 of R.A. No. 1169, as amended by B.P. Blg.
42, and that the petitioner's interpretation of the phrase "in collaboration,
association or joint venture" in Section 1 is "much too narrow, strained and
utterly devoid of logic" for it "ignores the reality that PCSO, as a corporate
entity, is vested with the basic and essential prerogative to enter into all kinds
of transactions or contracts as may be necessary for the attainment of its
purposes and objectives." What the PCSO charter "seeks to prohibit is that
arrangement akin to a "joint venture" or partnership where there is "community
of interest in the business, sharing of profits and losses, and a mutual right of
control," a characteristic which does not obtain in a contract of lease." With
respect to the challenged Contract of Lease, the "role of PGMC is limited to
that of a lessor of the facilities" for the on-line lottery system; in "strict technical
and legal sense," said contract "can be categorized as a contract for a piece of
work as defined in Articles 1467, 1713 and 1644 of the Civil Code."
They further claim that the establishment of the telecommunications system
stipulated in the Contract of Lease does not require a congressional franchise
because PGMC will not operate a public utility; moreover, PGMC's
"establishment of a telecommunications system is not intended to establish a
telecommunications business," and it has been held that where the facilities are
operated "not for business purposes but for its own use," a legislative franchise
is not required before a certificate of public convenience can be granted. 24
Even granting arguendo that PGMC is a public utility, pursuant to Albano S.
Reyes, 25 "it can establish a telecommunications system even without a
legislative franchise because not every public utility is required to secure a
legislative franchise before it could establish, maintain, and operate the
service"; and, in any case, "PGMC's establishment of the telecommunications
262 of 692
system stipulated in its contract of lease with PCSO falls within the exceptions
under Section 1 of Act No. 3846 where a legislative franchise is not necessary
for the establishment of radio stations."
They also argue that the contract does not violate the Foreign Investment Act
of 1991; that the Articles of Incorporation of PGMC authorize it to enter into
the Contract of Lease; and that the issues of "wisdom, morality and propriety
of acts of the executive department are beyond the ambit of judicial review."
Finally, the public respondents allege that the petitioners have no standing to
maintain the instant suit, citing our resolution in Valmonte vs. Philippine
Charity Sweepstakes Office. 26
Several parties filed motions to intervene as petitioners in this case, 27 but only
the motion of Senators Alberto Romulo, Arturo Tolentino, Francisco Tatad,
Gloria Macapagal-Arroyo, Vicente Sotto III, John Osmeña, Ramon Revilla, and
Jose Lina 28 was granted, and the respondents were required to comment on
their petition in intervention, which the public respondents and PGMC did.
In the meantime, the petitioners filed with the Securities and Exchange
Commission on 29 March 1994 a petition against PGMC for the nullification
of the latter's General Information Sheets. That case, however, has no bearing
in this petition.
On 11 April 1994, we heard the parties in oral arguments. Thereafter, we
resolved to consider the matter submitted for resolution and pending resolution
of the major issues in this case, to issue a temporary restraining order
commanding the respondents or any person acting in their place or upon their
instructions to cease and desist from implementing the challenged Contract of
Lease.
In the deliberation on this case on 26 April 1994, we resolved to consider only
these issues: (a) the locus standi of the petitioners, and (b) the legality and
validity of the Contract of Lease in the light of Section 1 of R.A. No. 1169, as
amended by B.P. Blg. 42, which prohibits the PCSO from holding and
conducting lotteries "in collaboration, association or joint venture with any
person, association, company or entity, whether domestic or foreign." On the
first issue, seven Justices voted to sustain the locus standi of the petitioners,
while six voted not to. On the second issue, the seven Justices were of the
opinion that the Contract of Lease violates the exception to Section 1(B) of R.A.
No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid and contrary
to law. The six Justices stated that they wished to express no opinion thereon in
view of their stand on the first issue. The Chief Justice took no part because one
of the Directors of the PCSO is his brother-in-law.
This case was then assigned to this ponente for the writing of the opinion of the
Court.
The preliminary issue on the locus standi of the petitioners should, indeed, be
resolved in their favor. A party's standing before this Court is a procedural
technicality which it may, in the exercise of its discretion, set aside in view of
the importance of the issues raised. In the landmark Emergency Powers Cases,
29 this Court brushed aside this technicality because "the transcendental
importance to the public of these cases demands that they be settled promptly
and definitely, brushing aside, if we must, technicalities of procedure. (Avelino
vs. Cuenco, G.R. No. L-2821)." Insofar as taxpayers' suits are concerned, this
Court had declared that it "is not devoid of discretion as to whether or not it
should be entertained," 30 or that it "enjoys an open discretion to entertain the
same or not." 31 In De La Llana vs. Alba, 32 this Court declared:
1. The argument as to the lack of standing of petitioners is easily resolved.
As far as Judge de la Llana is concerned, he certainly falls within the principle
set forth in Justice Laurel's opinion in People vs. Vera [65 Phil. 56 (1937)].
Thus: "The unchallenged rule is that the person who impugns the validity of a
statute must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement [Ibid, 89].
The other petitioners as members of the bar and officers of the court cannot be
considered as devoid of "any personal and substantial interest" on the matter.
There is relevance to this excerpt from a separate opinion in Aquino, Jr. v.
Commission on Elections [L-40004, January 31, 1975, 62 SCRA 275]: "Then
there is the attack on the standing of petitioners, as vindicating at most what
they consider a public right and not protecting their rights as individuals. This
is to conjure the specter of the public right dogma as an inhibition to parties
intent on keeping public officials staying on the path of constitutionalism. As
was so well put by Jaffe; "The protection of private rights is an essential
constituent of public interest and, conversely, without a well-ordered state there
263 of 692
could be no enforcement of private rights. Private and public interests are, both
in a substantive and procedural sense, aspects of the totality of the legal order."
Moreover, petitioners have convincingly shown that in their capacity as
taxpayers, their standing to sue has been amply demonstrated. There would be
a retreat from the liberal approach followed in Pascual v. Secretary of Public
Works, foreshadowed by the very decision of People v. Vera where the doctrine
was first fully discussed, if we act differently now. I do not think we are
prepared to take that step. Respondents, however, would hard back to the
American Supreme Court doctrine in Mellon v. Frothingham, with their claim
that what petitioners possess "is an interest which is shared in common by other
people and is comparatively so minute and indeterminate as to afford any basis
and assurance that the judicial process can act on it." That is to speak in the
language of a bygone era, even in the United States. For as Chief Justice Warren
clearly pointed out in the later case of Flast v. Cohen, the barrier thus set up if
not breached has definitely been lowered.
In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, 33
reiterated in Basco vs. Philippine Amusements and Gaming Corporation, 34
this Court stated:
Objections to taxpayers' suits for lack of sufficient personality standing or
interest are, however, in the main procedural matters. Considering the
importance to the public of the cases at bar, and in keeping with the Court's
duty, under the 1987 Constitution, to determine whether or not the other
branches of government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to
them, this Court has brushed aside technicalities of procedure and has taken
cognizance of these petitions.
and in Association of Small Landowners in the Philippines, Inc. vs. Secretary
of Agrarian Reform, 35 it declared:
With particular regard to the requirement of proper party as applied in the cases
before us, we hold that the same is satisfied by the petitioners and intervenors
because each of them has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of. [Ex Parte Levitt, 303
US 633]. And even if, strictly speaking, they are not covered by the definition,
it is still within the wide discretion of the Court to waive the requirement and
so remove the impediment to its addressing and resolving the serious
constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders issued by
President Quirino although they were invoking only an indirect and general
interest shared in common with the public. The Court dismissed the objective
that they were not proper parties and ruled that the transcendental importance
to the public of these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure. We have since then
applied this exception in many other cases. (Emphasis supplied)
In Daza vs. Singson, 36 this Court once more said:
. . . For another, we have early as in the Emergency Powers Cases that where
serious constitutional questions are involved, "the transcendental importance to
the public of these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure." The same policy has
since then been consistently followed by the Court, as in Gonzales vs.
Commission on Elections [21 SCRA 774] . . .
The Federal Supreme Court of the United States of America has also expressed
its discretionary power to liberalize the rule on locus standi. In United States
vs. Federal Power Commission and Virginia Rea Association vs. Federal Power
Commission, 37 it held:
We hold that petitioners have standing. Differences of view, however, preclude
a single opinion of the Court as to both petitioners. It would not further
clarification of this complicated specialty of federal jurisdiction, the solution of
whose problems is in any event more or less determined by the specific
circumstances of individual situations, to set out the divergent grounds in
support of standing in these cases.
In line with the liberal policy of this Court on locus standi, ordinary taxpayers,
members of Congress, and even association of planters, and non-profit civic
organizations were allowed to initiate and prosecute actions before this Court
to question the constitutionality or validity of laws, acts, decisions, rulings, or
orders of various government agencies or instrumentalities. Among such cases
264 of 692
were those assailing the constitutionality of (a) R.A. No. 3836 insofar as it
allows retirement gratuity and commutation of vacation and sick leave to
Senators and Representatives and to elective officials of both Houses of
Congress; 38 (b) Executive Order No. 284, issued by President Corazon C.
Aquino on 25 July 1987, which allowed members of the cabinet, their
undersecretaries, and assistant secretaries to hold other government offices or
positions; 39 (c) the automatic appropriation for debt service in the General
Appropriations Act; 40 (d) R.A. No. 7056 on the holding of desynchronized
elections; 41 (d) R.A. No. 1869 (the charter of the Philippine Amusement and
Gaming Corporation) on the ground that it is contrary to morals, public policy,
and order; 42 and (f) R.A. No. 6975, establishing the Philippine National
Police. 43
Other cases where we have followed a liberal policy regarding locus standi
include those attacking the validity or legality of (a) an order allowing the
importation of rice in the light of the prohibition imposed by R.A. No. 3452; 44
(b) P.D. Nos. 991 and 1033 insofar as they proposed amendments to the
Constitution and P.D. No. 1031 insofar as it directed the COMELEC to
supervise, control, hold, and conduct the referendum-plebiscite on 16 October
1976; 45 (c) the bidding for the sale of the 3,179 square meters of land at
Roppongi, Minato-ku, Tokyo, Japan; 46 (d) the approval without hearing by
the Board of Investments of the amended application of the Bataan
Petrochemical Corporation to transfer the site of its plant from Bataan to
Batangas and the validity of such transfer and the shift of feedstock from
naphtha only to naphtha and/or liquefied petroleum gas; 47 (e) the decisions,
orders, rulings, and resolutions of the Executive Secretary, Secretary of
Finance, Commissioner of Internal Revenue, Commissioner of Customs, and
the Fiscal Incentives Review Board exempting the National Power Corporation
from indirect tax and duties; 48 (f) the orders of the Energy Regulatory Board
of 5 and 6 December 1990 on the ground that the hearings conducted on the
second provisional increase in oil prices did not allow the petitioner substantial
cross-examination; 49 (g) Executive Order No. 478 which levied a special duty
of P0.95 per liter or P151.05 per barrel of imported crude oil and P1.00 per liter
of imported oil products; 50 (h) resolutions of the Commission on Elections
concerning the apportionment, by district, of the number of elective members
of Sanggunians; 51 and (i) memorandum orders issued by a Mayor affecting
the Chief of Police of Pasay City. 52
In the 1975 case of Aquino vs. Commission on Elections, 53 this Court, despite
its unequivocal ruling that the petitioners therein had no personality to file the
petition, resolved nevertheless to pass upon the issues raised because of the far-
reaching implications of the petition. We did no less in De Guia vs. COMELEC
54 where, although we declared that De Guia "does not appear to have locus
standi, a standing in law, a personal or substantial interest," we brushed aside
the procedural infirmity "considering the importance of the issue involved,
concerning as it does the political exercise of qualified voters affected by the
apportionment, and petitioner alleging abuse of discretion and violation of the
Constitution by respondent."
We find the instant petition to be of transcendental importance to the public.
The issues it raised are of paramount public interest and of a category even
higher than those involved in many of the aforecited cases. The ramifications
of such issues immeasurably affect the social, economic, and moral well-being
of the people even in the remotest barangays of the country and the counter-
productive and retrogressive effects of the envisioned on-line lottery system are
as staggering as the billions in pesos it is expected to raise. The legal standing
then of the petitioners deserves recognition and, in the exercise of its sound
discretion, this Court hereby brushes aside the procedural barrier which the
respondents tried to take advantage of.
And now on the substantive issue.
Section 1 of R.A. No. 1169, as amending by B.P. Blg. 42, prohibits the PCSO
from holding and conducting lotteries "in collaboration, association or joint
venture with any person, association, company or entity, whether domestic or
foreign." Section 1 provides:
Sec. 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity
Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs,
medical assistance and services and charities of national character, and as such
shall have the general powers conferred in section thirteen of Act Numbered
One thousand four hundred fifty-nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries and other
similar activities, in such frequency and manner, as shall be determined, and
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subject to such rules and regulations as shall be promulgated by the Board of
Directors.
B. Subject to the approval of the Minister of Human Settlements, to
engage in health and welfare-related investments, programs, projects and
activities which may be profit-oriented, by itself or in collaboration, association
or joint venture with any person, association, company or entity, whether
domestic or foreign, except for the activities mentioned in the preceding
paragraph (A), for the purpose of providing for permanent and continuing
sources of funds for health programs, including the expansion of existing ones,
medical assistance and services, and/or charitable grants: Provided, That such
investment will not compete with the private sector in areas where investments
are adequate as may be determined by the National Economic and Development
Authority. (emphasis supplied)
The language of the section is indisputably clear that with respect to its
franchise or privilege "to hold and conduct charity sweepstakes races, lotteries
and other similar activities," the PCSO cannot exercise it "in collaboration,
association or joint venture" with any other party. This is the unequivocal
meaning and import of the phrase "except for the activities mentioned in the
preceding paragraph (A)," namely, "charity sweepstakes races, lotteries and
other similar activities."
B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was covered
by Committee Report No. 103 as reported out by the Committee on Socio-
Economic Planning and Development of the Interim Batasang Pambansa. The
original text of paragraph B, Section 1 of Parliamentary Bill No. 622 reads as
follows:
To engage in any and all investments and related profit-oriented projects or
programs and activities by itself or in collaboration, association or joint venture
with any person, association, company or entity, whether domestic or foreign,
for the main purpose of raising funds for health and medical assistance and
services and charitable grants. 55
During the period of committee amendments, the Committee on Socio-
Economic Planning and Development, through Assemblyman Ronaldo B.
Zamora, introduced an amendment by substitution to the said paragraph B such
that, as amended, it should read as follows:
Subject to the approval of the Minister of Human Settlements, to engage in
health-oriented investments, programs, projects and activities which may be
profit- oriented, by itself or in collaboration, association, or joint venture with
any person, association, company or entity, whether domestic or foreign, for
the purpose of providing for permanent and continuing sources of funds for
health programs, including the expansion of existing ones, medical assistance
and services and/or charitable grants. 56
Before the motion of Assemblyman Zamora for the approval of the amendment
could be acted upon, Assemblyman Davide introduced an amendment to the
amendment:
MR. DAVIDE.
Mr. Speaker.
THE SPEAKER.
The gentleman from Cebu is recognized.
MR. DAVIDE.
May I introduce an amendment to the committee amendment? The amendment
would be to insert after "foreign" in the amendment just read the following:
EXCEPT FOR THE ACTIVITY IN LETTER (A) ABOVE.
When it is joint venture or in collaboration with any entity such collaboration
or joint venture must not include activity activity letter (a) which is the holding
and conducting of sweepstakes races, lotteries and other similar acts.
MR. ZAMORA.
We accept the amendment, Mr. Speaker.
MR. DAVIDE.
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Thank you, Mr. Speaker.
THE SPEAKER.
Is there any objection to the amendment? (Silence) The amendment, as
amended, is approved. 57
Further amendments to paragraph B were introduced and approved. When
Assemblyman Zamora read the final text of paragraph B as further amended,
the earlier approved amendment of Assemblyman Davide became "EXCEPT
FOR THE ACTIVITIES MENTIONED IN PARAGRAPH (A)"; and by virtue
of the amendment introduced by Assemblyman Emmanuel Pelaez, the word
PRECEDING was inserted before PARAGRAPH. Assemblyman Pelaez
introduced other amendments. Thereafter, the new paragraph B was approved.
58
This is now paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg.
42.
No interpretation of the said provision to relax or circumvent the prohibition
can be allowed since the privilege to hold or conduct charity sweepstakes races,
lotteries, or other similar activities is a franchise granted by the legislature to
the PCSO. It is a settled rule that "in all grants by the government to individuals
or corporations of rights, privileges and franchises, the words are to be taken
most strongly against the grantee .... [o]ne who claims a franchise or privilege
in derogation of the common rights of the public must prove his title thereto by
a grant which is clearly and definitely expressed, and he cannot enlarge it by
equivocal or doubtful provisions or by probable inferences. Whatever is not
unequivocally granted is withheld. Nothing passes by mere implication." 59
In short then, by the exception explicitly made in paragraph B, Section 1 of its
charter, the PCSO cannot share its franchise with another by way of
collaboration, association or joint venture. Neither can it assign, transfer, or
lease such franchise. It has been said that "the rights and privileges conferred
under a franchise may, without doubt, be assigned or transferred when the grant
is to the grantee and assigns, or is authorized by statute. On the other hand, the
right of transfer or assignment may be restricted by statute or the constitution,
or be made subject to the approval of the grantor or a governmental agency,
such as a public utilities commission, exception that an existing right of
assignment cannot be impaired by subsequent legislation." 60
It may also be pointed out that the franchise granted to the PCSO to hold and
conduct lotteries allows it to hold and conduct a species of gambling. It is settled
that "a statute which authorizes the carrying on of a gambling activity or
business should be strictly construed and every reasonable doubt so resolved as
to limit the powers and rights claimed under its authority." 61
Does the challenged Contract of Lease violate or contravene the exception in
Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the
PCSO from holding and conducting lotteries "in collaboration, association or
joint venture with" another?
We agree with the petitioners that it does, notwithstanding its denomination or
designation as a (Contract of Lease). We are neither convinced nor moved or
fazed by the insistence and forceful arguments of the PGMC that it does not
because in reality it is only an independent contractor for a piece of work, i.e.,
the building and maintenance of a lottery system to be used by the PCSO in the
operation of its lottery franchise. Whether the contract in question is one of
lease or whether the PGMC is merely an independent contractor should not be
decided on the basis of the title or designation of the contract but by the intent
of the parties, which may be gathered from the provisions of the contract itself.
Animus hominis est anima scripti. The intention of the party is the soul of the
instrument. In order to give life or effect to an instrument, it is essential to look
to the intention of the individual who executed it. 62 And, pursuant to Article
1371 of the Civil Code, "to determine the intention of the contracting parties,
their contemporaneous and subsequent acts shall be principally considered." To
put it more bluntly, no one should be deceived by the title or designation of a
contract.
A careful analysis and evaluation of the provisions of the contract and a
consideration of the contemporaneous acts of the PCSO and PGMC indubitably
disclose that the contract is not in reality a contract of lease under which the
PGMC is merely an independent contractor for a piece of work, but one where
the statutorily proscribed collaboration or association, in the least, or joint
venture, at the most, exists between the contracting parties. Collaboration is
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defined as the acts of working together in a joint project. 63 Association means
the act of a number of persons in uniting together for some special purpose or
business. 64 Joint venture is defined as an association of persons or companies
jointly undertaking some commercial enterprise; generally all contribute assets
and share risks. It requires a community of interest in the performance of the
subject matter, a right to direct and govern the policy in connection therewith,
and duty, which may be altered by agreement to share both in profit and
losses. 65
The contemporaneous acts of the PCSO and the PGMC reveal that the PCSO
had neither funds of its own nor the expertise to operate and manage an on-line
lottery system, and that although it wished to have the system, it would have it
"at no expense or risks to the government." Because of these serious constraints
and unwillingness to bear expenses and assume risks, the PCSO was candid
enough to state in its RFP that it is seeking for "a suitable contractor which shall
build, at its own expense, all the facilities needed to operate and maintain" the
system; exclusively bear "all capital, operating expenses and expansion
expenses and risks"; and submit "a comprehensive nationwide lottery
development plan . . . which will include the game, the marketing of the games,
and the logistics to introduce the game to all the cities and municipalities of the
country within five (5) years"; and that the operation of the on-line lottery
system should be "at no expense or risk to the government" — meaning itself,
since it is a government-owned and controlled agency. The facilities referred to
means "all capital equipment, computers, terminals, software, nationwide
telecommunications network, ticket sales offices, furnishings and fixtures,
printing costs, costs of salaries and wages, advertising and promotions
expenses, maintenance costs, expansion and replacement costs, security and
insurance, and all other related expenses needed to operate a nationwide on-line
lottery system."
In short, the only contribution the PCSO would have is its franchise or authority
to operate the on-line lottery system; with the rest, including the risks of the
business, being borne by the proponent or bidder. It could be for this reason that
it warned that "the proponent must be able to stand to the acid test of proving
that it is an entity able to take on the role of responsible maintainer of the on-
line lottery system." The PCSO, however, makes it clear in its RFP that the
proponent can propose a period of the contract which shall not exceed fifteen
years, during which time it is assured of a "rental" which shall not exceed 12%
of gross receipts. As admitted by the PGMC, upon learning of the PCSO's
decision, the Berjaya Group Berhad, with its affiliates, wanted to offer its
services and resources to the PCSO. Forthwith, it organized the PGMC as "a
medium through which the technical and management services required for the
project would be offered and delivered to PCSO." 66
Undoubtedly, then, the Berjaya Group Berhad knew all along that in connection
with an on-line lottery system, the PCSO had nothing but its franchise, which
it solemnly guaranteed it had in the General Information of the RFP. 67
Howsoever viewed then, from the very inception, the PCSO and the PGMC
mutually understood that any arrangement between them would necessarily
leave to the PGMC the technical, operations, and management aspects of the
on-line lottery system while the PCSO would, primarily, provide the franchise.
The words Gaming and Management in the corporate name of respondent
Philippine Gaming Management Corporation could not have been conceived
just for euphemistic purposes. Of course, the RFP cannot substitute for the
Contract of Lease which was subsequently executed by the PCSO and the
PGMC. Nevertheless, the Contract of Lease incorporates their intention and
understanding.
The so-called Contract of Lease is not, therefore, what it purports to be. Its
denomination as such is a crafty device, carefully conceived, to provide a built-
in defense in the event that the agreement is questioned as violative of the
exception in Section 1 (B) of the PCSO's charter. The acuity or skill of its
draftsmen to accomplish that purpose easily manifests itself in the Contract of
Lease. It is outstanding for its careful and meticulous drafting designed to give
an immediate impression that it is a contract of lease. Yet, woven therein are
provisions which negate its title and betray the true intention of the parties to
be in or to have a joint venture for a period of eight years in the operation and
maintenance of the on-line lottery system.
Consistent with the above observations on the RFP, the PCSO has only its
franchise to offer, while the PGMC represents and warrants that it has access
to all managerial and technical expertise to promptly and effectively carry out
the terms of the contract. And, for a period of eight years, the PGMC is under
obligation to keep all the Facilities in safe condition and if necessary, upgrade,
replace, and improve them from time to time as new technology develops to
make the on-line lottery system more cost-effective and competitive;
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exclusively bear all costs and expenses relating to the printing, manpower,
salaries and wages, advertising and promotion, maintenance, expansion and
replacement, security and insurance, and all other related expenses needed to
operate the on-line lottery system; undertake a positive advertising and
promotions campaign for both institutional and product lines without engaging
in negative advertising against other lessors; bear the salaries and related costs
of skilled and qualified personnel for administrative and technical operations;
comply with procedural and coordinating rules issued by the PCSO; and to train
PCSO and other local personnel and to effect the transfer of technology and
other expertise, such that at the end of the term of the contract, the PCSO will
be able to effectively take over the Facilities and efficiently operate the on-line
lottery system. The latter simply means that, indeed, the managers, technicians
or employees who shall operate the on-line lottery system are not managers,
technicians or employees of the PCSO, but of the PGMC and that it is only after
the expiration of the contract that the PCSO will operate the system. After eight
years, the PCSO would automatically become the owner of the Facilities
without any other further consideration.
For these reasons, too, the PGMC has the initial prerogative to prepare the
detailed plan of all games and the marketing thereof, and determine the number
of players, value of winnings, and the logistics required to introduce the games,
including the Master Games Plan. Of course, the PCSO has the reserved
authority to disapprove them. 68 And, while the PCSO has the sole
responsibility over the appointment of dealers and retailers throughout the
country, the PGMC may, nevertheless, recommend for appointment dealers and
retailers which shall be acted upon by the PCSO within forty-eight hours and
collect and retain, for its own account, a security deposit from dealers and
retailers in respect of equipment supplied by it.
This joint venture is further established by the following:
(a) Rent is defined in the lease contract as the amount to be paid to the
PGMC as compensation for the fulfillment of its obligations under the contract,
including, but not limited to the lease of the Facilities. However, this rent is not
actually a fixed amount. Although it is stated to be 4.9% of gross receipts from
ticket sales, payable net of taxes required by law to be withheld, it may be
drastically reduced or, in extreme cases, nothing may be due or demandable at
all because the PGMC binds itself to "bear all risks if the revenue from the ticket
sales, on an annualized basis, are insufficient to pay the entire prize money."
This risk-bearing provision is unusual in a lessor-lessee relationship, but
inherent in a joint venture.
(b) In the event of pre-termination of the contract by the PCSO, or its
suspension of operation of the on-line lottery system in breach of the contract
and through no fault of the PGMC, the PCSO binds itself "to promptly, and in
any event not later than sixty (60) days, reimburse the Lessor the amount of its
total investment cost associated with the On-Line Lottery System, including but
not limited to the cost of the Facilities, and further compensate the LESSOR for
loss of expected net profit after tax, computed over the unexpired term of the
lease." If the contract were indeed one of lease, the payment of the expected
profits or rentals for the unexpired portion of the term of the contract would be
enough.
(c) The PGMC cannot "directly or indirectly undertake any activity or
business in competition with or adverse to the On-Line Lottery System of
PCSO unless it obtains the latter's prior written consent." If the PGMC is
engaged in the business of leasing equipment and technology for an on-line
lottery system, we fail to see any acceptable reason why it should allow a
restriction on the pursuit of such business.
(d) The PGMC shall provide the PCSO the audited Annual Report sent to
its stockholders, and within two years from the effectivity of the contract, cause
itself to be listed in the local stock exchange and offer at least 25% of its equity
to the public. If the PGMC is merely a lessor, this imposition is unreasonable
and whimsical, and could only be tied up to the fact that the PGMC will actually
operate and manage the system; hence, increasing public participation in the
corporation would enhance public interest.
(e) The PGMC shall put up an Escrow Deposit of P300,000,000.00
pursuant to the requirements of the RFP, which it may, at its option, maintain
as its initial performance bond required to ensure its faithful compliance with
the terms of the contract.
(f) The PCSO shall designate the necessary personnel to monitor and audit
the daily performance of the on-line lottery system; and promulgate procedural
and coordinating rules governing all activities relating to the on-line lottery
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system. The first further confirms that it is the PGMC which will operate the
system and the PCSO may, for the protection of its interest, monitor and audit
the daily performance of the system. The second admits the coordinating and
cooperative powers and functions of the parties.
(g) The PCSO may validly terminate the contract if the PGMC becomes
insolvent or bankrupt or is unable to pay its debts, or if it stops or suspends or
threatens to stop or suspend payment of all or a material part of its debts.
All of the foregoing unmistakably confirm the indispensable role of the PGMC
in the pursuit, operation, conduct, and management of the On-Line Lottery
System. They exhibit and demonstrate the parties' indivisible community of
interest in the conception, birth and growth of the on-line lottery, and, above
all, in its profits, with each having a right in the formulation and implementation
of policies related to the business and sharing, as well, in the losses — with the
PGMC bearing the greatest burden because of its assumption of expenses and
risks, and the PCSO the least, because of its confessed unwillingness to bear
expenses and risks. In a manner of speaking, each is wed to the other for better
or for worse. In the final analysis, however, in the light of the PCSO's RFP and
the above highlighted provisions, as well as the "Hold Harmless Clause" of the
Contract of Lease, it is even safe to conclude that the actual lessor in this case
is the PCSO and the subject matter thereof is its franchise to hold and conduct
lotteries since it is, in reality, the PGMC which operates and manages the on-
line lottery system for a period of eight years.
We thus declare that the challenged Contract of Lease violates the exception
provided for in paragraph B, Section 1 of R.A. No. 1169, as amended by B.P.
Blg. 42, and is, therefore, invalid for being contrary to law. This conclusion
renders unnecessary further discussion on the other issues raised by the
petitioners.
WHEREFORE, the instant petition is hereby GRANTED and the challenged
Contract of Lease executed on 17 December 1993 by respondent Philippine
Charity Sweepstakes Office (PCSO) and respondent Philippine Gaming
Management Corporation (PGMC) is hereby DECLARED contrary to law and
invalid.
The Temporary Restraining Order issued on 11 April 1994 is hereby MADE
PERMANENT.
No pronouncement as to costs.
SO ORDERED.
ITF v. Comelec
G.R. No. 159139
G.R. No. 159139 January 13, 2004
INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES,
MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ,
AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY
SALCEDO, and MANUEL ALCUAZ JR., petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN
ABALOS SR.; COMELEC BIDDING and AWARD COMMITTEE
CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE
GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and
BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.; and
MEGA PACIFIC CONSORTIUM, respondents.
DECISION
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is done contrary to the
Constitution, the law or jurisprudence;1 or (2) when it is executed whimsically,
capriciously or arbitrarily out of malice, ill will or personal bias.2 In the present
case, the Commission on Elections approved the assailed Resolution and
awarded the subject Contract not only in clear violation of law and
jurisprudence, but also in reckless disregard of its own bidding rules and
procedure. For the automation of the counting and canvassing of the ballots in
the 2004 elections, Comelec awarded the Contract to "Mega Pacific
Consortium" an entity that had not participated in the bidding. Despite this
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grant, the poll body signed the actual automation Contract with "Mega Pacific
eSolutions, Inc.," a company that joined the bidding but had not met the
eligibility requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste,
without adequately checking and observing mandatory financial, technical and
legal requirements. It also accepted the proferred computer hardware and
software even if, at the time of the award, they had undeniably failed to pass
eight critical requirements designed to safeguard the integrity of elections,
especially the following three items:
· They failed to achieve the accuracy rating criteria of 99.9995 percent set-up
by the Comelec itself
· They were not able to detect previously downloaded results at various
canvassing or consolidation levels and to prevent these from being inputted
again
· They were unable to print the statutorily required audit trails of the
count/canvass at different levels without any loss of data
Because of the foregoing violations of law and the glaring grave abuse of
discretion committed by Comelec, the Court has no choice but to exercise its
solemn "constitutional duty"3 to void the assailed Resolution and the subject
Contract. The illegal, imprudent and hasty actions of the Commission have not
only desecrated legal and jurisprudential norms, but have also cast serious
doubts upon the poll body’s ability and capacity to conduct automated
elections. Truly, the pith and soul of democracy -- credible, orderly, and
peaceful elections -- has been put in jeopardy by the illegal and gravely abusive
acts of Comelec.
The Case
Before us is a Petition4 under Rule 65 of the Rules of Court, seeking (1) to
declare null and void Resolution No. 6074 of the Commission on Elections
(Comelec), which awarded "Phase II of the Modernization Project of the
Commission to Mega Pacific Consortium (MPC);" (2) to enjoin the
implementation of any further contract that may have been entered into by
Comelec "either with Mega Pacific Consortium and/or Mega Pacific
eSolutions, Inc. (MPEI);" and (3) to compel Comelec to conduct a re-bidding
of the project.
The Facts
The following facts are not disputed. They were culled from official documents,
the parties’ pleadings, as well as from admissions during the Oral Argument on
October 7, 2003.
On June 7, 1995, Congress passed Republic Act 8046,5 which authorized
Comelec to conduct a nationwide demonstration of a computerized election
system and allowed the poll body to pilot-test the system in the March 1996
elections in the Autonomous Region in Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 84366 authorizing
Comelec to use an automated election system (AES) for the process of voting,
counting votes and canvassing/consolidating the results of the national and
local elections. It also mandated the poll body to acquire automated counting
machines (ACMs), computer equipment, devices and materials; and to adopt
new electoral forms and printing materials.
Initially intending to implement the automation during the May 11, 1998
presidential elections, Comelec -- in its Resolution No. 2985 dated February 9,
19987 -- eventually decided against full national implementation and limited
the automation to the Autonomous Region in Muslim Mindanao (ARMM).
However, due to the failure of the machines to read correctly some automated
ballots in one town, the poll body later ordered their manual count for the entire
Province of Sulu.8
In the May 2001 elections, the counting and canvassing of votes for both
national and local positions were also done manually, as no additional ACMs
had been acquired for that electoral exercise allegedly because of time
constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a
modernization program for the 2004 elections. It resolved to conduct biddings
for the three (3) phases of its Automated Election System; namely, Phase I -
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Voter Registration and Validation System; Phase II - Automated Counting and
Canvassing System; and Phase III - Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive
Order No. 172, which allocated the sum of P2.5 billion to fund the AES for the
May 10, 2004 elections. Upon the request of Comelec, she authorized the
release of an additional P500 million.
On January 28, 2003, the Commission issued an "Invitation to Apply for
Eligibility and to Bid," which we quote as follows:
"INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
The Commission on Elections (COMELEC), pursuant to the mandate of
Republic Act Nos. 8189 and 8436, invites interested offerors, vendors,
suppliers or lessors to apply for eligibility and to bid for the procurement by
purchase, lease, lease with option to purchase, or otherwise, supplies,
equipment, materials and services needed for a comprehensive Automated
Election System, consisting of three (3) phases: (a) registration/verification of
voters, (b) automated counting and consolidation of votes, and (c) electronic
transmission of election results, with an approved budget of TWO BILLION
FIVE HUNDRED MILLION (Php2,500,000,000) Pesos.
Only bids from the following entities shall be entertained:
a. Duly licensed Filipino citizens/proprietorships;
b. Partnerships duly organized under the laws of the Philippines and of which
at least sixty percent (60%) of the interest belongs to citizens of the Philippines;
c. Corporations duly organized under the laws of the Philippines, and of which
at least sixty percent (60%) of the outstanding capital stock belongs to citizens
of the Philippines;
d. Manufacturers, suppliers and/or distributors forming themselves into a joint
venture, i.e., a group of two (2) or more manufacturers, suppliers and/or
distributors that intend to be jointly and severally responsible or liable for a
particular contract, provided that Filipino ownership thereof shall be at least
sixty percent (60%); and
e. Cooperatives duly registered with the Cooperatives Development Authority.
Bid documents for the three (3) phases may be obtained starting 10 February
2003, during office hours from the Bids and Awards Committee (BAC)
Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio
del Governador, Intramuros, Manila, upon payment at the Cash Division,
Commission on Elections, in cash or cashier’s check, payable to the
Commission on Elections, of a non-refundable amount of FIFTEEN
THOUSAND PESOS (Php15,000.00) for each phase. For this purpose,
interested offerors, vendors, suppliers or lessors have the option to participate
in any or all of the three (3) phases of the comprehensive Automated Election
System.
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the
Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila.
Should there be questions on the bid documents, bidders are required to submit
their queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid
Conference.
Deadline for submission to the BAC of applications for eligibility and bid
envelopes for the supply of the comprehensive Automated Election System
shall be at the Session Hall, Commission on Elections, Postigo Street,
Intramuros, Manila on 28 February 2003 at 9:00 a.m.
The COMELEC reserves the right to review the qualifications of the bidders
after the bidding and before the contract is executed. Should such review
uncover any misrepresentation made in the eligibility statements, or any
changes in the situation of the bidder to materially downgrade the substance of
such statements, the COMELEC shall disqualify the bidder upon due notice
without any obligation whatsoever for any expenses or losses that may be
incurred by it in the preparation of its bid."9
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain
eligibility criteria for bidders and the schedule of activities for the project
bidding, as follows:
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"1.) Open to Filipino and foreign corporation duly registered and licensed to do
business and is actually doing business in the Philippines, subject to Sec. 43 of
RA 9184 (An Act providing In the Modernization Standardization and
Regulation of the Procurement Activities of the Government and for other
purposes etc.)
2.) Track Record:
a) For counting machines – should have been used in at least one (1) political
exercise with no less than Twenty Million Voters;
b) For verification of voters – the reference site of an existing data base
installation using Automated Fingerprint Identification System (AFIS) with at
least Twenty Million.
3.) Ten percent (10%) equity requirement shall be based on the total project
cost; and
4.) Performance bond shall be twenty percent (20%) of the bid offer.
RESOLVED moreover, that:
1) A. Due to the decision that the eligibility requirements and the rest of the Bid
documents shall be released at the same time, and the memorandum of Comm.
Resurreccion Z. Borra dated February 7, 2003, the documents to be released on
Friday, February 14, 2003 at 2:00 o’clock p.m. shall be the eligibility criteria,
Terms of Reference (TOR) and other pertinent documents;
B. Pre-Bid conference shall be on February 18, 2003; and
C. Deadline for the submission and receipt of the Bids shall be on March 5,
2003.
2) The aforementioned documents will be available at the following offices:
a) Voters Validation: Office of Comm. Javier
b) Automated Counting Machines: Office of Comm. Borra
c) Electronic Transmission: Office of Comm. Tancangco"10
On February 17, 2003, the poll body released the Request for Proposal (RFP)
to procure the election automation machines. The Bids and Awards Committee
(BAC) of Comelec convened a pre-bid conference on February 18, 2003 and
gave prospective bidders until March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers, suppliers and/or
distributors forming themselves into a joint venture may be entertained,
provided that the Philippine ownership thereof shall be at least 60 percent. Joint
venture is defined in the RFP as "a group of two or more manufacturers,
suppliers and/or distributors that intend to be jointly and severally responsible
or liable for a particular contract."11
Basically, the public bidding was to be conducted under a two-envelope/two
stage system. The bidder’s first envelope or the Eligibility Envelope should
establish the bidder’s eligibility to bid and its qualifications to perform the acts
if accepted. On the other hand, the second envelope would be the Bid Envelope
itself. The RFP outlines the bidding procedures as follows:
"25. Determination of Eligibility of Prospective Bidders
"25.1 The eligibility envelopes of prospective Bidders shall be opened first to
determine their eligibility. In case any of the requirements specified in Clause
20 is missing from the first bid envelope, the BAC shall declare said prospective
Bidder as ineligible to bid. Bid envelopes of ineligible Bidders shall be
immediately returned unopened.
"25.2 The eligibility of prospective Bidders shall be determined using simple
‘pass/fail’ criteria and shall be determined as either eligible or ineligible. If the
prospective Bidder is rated ‘passed’ for all the legal, technical and financial
requirements, he shall be considered eligible. If the prospective Bidder is rated
‘failed’ in any of the requirements, he shall be considered ineligible.
"26. Bid Examination/Evaluation
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"26.1 The BAC will examine the Bids to determine whether they are complete,
whether any computational errors have been made, whether required securities
have been furnished, whether the documents have been properly signed, and
whether the Bids are generally in order.
"26.2 The BAC shall check the submitted documents of each Bidder against the
required documents enumerated under Clause 20, to ascertain if they are all
present in the Second bid envelope (Technical Envelope). In case one (1) or
more of the required documents is missing, the BAC shall rate the Bid
concerned as ‘failed’ and immediately return to the Bidder its Third bid
envelope (Financial Envelope) unopened. Otherwise, the BAC shall rate the
first bid envelope as ‘passed’.
"26.3 The BAC shall immediately open the Financial Envelopes of the Bidders
whose Technical Envelopes were passed or rated on or above the passing score.
Only Bids that are determined to contain all the bid requirements for both
components shall be rated ‘passed’ and shall immediately be considered for
evaluation and comparison.
"26.4 In the opening and examination of the Financial Envelope, the BAC shall
announce and tabulate the Total Bid Price as calculated. Arithmetical errors will
be rectified on the following basis: If there is a discrepancy between words and
figures, the amount in words will prevail. If there is a discrepancy between the
unit price and the total price that is obtained by multiplying the unit price and
the quantity, the unit price shall prevail and the total price shall be corrected
accordingly. If there is a discrepancy between the Total Bid Price and the sum
of the total prices, the sum of the total prices prevail and the Total Bid Price
shall be corrected accordingly.
"26.5 Financial Proposals which do not clearly state the Total Bid Price shall
be rejected. Also, Total Bid Price as calculated that exceeds the approved
budget for the contract shall also be rejected.
27. Comparison of Bids
27.1 The bid price shall be deemed to embrace all costs, charges and fees
associated with carrying out all the elements of the proposed Contract,
including but not limited to, license fees, freight charges and taxes.
27.2 The BAC shall establish the calculated prices of all Bids rated ‘passed’
and rank the same in ascending order.
xxxxxxxxx
"29. Postqualification
"29.1 The BAC will determine to its satisfaction whether the Bidder selected as
having submitted the lowest calculated bid is qualified to satisfactorily perform
the Contract.
"29.2 The determination will take into account the Bidder’s financial, technical
and production capabilities/resources. It will be based upon an examination of
the documentary evidence of the Bidder’s qualification submitted by the Bidder
as well as such other information as the BAC deems necessary and appropriate.
"29.3 A bid determined as not substantially responsive will be rejected by the
BAC and may not subsequently be made responsive by the Bidder by correction
of the non-conformity.
"29.4 The BAC may waive any informality or non-conformity or irregularity in
a bid which does not constitute a material deviation, provided such waiver does
not prejudice or affect the relative ranking of any Bidder.
"29.5 Should the BAC find that the Bidder complies with the legal, financial
and technical requirements, it shall make an affirmative determination which
shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it will
make a negative determination which will result in rejection of the Bidder’s bid,
in which event the BAC will proceed to the next lowest calculated bid to make
a similar determination of that Bidder’s capabilities to perform
satisfactorily."12
Out of the 57 bidders,13 the BAC found MPC and the Total Information
Management Corporation (TIMC) eligible. For technical evaluation, they were
referred to the BAC’s Technical Working Group (TWG) and the Department
of Science and Technology (DOST).
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In its Report on the Evaluation of the Technical Proposals on Phase II, DOST
said that both MPC and TIMC had obtained a number of failed marks in the
technical evaluation. Notwithstanding these failures, Comelec en banc, on April
15, 2003, promulgated Resolution No. 6074 awarding the project to MPC. The
Commission publicized this Resolution and the award of the project to MPC on
May 16, 2003.
On May 29, 2003, five individuals and entities (including the herein Petitioners
Information Technology Foundation of the Philippines, represented by its
president, Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter14 to
Comelec Chairman Benjamin Abalos Sr. They protested the award of the
Contract to Respondent MPC "due to glaring irregularities in the manner in
which the bidding process had been conducted." Citing therein the
noncompliance with eligibility as well as technical and procedural requirements
(many of which have been discussed at length in the Petition), they sought a re-
bidding.
In a letter-reply dated June 6, 2003,15 the Comelec chairman -- speaking
through Atty. Jaime Paz, his head executive assistant -- rejected the protest and
declared that the award "would stand up to the strictest scrutiny."
Hence, the present Petition.16
The Issues
In their Memorandum, petitioners raise the following issues for our
consideration:
"1. The COMELEC awarded and contracted with a non-eligible entity; x x x
"2. Private respondents failed to pass the Technical Test as required in the RFP.
Notwithstanding, such failure was ignored. In effect, the COMELEC changed
the rules after the bidding in effect changing the nature of the contract bidded
upon.
"3. Petitioners have locus standi.
"4. Instant Petition is not premature. Direct resort to the Supreme Court is
justified."17
In the main, the substantive issue is whether the Commission on Elections, the
agency vested with the exclusive constitutional mandate to oversee elections,
gravely abused its discretion when, in the exercise of its administrative
functions, it awarded to MPC the contract for the second phase of the
comprehensive Automated Election System.
Before discussing the validity of the award to MPC, however, we deem it proper
to first pass upon the procedural issues: the legal standing of petitioners and the
alleged prematurity of the Petition.
This Court’s Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi, inasmuch as
they are not challenging the validity or constitutionality of RA 8436. Moreover,
petitioners supposedly admitted during the Oral Argument that no law had been
violated by the award of the Contract. Furthermore, they allegedly have no
actual and material interest in the Contract and, hence, do not stand to be injured
or prejudiced on account of the award.
On the other hand, petitioners -- suing in their capacities as taxpayers, registered
voters and concerned citizens -- respond that the issues central to this case are
"of transcendental importance and of national interest." Allegedly, Comelec’s
flawed bidding and questionable award of the Contract to an unqualified entity
would impact directly on the success or the failure of the electoral process.
Thus, any taint on the sanctity of the ballot as the expression of the will of the
people would inevitably affect their faith in the democratic system of
government. Petitioners further argue that the award of any contract for
automation involves disbursement of public funds in gargantuan amounts;
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therefore, public interest requires that the laws governing the transaction must
be followed strictly.
We agree with petitioners. Our nation’s political and economic future virtually
hangs in the balance, pending the outcome of the 2004 elections. Hence, there
can be no serious doubt that the subject matter of this case is "a matter of public
concern and imbued with public interest";18 in other words, it is of "paramount
public interest"19 and "transcendental importance."20 This fact alone would
justify relaxing the rule on legal standing, following the liberal policy of this
Court whenever a case involves "an issue of overarching significance to our
society."21 Petitioners’ legal standing should therefore be recognized and
upheld.
Moreover, this Court has held that taxpayers are allowed to sue when there is a
claim of "illegal disbursement of public funds,"22 or if public money is being
"deflected to any improper purpose";23 or when petitioners seek to restrain
respondent from "wasting public funds through the enforcement of an invalid
or unconstitutional law."24 In the instant case, individual petitioners, suing as
taxpayers, assert a material interest in seeing to it that public funds are properly
and lawfully used. In the Petition, they claim that the bidding was defective, the
winning bidder not a qualified entity, and the award of the Contract contrary to
law and regulation. Accordingly, they seek to restrain respondents from
implementing the Contract and, necessarily, from making any unwarranted
expenditure of public funds pursuant thereto. Thus, we hold that petitioners
possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies
Respondents claim that petitioners acted prematurely, since they had not first
utilized the protest mechanism available to them under RA 9184, the
Government Procurement Reform Act, for the settlement of disputes pertaining
to procurement contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding and
Awards Committee in all stages of procurement may be lodged with the head
of the procuring entity by filing a verified position paper and paying a protest
fee. Section 57 of the same law mandates that in no case shall any such protest
stay or delay the bidding process, but it must first be resolved before any award
is made.
On the other hand, Section 58 provides that court action may be resorted to only
after the protests contemplated by the statute shall have been completed. Cases
filed in violation of this process are to be dismissed for lack of jurisdiction.
Regional trial courts shall have jurisdiction over final decisions of the head of
the procuring entity, and court actions shall be instituted pursuant to Rule 65 of
the 1997 Rules of Civil Procedure.
Respondents assert that throughout the bidding process, petitioners never
questioned the BAC Report finding MPC eligible to bid and recommending the
award of the Contract to it (MPC). According to respondents, the Report should
have been appealed to the Comelc en banc, pursuant to the aforementioned
sections of RA 9184. In the absence of such appeal, the determination and
recommendation of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated
April 15, 2003, awarding the project to Respondent MPC even before the BAC
managed to issue its written report and recommendation on April 21, 2003.
Thus, how could petitioners have appealed the BAC’s recommendation or
report to the head of the procuring entity (the chairman of Comelec), when the
Comelec en banc had already approved the award of the contract to MPC even
before petitioners learned of the BAC recommendation?
It is claimed25 by Comelec that during its April 15, 2003 session, it received
and approved the verbal report and recommendation of the BAC for the award
of the Contract to MPC, and that the BAC subsequently re-affirmed its verbal
report and recommendation by submitting it in writing on April 21, 2003.
Respondents insist that the law does not require that the BAC Report be in
writing before Comelec can act thereon; therefore, there is allegedly nothing
irregular about the Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the BAC’s report
and recommendation to the head of the procuring entity (the Comelec chair)
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only upon their discovery thereof, which at the very earliest would have been
on April 21, 2003, when the BAC actually put its report in writing and finally
released it. Even then, what would have been the use of protesting/appealing
the report to the Comelec chair, when by that time the Commission en banc
(including the chairman himself) had already approved the BAC Report and
awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten wind of the
verbal BAC report on April 15, 2003 (immediately after the en banc session),
at that point the Commission en banc had already given its approval to the BAC
Report along with the award to MPC. To put it bluntly, the Comelec en banc
itself made it legally impossible for petitioners to avail themselves of the
administrative remedy that the Commission is so impiously harping on. There
is no doubt that they had not been accorded the opportunity to avail themselves
of the process provided under Section 55 of RA 9184, according to which a
protest against a decision of the BAC may be filed with the head of the
procuring entity. Nemo tenetur ad impossible,26 to borrow private respondents’
favorite Latin excuse.27
Some Observations on the BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this interstice,
we would just want to put forward a few observations regarding the BAC
Report and the Comelec en banc’s approval thereof.
First, Comelec contends that there was nothing unusual about the fact that the
Report submitted by the BAC came only after the former had already awarded
the Contract, because the latter had been asked to render its report and
recommendation orally during the Commission’s en banc session on April 15,
2003. Accordingly, Comelec supposedly acted upon such oral recommendation
and approved the award to MPC on the same day, following which the
recommendation was subsequently reduced into writing on April 21, 2003.
While not entirely outside the realm of the possible, this interesting and unique
spiel does not speak well of the process that Comelec supposedly went through
in making a critical decision with respect to a multi-billion-peso contract.
We can imagine that anyone else standing in the shoes of the Honorable
Commissioners would have been extremely conscious of the overarching need
for utter transparency. They would have scrupulously avoided the slightest hint
of impropriety, preferring to maintain an exacting regularity in the performance
of their duties, instead of trying to break a speed record in the award of multi-
billion-peso contracts. After all, between April 15 and April 21 were a mere six
(6) days. Could Comelec not have waited out six more days for the written
report of the BAC, instead of rushing pell-mell into the arms of MPC?
Certainly, respondents never cared to explain the nature of the Commission’s
dire need to act immediately without awaiting the formal, written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch with
which Comelec acted to approve the multi-billion-peso deal, with its claim of
having been impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to lend
negative credence to Comelec’s tale.
Second, without necessarily ascribing any premature malice or premeditation
on the part of the Comelec officials involved, it should nevertheless be
conceded that this cart-before-the-horse maneuver (awarding of the Contract
ahead of the BAC’s written report) would definitely serve as a clever and
effective way of averting and frustrating any impending protest under Section
55.
Having made the foregoing observations, we now go back to the question of
exhausting administrative remedies. Respondents may not have realized it, but
the letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 200328
serves to eliminate the prematurity issue as it was an actual written protest
against the decision of the poll body to award the Contract. The letter was
signed by/for, inter alia, two of herein petitioners: the Information Technology
Foundation of the Philippines, represented by its president, Alfredo M. Torres;
and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to exhaust
administrative remedies particularly because it hews closely to the procedure
outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that
petitioners need not exhaust administrative remedies in the light of Paat v. Court
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of Appeals.29 Paat enumerates the instances when the rule on exhaustion of
administrative remedies may be disregarded, as follows:
"(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or
excess of jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego of
the President bears the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be
unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of judicial
intervention."30
The present controversy precisely falls within the exceptions listed as Nos. 7,
10 and 11: "(7) when to require exhaustion of administrative remedies would
be unreasonable; (10) when the rule does not provide a plain, speedy and
adequate remedy, and (11) when there are circumstances indicating the urgency
of judicial intervention." As already stated, Comelec itself made the exhaustion
of administrative remedies legally impossible or, at the very least,
"unreasonable."
In any event, the peculiar circumstances surrounding the unconventional
rendition of the BAC Report and the precipitate awarding of the Contract by
the Comelec en banc -- plus the fact that it was racing to have its Contract with
MPC implemented in time for the elections in May 2004 (barely four months
away) -- have combined to bring about the urgent need for judicial intervention,
thus prompting this Court to dispense with the procedural exhaustion of
administrative remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners contend that the award
is invalid, since Comelec gravely abused its discretion when it did the
following:
1. Awarded the Contract to MPC though it did not even participate in the
bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the
mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite
the issuance by the BAC of its Report, which formed the basis of the assailed
Resolution, only on April 21, 200331
4. Awarded the Contract, notwithstanding the fact that during the bidding
process, there were violations of the mandatory requirements of RA 8436 as
well as those set forth in Comelec’s own Request for Proposal on the automated
election system
5. Refused to declare a failed bidding and to conduct a re-bidding despite the
failure of the bidders to pass the technical tests conducted by the Department
of Science and Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the
bidding for the automated counting machines
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After reviewing the slew of pleadings as well as the matters raised during the
Oral Argument, the Court deems it sufficient to focus discussion on the
following major areas of concern that impinge on the issue of grave abuse of
discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a
bidder
B. Failure of the automated counting machines (ACMs) to pass the DOST
technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST after
the award, and their effect on the present controversy
A.
Failure to Establish the Identity, Existence and Eligibility of the Alleged
Consortium as a Bidder
On the question of the identity and the existence of the real bidder, respondents
insist that, contrary to petitioners’ allegations, the bidder was not Mega Pacific
eSolutions, Inc. (MPEI), which was incorporated only on February 27, 2003, or
11 days prior to the bidding itself. Rather, the bidder was Mega Pacific
Consortium (MPC), of which MPEI was but a part. As proof thereof, they point
to the March 7, 2003 letter of intent to bid, signed by the president of MPEI
allegedly for and on behalf of MPC. They also call attention to the official
receipt issued to MPC, acknowledging payment for the bidding documents, as
proof that it was the "consortium" that participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed by only one signatory --
"Willy U. Yu, President, Mega Pacific eSolutions, Inc., (Lead Company/
Proponent) For: Mega Pacific Consortium" -- and without any further proof,
does not by itself prove the existence of the consortium. It does not show that
MPEI or its president have been duly pre-authorized by the other members of
the putative consortium to represent them, to bid on their collective behalf and,
more important, to commit them jointly and severally to the bid undertakings.
The letter is purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC, acknowledging payment for the
bidding documents, constitute proof that it was the purported consortium that
participated in the bidding. Such receipts are issued by cashiers without any
legally sufficient inquiry as to the real identity orexistence of the supposed
payor.
To assure itself properly of the due existence (as well as eligibility and
qualification) of the putative consortium, Comelec’s BAC should have
examined the bidding documents submitted on behalf of MPC. They would
have easily discovered the following fatal flaws.
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public bidding system designed
by Comelec under its RFP (Request for Proposal for the Automation of the 2004
Election) mandated the use of a two-envelope, two-stage system. A bidder’s
first envelope (Eligibility Envelope) was meant to establish its eligibility to bid
and its qualifications and capacity to perform the contract if its bid was
accepted, while the second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of
incorporation, business registrations, licenses and permits, mayor’s permit,
VAT certification, and so forth; technical documents containing documentary
evidence to establish the track record of the bidder and its technical and
production capabilities to perform the contract; and financial documents,
including audited financial statements for the last three years, to establish the
bidder’s financial capacity.
In the case of a consortium or joint venture desirous of participating in the
bidding, it goes without saying that the Eligibility Envelope would necessarily
have to include a copy of the joint venture agreement, the consortium agreement
or memorandum of agreement -- or a business plan or some other instrument of
similar import -- establishing the due existence, composition and scope of such
aggrupation. Otherwise, how would Comelec know who it was dealing with,
and whether these parties are qualified and capable of delivering the products
and services being offered for bidding?32
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In the instant case, no such instrument was submitted to Comelec during the
bidding process. This fact can be conclusively ascertained by scrutinizing the
two-inch thick "Eligibility Requirements" file submitted by Comelec last
October 9, 2003, in partial compliance with this Court’s instructions given
during the Oral Argument. This file purports to replicate the eligibility
documents originally submitted to Comelec by MPEI allegedly on behalf of
MPC, in connection with the bidding conducted in March 2003. Included in the
file are the incorporation papers and financial statements of the members of the
supposed consortium and certain certificates, licenses and permits issued to
them.
However, there is no sign whatsoever of any joint venture agreement,
consortium agreement, memorandum of agreement, or business plan executed
among the members of the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to
the Comelec for its consideration, as part of the bidding process.
It thus follows that, prior the award of the Contract, there was no documentary
or other basis for Comelec to conclude that a consortium had actually been
formed amongst MPEI, SK C&C and WeSolv, along with Election.com and
ePLDT.33 Neither was there anything to indicate the exact relationships
between and among these firms; their diverse roles, undertakings and
prestations, if any, relative to the prosecution of the project, the extent of their
respective investments (if any) in the supposed consortium or in the project;
and the precise nature and extent of their respective liabilities with respect to
the contract being offered for bidding. And apart from the self-serving letter of
March 7, 2003, there was not even any indication that MPEI was the lead
company duly authorized to act on behalf of the others.
So, it necessarily follows that, during the bidding process, Comelec had no basis
at all for determining that the alleged consortium really existed and was eligible
and qualified; and that the arrangements among the members were satisfactory
and sufficient to ensure delivery on the Contract and to protect the
government’s interest.
Notwithstanding such deficiencies, Comelec still deemed the "consortium"
eligible to participate in the bidding, proceeded to open its Second Envelope,
and eventually awarded the bid to it, even though -- per the Comelec’s own
RFP -- the BAC should have declared the MPC ineligible to bid and returned
the Second (Bid) Envelope unopened.
Inasmuch as Comelec should not have considered MPEI et al. as comprising a
consortium or joint venture, it should not have allowed them to avail themselves
of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-
Operate-Transfer Law), as amended by RA 7718. This provision states in part
that a joint venture/consortium proponent shall be evaluated based on the
individual or collective experience of the member-firms of the joint venture or
consortium and of the contractor(s) that it has engaged for the project.
Parenthetically, respondents have uniformly argued that the said IRR of RA
6957, as amended, have suppletory application to the instant case.
Hence, had the proponent MPEI been evaluated based solely on its own
experience, financial and operational track record or lack thereof, it would
surely not have qualified and would have been immediately considered
ineligible to bid, as respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily
failing to observe its own rules, policies and guidelines with respect to the
bidding process, thereby negating a fair, honest and competitive bidding.
Commissioners Not Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner
Florentino Tuason Jr., given in open court during the Oral Argument last
October 7, 2003. The good commissioner affirmed that he was aware, of his
own personal knowledge, that there had indeed been a written agreement
among the "consortium" members,34 although it was an internal matter among
them,35 and of the fact that it would be presented by counsel for private
respondent.36
However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice
Jose C. Vitug, Commissioner Tuason in effect admitted that, while he was the
commissioner-in-charge of Comelec’s Legal Department, he had never seen,
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even up to that late date, the agreement he spoke of.37 Under further
questioning, he was likewise unable to provide any information regarding the
amounts invested into the project by several members of the claimed
consortium.38 A short while later, he admitted that the Commission had not
taken a look at the agreement (if any).39
He tried to justify his position by claiming that he was not a member of the
BAC. Neither was he the commissioner-in-charge of the Phase II
Modernization project (the automated election system); but that, in any case,
the BAC and the Phase II Modernization Project Team did look into the aspect
of the composition of the consortium.
It seems to the Court, though, that even if the BAC or the Phase II Team had
taken charge of evaluating the eligibility, qualifications and credentials of the
consortium-bidder, still, in all probability, the former would have referred the
task to Commissioner Tuason, head of Comelec’s Legal Department. That task
was the appreciation and evaluation of the legal effects and consequences of
the terms, conditions, stipulations and covenants contained in any joint venture
agreement, consortium agreement or a similar document -- assuming of course
that any of these was available at the time. The fact that Commissioner Tuason
was barely aware of the situation bespeaks the complete absence of such
document, or the utter failure or neglect of the Comelec to examine it --
assuming it was available at all -- at the time the award was made on April 15,
2003.
In any event, the Court notes for the record that Commissioner Tuason basically
contradicted his statements in open court about there being one written
agreement among all the consortium members, when he subsequently
referred40 to the four (4) Memoranda of Agreement (MOAs) executed by
them.41
At this juncture, one might ask: What, then, if there are four MOAs instead of
one or none at all? Isn’t it enough that there are these corporations coming
together to carry out the automation project? Isn’t it true, as respondent aver,
that nowhere in the RFP issued by Comelec is it required that the members of
the joint venture execute a single written agreement to prove the existence of a
joint venture. Indeed, the intention to be jointly and severally liable may be
evidenced not only by a single joint venture agreement, but also by
supplementary documents executed by the parties signifying such intention.
What then is the big deal?
The problem is not that there are four agreements instead of only one. The
problem is that Comelec never bothered to check. It never based its decision on
documents or other proof that would concretely establish the existence of the
claimed consortium or joint venture or agglomeration. It relied merely on the
self-serving representation in an uncorroborated letter signed by only one
individual, claiming that his company represented a "consortium" of several
different corporations. It concluded forthwith that a consortium indeed existed,
composed of such and such members, and thereafter declared that the entity
was eligible to bid.
True, copies of financial statements and incorporation papers of the alleged
"consortium" members were submitted. But these papers did not establish the
existence of a consortium, as they could have been provided by the companies
concerned for purposes other than to prove that they were part of a consortium
or joint venture. For instance, the papers may have been intended to show that
those companies were each qualified to be a sub-contractor (and nothing more)
in a major project. Those documents did not by themselves support the
assumption that a consortium or joint venture existed among the companies.
In brief, despite the absence of competent proof as to the existence and
eligibility of the alleged consortium (MPC), its capacity to deliver on the
Contract, and the members’ joint and several liability therefor, Comelec
nevertheless assumed that such consortium existed and was eligible. It then
went ahead and considered the bid of MPC, to which the Contract was
eventually awarded, in gross violation of the former’s own bidding rules and
procedures contained in its RFP. Therein lies Comelec’s grave abuse of
discretion.
Sufficiency of the Four Agreements
Instead of one multilateral agreement executed by, and effective and binding
on, all the five "consortium members" -- as earlier claimed by Commissioner
Tuason in open court -- it turns out that what was actually executed were four
(4) separate and distinct bilateral Agreements.42 Obviously, Comelec was
furnished copies of these Agreements only after the bidding process had been
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terminated, as these were not included in the Eligibility Documents. These
Agreements are as follows:
· A Memorandum of Agreement between MPEI and SK C&C
· A Memorandum of Agreement between MPEI and WeSolv
· A "Teaming Agreement" between MPEI and Election.com Ltd.
· A "Teaming Agreement" between MPEI and ePLDT
In sum, each of the four different and separate bilateral Agreements is valid and
binding only between MPEI and the other contracting party, leaving the other
"consortium" members total strangers thereto. Under this setup, MPEI dealt
separately with each of the "members," and the latter (WeSolv, SK C&C,
Election.com, and ePLDT) in turn had nothing to do with one another, each
dealing only with MPEI.
Respondents assert that these four Agreements were sufficient for the purpose
of enabling the corporations to still qualify (even at that late stage) as a
consortium or joint venture, since the first two Agreements had allegedly set
forth the joint and several undertakings among the parties, whereas the latter
two clarified the parties’ respective roles with regard to the Project, with MPEI
being the independent contractor and Election.com and ePLDT the
subcontractors.
Additionally, the use of the phrase "particular contract" in the Comelec’s
Request for Proposal (RFP), in connection with the joint and several liabilities
of companies in a joint venture, is taken by them to mean that all the members
of the joint venture need not be solidarily liable for the entire project or joint
venture, because it is sufficient that the lead company and the member in charge
of a particular contract or aspect of the joint venture agree to be solidarily liable.
At this point, it must be stressed most vigorously that the submission of the four
bilateral Agreements to Comelec after the end of the bidding process did
nothing to eliminate the grave abuse of discretion it had already committed on
April 15, 2003.
Deficiencies Have Not Been "Cured"
In any event, it is also claimed that the automation Contract awarded by
Comelec incorporates all documents executed by the "consortium" members,
even if these documents are not referred to therein. The basis of this assertion
appears to be the passages from Section 1.4 of the Contract, which is
reproduced as follows:
"All Contract Documents shall form part of the Contract even if they or any one
of them is not referred to or mentioned in the Contract as forming a part thereof.
Each of the Contract Documents shall be mutually complementary and
explanatory of each other such that what is noted in one although not shown in
the other shall be considered contained in all, and what is required by any one
shall be as binding as if required by all, unless one item is a correction of the
other.
"The intent of the Contract Documents is the proper, satisfactory and timely
execution and completion of the Project, in accordance with the Contract
Documents. Consequently, all items necessary for the proper and timely
execution and completion of the Project shall be deemed included in the
Contract."
Thus, it is argued that whatever perceived deficiencies there were in the
supplementary contracts -- those entered into by MPEI and the other members
of the "consortium" as regards their joint and several undertakings -- have been
cured. Better still, such deficiencies have supposedly been prevented from
arising as a result of the above-quoted provisions, from which it can be
immediately established that each of the members of MPC assumes the same
joint and several liability as the other members.
The foregoing argument is unpersuasive. First, the contract being referred to,
entitled "The Automated Counting and Canvassing Project Contract," is
between Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is
MPEI -- not MPC -- that is a party to the Contract. Nowhere in that Contract is
there any mention of a consortium or joint venture, of members thereof, much
less of joint and several liability. Supposedly executed sometime in May
2003,43 the Contract bears a notarization date of June 30, 2003, and contains
the signature of Willy U. Yu signing as president of MPEI (not for and on behalf
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of MPC), along with that of the Comelec chair. It provides in Section 3.2 that
MPEI (not MPC) is to supply the Equipment and perform the Services under
the Contract, in accordance with the appendices thereof; nothing whatsoever is
said about any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above do not
have the effect of curing (much less preventing) deficiencies in the bilateral
agreements entered into by MPEI with the other members of the "consortium,"
with respect to their joint and several liabilities. The term "Contract
Documents," as used in the quoted passages of Section 1.4, has a well-defined
meaning and actually refers only to the following documents:
· The Contract itself along with its appendices
· The Request for Proposal (also known as "Terms of Reference") issued by the
Comelec, including the Tender Inquiries and Bid Bulletins
· The Tender Proposal submitted by MPEI
In other words, the term "Contract Documents" cannot be understood as
referring to or including the MOAs and the Teaming Agreements entered into
by MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very
clear and admits of no debate. The attempt to use the provisions of Section 1.4
to shore up the MOAs and the Teaming Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the conclusion that,
from the above-quoted provisions, it can be immediately established that each
of the members of MPC assumes the same joint and several liability as the other
members. Earlier, respondents claimed exactly the opposite -- that the two
MOAs (between MPEI and SK C&C, and between MPEI and WeSolv) had set
forth the joint and several undertakings among the parties; whereas the two
Teaming Agreements clarified the parties’ respective roles with regard to the
Project, with MPEI being the independent contractor and Election.com and
ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective
liabilities cannot be the same. Precisely, the very clear terms and stipulations
contained in the MOAs and the Teaming Agreements -- entered into by MPEI
with SK C&C, WeSolv, Election.com and ePLDT -- negate the idea that these
"members" are on a par with one another and are, as such, assuming the same
joint and several liability.
Moreover, respondents have earlier seized upon the use of the term "particular
contract" in the Comelec’s Request for Proposal (RFP), in order to argue that
all the members of the joint venture did not need to be solidarily liable for the
entire project or joint venture. It was sufficient that the lead company and the
member in charge of a particular contract or aspect of the joint venture would
agree to be solidarily liable. The glaring lack of consistency leaves us at a loss.
Are respondents trying to establish the same joint and solidary liability among
all the "members" or not?
Enforcement of Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec and
the MPEI confirms the solidary undertaking of the lead company and the
consortium member concerned for each particular Contract, inasmuch as the
position of MPEI and anyone else performing the services contemplated under
the Contract is described therein as that of an independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the
first place, the contractual provision being relied upon by respondents is Article
14, "Independent Contractors," which states: "Nothing contained herein shall
be construed as establishing or creating between the COMELEC and MEGA
the relationship of employee and employer or principal and agent, it being
understood that the position of MEGA and of anyone performing the Services
contemplated under this Contract, is that of an independent contractor."
Obviously, the intent behind the provision was simply to avoid the creation of
an employer-employee or a principal-agent relationship and the complications
that it would produce. Hence, the Article states that the role or position of
MPEI, or anyone else performing on its behalf, is that of an independent
contractor. It is obvious to the Court that respondents are stretching matters too
far when they claim that, because of this provision, the Contract in effect
confirms the solidary undertaking of the lead company and the consortium
member concerned for the particular phase of the project. This assertion is an
absolute non sequitur.
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Enforcement of Liabilities Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the liability of the
"consortium" members under the Civil Code provisions on partnership,
reasoning that MPEI et al. represented themselves as partners and members of
MPC for purposes of bidding for the Project. They are, therefore, liable to the
Comelec to the extent that the latter relied upon such representation. Their
liability as partners is solidary with respect to everything chargeable to the
partnership under certain conditions.
The Court has two points to make with respect to this argument. First, it must
be recalled that SK C&C, WeSolv, Election.com and ePLDT never represented
themselves as partners and members of MPC, whether for purposes of bidding
or for something else. It was MPEI alone that represented them to be members
of a "consortium" it supposedly headed. Thus, its acts may not necessarily be
held against the other "members."
Second, this argument of the OSG in its Memorandum44 might possibly apply
in the absence of a joint venture agreement or some other writing that discloses
the relationship of the "members" with one another. But precisely, this case
does not deal with a situation in which there is nothing in writing to serve as
reference, leaving Comelec to rely on mere representations and therefore
justifying a falling back on the rules on partnership. For, again, the terms and
stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv, as
well as the Teaming Agreements of MPEI with Election.com and ePLDT
(copies of which have been furnished the Comelec) are very clear with respect
to the extent and the limitations of the firms’ respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities,
while joint and several with MPEI, are limited only to the particular areas of
work wherein their services are engaged or their products utilized. As for
Election.com and ePLDT, their separate "Teaming Agreements" specifically
ascribe to them the role of subcontractor vis-à-vis MPEI as contractor and,
based on the terms of their particular agreements, neither Election.com nor
ePLDT is, with MPEI, jointly and severally liable to Comelec.45 It follows then
that in the instant case, there is no justification for anyone, much less Comelec,
to resort to the rules on partnership and partners’ liabilities.
Eligibility of a Consortium Based on the Collective Qualifications of Its
Members
Respondents declare that, for purposes of assessing the eligibility of the bidder,
the members of MPC should be evaluated on a collective basis. Therefore, they
contend, the failure of MPEI to submit financial statements (on account of its
recent incorporation) should not by itself disqualify MPC, since the other
members of the "consortium" could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the undertaking of the
members of MPC, their contribution of assets and sharing of risks, and the
community of their interest in the performance of the Contract lead to these
reasonable conclusions: (1) that their collective qualifications should be the
basis for evaluating their eligibility; (2) that the sheer enormity of the project
renders it improbable to expect any single entity to be able to comply with all
the eligibility requirements and undertake the project by itself; and (3) that, as
argued by the OSG, the RFP allows bids from manufacturers, suppliers and/or
distributors that have formed themselves into a joint venture, in recognition of
the virtual impossibility of a single entity’s ability to respond to the Invitation
to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations of
RA 6957 (the Build-Operate-Transfer Law) as amended by RA 7718 would be
applicable, as proponents of BOT projects usually form joint ventures or
consortiums. Under the IRR, a joint venture/consortium proponent shall be
evaluated based on the individual or the collective experience of the member-
firms of the joint venture/consortium and of the contractors the proponent has
engaged for the project.
Unfortunately, this argument seems to assume that the "collective" nature of the
undertaking of the members of MPC, their contribution of assets and sharing of
risks, and the "community" of their interest in the performance of the Contract
entitle MPC to be treated as a joint venture or consortium; and to be evaluated
accordingly on the basis of the members’ collective qualifications when, in fact,
the evidence before the Court suggest otherwise.
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This Court in Kilosbayan v. Guingona46 defined joint venture as "an
association of persons or companies jointly undertaking some commercial
enterprise; generally, all contribute assets and share risks. It requires a
community of interest in the performance of the subject matter, a right to direct
and govern the policy in connection therewith, and [a] duty, which may be
altered by agreement to share both in profit and losses."
Going back to the instant case, it should be recalled that the automation Contract
with Comelec was not executed by the "consortium" MPC -- or by MPEI for
and on behalf of MPC -- but by MPEI, period. The said Contract contains no
mention whatsoever of any consortium or members thereof. This fact alone
seems to contradict all the suppositions about a joint undertaking that would
normally apply to a joint venture or consortium: that it is a commercial
enterprise involving a community of interest, a sharing of risks, profits and
losses, and so on.
Now let us consider the four bilateral Agreements, starting with the
Memorandum of Agreement between MPEI and WeSolv Open Computing,
Inc., dated March 5, 2003. The body of the MOA consists of just seven (7) short
paragraphs that would easily fit in one page! It reads as follows:
"1. The parties agree to cooperate in successfully implementing the Project in
the substance and form as may be most beneficial to both parties and other
subcontractors involved in the Project.
"2. Mega Pacific shall be responsible for any contract negotiations and signing
with the COMELEC and, subject to the latter’s approval, agrees to give WeSolv
an opportunity to be present at meetings with the COMELEC concerning
WeSolv’s portion of the Project.
"3. WeSolv shall be jointly and severally liable with Mega Pacific only for the
particular products and/or services supplied by the former for the Project.
"4. Each party shall bear its own costs and expenses relative to this agreement
unless otherwise agreed upon by the parties.
"5. The parties undertake to do all acts and such other things incidental to,
necessary or desirable or the attainment of the objectives and purposes of this
Agreement.
"6. In the event that the parties fail to agree on the terms and conditions of the
supply of the products and services including but not limited to the scope of the
products and services to be supplied and payment terms, WeSolv shall cease to
be bound by its obligations stated in the aforementioned paragraphs.
"7. Any dispute arising from this Agreement shall be settled amicably by the
parties whenever possible. Should the parties be unable to do so, the parties
hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines." (Underscoring supplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK C&C
Co. Ltd., dated March 9, 2003, the body of which consists of only six (6)
paragraphs, which we quote:
"1. All parties agree to cooperate in achieving the Consortium’s objective of
successfully implementing the Project in the substance and form as may be
most beneficial to the Consortium members and in accordance w/ the demand
of the RFP.
"2. Mega Pacific shall have full powers and authority to represent the
Consortium with the Comelec, and to enter and sign, for and in behalf of its
members any and all agreement/s which maybe required in the implementation
of the Project.
"3. Each of the individual members of the Consortium shall be jointly and
severally liable with the Lead Firm for the particular products and/or services
supplied by such individual member for the project, in accordance with their
respective undertaking or sphere of responsibility.
"4. Each party shall bear its own costs and expenses relative to this agreement
unless otherwise agreed upon by the parties.
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"5. The parties undertake to do all acts and such other things incidental to,
necessary or desirable for the attainment of the objectives and purposes of this
Agreement.
"6. Any dispute arising from this Agreement shall be settled amicably by the
parties whenever possible. Should the parties be unable to do so, the parties
hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines." (Underscoring supplied.)
It will be noted that the two Agreements quoted above are very similar in
wording. Neither of them contains any specifics or details as to the exact nature
and scope of the parties’ respective undertakings, performances and
deliverables under the Agreement with respect to the automation project.
Likewise, the two Agreements are quite bereft of pesos-and-centavos data as to
the amount of investments each party contributes, its respective share in the
revenues and/or profit from the Contract with Comelec, and so forth -- all of
which are normal for agreements of this nature. Yet, according to public and
private respondents, the participation of MPEI, WeSolv and SK C&C
comprises fully 90 percent of the entire undertaking with respect to the election
automation project, which is worth about P1.3 billion.
As for Election.com and ePLDT, the separate "Teaming Agreements" they
entered into with MPEI for the remaining 10 percent of the entire project
undertaking are ironically much longer and more detailed than the MOAs
discussed earlier. Although specifically ascribing to them the role of
subcontractor vis-à-vis MPEI as contractor, these Agreements are, however,
completely devoid of any pricing data or payment terms. Even the appended
Schedules supposedly containing prices of goods and services are shorn of any
price data. Again, as mentioned earlier, based on the terms of their particular
Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly and
severally liable to Comelec.
It is difficult to imagine how these bare Agreements -- especially the first two -
- could be implemented in practice; and how a dispute between the parties or a
claim by Comelec against them, for instance, could be resolved without lengthy
and debilitating litigations. Absent any clear-cut statement as to the exact nature
and scope of the parties’ respective undertakings, commitments, deliverables
and covenants, one party or another can easily dodge its obligation and deny or
contest its liability under the Agreement; or claim that it is the other party that
should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of investments
to be contributed by each party, disbursements for expenses, the parties’
respective shares in the profits and the like, it seems to the Court that this
situation could readily give rise to all kinds of misunderstandings and
disagreements over money matters.
Under such a scenario, it will be extremely difficult for Comelec to enforce the
supposed joint and several liabilities of the members of the "consortium." The
Court is not even mentioning the possibility of a situation arising from a failure
of WeSolv and MPEI to agree on the scope, the terms and the conditions for
the supply of the products and services under the Agreement. In that situation,
by virtue of paragraph 6 of its MOA, WeSolv would perforce cease to be bound
by its obligations -- including its joint and solidary liability with MPEI under
the MOA -- and could forthwith disengage from the project. Effectively,
WeSolv could at any time unilaterally exit from its MOA with MPEI by simply
failing to agree. Where would that outcome leave MPEI and Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the other
companies does not qualify them to be treated as a consortium or joint venture,
at least of the type that government agencies like the Comelec should be dealing
with. With more reason is it unable to agree to the proposal to evaluate the
members of MPC on a collective basis.
In any event, the MPC members claim to be a joint venture/consortium; and
respondents have consistently been arguing that the IRR for RA 6957, as
amended, should be applied to the instant case in order to allow a collective
evaluation of consortium members. Surprisingly, considering these facts,
respondents have not deemed it necessary for MPC members to comply with
Section 5.4 (a) (iii) of the IRR for RA 6957 as amended.
According to the aforementioned provision, if the project proponent is a joint
venture or consortium, the members or participants thereof are required to
submit a sworn statement that, if awarded the contract, they shall bind
themselves to be jointly, severally and solidarily liable for the project
proponent’s obligations thereunder. This provision was supposed to mirror
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Section 5 of RA 6957, as amended, which states: "In all cases, a consortium
that participates in a bid must present proof that the members of the consortium
have bound themselves jointly and severally to assume responsibility for any
project. The withdrawal of any member of the consortium prior to the
implementation of the project could be a ground for the cancellation of the
contract." The Court has certainly not seen any joint and several undertaking
by the MPC members that even approximates the tenor of that which is
described above. We fail to see why respondents should invoke the IRR if it is
for their benefit, but refuse to comply with it otherwise.
B.
DOST Technical Tests Flunked by the Automated Counting Machines
Let us now move to the second subtopic, which deals with the substantive issue:
the ACM’s failure to pass the tests of the Department of Science and
Technology (DOST).
After respondent "consortium" and the other bidder, TIM, had submitted their
respective bids on March 10, 2003, the Comelec’s BAC -- through its Technical
Working Group (TWG) and the DOST -- evaluated their technical proposals.
Requirements that were highly technical in nature and that required the use of
certain equipment in the evaluation process were referred to the DOST for
testing. The Department reported thus:
TEST RESULTS MATRIX47
Technical Evaluation of Automated Counting Machine
[see next page for tables]
According to respondents, it was only after the TWG and the DOST had
conducted their separate tests and submitted their respective reports that the
BAC, on the basis of these reports formulated its comments/recommendations
on the bids of the consortium and TIM.
The BAC, in its Report dated April 21, 2003, recommended that the Phase II
project involving the acquisition of automated counting machines be awarded
to MPEI. It said:
"After incisive analysis of the technical reports of the DOST and the Technical
Working Group for Phase II – Automated Counting Machine, the BAC
considers adaptability to advances in modern technology to ensure an effective
and efficient method, as well as the security and integrity of the system.
"The results of the evaluation conducted by the TWG and that of the DOST (14
April 2003 report), would show the apparent advantage of Mega-Pacific over
the other competitor, TIM.
"The BAC further noted that both Mega-Pacific and TIM obtained some ‘failed
marks’ in the technical evaluation. In general, the ‘failed marks’ of Total
Information Management as enumerated above affect the counting machine
itself which are material in nature, constituting non-compliance to the RFP. On
the other hand, the ‘failed marks’ of Mega-Pacific are mere formalities on
certain documentary requirements which the BAC may waive as clearly
indicated in the Invitation to Bid.
"In the DOST test, TIM obtained 12 failed marks and mostly attributed to the
counting machine itself as stated earlier. These are requirements of the RFP and
therefore the BAC cannot disregard the same.
"Mega-Pacific failed in 8 items however these are mostly on the software which
can be corrected by reprogramming the software and therefore can be readily
corrected.
"The BAC verbally inquired from DOST on the status of the retest of the
counting machines of the TIM and was informed that the report will be
forthcoming after the holy week. The BAC was informed that the retest is on a
different parameters they’re being two different machines being tested. One
purposely to test if previously read ballots will be read again and the other for
the other features such as two sided ballots.
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"The said machine and the software therefore may not be considered the same
machine and program as submitted in the Technical proposal and therefore may
be considered an enhancement of the original proposal.
"Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by
Executive Director Ronaldo T. Viloria of DOST is that the result of the test in
the two counting machines of TIM contains substantial errors that may lead to
the failure of these machines based on the specific items of the RFP that DOST
has to certify.
OPENING OF FINANCIAL BIDS
"The BAC on 15 April 2003, after notifying the concerned bidders opened the
financial bids in their presence and the results were as follows:
Mega-Pacific:
Option 1 – Outright purchase: Bid Price if Php1,248,949,088.00
Option 2 – Lease option:
70% Down payment of cost of hardware or Php642,755,757.07
Remainder payable over 50 months or a total of Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.
Total Number of Automated Counting Machine – 1,769 ACMs (Nationwide)
TIM:
Total Bid Price – Php1,297,860,560.00
Total Number of Automated Counting Machine – 2,272 ACMs (Mindanao and
NCR only)
"Premises considered, it appears that the bid of Mega Pacific is the lowest
calculated responsive bid, and therefore, the Bids and Awards Committee
(BAC) recommends that the Phase II project re Automated Counting Machine
be awarded to Mega Pacific eSolutions, Inc."48
The BAC, however, also stated on page 4 of its Report: "Based on the 14 April
2003 report (Table 6) of the DOST, it appears that both Mega-Pacific and TIM
(Total Information Management Corporation) failed to meet some of the
requirements. Below is a comparative presentation of the requirements wherein
Mega-Pacific or TIM or both of them failed: x x x." What followed was a list
of "key requirements," referring to technical requirements, and an indication of
which of the two bidders had failed to meet them.
Failure to Meet the Required Accuracy Rating
The first of the key requirements was that the counting machines were to have
an accuracy rating of at least 99.9995 percent. The BAC Report indicates that
both Mega Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be part and parcel of the
Comelec’s Request for Proposal (RFP). The RFP, on page 26, even states that
the ballot counting machines and ballot counting software "must have an
accuracy rating of 99.9995% (not merely 99.995%) or better as certified by a
reliable independent testing agency."
When questioned on this matter during the Oral Argument, Commissioner
Borra tried to wash his hands by claiming that the required accuracy rating of
99.9995 percent had been set by a private sector group in tandem with Comelec.
He added that the Commission had merely adopted the accuracy rating as part
of the group’s recommended bid requirements, which it had not bothered to
amend even after being advised by DOST that such standard was unachievable.
This excuse, however, does not in any way lessen Comelec’s responsibility to
adhere to its own published bidding rules, as well as to see to it that the
consortium indeed meets the accuracy standard. Whichever accuracy rating is
the right standard -- whether 99.995 or 99.9995 percent -- the fact remains that
the machines of the so-called "consortium" failed to even reach the lesser of the
two. On this basis alone, it ought to have been disqualified and its bid rejected
outright.
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At this point, the Court stresses that the essence of public bidding is violated by
the practice of requiring very high standards or unrealistic specifications that
cannot be met -- like the 99.9995 percent accuracy rating in this case -- only to
water them down after the bid has been award. Such scheme, which discourages
the entry of prospective bona fide bidders, is in fact a sure indication of fraud
in the bidding, designed to eliminate fair competition. Certainly, if no bidder
meets the mandatory requirements, standards or specifications, then no award
should be made and a failed bidding declared.
Failure of Software to Detect Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the "consortium" as
well as TIM failed to meet another key requirement -- for the counting
machine’s software program to be able to detect previously downloaded
precinct results and to prevent these from being entered again into the counting
machine. This same deficiency on the part of both bidders reappears on page 7
of the BAC Report, as a result of the recurrence of their failure to meet the said
key requirement.
That the ability to detect previously downloaded data at different canvassing or
consolidation levels is deemed of utmost importance can be seen from the fact
that it is repeated three times in the RFP. On page 30 thereof, we find the
requirement that the city/municipal canvassing system software must be able to
detect previously downloaded precinct results and prevent these from being
"inputted" again into the system. Again, on page 32 of the RFP, we read that
the provincial/district canvassing system software must be able to detect
previously downloaded city/municipal results and prevent these from being
"inputted" again into the system. And once more, on page 35 of the RFP, we
find the requirement that the national canvassing system software must be able
to detect previously downloaded provincial/district results and prevent these
from being "inputted" again into the system.
Once again, though, Comelec chose to ignore this crucial deficiency, which
should have been a cause for the gravest concern. Come May 2004,
unscrupulous persons may take advantage of and exploit such deficiency by
repeatedly downloading and feeding into the computers results favorable to a
particular candidate or candidates. We are thus confronted with the grim
prospect of election fraud on a massive scale by means of just a few key strokes.
The marvels and woes of the electronic age!
Inability to Print the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate
that the ACMs of both bidders were unable to print the audit trail without any
loss of data. In the case of MPC, the audit trail system was "not yet
incorporated" into its ACMs.
This particular deficiency is significant, not only to this bidding but to the cause
of free and credible elections. The purpose of requiring audit trails is to enable
Comelec to trace and verify the identities of the ACM operators responsible for
data entry and downloading, as well as the times when the various data were
downloaded into the canvassing system, in order to forestall fraud and to
identify the perpetrators.
Thus, the RFP on page 27 states that the ballot counting machines and ballot
counting software must print an audit trail of all machine operations for
documentation and verification purposes. Furthermore, the audit trail must be
stored on the internal storage device and be available on demand for future
printing and verifying. On pages 30-31, the RFP also requires that the
city/municipal canvassing system software be able to print an audit trail of the
canvassing operations, including therein such data as the date and time the
canvassing program was started, the log-in of the authorized users (the identity
of the machine operators), the date and time the canvass data were downloaded
into the canvassing system, and so on and so forth. On page 33 of the RFP, we
find the same audit trail requirement with respect to the provincial/district
canvassing system software; and again on pages 35-36 thereof, the same audit
trail requirement with respect to the national canvassing system software.
That this requirement for printing audit trails is not to be lightly brushed aside
by the BAC or Comelec itself as a mere formality or technicality can be readily
gleaned from the provisions of Section 7 of RA 8436, which authorizes the
Commission to use an automated system for elections.
The said provision which respondents have quoted several times, provides that
ACMs are to possess certain features divided into two classes: those that the
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statute itself considers mandatory and other features or capabilities that the law
deems optional. Among those considered mandatory are "provisions for audit
trails"! Section 7 reads as follows: "The System shall contain the following
features: (a) use of appropriate ballots; (b) stand-alone machine which can
count votes and an automated system which can consolidate the results
immediately; (c) with provisions for audit trails; (d) minimum human
intervention; and (e) adequate safeguard/security measures." (Italics and
emphases supplied.)
In brief, respondents cannot deny that the provision requiring audit trails is
indeed mandatory, considering the wording of Section 7 of RA 8436. Neither
can Respondent Comelec deny that it has relied on the BAC Report, which
indicates that the machines or the software was deficient in that respect. And
yet, the Commission simply disregarded this shortcoming and awarded the
Contract to private respondent, thereby violating the very law it was supposed
to implement.
C.
Inadequacy of Post Facto Remedial Measures
Respondents argue that the deficiencies relating to the detection of previously
downloaded data, as well as provisions for audit trails, are mere shortcomings
or minor deficiencies in software or programming, which can be rectified.
Perhaps Comelec simply relied upon the BAC Report, which states on page 8
thereof that "Mega Pacific failed in 8 items[;] however these are mostly on the
software which can be corrected by re-programming x x x and therefore can be
readily corrected."
The undersigned ponente’s questions, some of which were addressed to
Commissioner Borra during the Oral Argument, remain unanswered to this day.
First of all, who made the determination that the eight "fail" marks of Mega
Pacific were on account of the software -- was it DOST or TWG? How can we
be sure these failures were not the results of machine defects? How was it
determined that the software could actually be re-programmed and thereby
rectified? Did a qualified technical expert read and analyze the source code49
for the programs and conclude that these could be saved and remedied? (Such
determination cannot be done by any other means save by the examination and
analysis of the source code.)
Who was this qualified technical expert? When did he carry out the study? Did
he prepare a written report on his findings? Or did the Comelec just make a
wild guess? It does not follow that all defects in software programs can be
rectified, and the programs saved. In the information technology sector, it is
common knowledge that there are many badly written programs, with
significant programming errors written into them; hence it does not make
economic sense to try to correct the programs; instead, programmers simply
abandon them and just start from scratch. There’s no telling if any of these
programs is unrectifiable, unless a qualified programmer reads the source code.
And if indeed a qualified expert reviewed the source code, did he also determine
how much work would be needed to rectify the programs? And how much time
and money would be spent for that effort? Who would carry out the work? After
the rectification process, who would ascertain and how would it be ascertained
that the programs have indeed been properly rectified, and that they would work
properly thereafter? And of course, the most important question to ask: could
the rectification be done in time for the elections in 2004?
Clearly, none of the respondents bothered to think the matter through. Comelec
simply took the word of the BAC as gospel truth, without even bothering to
inquire from DOST whether it was true that the deficiencies noted could
possibly be remedied by re-programming the software. Apparently, Comelec
did not care about the software, but focused only on purchasing the machines.
What really adds to the Court’s dismay is the admission made by Commissioner
Borra during the Oral Argument that the software currently being used by
Comelec was merely the "demo" version, inasmuch as the final version that
would actually be used in the elections was still being developed and had not
yet been finalized.
It is not clear when the final version of the software would be ready for testing
and deployment. It seems to the Court that Comelec is just keeping its fingers
crossed and hoping the final product would work. Is there a "Plan B" in case it
does not? Who knows? But all these software programs are part and parcel of
the bidding and the Contract awarded to the Consortium. Why is it that the
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machines are already being brought in and paid for, when there is as yet no way
of knowing if the final version of the software would be able to run them
properly, as well as canvass and consolidate the results in the manner required?
The counting machines, as well as the canvassing system, will never work
properly without the correct software programs. There is an old adage that is
still valid to this day: "Garbage in, garbage out." No matter how powerful,
advanced and sophisticated the computers and the servers are, if the software
being utilized is defective or has been compromised, the results will be no better
than garbage. And to think that what is at stake here is the 2004 national
elections -- the very basis of our democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19 Certifications
issued by DOST declaring that some 285 counting machines had been tested
and had passed the acceptance testing conducted by the Department on October
8-18, 2003. Among those tested were some machines that had failed previous
tests, but had undergone adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what manner
and by what standards or criteria the condition, performance and/or readiness
of the machines were re-evaluated and re-appraised and thereafter given the
passing mark. Apart from that fact, the remedial efforts of respondents were,
not surprisingly, apparently focused again on the machines -- the hardware.
Nothing was said or done about the software -- the deficiencies as to detection
and prevention of downloading and entering previously downloaded data, as
well as the capability to print an audit trail. No matter how many times the
machines were tested and re-tested, if nothing was done about the programming
defects and deficiencies, the same danger of massive electoral fraud remains.
As anyone who has a modicum of knowledge of computers would say, "That’s
elementary!"
And only last December 5, 2003, an Inq7.net news report quoted the Comelec
chair as saying that the new automated poll system would be used nationwide
in May 2004, even as the software for the system remained unfinished. It also
reported that a certain Titus Manuel of the Philippine Computer Society, which
was helping Comelec test the hardware and software, said that the software for
the counting still had to be submitted on December 15, while the software for
the canvassing was due in early January.
Even as Comelec continues making payments for the ACMs, we keep asking
ourselves: who is going to ensure that the software would be tested and would
work properly?
At any rate, the re-testing of the machines and/or the 100 percent testing of all
machines (testing of every single unit) would not serve to eradicate the grave
abuse of discretion already committed by Comelec when it awarded the
Contract on April 15, 2003, despite the obvious and admitted flaws in the
bidding process, the failure of the "winning bidder" to qualify, and the inability
of the ACMs and the intended software to meet the bid requirements and rules.
Comelec’s Latest "Assurances" Are Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our
apprehensions. They merely affirm and compound the serious violations of law
and gravely abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9, 2003 required respondents
to inform it as to the number of ACMs delivered and paid for, as well as the
total payment made to date for the purchase thereof. They were likewise
instructed to submit a certification from the DOST attesting to the number of
ACMs tested, the number found to be defective; and "whether the
reprogrammed software has been tested and found to have complied with the
requirements under Republic Act No. 8436."50
In its "Partial Compliance and Manifestation" dated December 29, 2003,
Comelec informed the Court that 1,991 ACMs had already been delivered to
the Commission as of that date. It further certified that it had already paid the
supplier the sum of P849,167,697.41, which corresponded to 1,973 ACM units
that had passed the acceptance testing procedures conducted by the MIRDC-
DOST51 and which had therefore been accepted by the poll body.
In the same submission, for the very first time, Comelec also disclosed to the
Court the following:
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"The Automated Counting and Canvassing Project involves not only the
manufacturing of the ACM hardware but also the development of three (3)
types of software, which are intended for use in the following:
1. Evaluation of Technical Bids
2. Testing and Acceptance Procedures
3. Election Day Use."
Purchase of the First Type of Software Without Evaluation
In other words, the first type of software was to be developed solely for the
purpose of enabling the evaluation of the bidder’s technical bid. Comelec
explained thus: "In addition to the presentation of the ACM hardware, the
bidders were required to develop a ‘base’ software program that will enable the
ACM to function properly. Since the software program utilized during the
evaluation of bids is not the actual software program to be employed on election
day, there being two (2) other types of software program that will still have to
be developed and thoroughly tested prior to actual election day use, defects in
the ‘base’ software that can be readily corrected by reprogramming are
considered minor in nature, and may therefore be waived."
In short, Comelec claims that it evaluated the bids and made the decision to
award the Contract to the "winning" bidder partly on the basis of the operation
of the ACMs running a "base" software. That software was therefore nothing
but a sample or "demo" software, which would not be the actual one that would
be used on election day. Keeping in mind that the Contract involves the
acquisition of not just the ACMs or the hardware, but also the software that
would run them, it is now even clearer that the Contract was awarded without
Comelec having seen, much less evaluated, the final product -- the software that
would finally be utilized come election day. (Not even the "near-final" product,
for that matter).
What then was the point of conducting the bidding, when the software that was
the subject of the Contract was still to be created and could conceivably undergo
innumerable changes before being considered as being in final form? And that
is not all!
No Explanation for Lapses in the Second Type of Software
The second phase, allegedly involving the second type of software, is simply
denominated "Testing and Acceptance Procedures." As best as we can construe,
Comelec is claiming that this second type of software is also to be developed
and delivered by the supplier in connection with the "testing and acceptance"
phase of the acquisition process. The previous pleadings, though -- including
the DOST reports submitted to this Court -- have not heretofore mentioned any
statement, allegation or representation to the effect that a particular set of
software was to be developed and/or delivered by the supplier in connection
with the testing and acceptance of delivered ACMs.
What the records do show is that the imported ACMs were subjected to the
testing and acceptance process conducted by the DOST. Since the initial batch
delivered included a high percentage of machines that had failed the tests,
Comelec asked the DOST to conduct a 100 percent testing; that is, to test every
single one of the ACMs delivered. Among the machines tested on October 8 to
18, 2003, were some units that had failed previous tests but had subsequently
been re-tested and had passed. To repeat, however, until now, there has never
been any mention of a second set or type of software pertaining to the testing
and acceptance process.
In any event, apart from making that misplaced and uncorroborated claim,
Comelec in the same submission also professes (in response to the concerns
expressed by this Court) that the reprogrammed software has been tested and
found to have complied with the requirements of RA 8436. It reasoned thus:
"Since the software program is an inherent element in the automated counting
system, the certification issued by the MIRDC-DOST that one thousand nine
hundred seventy-three (1,973) units passed the acceptance test procedures is an
official recognition by the MIRDC-DOST that the software component of the
automated election system, which has been reprogrammed to comply with the
provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical
Evaluation Committee’s ACM Testing and Acceptance Manual, has passed the
MIRDC-DOST tests."
The facts do not support this sweeping statement of Comelec. A scrutiny of the
MIRDC-DOST letter dated December 15, 2003,52 which it relied upon, does
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not justify its grand conclusion. For clarity’s sake, we quote in full the letter-
certification, as follows: "Very truly yours,

"15 December 2003 "ROLANDO T. VILORIA, CESO III

"HON. RESURRECCION Z. BORRA Executive Director cum

Commissioner-in-Charge Chairman, DOST-Technical Evaluation Committee"

Phase II, Modernization Project Even a cursory glance at the foregoing letter shows that it is completely bereft
of anything that would remotely support Comelec’s contention that the
Commission on Elections "software component of the automated election system x x x has been
reprogrammed to comply with" RA 8436, and "has passed the MIRDC-DOST
Intramuros, Manila tests." There is no mention at all of any software reprogramming. If the
MIRDC-DOST had indeed undertaken the supposed reprogramming and the
Attention: Atty. Jose M. Tolentino, Jr. process turned out to be successful, that agency would have proudly trumpeted
its singular achievement.
Project Director
How Comelec came to believe that such reprogramming had been undertaken
"Dear Commissioner Borra: is unclear. In any event, the Commission is not forthright and candid with the
factual details. If reprogramming has been done, who performed it and when?
"We are pleased to submit 11 DOST Test Certifications representing 11 lots What exactly did the process involve? How can we be assured that it was
and covering 158 units of automated counting machines (ACMs) that we have properly performed? Since the facts attendant to the alleged reprogramming are
tested from 02-12 December 2003. still shrouded in mystery, the Court cannot give any weight to Comelec’s bare
allegations.
"To date, we have tested all the 1,991 units of ACMs, broken down as follow:
(sic) The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-
DOST tests does not by itself serve as an endorsement of the soundness of the
1st batch - 30 units 4th batch - 438 units software program, much less as a proof that it has been reprogrammed. In the
first place, nothing on record shows that the tests and re-tests conducted on the
2nd batch - 288 units 5th batch - 438 units machines were intended to address the serious deficiencies noted earlier. As a
matter of fact, the MIRDC-DOST letter does not even indicate what kinds of
3rd batch - 414 units 6th batch - 383 units tests or re-tests were conducted, their exact nature and scope, and the specific
objectives thereof.53 The absence of relevant supporting documents, combined
"It should be noted that a total of 18 units have failed the test. Out of these 18 with the utter vagueness of the letter, certainly fails to inspire belief or to justify
units, only one (1) unit has failed the retest. the expansive confidence displayed by Comelec. In any event, it goes without
saying that remedial measures such as the alleged reprogramming cannot in any
"Thank you and we hope you will find everything in order.
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way mitigate the grave abuse of discretion already committed as early as April
15, 2003.
Rationale of Public Bidding Negated
by the Third Type of Software
Respondent Comelec tries to assuage this Court’s anxiety in these words: "The
reprogrammed software that has already passed the requirements of Republic
Act No. 8436 during the MIRDC-DOST testing and acceptance procedures will
require further customization since the following additional elements, among
other things, will have to be considered before the final software can be used
on election day: 1. Final Certified List of Candidates x x x 2. Project of
Precincts x x x 3. Official Ballot Design and Security Features x x x 4.
Encryption, digital certificates and digital signatures x x x. The certified list of
candidates for national elective positions will be finalized on or before 23
January 2004 while the final list of projects of precincts will be prepared also
on the same date. Once all the above elements are incorporated in the software
program, the Test Certification Group created by the Ad Hoc Technical
Evaluation Committee will conduct meticulous testing of the final software
before the same can be used on election day. In addition to the testing to be
conducted by said Test Certification Group, the Comelec will conduct mock
elections in selected areas nationwide not only for purposes of public
information but also to further test the final election day program. Public
respondent Comelec, therefore, requests that it be given up to 16 February 2004
to comply with this requirement."
The foregoing passage shows the imprudent approach adopted by Comelec in
the bidding and acquisition process. The Commission says that before the
software can be utilized on election day, it will require "customization" through
addition of data -- like the list of candidates, project of precincts, and so on.
And inasmuch as such data will become available only in January 2004 anyway,
there is therefore no perceived need on Comelec’s part to rush the supplier into
producing the final (or near-final) version of the software before that time. In
any case, Comelec argues that the software needed for the electoral exercise
can be continuously developed, tested, adjusted and perfected, practically all
the way up to election day, at the same time that the Commission is undertaking
all the other distinct and diverse activities pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid little attention
to the counting and canvassing software during the entire bidding process,
which took place in February-March 2003. Granted that the software was
defective, could not detect and prevent the re-use of previously downloaded
data or produce the audit trail -- aside from its other shortcomings --
nevertheless, all those deficiencies could still be corrected down the road. At
any rate, the software used for bidding purposes would not be the same one that
will be used on election day, so why pay any attention to its defects? Or to the
Comelec’s own bidding rules for that matter?
Clearly, such jumbled ratiocinations completely negate the rationale underlying
the bidding process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly violated the
public policy on public biddings (1) by allowing MPC/MPEI to participate in
the bidding even though it was not qualified to do so; and (2) by eventually
awarding the Contract to MPC/MPEI. Now, with the latest explanation given
by Comelec, it is clear that the Commission further desecrated the law on public
bidding by permitting the winning bidder to change and alter the subject of the
Contract (the software), in effect allowing a substantive amendment without
public bidding.
This stance is contrary to settled jurisprudence requiring the strict application
of pertinent rules, regulations and guidelines for public bidding for the purpose
of placing each bidder, actual or potential, on the same footing. The essence of
public bidding is, after all, an opportunity for fair competition, and a fair basis
for the precise comparison of bids. In common parlance, public bidding aims
to "level the playing field." That means each bidder must bid under the same
conditions; and be subject to the same guidelines, requirements and limitations,
so that the best offer or lowest bid may be determined, all other things being
equal.
Thus, it is contrary to the very concept of public bidding to permit a variance
between the conditions under which bids are invited and those under which
proposals are submitted and approved; or, as in this case, the conditions under
which the bid is won and those under which the awarded Contract will be
complied with. The substantive amendment of the contract bidded out, without
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any public bidding -- after the bidding process had been concluded -- is
violative of the public policy on public biddings, as well as the spirit and intent
of RA 8436. The whole point in going through the public bidding exercise was
completely lost. The very rationale of public bidding was totally subverted by
the Commission.
From another perspective, the Comelec approach also fails to make sense.
Granted that, before election day, the software would still have to be
customized to each precinct, municipality, city, district, and so on, there still
was nothing at all to prevent Comelec from requiring prospective
suppliers/bidders to produce, at the very start of the bidding process, the "next-
to-final" versions of the software (the best software the suppliers had) -- pre-
tested and ready to be customized to the final list of candidates and project of
precincts, among others, and ready to be deployed thereafter. The satisfaction
of such requirement would probably have provided far better bases for
evaluation and selection, as between suppliers, than the so-called demo
software.Respondents contend that the bidding suppliers’ counting machines
were previously used in at least one political exercise with no less than 20
million voters. If so, it stands to reason that the software used in that past
electoral exercise would probably still be available and, in all likelihood, could
have been adopted for use in this instance. Paying for machines and software
of that category (already tried and proven in actual elections and ready to be
adopted for use) would definitely make more sense than paying the same
hundreds of millions of pesos for demo software and empty promises of usable
programs in the future.
But there is still another gut-level reason why the approach taken by Comelec
is reprehensible. It rides on the perilous assumption that nothing would go
wrong; and that, come election day, the Commission and the supplier would
have developed, adjusted and "re-programmed" the software to the point where
the automated system could function as envisioned. But what if such optimistic
projection does not materialize? What if, despite all their herculean efforts, the
software now being hurriedly developed and tested for the automated system
performs dismally and inaccurately or, worse, is hacked and/or manipulated?54
What then will we do with all the machines and defective software already paid
for in the amount of P849 million of our tax money? Even more important, what
will happen to our country in case of failure of the automation?
The Court cannot grant the plea of Comelec that it be given until February 16,
2004 to be able to submit a "certification relative to the additional elements of
the software that will be customized," because for us to do so would
unnecessarily delay the resolution of this case and would just give the poll body
an unwarranted excuse to postpone the 2004 elections. On the other hand,
because such certification will not cure the gravely abusive actions complained
of by petitioners, it will be utterly useless.
Is this Court being overly pessimistic and perhaps even engaging in
speculation? Hardly. Rather, the Court holds that Comelec should not have
gambled on the unrealistic optimism that the supplier’s software development
efforts would turn out well. The Commission should have adopted a much more
prudent and judicious approach to ensure the delivery of tried and tested
software, and readied alternative courses of action in case of failure.
Considering that the nation’s future is at stake here, it should have done no less.
Epilogue
Once again, the Court finds itself at the crossroads of our nation’s history. At
stake in this controversy is not just the business of a computer supplier, or a
questionable proclamation by Comelec of one or more public officials. Neither
is it about whether this country should switch from the manual to the automated
system of counting and canvassing votes. At its core is the ability and capacity
of the Commission on Elections to perform properly, legally and prudently its
legal mandate to implement the transition from manual to automated elections.
Unfortunately, Comelec has failed to measure up to this historic task. As stated
at the start of this Decision, Comelec has not merely gravely abused its
discretion in awarding the Contract for the automation of the counting and
canvassing of the ballots. It has also put at grave risk the holding of credible
and peaceful elections by shoddily accepting electronic hardware and software
that admittedly failed to pass legally mandated technical requirements.
Inadequate as they are, the remedies it proffers post facto do not cure the grave
abuse of discretion it already committed (1) on April 15, 2003, when it illegally
made the award; and (2) "sometime" in May 2003 when it executed the Contract
for the purchase of defective machines and non-existent software from a non-
eligible bidder.
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For these reasons, the Court finds it totally unacceptable and unconscionable to
place its imprimatur on this void and illegal transaction that seriously endangers
the breakdown of our electoral system. For this Court to cop-out and to close
its eyes to these illegal transactions, while convenient, would be to abandon its
constitutional duty of safeguarding public interest.
As a necessary consequence of such nullity and illegality, the purchase of the
machines and all appurtenances thereto including the still-to-be-produced (or
in Comelec’s words, to be "reprogrammed") software, as well as all the
payments made therefor, have no basis whatsoever in law. The public funds
expended pursuant to the void Resolution and Contract must therefore be
recovered from the payees and/or from the persons who made possible the
illegal disbursements, without prejudice to possible criminal prosecutions
against them.
Furthermore, Comelec and its officials concerned must bear full responsibility
for the failed bidding and award, and held accountable for the electoral mess
wrought by their grave abuse of discretion in the performance of their functions.
The State, of course, is not bound by the mistakes and illegalities of its agents
and servants.
True, our country needs to transcend our slow, manual and archaic electoral
process. But before it can do so, it must first have a diligent and competent
electoral agency that can properly and prudently implement a well-conceived
automated election system.
At bottom, before the country can hope to have a speedy and fraud-free
automated election, it must first be able to procure the proper computerized
hardware and software legally, based on a transparent and valid system of
public bidding. As in any democratic system, the ultimate goal of automating
elections must be achieved by a legal, valid and above-board process of
acquiring the necessary tools and skills therefor. Though the Philippines needs
an automated electoral process, it cannot accept just any system shoved into its
bosom through improper and illegal methods. As the saying goes, the end never
justifies the means. Penumbral contracting will not produce enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL
and VOID Comelec Resolution No. 6074 awarding the contract for Phase II of
the AES to Mega Pacific Consortium (MPC). Also declared null and void is the
subject Contract executed between Comelec and Mega Pacific eSolutions
(MPEI).55 Comelec is further ORDERED to refrain from implementing any
other contract or agreement entered into with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman which
shall determine the criminal liability, if any, of the public officials (and
conspiring private individuals, if any) involved in the subject Resolution and
Contract. Let the Office of the Solicitor General also take measures to protect
the government and vindicate public interest from the ill effects of the illegal
disbursements of public funds made by reason of the void Resolution and
Contract.
SO ORDERED.
Belgica v. Ochoa
G.R. No. 208566 (November 19, 2013)
G.R. No. 208566 November 19, 2013
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE
L. GONZALEZ REUBEN M. ABANTE and QUINTIN PAREDES SAN
DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR.
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B.
ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF
THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity
as SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented
by FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE
HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
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SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. "Pork Barrel" is political parlance of American -English origin.3 Historically,
ALCANTARA, Petitioner, its usage may be traced to the degrading ritual of rolling out a barrel stuffed
vs. with pork to a multitude of black slaves who would cast their famished bodies
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE into the porcine feast to assuage their hunger with morsels coming from the
PRESIDENT and HONORABLE FELICIANO S. BELMONTE, JR., in his generosity of their well-fed master.4 This practice was later compared to the
capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, actions of American legislators in trying to direct federal budgets in favor of
Respondents. their districts.5 While the advent of refrigeration has made the actual pork barrel
obsolete, it persists in reference to political bills that "bring home the bacon" to
x-----------------------x a legislator‘s district and constituents.6 In a more technical sense, "Pork Barrel"
refers to an appropriation of government spending meant for localized projects
G.R. No. 209251 and secured solely or primarily to bring money to a representative's district.7
Some scholars on the subject further use it to refer to legislative control of local
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former appropriations.8
Provincial Board Member -Province of Marinduque, Petitioner,
vs. In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum,
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY discretionary funds of Members of the Legislature,9 although, as will be later
FLORENCIO BUTCH ABAD, DEPARTMENT OF BUDGET AND discussed, its usage would evolve in reference to certain funds of the Executive.
MANAGEMENT, Respondents.
II. History of Congressional Pork Barrel in the Philippines.
DECISION
A. Pre-Martial Law Era (1922-1972).
PERLAS-BERNABE, J.:
Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest
"Experience is the oracle of truth."1 form of "Congressional Pork Barrel" in the Philippines since the utilization of
the funds appropriated therein were subjected to post-enactment legislator
-James Madison approval. Particularly, in the area of fund release, Section 312 provides that the
sums appropriated for certain public works projects13 "shall be distributed x x
Before the Court are consolidated petitions2 taken under Rule 65 of the Rules x subject to the approval of a joint committee elected by the Senate and the
of Court, all of which assail the constitutionality of the Pork Barrel System. House of Representatives. "The committee from each House may also authorize
Due to the complexity of the subject matter, the Court shall heretofore discuss one of its members to approve the distribution made by the Secretary of
the system‘s conceptual underpinnings before detailing the particulars of the Commerce and Communications."14 Also, in the area of fund realignment, the
constitutional challenge. same section provides that the said secretary, "with the approval of said joint
committee, or of the authorized members thereof, may, for the purposes of said
The Facts distribution, transfer unexpended portions of any item of appropriation under
this Act to any other item hereunder."
I. Pork Barrel: General Concept.
In 1950, it has been documented15 that post-enactment legislator participation
broadened from the areas of fund release and realignment to the area of project
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identification. During that year, the mechanics of the public works act was
modified to the extent that the discretion of choosing projects was transferred
from the Secretary of Commerce and Communications to legislators. "For the
first time, the law carried a list of projects selected by Members of Congress,
they ‘being the representatives of the people, either on their own account or by
consultation with local officials or civil leaders.‘"16 During this period, the
pork barrel process commenced with local government councils, civil groups,
and individuals appealing to Congressmen or Senators for projects. Petitions
that were accommodated formed part of a legislator‘s allocation, and the
amount each legislator would eventually get is determined in a caucus convened
by the majority. The amount was then integrated into the administration bill
prepared by the Department of Public Works and Communications. Thereafter,
the Senate and the House of Representatives added their own provisions to the
bill until it was signed into law by the President – the Public Works Act.17 In
the 1960‘s, however, pork barrel legislation reportedly ceased in view of the
stalemate between the House of Representatives and the Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently discontinued
in 1972 after Martial Law was declared, an era when "one man controlled the
legislature,"19 the reprieve was only temporary. By 1982, the Batasang
Pambansa had already introduced a new item in the General Appropriations Act
(GAA) called the" Support for Local Development Projects" (SLDP) under the
article on "National Aid to Local Government Units". Based on reports,20 it
was under the SLDP that the practice of giving lump-sum allocations to
individual legislators began, with each assemblyman receiving P500,000.00.
Thereafter, assemblymen would communicate their project preferences to the
Ministry of Budget and Management for approval. Then, the said ministry
would release the allocation papers to the Ministry of Local Governments,
which would, in turn, issue the checks to the city or municipal treasurers in the
assemblyman‘s locality. It has been further reported that "Congressional Pork
Barrel" projects under the SLDP also began to cover not only public works
projects, or so- called "hard projects", but also "soft projects",21 or non-public
works projects such as those which would fall under the categories of, among
others, education, health and livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the restoration of
Philippine democracy, "Congressional Pork Barrel" was revived in the form of
the "Mindanao Development Fund" and the "Visayas Development Fund"
which were created with lump-sum appropriations of P480 Million and P240
Million, respectively, for the funding of development projects in the Mindanao
and Visayas areas in 1989. It has been documented23 that the clamor raised by
the Senators and the Luzon legislators for a similar funding, prompted the
creation of the "Countrywide Development Fund" (CDF) which was integrated
into the 1990 GAA24 with an initial funding of P2.3 Billion to cover "small
local infrastructure and other priority community projects."
Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the
approval of the President, to be released directly to the implementing agencies
but "subject to the submission of the required list of projects and
activities."Although the GAAs from 1990 to 1992 were silent as to the amounts
of allocations of the individual legislators, as well as their participation in the
identification of projects, it has been reported26 that by 1992, Representatives
were receiving P12.5 Million each in CDF funds, while Senators were receiving
P18 Million each, without any limitation or qualification, and that they could
identify any kind of project, from hard or infrastructure projects such as roads,
bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that the release of
CDF funds was to be made upon the submission of the list of projects and
activities identified by, among others, individual legislators. For the first time,
the 1993 CDF Article included an allocation for the Vice-President.29 As such,
Representatives were allocated P12.5 Million each in CDF funds, Senators, P18
Million each, and the Vice-President, P20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on
project identification and fund release as found in the 1993 CDF Article. In
addition, however, the Department of Budget and Management (DBM) was
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directed to submit reports to the Senate Committee on Finance and the House
Committee on Appropriations on the releases made from the funds.33
Under the 199734 CDF Article, Members of Congress and the Vice-President,
in consultation with the implementing agency concerned, were directed to
submit to the DBM the list of 50% of projects to be funded from their respective
CDF allocations which shall be duly endorsed by (a) the Senate President and
the Chairman of the Committee on Finance, in the case of the Senate, and (b)
the Speaker of the House of Representatives and the Chairman of the
Committee on Appropriations, in the case of the House of Representatives;
while the list for the remaining 50% was to be submitted within six (6) months
thereafter. The same article also stated that the project list, which would be
published by the DBM,35 "shall be the basis for the release of funds" and that
"no funds appropriated herein shall be disbursed for projects not included in the
list herein required."
The following year, or in 1998,36 the foregoing provisions regarding the
required lists and endorsements were reproduced, except that the publication of
the project list was no longer required as the list itself sufficed for the release
of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork Barrel" at
that time. Other forms of "Congressional Pork Barrel" were reportedly
fashioned and inserted into the GAA (called "Congressional Insertions" or
"CIs") in order to perpetuate the ad ministration‘s political agenda.37 It has
been articulated that since CIs "formed part and parcel of the budgets of
executive departments, they were not easily identifiable and were thus harder
to monitor." Nonetheless, the lawmakers themselves as well as the finance and
budget officials of the implementing agencies, as well as the DBM, purportedly
knew about the insertions.38 Examples of these CIs are the Department of
Education (DepEd) School Building Fund, the Congressional Initiative
Allocations, the Public Works Fund, the El Niño Fund, and the Poverty
Alleviation Fund.39 The allocations for the School Building Fund, particularly,
―shall be made upon prior consultation with the representative of the
legislative district concerned.”40 Similarly, the legislators had the power to
direct how, where and when these appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate
forms of CIs, namely, the "Food Security Program Fund,"43 the "Lingap Para
Sa Mahihirap Program Fund,"44 and the "Rural/Urban Development
Infrastructure Program Fund,"45 all of which contained a special provision
requiring "prior consultation" with the Member s of Congress for the release of
the funds.
It was in the year 200046 that the "Priority Development Assistance Fund"
(PDAF) appeared in the GAA. The requirement of "prior consultation with the
respective Representative of the District" before PDAF funds were directly
released to the implementing agency concerned was explicitly stated in the
2000 PDAF Article. Moreover, realignment of funds to any expense category
was expressly allowed, with the sole condition that no amount shall be used to
fund personal services and other personnel benefits.47 The succeeding PDAF
provisions remained the same in view of the re-enactment48 of the 2000 GAA
for the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely contained
a single special provision ordering the release of the funds directly to the
implementing agency or local government unit concerned, without further
qualifications. The following year, 2003,50 the same single provision was
present, with simply an expansion of purpose and express authority to realign.
Nevertheless, the provisions in the 2003 budgets of the Department of Public
Works and Highways51 (DPWH) and the DepEd52 required prior consultation
with Members of Congress on the aspects of implementation delegation and
project list submission, respectively. In 2004, the 2003 GAA was re-enacted.53
In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund
priority programs and projects under the ten point agenda of the national
government and shall be released directly to the implementing agencies." It also
introduced the program menu concept,55 which is essentially a list of general
programs and implementing agencies from which a particular PDAF project
may be subsequently chosen by the identifying authority. The 2005 GAA was
re-enacted56 in 2006 and hence, operated on the same bases. In similar regard,
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the program menu concept was consistently integrated into the 2007,57 2008,58
2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the
specific amounts allocated for the individual legislators, as well as their
participation in the proposal and identification of PDAF projects to be funded.
In contrast to the PDAF Articles, however, the provisions under the DepEd
School Building Program and the DPWH budget, similar to its predecessors,
explicitly required prior consultation with the concerned Member of
Congress61 anent certain aspects of project implementation.
Significantly, it was during this era that provisions which allowed formal
participation of non-governmental organizations (NGO) in the implementation
of government projects were introduced. In the Supplemental Budget for 2006,
with respect to the appropriation for school buildings, NGOs were, by law,
encouraged to participate. For such purpose, the law stated that "the amount of
at least P250 Million of the P500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs including the
Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for
its "Operation Barrio School" program, with capability and proven track
records in the construction of public school buildings x x x."62 The same
allocation was made available to NGOs in the 2007 and 2009 GAAs under the
DepEd Budget.63 Also, it was in 2007 that the Government Procurement Policy
Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations65 of
RA 9184,66 the Government Procurement Reform Act, to include, as a form of
negotiated procurement,67 the procedure whereby the Procuring Entity68 (the
implementing agency) may enter into a memorandum of agreement with an
NGO, provided that "an appropriation law or ordinance earmarks an amount to
be specifically contracted out to NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF Articles, the
201170 PDAF Article included an express statement on lump-sum amounts
allocated for individual legislators and the Vice-President: Representatives
were given P70 Million each, broken down into P40 Million for "hard projects"
and P30 Million for "soft projects"; while P200 Million was given to each
Senator as well as the Vice-President, with a P100 Million allocation each for
"hard" and "soft projects." Likewise, a provision on realignment of funds was
included, but with the qualification that it may be allowed only once. The same
provision also allowed the Secretaries of Education, Health, Social Welfare and
Development, Interior and Local Government, Environment and Natural
Resources, Energy, and Public Works and Highways to realign PDAF Funds,
with the further conditions that: (a) realignment is within the same
implementing unit and same project category as the original project, for
infrastructure projects; (b) allotment released has not yet been obligated for the
original scope of work, and (c) the request for realignment is with the
concurrence of the legislator concerned.71
In the 201272 and 201373 PDAF Articles, it is stated that the "identification of
projects and/or designation of beneficiaries shall conform to the priority list,
standard or design prepared by each implementing agency (priority list
requirement) x x x." However, as practiced, it would still be the individual
legislator who would choose and identify the project from the said priority
list.74
Provisions on legislator allocations75 as well as fund realignment76 were
included in the 2012 and 2013 PDAF Articles; but the allocation for the Vice-
President, which was pegged at P200 Million in the 2011 GAA, had been
deleted. In addition, the 2013 PDAF Article now allowed LGUs to be identified
as implementing agencies if they have the technical capability to implement the
projects.77 Legislators were also allowed to identify programs/projects, except
for assistance to indigent patients and scholarships, outside of his legislative
district provided that he secures the written concurrence of the legislator of the
intended outside-district, endorsed by the Speaker of the House.78 Finally, any
realignment of PDAF funds, modification and revision of project identification,
as well as requests for release of funds, were all required to be favorably
endorsed by the House Committee on Appropriations and the Senate
Committee on Finance, as the case may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with lump-sum,
discretionary funds of Members of Congress, the present cases and the recent
controversies on the matter have, however, shown that the term‘s usage has
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expanded to include certain funds of the President such as the Malampaya
Funds and the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special fund under
Section 880 of Presidential Decree No. (PD) 910,81 issued by then President
Ferdinand E. Marcos (Marcos) on March 22, 1976. In enacting the said law,
Marcos recognized the need to set up a special fund to help intensify,
strengthen, and consolidate government efforts relating to the exploration,
exploitation, and development of indigenous energy resources vital to
economic growth.82 Due to the energy-related activities of the government in
the Malampaya natural gas field in Palawan, or the "Malampaya Deep Water
Gas-to-Power Project",83 the special fund created under PD 910 has been
currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created under Section 12,
Title IV84 of PD 1869,85 or the Charter of the Philippine Amusement and
Gaming Corporation (PAGCOR). PD 1869 was similarly issued by Marcos on
July 11, 1983. More than two (2) years after, he amended PD 1869 and
accordingly issued PD 1993 on October 31, 1985,86 amending Section 1287 of
the former law. As it stands, the Presidential Social Fund has been described as
a special funding facility managed and administered by the Presidential
Management Staff through which the President provides direct assistance to
priority programs and projects not funded under the regular budget. It is sourced
from the share of the government in the aggregate gross earnings of
PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased
tremendously,89 owing in no small part to previous Presidents who reportedly
used the "Pork Barrel" in order to gain congressional support.90 It was in 1996
when the first controversy surrounding the "Pork Barrel" erupted. Former
Marikina City Representative Romeo Candazo (Candazo), then an anonymous
source, "blew the lid on the huge sums of government money that regularly
went into the pockets of legislators in the form of kickbacks."91 He said that
"the kickbacks were ‘SOP‘ (standard operating procedure) among legislators
and ranged from a low 19 percent to a high 52 percent of the cost of each
project, which could be anything from dredging, rip rapping, sphalting,
concreting, and construction of school buildings."92 "Other sources of
kickbacks that Candazo identified were public funds intended for medicines
and textbooks. A few days later, the tale of the money trail became the banner
story of the Philippine Daily Inquirer issue of August 13, 1996, accompanied
by an illustration of a roasted pig."93 "The publication of the stories, including
those about congressional initiative allocations of certain lawmakers, including
P3.6 Billion for a Congressman, sparked public outrage."94
Thereafter, or in 2004, several concerned citizens sought the nullification of the
PDAF as enacted in the 2004 GAA for being unconstitutional. Unfortunately,
for lack of "any pertinent evidentiary support that illegal misuse of PDAF in
the form of kickbacks has become a common exercise of unscrupulous
Members of Congress," the petition was dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation
(NBI) began its probe into allegations that "the government has been defrauded
of some P10 Billion over the past 10 years by a syndicate using funds from the
pork barrel of lawmakers and various government agencies for scores of ghost
projects."96 The investigation was spawned by sworn affidavits of six (6)
whistle-blowers who declared that JLN Corporation – "JLN" standing for Janet
Lim Napoles (Napoles) – had swindled billions of pesos from the public coffers
for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade.
While the NGOs were supposedly the ultimate recipients of PDAF funds, the
whistle-blowers declared that the money was diverted into Napoles‘ private
accounts.97 Thus, after its investigation on the Napoles controversy, criminal
complaints were filed before the Office of the Ombudsman, charging five (5)
lawmakers for Plunder, and three (3) other lawmakers for Malversation, Direct
Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers‘
chiefs -of-staff or representatives, the heads and other officials of three (3)
implementing agencies, and the several presidents of the NGOs set up by
Napoles.98
On August 16, 2013, the Commission on Audit (CoA) released the results of a
three-year audit investigation99 covering the use of legislators' PDAF from
2007 to 2009, or during the last three (3) years of the Arroyo administration.
The purpose of the audit was to determine the propriety of releases of funds
under PDAF and the Various Infrastructures including Local Projects
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(VILP)100 by the DBM, the application of these funds and the implementation
of projects by the appropriate implementing agencies and several government-
owned-and-controlled corporations (GOCCs).101 The total releases covered by
the audit amounted to P8.374 Billion in PDAF and P32.664 Billion in VILP,
representing 58% and 32%, respectively, of the total PDAF and VILP releases
that were found to have been made nationwide during the audit period.102
Accordingly, the Co A‘s findings contained in its Report No. 2012-03 (CoA
Report), entitled "Priority Development Assistance Fund (PDAF) and Various
Infrastructures including Local Projects (VILP)," were made public, the
highlights of which are as follows:103
● Amounts released for projects identified by a considerable number of
legislators significantly exceeded their respective allocations.
● Amounts were released for projects outside of legislative districts of
sponsoring members of the Lower House.
● Total VILP releases for the period exceeded the total amount appropriated
under the 2007 to 2009 GAAs.
● Infrastructure projects were constructed on private lots without these having
been turned over to the government.
● Significant amounts were released to implementing agencies without the
latter‘s endorsement and without considering their mandated functions,
administrative and technical capabilities to implement projects.
● Implementation of most livelihood projects was not undertaken by the
implementing agencies themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.
● The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.
● Selection of the NGOs were not compliant with law and regulations.
● Eighty-Two (82) NGOs entrusted with implementation of seven hundred
seventy two (772) projects amount to P6.156 Billion were either found
questionable, or submitted questionable/spurious documents, or failed to
liquidate in whole or in part their utilization of the Funds.
● Procurement by the NGOs, as well as some implementing agencies, of goods
and services reportedly used in the projects were not compliant with law.
As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least
P900 Million from royalties in the operation of the Malampaya gas project off
Palawan province intended for agrarian reform beneficiaries has gone into a
dummy NGO."104 According to incumbent CoA Chairperson Maria Gracia
Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the process of
preparing "one consolidated report" on the Malampaya Funds.105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report and the
Napoles controversy, several petitions were lodged before the Court similarly
seeking that the "Pork Barrel System" be declared unconstitutional. To recount,
the relevant procedural antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of
the Social Justice Society, filed a Petition for Prohibition of even date under
Rule 65 of the Rules of Court (Alcantara Petition), seeking that the "Pork Barrel
System" be declared unconstitutional, and a writ of prohibition be issued
permanently restraining respondents Franklin M. Drilon and Feliciano S.
Belmonte, Jr., in their respective capacities as the incumbent Senate President
and Speaker of the House of Representatives, from further taking any steps to
enact legislation appropriating funds for the "Pork Barrel System," in whatever
form and by whatever name it may be called, and from approving further
releases pursuant thereto.106 The Alcantara Petition was docketed as G.R. No.
208493.
On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L.
Gonzalez, Reuben M. Abante, Quintin Paredes San Diego (Belgica, et al.), and
Jose M. Villegas, Jr. (Villegas) filed an Urgent Petition For Certiorari and
Prohibition With Prayer For The Immediate Issuance of Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013
under Rule 65 of the Rules of Court (Belgica Petition), seeking that the annual
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"Pork Barrel System," presently embodied in the provisions of the GAA of
2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum,
discretionary funds, such as the Malampaya Funds and the Presidential Social
Fund,107 be declared unconstitutional and null and void for being acts
constituting grave abuse of discretion. Also, they pray that the Court issue a
TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary
Abad) and Rosalia V. De Leon, in their respective capacities as the incumbent
Executive Secretary, Secretary of the Department of Budget and Management
(DBM), and National Treasurer, or their agents, for them to immediately cease
any expenditure under the aforesaid funds. Further, they pray that the Court
order the foregoing respondents to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP
from the years 2003 to 2013, specifying the use of the funds, the project or
activity and the recipient entities or individuals, and all pertinent data thereto";
and (b) "the use of the Executive‘s lump-sum, discretionary funds, including
the proceeds from the x x x Malampaya Funds and remittances from the
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and
the recipient entities or individuals, and all pertinent data thereto."108 Also,
they pray for the "inclusion in budgetary deliberations with the Congress of all
presently off-budget, lump-sum, discretionary funds including, but not limited
to, proceeds from the Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno
(Nepomuceno), filed a Petition dated August 23, 2012 (Nepomuceno Petition),
seeking that the PDAF be declared unconstitutional, and a cease and desist
order be issued restraining President Benigno Simeon S. Aquino III (President
Aquino) and Secretary Abad from releasing such funds to Members of
Congress and, instead, allow their release to fund priority projects identified
and approved by the Local Development Councils in consultation with the
executive departments, such as the DPWH, the Department of Tourism, the
Department of Health, the Department of Transportation, and Communication
and the National Economic Development Authority.111 The Nepomuceno
Petition was docketed as UDK-14951.112
On September 10, 2013, the Court issued a Resolution of even date (a)
consolidating all cases; (b) requiring public respondents to comment on the
consolidated petitions; (c) issuing a TRO (September 10, 2013 TRO) enjoining
the DBM, National Treasurer, the Executive Secretary, or any of the persons
acting under their authority from releasing (1) the remaining PDAF allocated
to Members of Congress under the GAA of 2013, and (2) Malampaya Funds
under the phrase "for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of PD 910 but not for the purpose of "financing
energy resource development and exploitation programs and projects of the
government‖ under the same provision; and (d) setting the consolidated cases
for Oral Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a
Consolidated Comment (Comment) of even date before the Court, seeking the
lifting, or in the alternative, the partial lifting with respect to educational and
medical assistance purposes, of the Court‘s September 10, 2013 TRO, and that
the consolidated petitions be dismissed for lack of merit.113
On September 24, 2013, the Court issued a Resolution of even date directing
petitioners to reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to
the Comment: (a) on September 30, 2013, Villegas filed a separate Reply dated
September 27, 2013 (Villegas Reply); (b) on October 1, 2013, Belgica, et al.
filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on October 2,
2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines
to be observed by the parties for the Oral Arguments scheduled on October 8,
2013. In view of the technicality of the issues material to the present cases,
incumbent Solicitor General Francis H. Jardeleza (Solicitor General) was
directed to bring with him during the Oral Arguments representative/s from the
DBM and Congress who would be able to competently and completely answer
questions related to, among others, the budgeting process and its
implementation. Further, the CoA Chairperson was appointed as amicus curiae
and thereby requested to appear before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter,
the Court directed the parties to submit their respective memoranda within a
period of seven (7) days, or until October 17, 2013, which the parties
subsequently did.
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The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the
following are the main issues for the Court‘s resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an
actual and justiciable controversy; (b) the issues raised in the consolidated
petitions are matters of policy not subject to judicial review; (c) petitioners have
legal standing to sue; and (d) the Court‘s Decision dated August 19, 1994 in
G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine
Constitution Association v. Enriquez"114 (Philconsa) and Decision dated April
24, 2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty
v. Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of
the issue of constitutionality of the "Pork Barrel System" under the principles
of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel
Laws similar thereto are unconstitutional considering that they violate the
principles of/constitutional provisions on (a) separation of powers; (b) non-
delegability of legislative power; (c) checks and balances; (d) accountability;
(e) political dynasties; and (f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910,116 relating to the
Malampaya Funds, and (b) "to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the Office of the President of
the Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating
to the Presidential Social Fund, are unconstitutional insofar as they constitute
undue delegations of legislative power.
These main issues shall be resolved in the order that they have been stated. In
addition, the Court shall also tackle certain ancillary issues as prompted by the
present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the
constitutionality or validity of a law or governmental act may be heard and
decided by the Court unless there is compliance with the legal requisites for
judicial inquiry,117 namely: (a) there must be an actual case or controversy
calling for the exercise of judicial power; (b) the person challenging the act
must have the standing to question the validity of the subject act or issuance;
(c) the question of constitutionality must be raised at the earliest opportunity ;
and (d) the issue of constitutionality must be the very lis mota of the case.118
Of these requisites, case law states that the first two are the most important119
and, therefore, shall be discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case
or controversy.120 This is embodied in Section 1, Article VIII of the 1987
Constitution which pertinently states that "judicial power includes the duty of
the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable x x x." Jurisprudence provides that an
actual case or controversy is one which "involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.121 In other
words, "there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence."122 Related to the
requirement of an actual case or controversy is the requirement of "ripeness,"
meaning that the questions raised for constitutional scrutiny are already ripe for
adjudication. "A question is ripe for adjudication when the act being challenged
has had a direct adverse effect on the individual challenging it. It is a
prerequisite that something had then been accomplished or performed by either
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branch before a court may come into the picture, and the petitioner must allege
the existence of an immediate or threatened injury to itself as a result of the
challenged action."123 "Withal, courts will decline to pass upon constitutional
issues through advisory opinions, bereft as they are of authority to resolve
hypothetical or moot questions."124
Based on these principles, the Court finds that there exists an actual and
justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the
antagonistic positions of the parties on the constitutionality of the "Pork Barrel
System." Also, the questions in these consolidated cases are ripe for
adjudication since the challenged funds and the provisions allowing for their
utilization – such as the 2013 GAA for the PDAF, PD 910 for the Malampaya
Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund
– are currently existing and operational; hence, there exists an immediate or
threatened injury to petitioners as a result of the unconstitutional use of these
public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto
had been rendered moot and academic by the reforms undertaken by
respondents. A case becomes moot when there is no more actual controversy
between the parties or no useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court observes that respondents‘
proposed line-item budgeting scheme would not terminate the controversy nor
diminish the useful purpose for its resolution since said reform is geared
towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct
subject matter, remains legally effective and existing. Neither will the
President‘s declaration that he had already "abolished the PDAF" render the
issues on PDAF moot precisely because the Executive branch of government
has no constitutional authority to nullify or annul its legal existence. By
constitutional design, the annulment or nullification of a law may be done either
by Congress, through the passage of a repealing law, or by the Court, through
a declaration of unconstitutionality. Instructive on this point is the following
exchange between Associate Justice Antonio T. Carpio (Justice Carpio) and the
Solicitor General during the Oral Arguments:126
Justice Carpio: The President has taken an oath to faithfully execute the law,127
correct? Solicitor General Jardeleza: Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to implement the General
Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case,
for example of the PDAF, the President has a duty to execute the laws but in
the face of the outrage over PDAF, the President was saying, "I am not sure that
I will continue the release of the soft projects," and that started, Your Honor.
Now, whether or not that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the
project, he has the power to stop the releases in the meantime, to investigate,
and that is Section 38 of Chapter 5 of Book 6 of the Revised Administrative
Code128 x x x. So at most the President can suspend, now if the President
believes that the PDAF is unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the
specific case of the PDAF because of the CoA Report, because of the reported
irregularities and this Court can take judicial notice, even outside, outside of
the COA Report, you have the report of the whistle-blowers, the President was
just exercising precisely the duty ….
xxxx
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are
anomalies, you stop and investigate, and prosecute, he has done that. But, does
that mean that PDAF has been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two (2) cases.
Congress passes a law to repeal it, or this Court declares it unconstitutional,
correct?
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Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF.
(Emphases supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that
"the moot and academic‘ principle is not a magical formula that can
automatically dissuade the Court in resolving a case." The Court will decide
cases, otherwise moot, if: first, there is a grave violation of the Constitution;
second, the exceptional character of the situation and the paramount public
interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review.129
The applicability of the first exception is clear from the fundamental posture of
petitioners – they essentially allege grave violations of the Constitution with
respect to, inter alia, the principles of separation of powers, non-delegability of
legislative power, checks and balances, accountability and local autonomy.
The applicability of the second exception is also apparent from the nature of the
interests involved
– the constitutionality of the very system within which significant amounts of
public funds have been and continue to be utilized and expended undoubtedly
presents a situation of exceptional character as well as a matter of paramount
public interest. The present petitions, in fact, have been lodged at a time when
the system‘s flaws have never before been magnified. To the Court‘s mind, the
coalescence of the CoA Report, the accounts of numerous whistle-blowers, and
the government‘s own recognition that reforms are needed "to address the
reported abuses of the PDAF"130 demonstrates a prima facie pattern of abuse
which only underscores the importance of the matter. It is also by this finding
that the Court finds petitioners‘ claims as not merely theorized, speculative or
hypothetical. Of note is the weight accorded by the Court to the findings made
by the CoA which is the constitutionally-mandated audit arm of the
government. In Delos Santos v. CoA,131 a recent case wherein the Court
upheld the CoA‘s disallowance of irregularly disbursed PDAF funds, it was
emphasized that:
The COA is endowed with enough latitude to determine, prevent, and disallow
irregular, unnecessary, excessive, extravagant or unconscionable expenditures
of government funds. It is tasked to be vigilant and conscientious in
safeguarding the proper use of the government's, and ultimately the people's,
property. The exercise of its general audit power is among the constitutional
mechanisms that gives life to the check and balance system inherent in our form
of government.
It is the general policy of the Court to sustain the decisions of administrative
authorities, especially one which is constitutionally-created, such as the CoA,
not only on the basis of the doctrine of separation of powers but also for their
presumed expertise in the laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect but also finality when the
decision and order are not tainted with unfairness or arbitrariness that would
amount to grave abuse of discretion. It is only when the CoA has acted without
or in excess of jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, that this Court entertains a petition questioning its
rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and
justiciable controversy in these cases, the Court deems the findings under the
CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely due to the
practical need for a definitive ruling on the system‘s constitutionality. As
disclosed during the Oral Arguments, the CoA Chairperson estimates that
thousands of notices of disallowances will be issued by her office in connection
with the findings made in the CoA Report. In this relation, Associate Justice
Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these
would eventually find their way to the courts.132 Accordingly, there is a
compelling need to formulate controlling principles relative to the issues raised
herein in order to guide the bench, the bar, and the public, not just for the
expeditious resolution of the anticipated disallowance cases, but more
importantly, so that the government may be guided on how public funds should
be utilized in accordance with constitutional principles.
Finally, the application of the fourth exception is called for by the recognition
that the preparation and passage of the national budget is, by constitutional
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imprimatur, an affair of annual occurrence.133 The relevance of the issues
before the Court does not cease with the passage of a "PDAF -free budget for
2014."134 The evolution of the "Pork Barrel System," by its multifarious
iterations throughout the course of history, lends a semblance of truth to
petitioners‘ claim that "the same dog will just resurface wearing a different
collar."135 In Sanlakas v. Executive Secretary,136 the government had already
backtracked on a previous course of action yet the Court used the "capable of
repetition but evading review" exception in order "to prevent similar questions
from re- emerging."137 The situation similarly holds true to these cases.
Indeed, the myriad of issues underlying the manner in which certain public
funds are spent, if not resolved at this most opportune time, are capable of
repetition and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and
controversies‖ carries the assurance that "the courts will not intrude into areas
committed to the other branches of government."138 Essentially, the foregoing
limitation is a restatement of the political question doctrine which, under the
classic formulation of Baker v. Carr,139 applies when there is found, among
others, "a textually demonstrable constitutional commitment of the issue to a
coordinate political department," "a lack of judicially discoverable and
manageable standards for resolving it" or "the impossibility of deciding without
an initial policy determination of a kind clearly for non- judicial discretion."
Cast against this light, respondents submit that the "the political branches are in
the best position not only to perform budget-related reforms but also to do them
in response to the specific demands of their constituents" and, as such, "urge
the Court not to impose a solution at this stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not present political
but legal questions which are within its province to resolve. A political question
refers to "those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure."141 The intrinsic constitutionality of the "Pork
Barrel System" is not an issue dependent upon the wisdom of the political
branches of government but rather a legal one which the Constitution itself has
commanded the Court to act upon. Scrutinizing the contours of the system along
constitutional lines is a task that the political branches of government are
incapable of rendering precisely because it is an exercise of judicial power.
More importantly, the present Constitution has not only vested the Judiciary the
right to exercise judicial power but essentially makes it a duty to proceed
therewith. Section 1, Article VIII of the 1987 Constitution cannot be any
clearer: "The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. It includes the duty of the courts of
justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government." In Estrada v. Desierto,142
the expanded concept of judicial power under the 1987 Constitution and its
effect on the political question doctrine was explained as follows:143
To a great degree, the 1987 Constitution has narrowed the reach of the political
question doctrine when it expanded the power of judicial review of this court
not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of government. Heretofore, the judiciary
has focused on the "thou shalt not's" of the Constitution directed against the
exercise of its jurisdiction. With the new provision, however, courts are given
a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of government. Clearly, the new provision did not just grant
the Court power of doing nothing. x x x (Emphases supplied)
It must also be borne in mind that ― when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; does not in reality nullify or invalidate an act of the legislature or
the executive, but only asserts the solemn and sacred obligation assigned to it
by the Constitution."144 To a great extent, the Court is laudably cognizant of
the reforms undertaken by its co-equal branches of government. But it is by
constitutional force that the Court must faithfully perform its duty. Ultimately,
it is the Court‘s avowed intention that a resolution of these cases would not
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arrest or in any manner impede the endeavors of the two other branches but, in
fact, help ensure that the pillars of change are erected on firm constitutional
grounds. After all, it is in the best interest of the people that each great branch
of government, within its own sphere, contributes its share towards achieving a
holistic and genuine solution to the problems of society. For all these reasons,
the Court cannot heed respondents‘ plea for judicial restraint.
C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions. Unless a person is injuriously
affected in any of his constitutional rights by the operation of statute or
ordinance, he has no standing."145
Petitioners have come before the Court in their respective capacities as citizen-
taxpayers and accordingly, assert that they "dutifully contribute to the coffers
of the National Treasury."146 Clearly, as taxpayers, they possess the requisite
standing to question the validity of the existing "Pork Barrel System" under
which the taxes they pay have been and continue to be utilized. It is undeniable
that petitioners, as taxpayers, are bound to suffer from the unconstitutional
usage of public funds, if the Court so rules. Invariably, taxpayers have been
allowed to sue where there is a claim that public funds are illegally disbursed
or that public money is being deflected to any improper purpose, or that public
funds are wasted through the enforcement of an invalid or unconstitutional
law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing
requirement given that the issues they have raised may be classified as matters
"of transcendental importance, of overreaching significance to society, or of
paramount public interest."148 The CoA Chairperson‘s statement during the
Oral Arguments that the present controversy involves "not merely a systems
failure" but a "complete breakdown of controls"149 amplifies, in addition to
the matters above-discussed, the seriousness of the issues involved herein.
Indeed, of greater import than the damage caused by the illegal expenditure of
public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute.150 All told, petitioners have sufficient locus
standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis non quieta et
movere (or simply, stare decisis which means "follow past precedents and do
not disturb what has been settled") are general procedural law principles which
both deal with the effects of previous but factually similar dispositions to
subsequent cases. For the cases at bar, the Court examines the applicability of
these principles in relation to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states that a
judgment on the merits in a previous case rendered by a court of competent
jurisdiction would bind a subsequent case if, between the first and second
actions, there exists an identity of parties, of subject matter, and of causes of
action.151 This required identity is not, however, attendant hereto since
Philconsa and LAMP, respectively involved constitutional challenges against
the 1994 CDF Article and 2004 PDAF Article, whereas the cases at bar call for
a broader constitutional scrutiny of the entire "Pork Barrel System." Also, the
ruling in LAMP is essentially a dismissal based on a procedural technicality –
and, thus, hardly a judgment on the merits – in that petitioners therein failed to
present any "convincing proof x x x showing that, indeed, there were direct
releases of funds to the Members of Congress, who actually spend them
according to their sole discretion" or "pertinent evidentiary support to
demonstrate the illegal misuse of PDAF in the form of kickbacks and has
become a common exercise of unscrupulous Members of Congress." As such,
the Court up held, in view of the presumption of constitutionality accorded to
every law, the 2004 PDAF Article, and saw "no need to review or reverse the
standing pronouncements in the said case." Hence, for the foregoing reasons,
the res judicata principle, insofar as the Philconsa and LAMP cases are
concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The
principle, entrenched under Article 8152 of the Civil Code, evokes the general
rule that, for the sake of certainty, a conclusion reached in one case should be
doctrinally applied to those that follow if the facts are substantially the same,
even though the parties may be different. It proceeds from the first principle of
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justice that, absent any powerful countervailing considerations, like cases ought
to be decided alike. Thus, where the same questions relating to the same event
have been put forward by the parties similarly situated as in a previous case
litigated and decided by a competent court, the rule of stare decisis is a bar to
any attempt to re-litigate the same issue.153
Philconsa was the first case where a constitutional challenge against a Pork
Barrel provision, i.e., the 1994 CDF Article, was resolved by the Court. To
properly understand its context, petitioners‘ posturing was that "the power
given to the Members of Congress to propose and identify projects and
activities to be funded by the CDF is an encroachment by the legislature on
executive power, since said power in an appropriation act is in implementation
of the law" and that "the proposal and identification of the projects do not
involve the making of laws or the repeal and amendment thereof, the only
function given to the Congress by the Constitution."154 In deference to the
foregoing submissions, the Court reached the following main conclusions: one,
under the Constitution, the power of appropriation, or the "power of the purse,"
belongs to Congress; two, the power of appropriation carries with it the power
to specify the project or activity to be funded under the appropriation law and
it can be detailed and as broad as Congress wants it to be; and, three, the
proposals and identifications made by Members of Congress are merely
recommendatory. At once, it is apparent that the Philconsa resolution was a
limited response to a separation of powers problem, specifically on the
propriety of conferring post-enactment identification authority to Members of
Congress. On the contrary, the present cases call for a more holistic
examination of (a) the inter-relation between the CDF and PDAF Articles with
each other, formative as they are of the entire "Pork Barrel System" as well as
(b) the intra-relation of post-enactment measures contained within a particular
CDF or PDAF Article, including not only those related to the area of project
identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may
be, therefore, considered as a powerful countervailing reason against a
wholesale application of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled
with inherent constitutional inconsistencies which similarly countervail against
a full resort to stare decisis. As may be deduced from the main conclusions of
the case, Philconsa‘s fundamental premise in allowing Members of Congress
to propose and identify of projects would be that the said identification
authority is but an aspect of the power of appropriation which has been
constitutionally lodged in Congress. From this premise, the contradictions may
be easily seen. If the authority to identify projects is an aspect of appropriation
and the power of appropriation is a form of legislative power thereby lodged in
Congress, then it follows that: (a) it is Congress which should exercise such
authority, and not its individual Members; (b) such authority must be exercised
within the prescribed procedure of law passage and, hence, should not be
exercised after the GAA has already been passed; and (c) such authority, as
embodied in the GAA, has the force of law and, hence, cannot be merely
recommendatory. Justice Vitug‘s Concurring Opinion in the same case sums
up the Philconsa quandary in this wise: "Neither would it be objectionable for
Congress, by law, to appropriate funds for such specific projects as it may be
minded; to give that authority, however, to the individual members of Congress
in whatever guise, I am afraid, would be constitutionally impermissible." As
the Court now largely benefits from hindsight and current findings on the
matter, among others, the CoA Report, the Court must partially abandon its
previous ruling in Philconsa insofar as it validated the post-enactment
identification authority of Members of Congress on the guise that the same was
merely recommendatory. This postulate raises serious constitutional
inconsistencies which cannot be simply excused on the ground that such
mechanism is "imaginative as it is innovative." Moreover, it must be pointed
out that the recent case of Abakada Guro Party List v. Purisima155 (Abakada)
has effectively overturned Philconsa‘s allowance of post-enactment legislator
participation in view of the separation of powers principle. These constitutional
inconsistencies and the Abakada rule will be discussed in greater detail in the
ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was dismissed on a
procedural technicality and, hence, has not set any controlling doctrine
susceptible of current application to the substantive issues in these cases. In
fine, stare decisis would not apply.
II. Substantive Issues.
A. Definition of Terms.
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Before the Court proceeds to resolve the substantive issues of these cases, it
must first define the terms "Pork Barrel System," "Congressional Pork Barrel,"
and "Presidential Pork Barrel" as they are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the
Legislative and Executive branches of government to accumulate lump-sum
public funds in their offices with unchecked discretionary powers to determine
its distribution as political largesse."156 They assert that the following elements
make up the Pork Barrel System: (a) lump-sum funds are allocated through the
appropriations process to an individual officer; (b) the officer is given sole and
broad discretion in determining how the funds will be used or expended; (c) the
guidelines on how to spend or use the funds in the appropriation are either
vague, overbroad or inexistent; and (d) projects funded are intended to benefit
a definite constituency in a particular part of the country and to help the political
careers of the disbursing official by yielding rich patronage benefits.157 They
further state that the Pork Barrel System is comprised of two (2) kinds of
discretionary public funds: first, the Congressional (or Legislative) Pork Barrel,
currently known as the PDAF;158 and, second, the Presidential (or Executive)
Pork Barrel, specifically, the Malampaya Funds under PD 910 and the
Presidential Social Fund under PD 1869, as amended by PD 1993.159
Considering petitioners‘ submission and in reference to its local concept and
legal history, the Court defines the Pork Barrel System as the collective body
of rules and practices that govern the manner by which lump-sum, discretionary
funds, primarily intended for local projects, are utilized through the respective
participations of the Legislative and Executive branches of government,
including its members. The Pork Barrel System involves two (2) kinds of lump-
sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind
of lump-sum, discretionary fund wherein legislators, either individually or
collectively organized into committees, are able to effectively control certain
aspects of the fund’s utilization through various post-enactment measures
and/or practices. In particular, petitioners consider the PDAF, as it appears
under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-
enactment measure that allows individual legislators to wield a collective
power;160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind
of lump-sum, discretionary fund which allows the President to determine the
manner of its utilization. For reasons earlier stated,161 the Court shall delimit
the use of such term to refer only to the Malampaya Funds and the Presidential
Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the
substantive issues of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation
of the three fundamental powers of government. In the celebrated words of
Justice Laurel in Angara v. Electoral Commission,162 it means that the
"Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the
government."163 To the legislative branch of government, through
Congress,164 belongs the power to make laws; to the executive branch of
government, through the President,165 belongs the power to enforce laws; and
to the judicial branch of government, through the Court,166 belongs the power
to interpret laws. Because the three great powers have been, by constitutional
design, ordained in this respect, "each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within
its own sphere."167 Thus, "the legislature has no authority to execute or
construe the law, the executive has no authority to make or construe the law,
and the judiciary has no power to make or execute the law."168 The principle
of separation of powers and its concepts of autonomy and independence stem
from the notion that the powers of government must be divided to avoid
concentration of these powers in any one branch; the division, it is hoped, would
avoid any single branch from lording its power over the other branches or the
citizenry.169 To achieve this purpose, the divided power must be wielded by
co-equal branches of government that are equally capable of independent action
in exercising their respective mandates. Lack of independence would result in
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the inability of one branch of government to check the arbitrary or self-interest
assertions of another or others.170
Broadly speaking, there is a violation of the separation of powers principle
when one branch of government unduly encroaches on the domain of another.
US Supreme Court decisions instruct that the principle of separation of powers
may be violated in two (2) ways: firstly, "one branch may interfere
impermissibly with the other’s performance of its constitutionally assigned
function";171 and "alternatively, the doctrine may be violated when one branch
assumes a function that more properly is entrusted to another."172 In other
words, there is a violation of the principle when there is impermissible (a)
interference with and/or (b) assumption of another department‘s functions.
The enforcement of the national budget, as primarily contained in the GAA, is
indisputably a function both constitutionally assigned and properly entrusted to
the Executive branch of government. In Guingona, Jr. v. Hon. Carague173
(Guingona, Jr.), the Court explained that the phase of budget execution "covers
the various operational aspects of budgeting" and accordingly includes "the
evaluation of work and financial plans for individual activities," the "regulation
and release of funds" as well as all "other related activities" that comprise the
budget execution cycle.174 This is rooted in the principle that the allocation of
power in the three principal branches of government is a grant of all powers
inherent in them.175 Thus, unless the Constitution provides otherwise, the
Executive department should exclusively exercise all roles and prerogatives
which go into the implementation of the national budget as provided under the
GAA as well as any other appropriation law.
In view of the foregoing, the Legislative branch of government, much more any
of its members, should not cross over the field of implementing the national
budget since, as earlier stated, the same is properly the domain of the Executive.
Again, in Guingona, Jr., the Court stated that "Congress enters the picture when
it deliberates or acts on the budget proposals of the President. Thereafter,
Congress, "in the exercise of its own judgment and wisdom, formulates an
appropriation act precisely following the process established by the
Constitution, which specifies that no money may be paid from the Treasury
except in accordance with an appropriation made by law." Upon approval and
passage of the GAA, Congress‘ law -making role necessarily comes to an end
and from there the Executive‘s role of implementing the national budget begins.
So as not to blur the constitutional boundaries between them, Congress must
"not concern it self with details for implementation by the Executive."176
The foregoing cardinal postulates were definitively enunciated in Abakada
where the Court held that "from the moment the law becomes effective, any
provision of law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional."177 It must be clarified,
however, that since the restriction only pertains to "any role in the
implementation or enforcement of the law," Congress may still exercise its
oversight function which is a mechanism of checks and balances that the
Constitution itself allows. But it must be made clear that Congress‘ role must
be confined to mere oversight. Any post-enactment-measure allowing legislator
participation beyond oversight is bereft of any constitutional basis and hence,
tantamount to impermissible interference and/or assumption of executive
functions. As the Court ruled in Abakada:178
Any post-enactment congressional measure x x x should be limited to scrutiny
and investigation.1âwphi1 In particular, congressional oversight must be
confined to the following:
(1) scrutiny based primarily on Congress‘ power of appropriation and the
budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any matter
pertaining to their departments and its power of confirmation; and
(2) investigation and monitoring of the implementation of laws pursuant to the
power of Congress to conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers
guaranteed by the Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel – among
others, the 2013 PDAF Article – "wrecks the assignment of responsibilities
between the political branches" as it is designed to allow individual legislators
to interfere "way past the time it should have ceased" or, particularly, "after the
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GAA is passed."179 They state that the findings and recommendations in the
CoA Report provide "an illustration of how absolute and definitive the power
of legislators wield over project implementation in complete violation of the
constitutional principle of separation of powers."180 Further, they point out that
the Court in the Philconsa case only allowed the CDF to exist on the condition
that individual legislators limited their role to recommending projects and not
if they actually dictate their implementation.181
For their part, respondents counter that the separations of powers principle has
not been violated since the President maintains "ultimate authority to control
the execution of the GAA‖ and that he "retains the final discretion to reject" the
legislators‘ proposals.182 They maintain that the Court, in Philconsa, "upheld
the constitutionality of the power of members of Congress to propose and
identify projects so long as such proposal and identification are
recommendatory."183 As such, they claim that "everything in the Special
Provisions [of the 2013 PDAF Article follows the Philconsa framework, and
hence, remains constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of all forms of
Congressional Pork Barrel would be the authority of legislators to participate
in the post-enactment phases of project implementation.
At its core, legislators – may it be through project lists,185 prior
consultations186 or program menus187 – have been consistently accorded post-
enactment authority to identify the projects they desire to be funded through
various Congressional Pork Barrel allocations. Under the 2013 PDAF Article,
the statutory authority of legislators to identify projects post-GAA may be
construed from the import of Special Provisions 1 to 3 as well as the second
paragraph of Special Provision 4. To elucidate, Special Provision 1 embodies
the program menu feature which, as evinced from past PDAF Articles, allows
individual legislators to identify PDAF projects for as long as the identified
project falls under a general program listed in the said menu. Relatedly, Special
Provision 2 provides that the implementing agencies shall, within 90 days from
the GAA is passed, submit to Congress a more detailed priority list, standard or
design prepared and submitted by implementing agencies from which the
legislator may make his choice. The same provision further authorizes
legislators to identify PDAF projects outside his district for as long as the
representative of the district concerned concurs in writing. Meanwhile, Special
Provision 3 clarifies that PDAF projects refer to "projects to be identified by
legislators"188 and thereunder provides the allocation limit for the total amount
of projects identified by each legislator. Finally, paragraph 2 of Special
Provision 4 requires that any modification and revision of the project
identification "shall be submitted to the House Committee on Appropriations
and the Senate Committee on Finance for favorable endorsement to the DBM
or the implementing agency, as the case may be." From the foregoing special
provisions, it cannot be seriously doubted that legislators have been accorded
post-enactment authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been
accorded post-enactment authority in the areas of fund release and realignment.
Under the 2013 PDAF Article, the statutory authority of legislators to
participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for
release of funds shall be supported by the documents prescribed under Special
Provision No. 1 and favorably endorsed by House Committee on
Appropriations and the Senate Committee on Finance, as the case may be";
while their statutory authority to participate in the area of fund realignment is
contained in: first , paragraph 2, Special Provision 4189 which explicitly state
s, among others, that "any realignment of funds shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency, as the case
may be‖ ; and, second , paragraph 1, also of Special Provision 4 which
authorizes the "Secretaries of Agriculture, Education, Energy, Interior and
Local Government, Labor and Employment, Public Works and Highways,
Social Welfare and Development and Trade and Industry190 x x x to approve
realignment from one project/scope to another within the allotment received
from this Fund, subject to among others (iii) the request is with the concurrence
of the legislator concerned."
Clearly, these post-enactment measures which govern the areas of project
identification, fund release and fund realignment are not related to functions of
congressional oversight and, hence, allow legislators to intervene and/or
assume duties that properly belong to the sphere of budget execution. Indeed,
by virtue of the foregoing, legislators have been, in one form or another,
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authorized to participate in – as Guingona, Jr. puts it – "the various operational
aspects of budgeting," including "the evaluation of work and financial plans for
individual activities" and the "regulation and release of funds" in violation of
the separation of powers principle. The fundamental rule, as categorically
articulated in Abakada, cannot be overstated – from the moment the law
becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus unconstitutional.191
That the said authority is treated as merely recommendatory in nature does not
alter its unconstitutional tenor since the prohibition, to repeat, covers any role
in the implementation or enforcement of the law. Towards this end, the Court
must therefore abandon its ruling in Philconsa which sanctioned the conduct of
legislator identification on the guise that the same is merely recommendatory
and, as such, respondents‘ reliance on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to
substantiate their position that the identification authority of legislators is only
of recommendatory import. Quite the contrary, respondents – through the
statements of the Solicitor General during the Oral Arguments – have admitted
that the identification of the legislator constitutes a mandatory requirement
before his PDAF can be tapped as a funding source, thereby highlighting the
indispensability of the said act to the entire budget execution process:192
Justice Bernabe: Now, without the individual legislator’s identification of the
project, can the PDAF of the legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the identification of the project
by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done
and then there is no identification.
xxxx
Justice Bernabe: Now, would you know of specific instances when a project
was implemented without the identification by the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I
have no specific examples. I would doubt very much, Your Honor, because to
implement, there is a need for a SARO and the NCA. And the SARO and the
NCA are triggered by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we
were replying to a question, "How can a legislator make sure that he is able to
get PDAF Funds?" It is mandatory in the sense that he must identify, in that
sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the
PDAF Funds and his district would not be able to have PDAF Funds, only in
that sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF
Article as well as all other provisions of law which similarly allow legislators
to wield any form of post-enactment authority in the implementation or
enforcement of the budget, unrelated to congressional oversight, as violative of
the separation of powers principle and thus unconstitutional. Corollary thereto,
informal practices, through which legislators have effectively intruded into the
proper phases of budget execution, must be deemed as acts of grave abuse of
discretion amounting to lack or excess of jurisdiction and, hence, accorded the
same unconstitutional treatment. That such informal practices do exist and
have, in fact, been constantly observed throughout the years has not been
substantially disputed here. As pointed out by Chief Justice Maria Lourdes P.A.
Sereno (Chief Justice Sereno) during the Oral Arguments of these cases:193
Chief Justice Sereno:
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Now, from the responses of the representative of both, the DBM and two (2)
Houses of Congress, if we enforces the initial thought that I have, after I had
seen the extent of this research made by my staff, that neither the Executive nor
Congress frontally faced the question of constitutional compatibility of how
they were engineering the budget process. In fact, the words you have been
using, as the three lawyers of the DBM, and both Houses of Congress has also
been using is surprise; surprised that all of these things are now surfacing. In
fact, I thought that what the 2013 PDAF provisions did was to codify in one
section all the past practice that had been done since 1991. In a certain sense,
we should be thankful that they are all now in the PDAF Special Provisions. x
x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not have, whether
through formal measures written into the law or informal practices
institutionalized in government agencies, else the Executive department be
deprived of what the Constitution has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle,194 legislative power shall
be exclusively exercised by the body to which the Constitution has conferred
the same. In particular, Section 1, Article VI of the 1987 Constitution states that
such power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum.195 Based on this
provision, it is clear that only Congress, acting as a bicameral body, and the
people, through the process of initiative and referendum, may constitutionally
wield legislative power and no other. This premise embodies the principle of
non-delegability of legislative power, and the only recognized exceptions
thereto would be: (a) delegated legislative power to local governments which,
by immemorial practice, are allowed to legislate on purely local matters;196
and (b) constitutionally-grafted exceptions such as the authority of the President
to, by law, exercise powers necessary and proper to carry out a declared national
policy in times of war or other national emergency,197 or fix within specified
limits, and subject to such limitations and restrictions as Congress may impose,
tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the national development program
of the Government.198
Notably, the principle of non-delegability should not be confused as a
restriction to delegate rule-making authority to implementing agencies for the
limited purpose of either filling up the details of the law for its enforcement
(supplementary rule-making) or ascertaining facts to bring the law into actual
operation (contingent rule-making).199 The conceptual treatment and
limitations of delegated rule-making were explained in the case of People v.
Maceren200 as follows:
The grant of the rule-making power to administrative agencies is a relaxation
of the principle of separation of powers and is an exception to the nondelegation
of legislative powers. Administrative regulations or "subordinate legislation"
calculated to promote the public interest are necessary because of "the growing
complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power must be
confined to details for regulating the mode or proceeding to carry into effect the
law as it has been enacted. The power cannot be extended to amending or
expanding the statutory requirements or to embrace matters not covered by the
statute. Rules that subvert the statute cannot be sanctioned. (Emphases
supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it
confers post-enactment identification authority to individual legislators,
violates the principle of non-delegability since said legislators are effectively
allowed to individually exercise the power of appropriation, which – as settled
in Philconsa – is lodged in Congress.201 That the power to appropriate must be
exercised only through legislation is clear from Section 29(1), Article VI of the
1987 Constitution which states that: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law." To understand
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what constitutes an act of appropriation, the Court, in Bengzon v. Secretary of
Justice and Insular Auditor202 (Bengzon), held that the power of appropriation
involves (a) the setting apart by law of a certain sum from the public revenue
for (b) a specified purpose. Essentially, under the 2013 PDAF Article,
individual legislators are given a personal lump-sum fund from which they are
able to dictate (a) how much from such fund would go to (b) a specific project
or beneficiary that they themselves also determine. As these two (2) acts
comprise the exercise of the power of appropriation as described in Bengzon,
and given that the 2013 PDAF Article authorizes individual legislators to
perform the same, undoubtedly, said legislators have been conferred the power
to legislate which the Constitution does not, however, allow. Thus, keeping
with the principle of non-delegability of legislative power, the Court hereby
declares the 2013 PDAF Article, as well as all other forms of Congressional
Pork Barrel which contain the similar legislative identification feature as herein
discussed, as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are intended to be kept
separate and distinct does not mean that they are absolutely unrestrained and
independent of each other. The Constitution has also provided for an elaborate
system of checks and balances to secure coordination in the workings of the
various departments of the government.203
A prime example of a constitutional check and balance would be the President’s
power to veto an item written into an appropriation, revenue or tariff bill
submitted to him by Congress for approval through a process known as "bill
presentment." The President‘s item-veto power is found in Section 27(2),
Article VI of the 1987 Constitution which reads as follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular item or items in
an appropriation, revenue, or tariff bill, but the veto shall not affect the item or
items to which he does not object.
The presentment of appropriation, revenue or tariff bills to the President,
wherein he may exercise his power of item-veto, forms part of the "single,
finely wrought and exhaustively considered, procedures" for law-passage as
specified under the Constitution.204 As stated in Abakada, the final step in the
law-making process is the "submission of the bill to the President for approval.
Once approved, it takes effect as law after the required publication."205
Elaborating on the President‘s item-veto power and its relevance as a check on
the legislature, the Court, in Bengzon, explained that:206
The former Organic Act and the present Constitution of the Philippines make
the Chief Executive an integral part of the law-making power. His disapproval
of a bill, commonly known as a veto, is essentially a legislative act. The
questions presented to the mind of the Chief Executive are precisely the same
as those the legislature must determine in passing a bill, except that his will be
a broader point of view.
The Constitution is a limitation upon the power of the legislative department of
the government, but in this respect it is a grant of power to the executive
department. The Legislature has the affirmative power to enact laws; the Chief
Executive has the negative power by the constitutional exercise of which he
may defeat the will of the Legislature. It follows that the Chief Executive must
find his authority in the Constitution. But in exercising that authority he may
not be confined to rules of strict construction or hampered by the unwise
interference of the judiciary. The courts will indulge every intendment in favor
of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases
supplied)
The justification for the President‘s item-veto power rests on a variety of policy
goals such as to prevent log-rolling legislation,207 impose fiscal restrictions on
the legislature, as well as to fortify the executive branch‘s role in the budgetary
process.208 In Immigration and Naturalization Service v. Chadha, the US
Supreme Court characterized the President‘s item-power as "a salutary check
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upon the legislative body, calculated to guard the community against the effects
of factions, precipitancy, or of any impulse unfriendly to the public good, which
may happen to influence a majority of that body"; phrased differently, it is
meant to "increase the chances in favor of the community against the passing
of bad laws, through haste, inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily follows that
there exists a proper "item" which may be the object of the veto. An item, as
defined in the field of appropriations, pertains to "the particulars, the details,
the distinct and severable parts of the appropriation or of the bill." In the case
of Bengzon v. Secretary of Justice of the Philippine Islands,210 the US
Supreme Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a
specific appropriation of money, not some general provision of law which
happens to be put into an appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that
the President may be able to exercise his power of item veto, must contain
"specific appropriations of money" and not only "general provisions" which
provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an
item characterized by singular correspondence – meaning an allocation of a
specified singular amount for a specified singular purpose, otherwise known as
a "line-item."211 This treatment not only allows the item to be consistent with
its definition as a "specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the foregoing formulation,
the existing Calamity Fund, Contingent Fund and the Intelligence Fund, being
appropriations which state a specified amount for a specific purpose, would
then be considered as "line- item" appropriations which are rightfully subject
to item veto. Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is crucial that
each percentage or value must be allocated for its own corresponding purpose
for such component to be considered as a proper line-item. Moreover, as Justice
Carpio correctly pointed out, a valid appropriation may even have several
related purposes that are by accounting and budgeting practice considered as
one purpose, e.g., MOOE (maintenance and other operating expenses), in which
case the related purposes shall be deemed sufficiently specific for the exercise
of the President‘s item veto power. Finally, special purpose funds and
discretionary funds would equally square with the constitutional mechanism of
item-veto for as long as they follow the rule on singular correspondence as
herein discussed. Anent special purpose funds, it must be added that Section
25(4), Article VI of the 1987 Constitution requires that the "special
appropriations bill shall specify the purpose for which it is intended, and shall
be supported by funds actually available as certified by the National Treasurer,
or t o be raised by a corresponding revenue proposal therein." Meanwhile, with
respect to discretionary funds, Section 2 5(6), Article VI of the 1987
Constitution requires that said funds "shall be disbursed only for public
purposes to be supported by appropriate vouchers and subject to such guidelines
as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which
merely provide for a singular lump-sum amount to be tapped as a source of
funding for multiple purposes. Since such appropriation type necessitates the
further determination of both the actual amount to be expended and the actual
purpose of the appropriation which must still be chosen from the multiple
purposes stated in the law, it cannot be said that the appropriation law already
indicates a "specific appropriation of money‖ and hence, without a proper line-
item which the President may veto. As a practical result, the President would
then be faced with the predicament of either vetoing the entire appropriation if
he finds some of its purposes wasteful or undesirable, or approving the entire
appropriation so as not to hinder some of its legitimate purposes. Finally, it may
not be amiss to state that such arrangement also raises non-delegability issues
considering that the implementing authority would still have to determine,
again, both the actual amount to be expended and the actual purpose of the
appropriation. Since the foregoing determinations constitute the integral
aspects of the power to appropriate, the implementing authority would, in
effect, be exercising legislative prerogatives in violation of the principle of non-
delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the
PDAF is a lump-sum appropriation, the legislator‘s identification of the projects
after the passage of the GAA denies the President the chance to veto that item
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later on."212 Accordingly, they submit that the "item veto power of the
President mandates that appropriations bills adopt line-item budgeting" and that
"Congress cannot choose a mode of budgeting which effectively renders the
constitutionally-given power of the President useless."213
On the other hand, respondents maintain that the text of the Constitution
envisions a process which is intended to meet the demands of a modernizing
economy and, as such, lump-sum appropriations are essential to financially
address situations which are barely foreseen when a GAA is enacted. They
argue that the decision of the Congress to create some lump-sum appropriations
is constitutionally allowed and textually-grounded.214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a
collective allocation limit since the said amount would be further divided
among individual legislators who would then receive personal lump-sum
allocations and could, after the GAA is passed, effectively appropriate PDAF
funds based on their own discretion. As these intermediate appropriations are
made by legislators only after the GAA is passed and hence, outside of the law,
it necessarily means that the actual items of PDAF appropriation would not
have been written into the General Appropriations Bill and thus effectuated
without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a budget"
which subverts the prescribed procedure of presentment and consequently
impairs the President‘s power of item veto. As petitioners aptly point out, the
above-described system forces the President to decide between (a) accepting
the entire P24.79 Billion PDAF allocation without knowing the specific
projects of the legislators, which may or may not be consistent with his national
agenda and (b) rejecting the whole PDAF to the detriment of all other legislators
with legitimate projects.215
Moreover, even without its post-enactment legislative identification feature, the
2013 PDAF Article would remain constitutionally flawed since it would then
operate as a prohibited form of lump-sum appropriation above-characterized.
In particular, the lump-sum amount of P24.79 Billion would be treated as a
mere funding source allotted for multiple purposes of spending, i.e.,
scholarships, medical missions, assistance to indigents, preservation of
historical materials, construction of roads, flood control, etc. This setup
connotes that the appropriation law leaves the actual amounts and purposes of
the appropriation for further determination and, therefore, does not readily
indicate a discernible item which may be subject to the President‘s power of
item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has,
as the CoA Chairperson relays, "limited state auditors from obtaining relevant
data and information that would aid in more stringently auditing the utilization
of said Funds."216 Accordingly, she recommends the adoption of a "line by
line budget or amount per proposed program, activity or project, and per
implementing agency."217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF
Article, as well as all Congressional Pork Barrel Laws of similar operation, to
be unconstitutional. That such budgeting system provides for a greater degree
of flexibility to account for future contingencies cannot be an excuse to defeat
what the Constitution requires. Clearly, the first and essential truth of the matter
is that unconstitutional means do not justify even commendable ends.218
c. Accountability.
Petitioners further relate that the system under which various forms of
Congressional Pork Barrel operate defies public accountability as it renders
Congress incapable of checking itself or its Members. In particular, they point
out that the Congressional Pork Barrel "gives each legislator a direct, financial
interest in the smooth, speedy passing of the yearly budget" which turns them
"from fiscalizers" into "financially-interested partners."219 They also claim
that the system has an effect on re- election as "the PDAF excels in self-
perpetuation of elective officials." Finally, they add that the "PDAF impairs the
power of impeachment" as such "funds are indeed quite useful, ‘to well,
accelerate the decisions of senators.‘"220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987 Constitution,
which states that "public office is a public trust," is an overarching reminder
that every instrumentality of government should exercise their official functions
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only in accordance with the principles of the Constitution which embodies the
parameters of the people‘s trust. The notion of a public trust connotes
accountability,221 hence, the various mechanisms in the Constitution which are
designed to exact accountability from public officers.
Among others, an accountability mechanism with which the proper expenditure
of public funds may be checked is the power of congressional oversight. As
mentioned in Abakada,222 congressional oversight may be performed either
through: (a) scrutiny based primarily on Congress‘ power of appropriation and
the budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any matter
pertaining to their departments and its power of confirmation;223 or (b)
investigation and monitoring of the implementation of laws pursuant to the
power of Congress to conduct inquiries in aid of legislation.224
The Court agrees with petitioners that certain features embedded in some forms
of Congressional Pork Barrel, among others the 2013 PDAF Article, has an
effect on congressional oversight. The fact that individual legislators are given
post-enactment roles in the implementation of the budget makes it difficult for
them to become disinterested "observers" when scrutinizing, investigating or
monitoring the implementation of the appropriation law. To a certain extent,
the conduct of oversight would be tainted as said legislators, who are vested
with post-enactment authority, would, in effect, be checking on activities in
which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article
VI of the 1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally
appear as counsel before any court of justice or before the Electoral Tribunals,
or quasi-judicial and other administrative bodies. Neither shall he, directly or
indirectly, be interested financially in any contract with, or in any franchise or
special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled
corporation, or its subsidiary, during his term of office. He shall not intervene
in any matter before any office of the Government for his pecuniary benefit or
where he may be called upon to act on account of his office. (Emphasis
supplied)
Clearly, allowing legislators to intervene in the various phases of project
implementation – a matter before another office of government – renders them
susceptible to taking undue advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment
authority and/or the individual legislator‘s control of his PDAF per se would
allow him to perpetuate himself in office. Indeed, while the Congressional Pork
Barrel and a legislator‘s use thereof may be linked to this area of interest, the
use of his PDAF for re-election purposes is a matter which must be analyzed
based on particular facts and on a case-to-case basis.
Finally, while the Court accounts for the possibility that the close operational
proximity between legislators and the Executive department, through the
former‘s post-enactment participation, may affect the process of impeachment,
this matter largely borders on the domain of politics and does not strictly
concern the Pork Barrel System‘s intrinsic constitutionality. As such, it is an
improper subject of judicial assessment.
In sum, insofar as its post-enactment features dilute congressional oversight and
violate Section 14, Article VI of the 1987 Constitution, thus impairing public
accountability, the 2013 PDAF Article and other forms of Congressional Pork
Barrel of similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians
who are members of political dynasties to accumulate funds to perpetuate
themselves in power, in contravention of Section 26, Article II of the 1987
Constitution225 which states that:
Sec. 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law. (Emphasis
and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not
self-executing due to the qualifying phrase "as may be defined by law." In this
respect, said provision does not, by and of itself, provide a judicially
enforceable constitutional right but merely specifies guideline for legislative or
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executive action.226 Therefore, since there appears to be no standing law which
crystallizes the policy on political dynasties for enforcement, the Court must
defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be
largely speculative since it has not been properly demonstrated how the Pork
Barrel System would be able to propagate political dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in Section 25, Article
II and Sections 2 and 3, Article X of the 1987 Constitution which read as
follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide
for a more responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and
operation of the local units.
Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the
"Local Government Code of 1991" (LGC), wherein the policy on local
autonomy had been more specifically explicated as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State
that the territorial and political subdivisions of the State shall enjoy genuine and
meaningful local autonomy to enable them to attain their fullest development
as self-reliant communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall provide for a more
responsive and accountable local government structure instituted through a
system of decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the National Government to the local
government units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and
offices to conduct periodic consultations with appropriate local government
units, nongovernmental and people‘s organizations, and other concerned
sectors of the community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy
of the State to empower local government units (LGUs) to develop and
ultimately, become self-sustaining and effective contributors to the national
economy. As explained by the Court in Philippine Gamefowl Commission v.
Intermediate Appellate Court:228
This is as good an occasion as any to stress the commitment of the Constitution
to the policy of local autonomy which is intended to provide the needed impetus
and encouragement to the development of our local political subdivisions as
"self - reliant communities." In the words of Jefferson, "Municipal corporations
are the small republics from which the great one derives its strength." The
vitalization of local governments will enable their inhabitants to fully exploit
their resources and more important, imbue them with a deepened sense of
involvement in public affairs as members of the body politic. This objective
could be blunted by undue interference by the national government in purely
local affairs which are best resolved by the officials and inhabitants of such
political units. The decision we reach today conforms not only to the letter of
the pertinent laws but also to the spirit of the Constitution.229 (Emphases and
underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes
against the constitutional principles on local autonomy since it allows district
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representatives, who are national officers, to substitute their judgments in
utilizing public funds for local development.230 The Court agrees with
petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal"
and that "it is also a recognition that individual members of Congress, far more
than the President and their congressional colleagues, are likely to be
knowledgeable about the needs of their respective constituents and the priority
to be given each project."231 Drawing strength from this pronouncement,
previous legislators justified its existence by stating that "the relatively small
projects implemented under the Congressional Pork Barrel complement and
link the national development goals to the countryside and grassroots as well as
to depressed areas which are overlooked by central agencies which are
preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech
on the "abolition" of PDAF and budgetary reforms, President Aquino
mentioned that the Congressional Pork Barrel was originally established for a
worthy goal, which is to enable the representatives to identify projects for
communities that the LGU concerned cannot afford.233
Notwithstanding these declarations, the Court, however, finds an inherent
defect in the system which actually belies the avowed intention of "making
equal the unequal." In particular, the Court observes that the gauge of PDAF
and CDF allocation/division is based solely on the fact of office, without taking
into account the specific interests and peculiarities of the district the legislator
represents. In this regard, the allocation/division limits are clearly not based on
genuine parameters of equality, wherein economic or geographic indicators
have been taken into consideration. As a result, a district representative of a
highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively
"underdeveloped" compared to the former. To add, what rouses graver scrutiny
is that even Senators and Party-List Representatives – and in some years, even
the Vice-President – who do not represent any locality, receive funding from
the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrel‘s original intent which is "to make equal the
unequal." Ultimately, the PDAF and CDF had become personal funds under the
effective control of each legislator and given unto them on the sole account of
their office.
The Court also observes that this concept of legislator control underlying the
CDF and PDAF conflicts with the functions of the various Local Development
Councils (LDCs) which are already legally mandated to "assist the
corresponding sanggunian in setting the direction of economic and social
development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions
are essentially geared towards managing local affairs,235 their programs,
policies and resolutions should not be overridden nor duplicated by individual
legislators, who are national officers that have no law-making authority except
only when acting as a body. The undermining effect on local autonomy caused
by the post-enactment authority conferred to the latter was succinctly put by
petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the local development council
and initiate projects on his own, and even take sole credit for its execution.
Indeed, this type of personality-driven project identification has not only
contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination
efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local
matters and thereby subvert genuine local autonomy, the 2013 PDAF Article as
well as all other similar forms of Congressional Pork Barrel is deemed
unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now
turns to the substantive issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869
(now, amended by PD 1993), which respectively provide for the Malampaya
Funds and the Presidential Social Fund, as invalid appropriations laws since
they do not have the "primary and specific" purpose of authorizing the release
of public funds from the National Treasury. Petitioners submit that Section 8 of
PD 910 is not an appropriation law since the "primary and specific‖ purpose of
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PD 910 is the creation of an Energy Development Board and Section 8 thereof
only created a Special Fund incidental thereto.237 In similar regard, petitioners
argue that Section 12 of PD 1869 is neither a valid appropriations law since the
allocation of the Presidential Social Fund is merely incidental to the "primary
and specific" purpose of PD 1869 which is the amendment of the Franchise and
Powers of PAGCOR.238 In view of the foregoing, petitioners suppose that such
funds are being used without any valid law allowing for their proper
appropriation in violation of Section 29(1), Article VI of the 1987 Constitution
which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."239
The Court disagrees.
"An appropriation made by law‖ under the contemplation of Section 29(1),
Article VI of the 1987 Constitution exists when a provision of law (a) sets apart
a determinate or determinable240 amount of money and (b) allocates the same
for a particular public purpose. These two minimum designations of amount
and purpose stem from the very definition of the word "appropriation," which
means "to allot, assign, set apart or apply to a particular use or purpose," and
hence, if written into the law, demonstrate that the legislative intent to
appropriate exists. As the Constitution "does not provide or prescribe any
particular form of words or religious recitals in which an authorization or
appropriation by Congress shall be made, except that it be ‘made by law,‘" an
appropriation law may – according to Philconsa – be "detailed and as broad as
Congress wants it to be" for as long as the intent to appropriate may be gleaned
from the same. As held in the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or prescribes any
particular form of words or religious recitals in which an authorization or
appropriation by Congress shall be made, except that it be "made by law," such
as precisely the authorization or appropriation under the questioned presidential
decrees. In other words, in terms of time horizons, an appropriation may be
made impliedly (as by past but subsisting legislations) as well as expressly for
the current fiscal year (as by enactment of laws by the present Congress), just
as said appropriation may be made in general as well as in specific terms. The
Congressional authorization may be embodied in annual laws, such as a general
appropriations act or in special provisions of laws of general or special
application which appropriate public funds for specific public purposes, such
as the questioned decrees. An appropriation measure is sufficient if the
legislative intention clearly and certainly appears from the language employed
(In re Continuing Appropriations, 32 P. 272), whether in the past or in the
present. (Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242
To constitute an appropriation there must be money placed in a fund applicable
to the designated purpose. The word appropriate means to allot, assign, set apart
or apply to a particular use or purpose. An appropriation in the sense of the
constitution means the setting apart a portion of the public funds for a public
purpose. No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases supplied)
Thus, based on the foregoing, the Court cannot sustain the argument that the
appropriation must be the "primary and specific" purpose of the law in order
for a valid appropriation law to exist. To reiterate, if a legal provision designates
a determinate or determinable amount of money and allocates the same for a
particular public purpose, then the legislative intent to appropriate becomes
apparent and, hence, already sufficient to satisfy the requirement of an
"appropriation made by law" under contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all sources including
receipts from service contracts and agreements such as application and
processing fees, signature bonus, discovery bonus, production bonus; all money
collected from concessionaires, representing unspent work obligations, fines
and penalties under the Petroleum Act of 1949; as well as the government share
representing royalties, rentals, production share on service contracts and similar
payments on the exploration, development and exploitation of energy
resources, shall form part of a Special Fund to be used to finance energy
resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the
President. (Emphases supplied)
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Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent
as Franchise Tax, the Fifty (50%) percent share of the Government in the
aggregate gross earnings of the Corporation from this Franchise, or 60% if the
aggregate gross earnings be less than P150,000,000.00 shall be set aside and
shall accrue to the General Fund to finance the priority infrastructure
development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of
the President of the Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned principles, it may then
be concluded that (a) Section 8 of PD 910, which creates a Special Fund
comprised of "all fees, revenues, and receipts of the Energy Development Board
from any and all sources" (a determinable amount) "to be used to finance energy
resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the
President" (a specified public purpose), and (b) Section 12 of PD 1869, as
amended by PD 1993, which similarly sets aside, "after deducting five (5%)
percent as Franchise Tax, the Fifty (50%) percent share of the Government in
the aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross
earnings be less than P150,000,000.00" (also a determinable amount) "to
finance the priority infrastructure development projects and x x x the restoration
of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines" (also a specified
public purpose), are legal appropriations under Section 29(1), Article VI of the
1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be
properly deemed as a legal appropriation under the said constitutional provision
precisely because, as earlier stated, it contains post-enactment measures which
effectively create a system of intermediate appropriations. These intermediate
appropriations are the actual appropriations meant for enforcement and since
they are made by individual legislators after the GAA is passed, they occur
outside the law. As such, the Court observes that the real appropriation made
under the 2013 PDAF Article is not the P24.79 Billion allocated for the entire
PDAF, but rather the post-enactment determinations made by the individual
legislators which are, to repeat, occurrences outside of the law. Irrefragably, the
2013 PDAF Article does not constitute an "appropriation made by law" since
it, in its truest sense, only authorizes individual legislators to appropriate in
violation of the non-delegability principle as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an
undue delegation of legislative power since the phrase "and for such other
purposes as may be hereafter directed by the President" gives the President
"unbridled discretion to determine for what purpose the funds will be used."243
Respondents, on the other hand, urged the Court to apply the principle of
ejusdem generis to the same section and thus, construe the phrase "and for such
other purposes as may be hereafter directed by the President" to refer only to
other purposes related "to energy resource development and exploitation
programs and projects of the government."244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable amount for a particular
public purpose is sufficient for a legal appropriation to exist, the appropriation
law must contain adequate legislative guidelines if the same law delegates rule-
making authority to the Executive245 either for the purpose of (a) filling up the
details of the law for its enforcement, known as supplementary rule-making, or
(b) ascertaining facts to bring the law into actual operation, referred to as
contingent rule-making.246 There are two (2) fundamental tests to ensure that
the legislative guidelines for delegated rule-making are indeed adequate. The
first test is called the "completeness test." Case law states that a law is complete
when it sets forth therein the policy to be executed, carried out, or implemented
by the delegate. On the other hand, the second test is called the "sufficient
standard test." Jurisprudence holds that a law lays down a sufficient standard
when it provides adequate guidelines or limitations in the law to map out the
boundaries of the delegate‘s authority and prevent the delegation from running
riot.247 To be sufficient, the standard must specify the limits of the delegate‘s
authority, announce the legislative policy, and identify the conditions under
which it is to be implemented.248
In view of the foregoing, the Court agrees with petitioners that the phrase "and
for such other purposes as may be hereafter directed by the President" under
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Section 8 of PD 910 constitutes an undue delegation of legislative power insofar
as it does not lay down a sufficient standard to adequately determine the limits
of the President‘s authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the President
wide latitude to use the Malampaya Funds for any other purpose he may direct
and, in effect, allows him to unilaterally appropriate public funds beyond the
purview of the law. That the subject phrase may be confined only to "energy
resource development and exploitation programs and projects of the
government" under the principle of ejusdem generis, meaning that the general
word or phrase is to be construed to include – or be restricted to – things akin
to, resembling, or of the same kind or class as those specifically mentioned,249
is belied by three (3) reasons: first, the phrase "energy resource development
and exploitation programs and projects of the government" states a singular and
general class and hence, cannot be treated as a statutory reference of specific
things from which the general phrase "for such other purposes" may be limited;
second, the said phrase also exhausts the class it represents, namely energy
development programs of the government;250 and, third, the Executive
department has, in fact, used the Malampaya Funds for non-energy related
purposes under the subject phrase, thereby contradicting respondents‘ own
position that it is limited only to "energy resource development and exploitation
programs and projects of the government."251 Thus, while Section 8 of PD 910
may have passed the completeness test since the policy of energy development
is clearly deducible from its text, the phrase "and for such other purposes as
may be hereafter directed by the President" under the same provision of law
should nonetheless be stricken down as unconstitutional as it lies independently
unfettered by any sufficient standard of the delegating law. This
notwithstanding, it must be underscored that the rest of Section 8, insofar as it
allows for the use of the Malampaya Funds "to finance energy resource
development and exploitation programs and projects of the government,"
remains legally effective and subsisting. Truth be told, the declared
unconstitutionality of the aforementioned phrase is but an assurance that the
Malampaya Funds would be used – as it should be used – only in accordance
with the avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact
that Section 12 of PD 1869 has already been amended by PD 1993 which thus
moots the parties‘ submissions on the same.252 Nevertheless, since the
amendatory provision may be readily examined under the current parameters
of discussion, the Court proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the
Presidential Social Fund may be used "to first, finance the priority infrastructure
development projects and second, to finance the restoration of damaged or
destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines." The Court finds that while the
second indicated purpose adequately curtails the authority of the President to
spend the Presidential Social Fund only for restoration purposes which arise
from calamities, the first indicated purpose, however, gives him carte blanche
authority to use the same fund for any infrastructure project he may so
determine as a "priority". Verily, the law does not supply a definition of
"priority in frastructure development projects" and hence, leaves the President
without any guideline to construe the same. To note, the delimitation of a
project as one of "infrastructure" is too broad of a classification since the said
term could pertain to any kind of facility. This may be deduced from its
lexicographic definition as follows: "the underlying framework of a system,
especially public services and facilities (such as highways, schools, bridges,
sewers, and water-systems) needed to support commerce as well as economic
and residential development."253 In fine, the phrase "to finance the priority
infrastructure development projects" must be stricken down as unconstitutional
since – similar to the above-assailed provision under Section 8 of PD 910 – it
lies independently unfettered by any sufficient standard of the delegating law.
As they are severable, all other provisions of Section 12 of PD 1869, as
amended by PD 1993, remains legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System
unconstitutional – as the Court did so in the context of its pronouncements made
in this Decision – petitioners equally pray that the Executive Secretary and/or
the DBM be ordered to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and VILP from the
years 2003 to 2013, specifying the use of the funds, the project or activity and
the recipient entities or individuals, and all pertinent data thereto" (PDAF Use
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Schedule/List);254 and (b) "the use of the Executive‘s lump-sum, discretionary
funds, including the proceeds from the x x x Malampaya Funds and remittances
from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or
activity and the recipient entities or individuals, and all pertinent data
thereto"255 (Presidential Pork Use Report). Petitioners‘ prayer is grounded on
Section 28, Article II and Section 7, Article III of the 1987 Constitution which
read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions
involving public interest.
ARTICLE III Sec. 7.
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining
to official acts, transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the citizen, subject
to such limitations as may be provided by law.
The Court denies petitioners‘ submission.
Case law instructs that the proper remedy to invoke the right to information is
to file a petition for mandamus. As explained in the case of Legaspi v. Civil
Service Commission:256
While the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose
the information of public concern, and to afford access to public records cannot
be discretionary on the part of said agencies. Certainly, its performance cannot
be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any
whimsical exercise of agency discretion. The constitutional duty, not being
discretionary, its performance may be compelled by a writ of mandamus in a
proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the
public right to be enforced and the concomitant duty of the State are
unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus
in this case is, whether the information sought by the petitioner is within the
ambit of the constitutional guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been
clarified that the right to information does not include the right to compel the
preparation of "lists, abstracts, summaries and the like." In the same case, it was
stressed that it is essential that the "applicant has a well -defined, clear and
certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required." Hence, without the foregoing
substantiations, the Court cannot grant a particular request for information. The
pertinent portions of Valmonte are hereunder quoted:258
Although citizens are afforded the right to information and, pursuant thereto,
are entitled to "access to official records," the Constitution does not accord them
a right to compel custodians of official records to prepare lists, abstracts,
summaries and the like in their desire to acquire information on matters of
public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the
applicant has a well-defined, clear and certain legal right to the thing demanded
and that it is the imperative duty of defendant to perform the act required. The
corresponding duty of the respondent to perform the required act must be clear
and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA
443.
The request of the petitioners fails to meet this standard, there being no duty on
the part of respondent to prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of
mandamus actions, the Court finds that petitioners have failed to establish a "a
well-defined, clear and certain legal right" to be furnished by the Executive
Secretary and/or the DBM of their requested PDAF Use Schedule/List and
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Presidential Pork Use Report. Neither did petitioners assert any law or
administrative issuance which would form the bases of the latter‘s duty to
furnish them with the documents requested. While petitioners pray that said
information be equally released to the CoA, it must be pointed out that the CoA
has not been impleaded as a party to these cases nor has it filed any petition
before the Court to be allowed access to or to compel the release of any official
document relevant to the conduct of its audit investigations. While the Court
recognizes that the information requested is a matter of significant public
concern, however, if only to ensure that the parameters of disclosure are
properly foisted and so as not to unduly hamper the equally important interests
of the government, it is constrained to deny petitioners‘ prayer on this score,
without prejudice to a proper mandamus case which they, or even the CoA, may
choose to pursue through a separate petition.
It bears clarification that the Court‘s denial herein should only cover
petitioners‘ plea to be furnished with such schedule/list and report and not in
any way deny them, or the general public, access to official documents which
are already existing and of public record. Subject to reasonable regulation and
absent any valid statutory prohibition, access to these documents should not be
proscribed. Thus, in Valmonte, while the Court denied the application for
mandamus towards the preparation of the list requested by petitioners therein,
it nonetheless allowed access to the documents sought for by the latter, subject,
however, to the custodian‘s reasonable regulations,viz.:259
In fine, petitioners are entitled to access to the documents evidencing loans
granted by the GSIS, subject to reasonable regulations that the latter may
promulgate relating to the manner and hours of examination, to the end that
damage to or loss of the records may be avoided, that undue interference with
the duties of the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured Legaspi v. Civil
Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383,
387. The petition, as to the second and third alternative acts sought to be done
by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by
petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note
of the then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.
Petitioners further seek that the Court "order the inclusion in budgetary
deliberations with the Congress of all presently, off-budget, lump sum,
discretionary funds including but not limited to, proceeds from the x x x
Malampaya Fund, remittances from the PAGCOR and the PCSO or the
Executive‘s Social Funds."260
Suffice it to state that the above-stated relief sought by petitioners covers a
matter which is generally left to the prerogative of the political branches of
government. Hence, lest the Court itself overreach, it must equally deny their
prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.
The final issue to be resolved stems from the interpretation accorded by the
DBM to the concept of released funds. In response to the Court‘s September
10, 2013 TRO that enjoined the release of the remaining PDAF allocated for
the year 2013, the DBM issued Circular Letter No. 2013-8 dated September 27,
2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a
Special Allotment Release Order (SARO) has been issued by the DBM and
such SARO has been obligated by the implementing agencies prior to the
issuance of the TRO, may continually be implemented and disbursements
thereto effected by the agencies concerned.
Based on the text of the foregoing, the DBM authorized the continued
implementation and disbursement of PDAF funds as long as they are: first,
covered by a SARO; and, second, that said SARO had been obligated by the
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implementing agency concerned prior to the issuance of the Court‘s September
10, 2013 TRO.
Petitioners take issue with the foregoing circular, arguing that "the issuance of
the SARO does not yet involve the release of funds under the PDAF, as release
is only triggered by the issuance of a Notice of Cash Allocation [(NCA)]."261
As such, PDAF disbursements, even if covered by an obligated SARO, should
remain enjoined.
For their part, respondents espouse that the subject TRO only covers
"unreleased and unobligated allotments." They explain that once a SARO has
been issued and obligated by the implementing agency concerned, the PDAF
funds covered by the same are already "beyond the reach of the TRO because
they cannot be considered as ‘remaining PDAF.‘" They conclude that this is a
reasonable interpretation of the TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not the Court‘s
September 10, 2013 TRO should be lifted is a matter rendered moot by the
present Decision. The unconstitutionality of the 2013 PDAF Article as declared
herein has the consequential effect of converting the temporary injunction into
a permanent one. Hence, from the promulgation of this Decision, the release of
the remaining PDAF funds for 2013, among others, is now permanently
enjoined.
The propriety of the DBM‘s interpretation of the concept of "release" must,
nevertheless, be resolved as it has a practical impact on the execution of the
current Decision. In particular, the Court must resolve the issue of whether or
not PDAF funds covered by obligated SAROs, at the time this Decision is
promulgated, may still be disbursed following the DBM‘s interpretation in
DBM Circular 2013-8.
On this score, the Court agrees with petitioners‘ posturing for the fundamental
reason that funds covered by an obligated SARO are yet to be "released" under
legal contemplation. A SARO, as defined by the DBM itself in its website, is
"aspecific authority issued to identified agencies to incur obligations not
exceeding a given amount during a specified period for the purpose indicated.
It shall cover expenditures the release of which is subject to compliance with
specific laws or regulations, or is subject to separate approval or clearance by
competent authority."263
Based on this definition, it may be gleaned that a SARO only evinces the
existence of an obligation and not the directive to pay. Practically speaking, the
SARO does not have the direct and immediate effect of placing public funds
beyond the control of the disbursing authority. In fact, a SARO may even be
withdrawn under certain circumstances which will prevent the actual release of
funds. On the other hand, the actual release of funds is brought about by the
issuance of the NCA,264 which is subsequent to the issuance of a SARO. As
may be determined from the statements of the DBM representative during the
Oral Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously with the
SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the
agencies to obligate or to enter into commitments. The NCA, Your Honor, is
already the go signal to the treasury for us to be able to pay or to liquidate the
amounts obligated in the SARO; so it comes after. x x x The NCA, Your Honor,
is the go signal for the MDS for the authorized government-disbursing banks
to, therefore, pay the payees depending on the projects or projects covered by
the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances
that the SAROs issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as
funds which have been "released." In this respect, therefore, the disbursement
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of 2013 PDAF funds which are only covered by obligated SAROs, and without
any corresponding NCAs issued, must, at the time of this Decision’s
promulgation, be enjoined and consequently reverted to the unappropriated
surplus of the general fund. Verily, in view of the declared unconstitutionality
of the 2013 PDAF Article, the funds appropriated pursuant thereto cannot be
disbursed even though already obligated, else the Court sanctions the dealing
of funds coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the Malampaya Funds
which have been obligated but not released – meaning, those merely covered
by a SARO – under the phrase "and for such other purposes as may be hereafter
directed by the President" pursuant to Section 8 of PD 910; and (b) funds
sourced from the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section 12 of PD
1869, as amended by PD 1993, which were altogether declared by the Court as
unconstitutional. However, these funds should not be reverted to the general
fund as afore-stated but instead, respectively remain under the Malampaya
Funds and the Presidential Social Fund to be utilized for their corresponding
special purposes not otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s pronouncement anent the
unconstitutionality of (a) the 2013 PDAF Article and its Special Provisions, (b)
all other Congressional Pork Barrel provisions similar thereto, and (c) the
phrases (1) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910, and (2) "to finance the priority
infrastructure development projects" under Section 12 of PD 1869, as amended
by PD 1993, must only be treated as prospective in effect in view of the
operative fact doctrine.
To explain, the operative fact doctrine exhorts the recognition that until the
judiciary, in an appropriate case, declares the invalidity of a certain legislative
or executive act, such act is presumed constitutional and thus, entitled to
obedience and respect and should be properly enforced and complied with. As
explained in the recent case of Commissioner of Internal Revenue v. San Roque
Power Corporation,266 the doctrine merely "reflects awareness that precisely
because the judiciary is the governmental organ which has the final say on
whether or not a legislative or executive measure is valid, a period of time may
have elapsed before it can exercise the power of judicial review that may lead
to a declaration of nullity. It would be to deprive the law of its quality of fairness
and justice then, if there be no recognition of what had transpired prior to such
adjudication."267 "In the language of an American Supreme Court decision:
‘The actual existence of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may have consequences which
cannot justly be ignored.‘"268
For these reasons, this Decision should be heretofore applied prospectively.
Conclusion
The Court renders this Decision to rectify an error which has persisted in the
chronicles of our history. In the final analysis, the Court must strike down the
Pork Barrel System as unconstitutional in view of the inherent defects in the
rules within which it operates. To recount, insofar as it has allowed legislators
to wield, in varying gradations, non-oversight, post-enactment authority in vital
areas of budget execution, the system has violated the principle of separation
of powers; insofar as it has conferred unto legislators the power of appropriation
by giving them personal, discretionary funds from which they are able to fund
specific projects which they themselves determine, it has similarly violated the
principle of non-delegability of legislative power ; insofar as it has created a
system of budgeting wherein items are not textualized into the appropriations
bill, it has flouted the prescribed procedure of presentment and, in the process,
denied the President the power to veto items ; insofar as it has diluted the
effectiveness of congressional oversight by giving legislators a stake in the
affairs of budget execution, an aspect of governance which they may be called
to monitor and scrutinize, the system has equally impaired public accountability
; insofar as it has authorized legislators, who are national officers, to intervene
in affairs of purely local nature, despite the existence of capable local
institutions, it has likewise subverted genuine local autonomy ; and again,
insofar as it has conferred to the President the power to appropriate funds
intended by law for energy-related purposes only to other purposes he may
deem fit as well as other public funds under the broad classification of "priority
infrastructure development projects," it has once more transgressed the
principle of non-delegability.
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For as long as this nation adheres to the rule of law, any of the multifarious
unconstitutional methods and mechanisms the Court has herein pointed out
should never again be adopted in any system of governance, by any name or
form, by any semblance or similarity, by any influence or effect. Disconcerting
as it is to think that a system so constitutionally unsound has monumentally
endured, the Court urges the people and its co-stewards in government to look
forward with the optimism of change and the awareness of the past. At a time
of great civic unrest and vociferous public debate, the Court fervently hopes
that its Decision today, while it may not purge all the wrongs of society nor
bring back what has been lost, guides this nation to the path forged by the
Constitution so that no one may heretofore detract from its cause nor stray from
its course. After all, this is the Court‘s bounden duty and no other‘s.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the
constitutional violations discussed in this Decision, the Court hereby declares
as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the
previous PDAF and CDF Articles and the various Congressional Insertions,
which authorize/d legislators – whether individually or collectively organized
into committees – to intervene, assume or participate in any of the various post-
enactment stages of the budget execution, such as but not limited to the areas
of project identification, modification and revision of project identification,
fund release and/or fund realignment, unrelated to the power of congressional
oversight; (c) all legal provisions of past and present Congressional Pork Barrel
Laws, such as the previous PDAF and CDF Articles and the various
Congressional Insertions, which confer/red personal, lump-sum allocations to
legislators from which they are able to fund specific projects which they
themselves determine; (d) all informal practices of similar import and effect,
which the Court similarly deems to be acts of grave abuse of discretion
amounting to lack or excess of jurisdiction; and (e) the phrases (1) "and for such
other purposes as may be hereafter directed by the President" under Section 8
of Presidential Decree No. 910 and (2) "to finance the priority infrastructure
development projects" under Section 12 of Presidential Decree No. 1869, as
amended by Presidential Decree No. 1993, for both failing the sufficient
standard test in violation of the principle of non-delegability of legislative
power.
Accordingly, the Court‘s temporary injunction dated September 10, 2013 is
hereby declared to be PERMANENT. Thus, the disbursement/release of the
remaining PDAF funds allocated for the year 2013, as well as for all previous
years, and the funds sourced from (1) the Malampaya Funds under the phrase
"and for such other purposes as may be hereafter directed by the President"
pursuant to Section 8 of Presidential Decree No. 910, and (2) the Presidential
Social Fund under the phrase "to finance the priority infrastructure development
projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended
by Presidential Decree No. 1993, which are, at the time this Decision is
promulgated, not covered by Notice of Cash Allocations (NCAs) but only by
Special Allotment Release Orders (SAROs), whether obligated or not, are
hereby ENJOINED. The remaining PDAF funds covered by this permanent
injunction shall not be disbursed/released but instead reverted to the
unappropriated surplus of the general fund, while the funds under the
Malampaya Funds and the Presidential Social Fund shall remain therein to be
utilized for their respective special purposes not otherwise declared as
unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation,
the Court hereby DENIES petitioners‘ prayer seeking that the Executive
Secretary and/or the Department of Budget and Management be ordered to
provide the public and the Commission on Audit complete lists/schedules or
detailed reports related to the availments and utilization of the funds subject of
these cases. Petitioners‘ access to official documents already available and of
public record which are related to these funds must, however, not be prohibited
but merely subjected to the custodian‘s reasonable regulations or any valid
statutory prohibition on the same. This denial is without prejudice to a proper
mandamus case which they or the Commission on Audit may choose to pursue
through a separate petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds
subject of these cases in the budgetary deliberations of Congress as the same is
a matter left to the prerogative of the political branches of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government
to, within the bounds of reasonable dispatch, investigate and accordingly
prosecute all government officials and/or private individuals for possible
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criminal offenses related to the irregular, improper and/or unlawful FRANKLIN MAGTUNAO DRILON, IN HIS CAP A CITY AS THE
disbursement/utilization of all funds under the Pork Barrel System. SENATE PRESIDENT OF THE PHILIPPINES, Respondents.

This Decision is immediately executory but prospective in effect. x-----------------------x

SO ORDERED. G.R. No. 209136

Araullo v. Aquino MANUELITO R. LUNA, Petitioner,

G.R. No. 209287 (July 1, 2014) vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS
G.R. No. 209287 July 1, 2014 HEAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT; AND
EXECUTIVE SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG CAPACITY AS ALTER EGO OF THE PRESIDENT, Respondents.
ALYANSANG MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR,
UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-CHAIRPERSON, x-----------------------x
PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS MOVEMENT;
REP. LUZ ILAGAN, GABRIELA WOMEN'S PARTY REPRESENTATIVE; G.R. No. 209155
REP. CARLOS ISAGANI ZARATE, BAY AN MUNA PARTY-LIST
REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY GENERAL ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,
OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN vs.
PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON, THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA,
ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR, YOUTH ACT JR.; AND THE SECRETARY OF BUDGET AND MANAGEMENT
NOW, Petitioners, FLORENCIO B. ABAD, Respondents.
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF x-----------------------x
THE PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE
SECRETARY; AND FLORENCIO B. ABAD, SECRETARY OF THE G.R. No. 209164
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
x-----------------------x REPRESENTED BY DEAN FROILAN M. BACUNGAN, BENJAMIN E.
DIOKNO AND LEONOR M. BRIONES, Petitioners,
G.R. No. 209135 vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON.
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner, FLORENCIO B. ABAD, Respondents.
vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF x-----------------------x
DEPARTMENT OF BUDGET AND MANAGEMENT; AND HON.
G.R. No. 209260
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INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,
vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT (DBM), Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE
AND REV. JOSE L. GONZALEZ, Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE
PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
DRILON; THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
SPEAKER FELICIANO BELMONTE, JR.; THE EXECUTIVE OFFICE,
REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR.; THE DEPARTMENT OF BUDGET AND MANAGEMENT,
REPRESENTED BY SECRETARY FLORENCIO ABAD; THE
DEPARTMENT OF FINANCE, REPRESENTED BY SECRETARY CESAR
V. PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY
ROSALIA V. DE LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN
CEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO
DASMARINAS, JR.; ROSALINDA NARTATES, FOR HERSELF AND AS
NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF
EMPLOYEES NATIONAL HOUSING AUTHORITY (CUENHA);
MANUEL BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE
SOCIAL WELFARE EMPLOYEES ASSOCIATION OF THE PHILIPPINES,
DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT
CENTRAL OFFICE (SWEAP-DSWD CO); ANTONIA PASCUAL, FOR
HERSELF AND AS NATIONAL PRESIDENT OF THE DEPARTMENT OF
AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA); ALBERT
MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE
ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION
(EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS
PRESIDENT OF THE KAPISANAN PARA SA KAGALINGAN NG MGA
KAW ANI NG MMDA (KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY;
AND HON. FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC),
REPRESENTED BY DANTE L. JIMENEZ, Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B.
ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality of
the Disbursement Acceleration Program(DAP), National Budget Circular
(NBC) No. 541, and related issuances of the Department of Budget and
Management (DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987
Constitution, a provision of the fundamental law that firmly ordains that "[n]o
money shall be paid out of the Treasury except in pursuance of an appropriation
made by law." The tenor and context of the challenges posed by the petitioners
against the DAP indicate that the DAP contravened this provision by allowing
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the Executive to allocate public money pooled from programmed and
unprogrammed funds of its various agencies in the guise of the President
exercising his constitutional authority under Section 25(5) of the 1987
Constitution to transfer funds out of savings to augment the appropriations of
offices within the Executive Branch of the Government. But the challenges are
further complicated by the interjection of allegations of transfer of funds to
agencies or offices outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege
speech in the Senate of the Philippines to reveal that some Senators, including
himself, had been allotted an additional P50 Million each as "incentive" for
voting in favor of the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM
issued a public statement entitled Abad: Releases to Senators Part of Spending
Acceleration Program,1 explaining that the funds released to the Senators had
been part of the DAP, a program designed by the DBM to ramp up spending to
accelerate economic expansion. He clarified that the funds had been released to
the Senators based on their letters of request for funding; and that it was not the
first time that releases from the DAP had been made because the DAP had
already been instituted in 2011 to ramp up spending after sluggish
disbursements had caused the growth of the gross domestic product (GDP) to
slow down. He explained that the funds under the DAP were usually taken from
(1) unreleased appropriations under Personnel Services;2 (2) unprogrammed
funds; (3) carry-over appropriations unreleased from the previous year; and (4)
budgets for slow-moving items or projects that had been realigned to support
faster-disbursing projects.
The DBM soon came out to claim in its website3 that the DAP releases had
been sourced from savings generated by the Government, and from
unprogrammed funds; and that the savings had been derived from (1) the
pooling of unreleased appropriations, like unreleased Personnel Services4
appropriations that would lapse at the end of the year, unreleased appropriations
of slow-moving projects and discontinued projects per zero based budgeting
findings;5 and (2) the withdrawal of unobligated allotments also for slow-
moving programs and projects that had been earlier released to the agencies of
the National Government.
The DBM listed the following as the legal bases for the DAP’s use of savings,6
namely: (1) Section 25(5), Article VI of the 1987 Constitution, which granted
to the President the authority to augment an item for his office in the general
appropriations law; (2) Section 49 (Authority to Use Savings for Certain
Purposes) and Section 38 (Suspension of Expenditure Appropriations), Chapter
5, Book VI of Executive Order (EO) No. 292 (Administrative Code of 1987);
and (3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013,
particularly their provisions on the (a) use of savings; (b) meanings of savings
and augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as legal
bases the special provisions on unprogrammed fund contained in the GAAs of
2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM
brought the DAP to the consciousness of the Nation for the first time, and made
this present controversy inevitable. That the issues against the DAP came at a
time when the Nation was still seething in anger over Congressional pork barrel
– "an appropriation of government spending meant for localized projects and
secured solely or primarily to bring money to a representative’s district"7 –
excited the Nation as heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances
relating to the DAP were filed within days of each other, as follows: G.R. No.
209135 (Syjuco), on October 7, 2013; G.R. No. 209136 (Luna), on October 7,
2013; G.R. No. 209155 (Villegas),8 on October 16, 2013; G.R. No. 209164
(PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on October 16,
2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No. 209442
(Belgica), on October 29, 2013; G.R. No. 209517 (COURAGE), on
November6, 2013; and G.R. No. 209569 (VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s attention
NBC No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012), alleging that NBC No.
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541, which was issued to implement the DAP, directed the withdrawal of
unobligated allotments as of June 30, 2012 of government agencies and offices
with low levels of obligations, both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through the
Office of the Solicitor General (OSG).
The Court directed the holding of oral arguments on the significant issues raised
and joined.
Issues
Under the Advisory issued on November 14, 2013, the presentations of the
parties during the oral arguments were limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and mandamus are proper remedies
to assail the constitutionality and validity of the Disbursement Acceleration
Program (DAP), National Budget Circular (NBC) No. 541, and all other
executive issuances allegedly implementing the DAP. Subsumed in this issue
are whether there is a controversy ripe for judicial determination, and the
standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution,
which provides: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."
C. Whether or not the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987
Constitution insofar as:
(a)They treat the unreleased appropriations and unobligated allotments
withdrawn from government agencies as "savings" as the term is used in Sec.
25(5), in relation to the provisions of the GAAs of 2011, 2012 and 2013;
(b)They authorize the disbursement of funds for projects or programs not
provided in the GAAs for the Executive Department; and
(c)They "augment" discretionary lump sum appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the
system of checks and balances, and (3) the principle of public accountability
enshrined in the 1987 Constitution considering that it authorizes the release of
funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary
restraining order to restrain the implementation of the DAP, NBC No. 541, and
all other executive issuances allegedly implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of unprogrammed
funds in order to support its argument regarding the President’s power to spend.
During the oral arguments, the propriety of releasing unprogrammed funds to
support projects under the DAP was considerably discussed. The petitioners in
G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) dwelled on
unprogrammed funds in their respective memoranda. Hence, an additional issue
for the oral arguments is stated as follows:
F. Whether or not the release of unprogrammed funds under the DAP was in
accord with the GAAs.
During the oral arguments held on November 19, 2013, the Court directed Sec.
Abad to submit a list of savings brought under the DAP that had been sourced
from (a) completed programs; (b) discontinued or abandoned programs; (c)
unpaid appropriations for compensation; (d) a certified copy of the President’s
directive dated June 27, 2012 referred to in NBC No. 541; and (e) all circulars
or orders issued in relation to the DAP.9
In compliance, the OSG submitted several documents, as follows:
(1) A certified copy of the Memorandum for the President dated June 25, 2012
(Omnibus Authority to Consolidate Savings/Unutilized Balances and their
Realignment);10
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(2) Circulars and orders, which the respondents identified as related to the DAP,
namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of Funds for
FY 2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on the Release of Funds
for FY 2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of Operational Efficiency
Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30,
2012);
d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds for
FY 2013);
e. DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary
Treatment of Commitments/Obligations of the National Government);
f. COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised
Guidelines on the Submission of Quarterly Accountability Reports on
Appropriations, Allotments, Obligations and Disbursements);
g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund
Release System in the Government).
(3) A breakdown of the sources of savings, including savings from discontinued
projects and unpaid appropriations for compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution issued on
January 21, 2014 directing the respondents to submit the documents not yet
submitted in compliance with the directives of the Court or its Members,
submitted several evidence packets to aid the Court in understanding the factual
bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven memoranda issued by the DBM
through Sec. Abad, inclusive of annexes, listing in detail the 116 DAP identified
projects approved and duly signed by the President, as follows:
a. Memorandum for the President dated October 12, 2011 (FY 2011 Proposed
Disbursement Acceleration Program (Projects and Sources of Funds);
b. Memorandum for the President dated December 12, 2011 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and its Realignment);
c. Memorandum for the President dated June 25, 2012 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment);
d. Memorandum for the President dated September 4, 2012 (Release of funds
for other priority projects and expenditures of the Government);
e. Memorandum for the President dated December 19, 2012 (Proposed Priority
Projects and Expenditures of the Government);
f. Memorandum for the President dated May 20, 2013 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment to Fund the
Quarterly Disbursement Acceleration Program); and
g. Memorandum for the President dated September 25, 2013 (Funding for the
Task Force Pablo Rehabilitation Plan).
(2) Second Evidence Packet12 – consisting of 15 applications of the DAP, with
their corresponding Special Allotment Release Orders (SAROs) and
appropriation covers;
(3) Third Evidence Packet13 – containing a list and descriptions of 12 projects
under the DAP;
(4) Fourth Evidence Packet14 – identifying the DAP-related portions of the
Annual Financial Report (AFR) of the Commission on Audit for 2011 and
2012;
(5) Fifth Evidence Packet15 – containing a letter of Department of
Transportation and Communications(DOTC) Sec. Joseph Abaya addressed to
Sec. Abad recommending the withdrawal of funds from his agency, inclusive
of annexes; and
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(6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s visual
presentation for the January 28, 2014 oral arguments.
On February 5, 2014,17 the OSG forwarded the Seventh Evidence Packet,18
which listed the sources of funds brought under the DAP, the uses of such funds
per project or activity pursuant to DAP, and the legal bases thereof.
On February 14, 2014, the OSG submitted another set of documents in further
compliance with the Resolution dated January 28, 2014, viz:
(1) Certified copies of the certifications issued by the Bureau of Treasury to the
effect that the revenue collections exceeded the original revenue targets for the
years 2011, 2012 and 2013, including collections arising from sources not
considered in the original revenue targets, which certifications were required
for the release of the unprogrammed funds as provided in Special Provision No.
1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and 2013
GAAs; and (2) A report on releases of savings of the Executive Department for
the use of the Constitutional Commissions and other branches of the
Government, as well as the fund releases to the Senate and the Commission on
Elections (COMELEC).
RULING
I.
Procedural Issue:
a) The petitions under Rule 65 are proper remedies
All the petitions are filed under Rule 65 of the Rules of Court, and include
applications for the issuance of writs of preliminary prohibitory injunction or
temporary restraining orders. More specifically, the nature of the petitions is
individually set forth hereunder, to wit:
G.R. No. 209135 (Syjuco) Certiorari, Prohibition and Mandamus
G.R. No. 209136 (Luna) Certiorariand Prohibition
G.R. No. 209155 (Villegas) Certiorariand Prohibition
G.R. No. 209164 (PHILCONSA) Certiorariand Prohibition
G.R. No. 209260 (IBP) Prohibition
G.R. No. 209287 (Araullo) Certiorariand Prohibition
G.R. No. 209442 (Belgica) Certiorari
G.R. No. 209517 (COURAGE) Certiorari and Prohibition
G.R. No. 209569 (VACC) Certiorari and Prohibition
The respondents submit that there is no actual controversy that is ripe for
adjudication in the absence of adverse claims between the parties;19 that the
petitioners lacked legal standing to sue because no allegations were made to the
effect that they had suffered any injury as a result of the adoption of the DAP
and issuance of NBC No. 541; that their being taxpayers did not immediately
confer upon the petitioners the legal standing to sue considering that the
adoption and implementation of the DAP and the issuance of NBC No. 541
were not in the exercise of the taxing or spending power of Congress;20 and
that even if the petitioners had suffered injury, there were plain, speedy and
adequate remedies in the ordinary course of law available to them, like assailing
the regularity of the DAP and related issuances before the Commission on
Audit (COA) or in the trial courts.21
The respondents aver that the special civil actions of certiorari and prohibition
are not proper actions for directly assailing the constitutionality and validity of
the DAP, NBC No. 541, and the other executive issuances implementing the
DAP.22
In their memorandum, the respondents further contend that there is no
authorized proceeding under the Constitution and the Rules of Court for
questioning the validity of any law unless there is an actual case or controversy
the resolution of which requires the determination of the constitutional
question; that the jurisdiction of the Court is largely appellate; that for a court
of law to pass upon the constitutionality of a law or any act of the Government
when there is no case or controversy is for that court to set itself up as a reviewer
of the acts of Congress and of the President in violation of the principle of
separation of powers; and that, in the absence of a pending case or controversy
involving the DAP and NBC No. 541, any decision herein could amount to a
mere advisory opinion that no court can validly render.23
The respondents argue that it is the application of the DAP to actual situations
that the petitioners can question either in the trial courts or in the COA; that if
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the petitioners are dissatisfied with the ruling either of the trial courts or of the
COA, they can appeal the decision of the trial courts by petition for review on
certiorari, or assail the decision or final order of the COA by special civil action
for certiorari under Rule 64 of the Rules of Court.24
The respondents’ arguments and submissions on the procedural issue are bereft
of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Thus, the Constitution vests judicial power in the Court and in such lower courts
as may be established by law. In creating a lower court, Congress concomitantly
determines the jurisdiction of that court, and that court, upon its creation,
becomes by operation of the Constitution one of the repositories of judicial
power.25 However, only the Court is a constitutionally created court, the rest
being created by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts of
justice not only "to settle actual controversies involving rights which are legally
demandable and enforceable" but also "to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government." It has thereby
expanded the concept of judicial power, which up to then was confined to its
traditional ambit of settling actual controversies involving rights that were
legally demandable and enforceable.
The background and rationale of the expansion of judicial power under the 1987
Constitution were laid out during the deliberations of the 1986 Constitutional
Commission by Commissioner Roberto R. Concepcion (a former Chief Justice
of the Philippines) in his sponsorship of the proposed provisions on the
Judiciary, where he said:–
The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be
enforced by a judicial party. In a decided case, a husband complained that his
wife was unwilling to perform her duties as a wife. The Court said: "We can
tell your wife what her duties as such are and that she is bound to comply with
them, but we cannot force her physically to discharge her main marital duty to
her husband. There are some rights guaranteed by law, but they are so personal
that to enforce them by actual compulsion would be highly derogatory to human
dignity." This is why the first part of the second paragraph of Section 1 provides
that: Judicial power includes the duty of courts to settle actual controversies
involving rights which are legally demandable or enforceable…
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme Court has, also,
another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and the
Judiciary. Each one is supreme within its own sphere and independent of the
others. Because of that supremacy power to determine whether a given law is
valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words,
the judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power
but a duty to pass judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question. (Bold emphasis supplied)26
Upon interpellation by Commissioner Nolledo, Commissioner Concepcion
clarified the scope of judicial power in the following manner:–
335 of 692

MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power includes the duty of
courts of justice to settle actual controversies…" The term "actual
controversies" according to the Commissioner should refer to questions which
are political in nature and, therefore, the courts should not refuse to decide those
political questions. But do I understand it right that this is restrictive or only an
example? I know there are cases which are not actual yet the court can assume
jurisdiction. An example is the petition for declaratory relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant
declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial
power is not vested in the Supreme Court alone but also in other lower courts
as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had
abused its authority to the extent of lacking jurisdiction or excess of jurisdiction,
that is not a political question. Therefore, the court has the duty to decide.27
Our previous Constitutions equally recognized the extent of the power of
judicial review and the great responsibility of the Judiciary in maintaining the
allocation of powers among the three great branches of Government. Speaking
for the Court in Angara v. Electoral Commission,28 Justice Jose P. Laurel
intoned:
x x x In times of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely obliterated.
In cases of conflict, the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers between
the several department and among the integral or constituent units thereof.
xxxx
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution itself
has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other department; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. x x x29
What are the remedies by which the grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
Government may be determined under the Constitution?
The present Rules of Court uses two special civil actions for determining and
correcting grave abuse of discretion amounting to lack or excess of jurisdiction.
These are the special civil actions for certiorari and prohibition, and both are
governed by Rule 65. A similar remedy of certiorari exists under Rule 64, but
the remedy is expressly applicable only to the judgments and final orders or
resolutions of the Commission on Elections and the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present system
are aptly explained in Delos Santos v. Metropolitan Bank and Trust
Company:30
336 of 692
In the common law, from which the remedy of certiorari evolved, the writ of
certiorari was issued out of Chancery, or the King’s Bench, commanding agents
or officers of the inferior courts to return the record of a cause pending before
them, so as to give the party more sure and speedy justice, for the writ would
enable the superior court to determine from an inspection of the record whether
the inferior court’s judgment was rendered without authority. The errors were
of such a nature that, if allowed to stand, they would result in a substantial injury
to the petitioner to whom no other remedy was available. If the inferior court
acted without authority, the record was then revised and corrected in matters of
law. The writ of certiorari was limited to cases in which the inferior court was
said to be exceeding its jurisdiction or was not proceeding according to essential
requirements of law and would lie only to review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains much the
same as it has been in the common law. In this jurisdiction, however, the
exercise of the power to issue the writ of certiorari is largely regulated by laying
down the instances or situations in the Rules of Court in which a superior court
may issue the writ of certiorari to an inferior court or officer. Section 1, Rule
65 of the Rules of Court compellingly provides the requirements for that
purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of jurisdiction,
which includes the commission of grave abuse of discretion amounting to lack
of jurisdiction. In this regard, mere abuse of discretion is not enough to warrant
the issuance of the writ. The abuse of discretion must be grave, which means
either that the judicial or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive duty, or virtually refused
to perform the duty enjoined or to act in contemplation of law, such as when
such judge, tribunal or board exercising judicial or quasi-judicial powers acted
in a capricious or whimsical manner as to be equivalent to lack of
jurisdiction.31
Although similar to prohibition in that it will lie for want or excess of
jurisdiction, certiorari is to be distinguished from prohibition by the fact that it
is a corrective remedy used for the re-examination of some action of an inferior
tribunal, and is directed to the cause or proceeding in the lower court and not to
the court itself, while prohibition is a preventative remedy issuing to restrain
future action, and is directed to the court itself.32 The Court expounded on the
nature and function of the writ of prohibition in Holy Spirit Homeowners
Association, Inc. v. Defensor:33
A petition for prohibition is also not the proper remedy to assail an IRR issued
in the exercise of a quasi-legislative function. Prohibition is an extraordinary
writ directed against any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, ordering said entity
or person to desist from further proceedings when said proceedings are without
or in excess of said entity’s or person’s jurisdiction, or are accompanied with
grave abuse of discretion, and there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law. Prohibition lies against judicial
or ministerial functions, but not against legislative or quasi-legislative
functions. Generally, the purpose of a writ of prohibition is to keep a lower
court within the limits of its jurisdiction in order to maintain the administration
of justice in orderly channels. Prohibition is the proper remedy to afford relief
against usurpation of jurisdiction or power by an inferior court, or when, in the
exercise of jurisdiction in handling matters clearly within its cognizance the
inferior court transgresses the bounds prescribed to it by the law, or where there
is no adequate remedy available in the ordinary course of law by which such
relief can be obtained. Where the principal relief sought is to invalidate an IRR,
petitioners’ remedy is an ordinary action for its nullification, an action which
properly falls under the jurisdiction of the Regional Trial Court. In any case,
petitioners’ allegation that "respondents are performing or threatening to
perform functions without or in excess of their jurisdiction" may appropriately
be enjoined by the trial court through a writ of injunction or a temporary
restraining order.
With respect to the Court, however, the remedies of certiorari and prohibition
are necessarily broader in scope and reach, and the writ of certiorari or
prohibition may be issued to correct errors of jurisdiction committed not only
by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions but also to set right, undo and restrain any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch
or instrumentality of the Government, even if the latter does not exercise
337 of 692
judicial, quasi-judicial or ministerial functions. This application is expressly
authorized by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of
legislative and executive officials.34
Necessarily, in discharging its duty under Section 1, supra, to set right and undo
any act of grave abuse of discretion amounting to lack or excess of jurisdiction
by any branch or instrumentality of the Government, the Court is not at all
precluded from making the inquiry provided the challenge was properly
brought by interested or affected parties. The Court has been thereby entrusted
expressly or by necessary implication with both the duty and the obligation of
determining, in appropriate cases, the validity of any assailed legislative or
executive action. This entrustment is consistent with the republican system of
checks and balances.35
Following our recent dispositions concerning the congressional pork barrel, the
Court has become more alert to discharge its constitutional duty. We will not
now refrain from exercising our expanded judicial power in order to review and
determine, with authority, the limitations on the Chief Executive’s spending
power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial review are the following,
namely: (1) there must bean actual case or justiciable controversy before the
Court; (2) the question before the Court must be ripe for adjudication; (3) the
person challenging the act must be a proper party; and (4) the issue of
constitutionality must be raised at the earliest opportunity and must be the very
litis mota of the case.36
The first requisite demands that there be an actual case calling for the exercise
of judicial power by the Court.37 An actual case or controversy, in the words
of Belgica v. Executive Secretary Ochoa:38
x x x is one which involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. In other words, "[t]here must be
a contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence." Related to the requirement of an actual case or
controversy is the requirement of "ripeness," meaning that the questions raised
for constitutional scrutiny are already ripe for adjudication. "A question is ripe
for adjudication when the act being challenged has had a direct adverse effect
on the individual challenging it. It is a prerequisite that something had then been
accomplished or performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action." "Withal, courts
will decline to pass upon constitutional issues through advisory opinions, bereft
as they are of authority to resolve hypothetical or moot questions."
An actual and justiciable controversy exists in these consolidated cases. The
incompatibility of the perspectives of the parties on the constitutionality of the
DAP and its relevant issuances satisfy the requirement for a conflict between
legal rights. The issues being raised herein meet the requisite ripeness
considering that the challenged executive acts were already being implemented
by the DBM, and there are averments by the petitioners that such
implementation was repugnant to the letter and spirit of the Constitution.
Moreover, the implementation of the DAP entailed the allocation and
expenditure of huge sums of public funds. The fact that public funds have been
allocated, disbursed or utilized by reason or on account of such challenged
executive acts gave rise, therefore, to an actual controversy that is ripe for
adjudication by the Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral arguments
that the DAP as a program had been meanwhile discontinued because it had
fully served its purpose, saying: "In conclusion, Your Honors, may I inform the
Court that because the DAP has already fully served its purpose, the
Administration’s economic managers have recommended its termination to the
President. x x x."39
The Solicitor General then quickly confirmed the termination of the DAP as a
program, and urged that its termination had already mooted the challenges to
the DAP’s constitutionality, viz:
338 of 692
DAP as a program, no longer exists, thereby mooting these present cases
brought to challenge its constitutionality. Any constitutional challenge should
no longer be at the level of the program, which is now extinct, but at the level
of its prior applications or the specific disbursements under the now defunct
policy. We challenge the petitioners to pick and choose which among the 116
DAP projects they wish to nullify, the full details we will have provided by
February 5. We urge this Court to be cautious in limiting the constitutional
authority of the President and the Legislature to respond to the dynamic needs
of the country and the evolving demands of governance, lest we end up straight
jacketing our elected representatives in ways not consistent with our
constitutional structure and democratic principles.40
A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events, so that a declaration thereon would be of no
practical use or value.41
The Court cannot agree that the termination of the DAP as a program was a
supervening event that effectively mooted these consolidated cases. Verily, the
Court had in the past exercised its power of judicial review despite the cases
being rendered moot and academic by supervening events, like: (1) when there
was a grave violation of the Constitution; (2) when the case involved a situation
of exceptional character and was of paramount public interest; (3) when the
constitutional issue raised required the formulation of controlling principles to
guide the Bench, the Bar and the public; and (4) when the case was capable of
repetition yet evading review.42
Assuming that the petitioners’ several submissions against the DAP were
ultimately sustained by the Court here, these cases would definitely come under
all the exceptions. Hence, the Court should not abstain from exercising its
power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a
right of appearance in a court of justice on a given question."43 The concept of
legal standing, or locus standi, was particularly discussed in De Castro v.
Judicial and Bar Council,44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present need
to regulate the invocation of the intervention of the Court to correct any official
action or policy in order to avoid obstructing the efficient functioning of public
officials and offices involved in public service. It is required, therefore, that the
petitioner must have a personal stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions."
Accordingly, it has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about
to be subjected to some burdens or penalties by reason of the statute or act
complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the direct
injury test for determining whether a petitioner in a public action had locus
standi. There, the Court held that the person who would assail the validity of a
statute must have "a personal and substantial interest in the case such that he
has sustained, or will sustain direct injury as a result." Vera was followed in
Custodio v. President of the Senate, Manila Race Horse Trainers’ Association
v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual
v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its
discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized
the approach when the cases had "transcendental importance." Some notable
controversies whose petitioners did not pass the direct injury test were allowed
to be treated in the same way as in Araneta v. Dinglasan.
339 of 692

In the 1975 decision in Aquino v. Commission on Elections, this Court decided
to resolve the issues raised by the petition due to their "far reaching
implications," even if the petitioner had no personality to file the suit. The
liberal approach of Aquino v. Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of
laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a
supposedly illegal or unconstitutional executive or legislative action rests on
the theory that the petitioner represents the public in general. Although such
petitioner may not be as adversely affected by the action complained against as
are others, it is enough that he sufficiently demonstrates in his petition that he
is entitled to protection or relief from the Court in the vindication of a public
right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer
to gain locus standi. That is not surprising, for even if the issue may appear to
concern only the public in general, such capacities nonetheless equip the
petitioner with adequate interest to sue. In David v. Macapagal-Arroyo, the
Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: "In matter of mere public right,
however…the people are the real parties…It is at least the right, if not the duty,
of every citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied." With respect to
taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to
his injury cannot be denied."45
The Court has cogently observed in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.46 that "[s]tanding is a peculiar concept in constitutional
law because in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act but by
concerned citizens, taxpayers or voters who actually sue in the public interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have
invoked their capacities as taxpayers who, by averring that the issuance and
implementation of the DAP and its relevant issuances involved the illegal
disbursements of public funds, have an interest in preventing the further
dissipation of public funds. The petitioners in G.R. No. 209287 (Araullo) and
G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the
enforcement and observance of the constitutional limitations on the political
branches of the Government.47
On its part, PHILCONSA simply reminds that the Court has long recognized
its legal standing to bring cases upon constitutional issues.48 Luna, the
petitioner in G.R. No. 209136, cites his additional capacity as a lawyer. The
IBP, the petitioner in G.R. No. 209260, stands by "its avowed duty to work for
the rule of law and of paramount importance of the question in this action, not
to mention its civic duty as the official association of all lawyers in this
country."49
Under their respective circumstances, each of the petitioners has established
sufficient interest in the outcome of the controversy as to confer locus standi on
each of them.
In addition, considering that the issues center on the extent of the power of the
Chief Executive to disburse and allocate public funds, whether appropriated by
Congress or not, these cases pose issues that are of transcendental importance
to the entire Nation, the petitioners included. As such, the determination of such
important issues call for the Court’s exercise of its broad and wise discretion
"to waive the requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised."50
II.
Substantive Issues
340 of 692
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in
properly appreciating and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had
derived from the Latin word bulga (which means bag or purse).51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act)
defined "budget" as the financial program of the National Government for a
designated fiscal year, consisting of the statements of estimated receipts and
expenditures for the fiscal year for which it was intended to be effective based
on the results of operations during the preceding fiscal years. The term was
given a different meaning under Republic Act No. 992 (Revised Budget Act)
by describing the budget as the delineation of the services and products, or
benefits that would accrue to the public together with the estimated unit cost of
each type of service, product or benefit.52 For a forthright definition, budget
should simply be identified as the financial plan of the Government,53 or "the
master plan of government."54
The concept of budgeting has not been the product of recent economies. In
reality, financing public goals and activities was an idea that existed from the
creation of the State.55 To protect the people, the territory and sovereignty of
the State, its government must perform vital functions that required public
expenditures. At the beginning, enormous public expenditures were spent for
war activities, preservation of peace and order, security, administration of
justice, religion, and supply of limited goods and services.56 In order to finance
those expenditures, the State raised revenues through taxes and impositions.57
Thus, budgeting became necessary to allocate public revenues for specific
government functions.58 The State’s budgeting mechanism eventually
developed through the years with the growing functions of its government and
changes in its market economy.
The Philippine Budget System has been greatly influenced by western public
financial institutions. This is because of the country’s past as a colony
successively of Spain and the United States for a long period of time. Many
aspects of the country’s public fiscal administration, including its Budget
System, have been naturally patterned after the practices and experiences of the
western public financial institutions. At any rate, the Philippine Budget System
is presently guided by two principal objectives that are vital to the development
of a progressive democratic government, namely: (1) to carry on all government
activities under a comprehensive fiscal plan developed, authorized and
executed in accordance with the Constitution, prevailing statutes and the
principles of sound public management; and (2) to provide for the periodic
review and disclosure of the budgetary status of the Government in such detail
so that persons entrusted by law with the responsibility as well as the
enlightened citizenry can determine the adequacy of the budget actions taken,
authorized or proposed, as well as the true financial position of the
Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the
American Regime up to the passage of the Jones Law in 1916. A Budget Office
was created within the Department of Finance by the Jones Law to discharge
the budgeting function, and was given the responsibility to assist in the
preparation of an executive budget for submission to the Philippine
Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget procedure
were established, and subsequently strengthened through the enactment of laws
and executive acts.61 EO No. 25, issued by President Manuel L. Quezon on
April 25, 1936, created the Budget Commission to serve as the agency that
carried out the President’s responsibility of preparing the budget.62 CA No.
246, the first budget law, went into effect on January 1, 1938 and established
the Philippine budget process. The law also provided a line-item budget as the
framework of the Government’s budgeting system,63 with emphasis on the
observance of a "balanced budget" to tie up proposed expenditures with existing
revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of
Republic Act (RA) No. 992,whereby Congress introduced performance-
budgeting to give importance to functions, projects and activities in terms of
341 of 692
expected results.64 RA No. 992 also enhanced the role of the Budget
Commission as the fiscal arm of the Government.65
The 1973 Constitution and various presidential decrees directed a series of
budgetary reforms that culminated in the enactment of PD No. 1177 that
President Marcos issued on July30, 1977, and of PD No. 1405, issued on June
11, 1978. The latter decree converted the Budget Commission into the Ministry
of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and
Management (OBM) under EO No. 711. The OBM became the DBM pursuant
to EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget
Preparation; (2) Budget Legislation; (3) Budget Execution; and (4)
Accountability. Each phase is distinctly separate from the others but they
overlap in the implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget
Call by the DBM. The Budget Call contains budget parameters earlier set by
the Development Budget Coordination Committee (DBCC) as well as policy
guidelines and procedures to aid government agencies in the preparation and
submission of their budget proposals. The Budget Call is of two kinds, namely:
(1) a National Budget Call, which is addressed to all agencies, including state
universities and colleges; and (2) a Corporate Budget Call, which is addressed
to all government-owned and -controlled corporations (GOCCs) and
government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and
agencies submit their respective Agency Budget Proposals to the DBM. To
boost citizen participation, the current administration has tasked the various
departments and agencies to partner with civil society organizations and other
citizen-stakeholders in the preparation of the Agency Budget Proposals, which
proposals are then presented before a technical panel of the DBM in scheduled
budget hearings wherein the various departments and agencies are given the
opportunity to defend their budget proposals. DBM bureaus thereafter review
the Agency Budget Proposals and come up with recommendations for the
Executive Review Board, comprised by the DBM Secretary and the DBM’s
senior officials. The discussions of the Executive Review Board cover the
prioritization of programs and their corresponding support vis-à-vis the priority
agenda of the National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the National
Expenditure Program (NEP)and a Budget of Expenditures and Sources of
Financing (BESF). The NEP provides the details of spending for each
department and agency by program, activity or project (PAP), and is submitted
in the form of a proposed GAA. The Details of Selected Programs and Projects
is the more detailed disaggregation of key PAPs in the NEP, especially those in
line with the National Government’s development plan. The Staffing Summary
provides the staffing complement of each department and agency, including the
number of positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to the
President and the Cabinet for further refinements or reprioritization. Once the
NEP and the BESF are approved by the President and the Cabinet, the DBM
prepares the budget documents for submission to Congress. The budget
documents consist of: (1) the President’s Budget Message, through which the
President explains the policy framework and budget priorities; (2) the BESF,
mandated by Section 22, Article VII of the Constitution,68 which contains the
macroeconomic assumptions, public sector context, breakdown of the
expenditures and funding sources for the fiscal year and the two previous years;
and (3) the NEP.
Public or government expenditures are generally classified into two categories,
specifically: (1) capital expenditures or outlays; and (2) current operating
expenditures. Capital expenditures are the expenses whose usefulness lasts for
more than one year, and which add to the assets of the Government, including
investments in the capital of government-owned or controlled corporations and
their subsidiaries.69 Current operating expenditures are the purchases of goods
and services in current consumption the benefit of which does not extend
beyond the fiscal year.70 The two components of current expenditures are those
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for personal services (PS), and those for maintenance and other operating
expenses(MOOE).
Public expenditures are also broadly grouped according to their functions into:
(1) economic development expenditures (i.e., expenditures on agriculture and
natural resources, transportation and communications, commerce and industry,
and other economic development efforts);71 (2) social services or social
development expenditures (i.e., government outlay on education, public health
and medicare, labor and welfare and others);72 (3) general government or
general public services expenditures (i.e., expenditures for the general
government, legislative services, the administration of justice, and for pensions
and gratuities);73 (4) national defense expenditures (i.e., sub-divided into
national security expenditures and expenditures for the maintenance of peace
and order);74 and (5) public debt.75
capital assets or scrap thereof and public domain, and gains on such sales like
sale of public lands, buildings and other structures, equipment, and other
properties recorded as fixed assets); 81 (3) grants(i.e., voluntary contributions
and aids given to the Government for its operation on specific purposes in the
form of money and/or materials, and do not require any monetary commitment
on the part of the recipient);82 (4) extraordinary income(i.e., repayment of
loans and advances made by government corporations and local governments
and the receipts and shares in income of the Banko Sentral ng Pilipinas, and
other receipts);83 and (5) public borrowings(i.e., proceeds of repayable
obligations generally with interest from domestic and foreign creditors of the
Government in general, including the National Government and its political
subdivisions).84
More specifically, public revenues are classified as follows:85

Public expenditures may further be classified according to the nature of funds, General Income
i.e., general fund, special fund or bond fund.76 1. Subsidy Income from National
Government
On the other hand, public revenues complement public expenditures and cover 2. Subsidy from Central Office
all income or receipts of the government treasury used to support government 3. Subsidy from Regional
expenditures.77 Office/Staff Bureaus
4. Income from Government
Classical economist Adam Smith categorized public revenues based on two Services
principal sources, stating: "The revenue which must defray…the necessary 5. Income from Government
expenses of government may be drawn either, first from some fund which Business Operations
peculiarly belongs to the sovereign or commonwealth, and which is 6. Sales Revenue
independent of the revenue of the people, or, secondly, from the revenue of the 7. Rent Income
people."78 Adam Smith’s classification relied on the two aspects of the nature 8. Insurance Income
of the State: first, the State as a juristic person with an artificial personality, and, 9. Dividend Income
second, the State as a sovereign or entity possessing supreme power. Under the 10. Interest Income
first aspect, the State could hold property and engage in trade, thereby deriving 11. Sale of Confiscated Goods and
what is called its quasi private income or revenues, and which "peculiarly Properties
belonged to the sovereign." Under the second aspect, the State could collect by 12. Foreign Exchange (FOREX)
imposing charges on the revenues of its subjects in the form of taxes.79 Gains
13. Miscellaneous Operating and
In the Philippines, public revenues are generally derived from the following Service Income
sources, to wit: (1) tax revenues(i.e., compulsory contributions to finance 14. Fines and Penalties-Government
government activities); 80 (2) capital revenues(i.e., proceeds from sales of fixed Services and Business Operations
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15. Income from Grants and
Donations
Specific Income
1. Income Taxes
2. Property Taxes
3. Taxes on Goods and Services
4. Taxes on International Trade and
Transactions
5. Other Taxes 6.Fines and Penalties-Tax Revenue
7. Other Specific Income
c.2. Budget Legislation86
The Budget Legislation Phase covers the period commencing from the time
Congress receives the President’s Budget, which is inclusive of the NEPand the
BESF, up to the President’s approval of the GAA. This phase is also known as
the Budget Authorization Phase, and involves the significant participation of
the Legislative through its deliberations.
Initially, the President’s Budget is assigned to the House of Representatives’
Appropriations Committee on First Reading. The Appropriations Committee
and its various Sub-Committees schedule and conduct budget hearings to
examine the PAPs of the departments and agencies. Thereafter, the House of
Representatives drafts the General Appropriations Bill (GAB).87
The GABis sponsored, presented and defended by the House of
Representatives’ Appropriations Committee and Sub-Committees in plenary
session. As with other laws, the GAB is approved on Third Reading before the
House of Representatives’ version is transmitted to the Senate.88
After transmission, the Senate conducts its own committee hearings on the
GAB. To expedite proceedings, the Senate may conduct its committee hearings
simultaneously with the House of Representatives’ deliberations. The Senate’s
Finance Committee and its Sub-Committees may submit the proposed
amendments to the GAB to the plenary of the Senate only after the House of
Representatives has formally transmitted its version to the Senate. The Senate
version of the GAB is likewise approved on Third Reading.89
The House of Representatives and the Senate then constitute a panel each to sit
in the Bicameral Conference Committee for the purpose of discussing and
harmonizing the conflicting provisions of their versions of the GAB. The
"harmonized" version of the GAB is next presented to the President for
approval.90 The President reviews the GAB, and prepares the Veto Message
where budget items are subjected to direct veto,91 or are identified for
conditional implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the GAB
for the ensuing fiscal year, the GAA for the preceding fiscal year shall be
deemed re-enacted and shall remain in force and effect until the GAB is passed
by the Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next step is the implementation
of the budget. The Budget Execution Phase is primarily the function of the
DBM, which is tasked to perform the following procedures, namely: (1) to issue
the programs and guidelines for the release of funds; (2) to prepare an Allotment
and Cash Release Program; (3) to release allotments; and (4) to issue
disbursement authorities.
The implementation of the GAA is directed by the guidelines issued by the
DBM. Prior to this, the various departments and agencies are required to submit
Budget Execution Documents(BED) to outline their plans and performance
targets by laying down the physical and financial plan, the monthly cash
program, the estimate of monthly income, and the list of obligations that are not
yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a Cash
Release Program (CRP).The ARP sets a limit for allotments issued in general
and to a specific agency. The CRP fixes the monthly, quarterly and annual
disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued by
the DBM. Allotments are lesser in scope than appropriations, in that the latter
embrace the general legislative authority to spend. Allotments may be released
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in two forms – through a comprehensive Agency Budget Matrix (ABM),94 or,
individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to incur
obligations96 on behalf of the Government in order to implement their PAPs.
Obligations may be incurred in various ways, like hiring of personnel, entering
into contracts for the supply of goods and services, and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues a
disbursement authority so that cash may be allocated in payment of the
obligations. A cash or disbursement authority that is periodically issued is
referred to as a Notice of Cash Allocation (NCA),97 which issuance is based
upon an agency’s submission of its Monthly Cash Program and other required
documents. The NCA specifies the maximum amount of cash that can be
withdrawn from a government servicing bank for the period indicated. Apart
from the NCA, the DBM may issue a Non-Cash Availment Authority(NCAA)
to authorize non-cash disbursements, or a Cash Disbursement Ceiling(CDC)
for departments with overseas operations to allow the use of income collected
by their foreign posts for their operating requirements.
Actual disbursement or spending of government funds terminates the Budget
Execution Phase and is usually accomplished through the Modified
Disbursement Scheme under which disbursements chargeable against the
National Treasury are coursed through the government servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget cycle because it ensures that
the government funds have been effectively and efficiently utilized to achieve
the State’s socio-economic goals. It also allows the DBM to assess the
performance of agencies during the fiscal year for the purpose of implementing
reforms and establishing new policies.
An agency’s accountability may be examined and evaluated through (1)
performance targets and outcomes; (2) budget accountability reports; (3) review
of agency performance; and (4) audit conducted by the Commission on
Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to
promote economic growth
Policy is always a part of every budget and fiscal decision of any
Administration.99 The national budget the Executive prepares and presents to
Congress represents the Administration’s "blueprint for public policy" and
reflects the Government’s goals and strategies.100 As such, the national budget
becomes a tangible representation of the programs of the Government in
monetary terms, specifying therein the PAPs and services for which specific
amounts of public funds are proposed and allocated.101 Embodied in every
national budget is government spending.102
When he assumed office in the middle of 2010, President Aquino made
efficiency and transparency in government spending a significant focus of his
Administration. Yet, although such focus resulted in an improved fiscal deficit
of 0.5% in the gross domestic product (GDP) from January to July of 2011, it
also unfortunately decelerated government project implementation and
payment schedules.103 The World Bank observed that the Philippines’
economic growth could be reduced, and potential growth could be weakened
should the Government continue with its underspending and fail to address the
large deficiencies in infrastructure.104 The economic situation prevailing in the
middle of 2011 thus paved the way for the development and implementation of
the DAP as a stimulus package intended to fast-track public spending and to
push economic growth by investing on high-impact budgetary PAPs to be
funded from the "savings" generated during the year as well as from
unprogrammed funds.105 In that respect, the DAP was the product of "plain
executive policy-making" to stimulate the economy by way of accelerated
spending.106 The Administration would thereby accelerate government
spending by: (1) streamlining the implementation process through the
clustering of infrastructure projects of the Department of Public Works and
Highways (DPWH) and the Department of Education (DepEd),and (2) front
loading PPP-related projects107 due for implementation in the following
year.108
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Did the stimulus package work?
The March 2012 report of the World Bank,109 released after the initial
implementation of the DAP, revealed that the DAP was partially successful.
The disbursements under the DAP contributed 1.3 percentage points to GDP
growth by the fourth quarter of 2011.110 The continued implementation of the
DAP strengthened growth by 11.8% year on year while infrastructure spending
rebounded from a 29% contraction to a 34% growth as of September 2013.111
DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your approval of the Disbursement
Acceleration Program totaling P72.11 billion. We are already working with all
the agencies concerned for the immediate execution of the projects therein.
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The DAP thus proved to be a demonstration that expenditure was a policy For His Excellency’s Consideration
instrument that the Government could use to direct the economies towards
growth and development.112 The Government, by spending on public (Sgd.) FLORENCIO B. ABAD
infrastructure, would signify its commitment of ensuring profitability for
prospective investors.113 The PAPs funded under the DAP were chosen for [/] APPROVED
this reason based on their: (1) multiplier impact on the economy and
infrastructure development; (2) beneficial effect on the poor; and (3) translation [ ] DISAPPROVED
into disbursements.114
(Sgd.) H.E. BENIGNO S. AQUINO, III
b. History of the implementation of
the DAP, and sources of funds OCT 12, 2011
under the DAP
The memorandum of October 12, 2011 was followed by another memorandum
How the Administration’s economic managers conceptualized and developed for the President dated December 12, 2011116 requesting omnibus authority to
the DAP, and finally presented it to the President remains unknown because the consolidate the savings and unutilized balances for fiscal year 2011. Pertinent
relevant documents appear to be scarce. portions of the memorandum of December 12, 2011 read:

The earliest available document relating to the genesis of the DAP was the MEMORANDUM FOR THE PRESIDENT
memorandum of October 12,2011 from Sec. Abad seeking the approval of the
President to implement the proposed DAP. The memorandum, which contained xxxx
a list of the funding sources for P72.11 billion and of the proposed priority
projects to be funded,115 reads: SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances
and its Realignment
MEMORANDUM FOR THE PRESIDENT
DATE: December 12, 2011
xxxx
This is to respectfully request for the grant of Omnibus Authority to consolidate
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION savings/unutilized balances in FY 2011 corresponding to completed or
PROGRAM (PROJECTS AND SOURCES OF FUNDS)
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discontinued projects which may be pooled to fund additional projects or
expenditures.
In addition, Mr. President, this measure will allow us to undertake projects even
if their implementation carries over to 2012 without necessarily impacting on
our budget deficit cap next year.
BACKGROUND
1.0 The DBM, during the course of performance reviews conducted on the
agencies’ operations, particularly on the implementation of their
projects/activities, including expenses incurred in undertaking the same, have
identified savings out of the 2011 General Appropriations Act. Said savings
correspond to completed or discontinued projects under certain
departments/agencies which may be pooled, for the following:
1.1 to provide for new activities which have not been anticipated during
preparation of the budget;
1.2 to augment additional requirements of on-going priority projects; and
1.3 to provide for deficiencies under the Special Purpose Funds, e.g., PDAF,
Calamity Fund, Contingent Fund
1.4 to cover for the modifications of the original allotment class allocation as a
result of on-going priority projects and implementation of new activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved our request for omnibus
authority to pool savings/unutilized balances in FY 2010 last November 25,
2010.
4.0 It is understood that in the utilization of the pooled savings, the DBM shall
secure the corresponding approval/confirmation of the President. Furthermore,
it is assured that the proposed realignments shall be within the authorized
Expenditure level.
5.0 Relative thereto, we have identified some expenditure items that may be
sourced from the said pooled appropriations in FY 2010 that will expire on
December 31, 2011 and appropriations in FY 2011 that may be declared as
savings to fund additional expenditures.
5.1 The 2010 Continuing Appropriations (pooled savings) is proposed to be
spent for the projects that we have identified to be immediate actual
disbursements considering that this same fund source will expire on December
31, 2011.
5.2 With respect to the proposed expenditure items to be funded from the FY
2011 Unreleased Appropriations, most of these are the same projects for which
the DBM is directed by the Office of the President, thru the Executive
Secretary, to source funds.
6.0 Among others, the following are such proposed additional projects that have
been chosen given their multiplier impact on economy and infrastructure
development, their beneficial effect on the poor, and their translation into
disbursements. Please note that we have classified the list of proposed projects
as follows:
7.0 x x x
FOR THE PRESIDENT’S APPROVAL
8.0 Foregoing considered, may we respectfully request for the President’s
approval for the following:
8.1 Grant of omnibus authority to consolidate FY 2011 savings/unutilized
balances and its realignment; and
8.2 The proposed additional projects identified for funding.
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For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund
proposed projects were contained in various other memoranda from Sec. Abad
dated June 25, 2012,117 September 4, 2012,118 December 19, 2012,119 May
20, 2013,120 and September 25, 2013.121 The President apparently approved
all the requests, withholding approval only of the proposed projects contained
in the June 25, 2012 memorandum, as borne out by his marginal note therein to
the effect that the proposed projects should still be "subject to further
discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC
No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012),123 reproduced herein
as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and Colleges and
other Offices of the National Government, Budget and Planning Officers;
Heads of Accounting Units and All Others Concerned
SUBJECT : Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative
Code of 1987), periodically reviews and evaluates the departments/agencies’
efficiency and effectiveness in utilizing budgeted funds for the delivery of
services and production of goods, consistent with the government priorities.
In the event that a measure is necessary to further improve the operational
efficiency of the government, the President is authorized to suspend or stop
further use of funds allotted for any agency or expenditure authorized in the
General Appropriations Act. Withdrawal and pooling of unutilized allotment
releases can be effected by DBM based on authority of the President, as
mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has not met its
spending targets. In order to accelerate spending and sustain the fiscal targets
during the year, expenditure measures have to be implemented to optimize the
utilization of available resources.
Departments/agencies have registered low spending levels, in terms of
obligations and disbursements per initial review of their 2012 performance. To
enhance agencies’ performance, the DBM conducts continuous consultation
meetings and/or send call-up letters, requesting them to identify slow-moving
programs/projects and the factors/issues affecting their performance (both
pertaining to internal systems and those which are outside the agencies’ spheres
of control). Also, they are asked to formulate strategies and improvement plans
for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have continued
to post low obligation levels as of end of first semester, thus resulting to
substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012 authorized the
withdrawal of unobligated allotments of agencies with low levels of obligations
as of June 30, 2012, both for continuing and current allotments. This measure
will allow the maximum utilization of available allotments to fund and
undertake other priority expenditures of the national government.
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2.0 Purpose
2.1 To provide the conditions and parameters on the withdrawal of unobligated
allotments of agencies as of June 30, 2012 to fund priority and/or fast-moving
programs/projects of the national government;
2.2 To prescribe the reports and documents to be used as bases on the
withdrawal of said unobligated allotments; and
2.3 To provide guidelines in the utilization or reallocation of the withdrawn
allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of unobligated allotments as of
June 30, 2012 of all national government agencies (NGAs) charged against FY
2011 Continuing Appropriation (R.A. No.10147) and FY 2012 Current
Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the
implementation of programs and projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits declared
as savings by the agencies concerned based on their updated/validated list of
pensioners.
3.2 The withdrawal of unobligated allotments may cover the identified
programs, projects and activities of the departments/agencies reflected in the
DBM list shown as Annex A or specific programs and projects as may be
identified by the agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy Group, granted fiscal autonomy
under the Philippine Constitution; and
4.1.2 State Universities and Colleges, adopting the Normative Funding
allocation scheme i.e., distribution of a predetermined budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than pension benefits;
4.2.2 MOOE items earmarked for specific purposes or subject to realignment
conditions per General Provisions of the GAA:
• Confidential and Intelligence Fund;
• Savings from Traveling, Communication, Transportation and Delivery,
Repair and Maintenance, Supplies and Materials and Utility which shall be used
for the grant of Collective Negotiation Agreement incentive benefit;
• Savings from mandatory expenditures which can be realigned only in the last
quarter after taking into consideration the agency’s full year requirements, i.e.,
Petroleum, Oil and Lubricants, Water, Illumination, Power Services,
Telephone, other Communication Services and Rent.
4.2.3 Foreign-Assisted Projects (loan proceeds and peso counterpart);
4.2.4 Special Purpose Funds such as: E-Government Fund, International
Commitments Fund, PAMANA, Priority Development Assistance Fund,
Calamity Fund, Budgetary Support to GOCCs and Allocation to LGUs, among
others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e., Retirement Life Insurance Premium and
Special Accounts in the General Fund.
5.0 Guidelines
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5.1 National government agencies shall continue to undertake procurement
activities notwithstanding the implementation of the policy of withdrawal of
unobligated allotments until the end of the third quarter, FY 2012. Even without
the allotments, the agency shall proceed in undertaking the procurement
processes (i.e., procurement planning up to the conduct of bidding but short of
awarding of contract) pursuant to GPPB Circular Nos. 02-2008 and 01-2009
and DBM Circular Letter No. 2010-9.
5.2 For the purpose of determining the amount of unobligated allotments that
shall be withdrawn, all departments/agencies/operating units (OUs) shall
submit to DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;
• Statement of Allotments, Obligations and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this
Circular, the agency’s latest report available shall be used by DBM as basis for
withdrawal of allotment. The DBM shall compute/approximate the agency’s
obligation level as of June 30 to derive its unobligated allotments as of same
period. Example: If the March 31 SAOB or FRO reflects actual obligations of
P 800M then the June 30 obligation level shall approximate to P1,600 M (i.e.,
P800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged against R.A. No. 10147 which
remained unobligated as of June 30, 2012 shall be immediately considered for
withdrawal. This policy is based on the following considerations:
5.4.1 The departments/agencies’ approved priority programs and projects are
assumed to be implementation-ready and doable during the given fiscal year;
and
5.4.2 The practice of having substantial carryover appropriations may imply
that the agency has a slower-than-programmed implementation capacity or
agency tends to implement projects within a two-year timeframe.
5.5. Consistent with the President’s directive, the DBM shall, based on
evaluation of the reports cited above and results of consultations with the
departments/agencies, withdraw the unobligated allotments as of June 30, 2012
through issuance of negative Special Allotment Release Orders (SAROs).
5.6 DBM shall prepare and submit to the President, a report on the magnitude
of withdrawn allotments. The report shall highlight the agencies which failed
to submit the June 30 reports required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs and projects of the agencies/OUs
concerned, from which the allotments were withdrawn;
5.7.2 Realigned to cover additional funding for other existing programs and
projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency and to
fund priority programs and projects not considered in the 2012 budget but
expected to be started or implemented during the current year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned may submit to
DBM a Special Budget Request (SBR), supported with the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has started the procurement processes i.e.,
Proof of Posting and/or Advertisement of the Invitation to Bid.
5.9 The deadline for submission of request/s pertaining to these categories shall
be until the end of the third quarter i.e., September 30, 2012. After said cut-off
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date, the withdrawn allotments shall be pooled and form part of the overall
savings of the national government.
5.10 Utilization of the consolidated withdrawn allotments for other priority
programs and projects as cited under item 5.7.3 of this Circular, shall be subject
to approval of the President. Based on the approval of the President, DBM shall
issue the SARO to cover the approved priority expenditures subject to
submission by the agency/OU concerned of the SBR and supported with PFP
and MCP.
5.11 It is understood that all releases to be made out of the withdrawn allotments
(both 2011 and 2012 unobligated allotments) shall be within the approved
Expenditure Program level of the national government for the current year. The
SAROs to be issued shall properly disclose the appropriation source of the
release to determine the extent of allotment validity, as follows:
• For charges under R.A. 10147 – allotments shall be valid up to December 31,
2012; and
• For charges under R.A. 10155 – allotments shall be valid up to December 31,
2013.
5.12 Timely compliance with the submission of existing BARs and other
reportorial requirements is reiterated for monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD
Secretary
As can be seen, NBC No. 541 specified that the unobligated allotments of all
agencies and departments as of June 30, 2012 that were charged against the
continuing appropriations for fiscal year 2011 and the 2012 GAA (R.A. No.
10155) were subject to withdrawal through the issuance of negative SAROs,
but such allotments could be either: (1) reissued for the original PAPs of the
concerned agencies from which they were withdrawn; or (2) realigned to cover
additional funding for other existing PAPs of the concerned agencies; or (3)
used to augment existing PAPs of any agency and to fund priority PAPs not
considered in the 2012 budget but expected to be started or implemented in
2012. Financing the other priority PAPs was made subject to the approval of
the President. Note here that NBC No. 541 used terminologies like
"realignment" and "augmentation" in the application of the withdrawn
unobligated allotments.
Taken together, all the issuances showed how the DAP was to be implemented
and funded, that is — (1) by declaring "savings" coming from the various
departments and agencies derived from pooling unobligated allotments and
withdrawing unreleased appropriations; (2) releasing unprogrammed funds;
and (3) applying the "savings" and unprogrammed funds to augment existing
PAPs or to support other priority PAPs.
c. DAP was not an appropriation
measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did
not enact a law to establish the DAP, or to authorize the disbursement and
release of public funds to implement the DAP. Villegas, PHILCONSA, IBP,
Araullo, and COURAGE observe that the appropriations funded under the DAP
were not included in the 2011, 2012 and 2013 GAAs. To petitioners IBP,
Araullo, and COURAGE, the DAP, being actually an appropriation that set
aside public funds for public use, should require an enabling law for its validity.
VACC maintains that the DAP, because it involved huge allocations that were
separate and distinct from the GAAs, circumvented and duplicated the GAAs
without congressional authorization and control.
The petitioners contend in unison that based on how it was developed and
implemented the DAP violated the mandate of Section 29(1), Article VI of the
1987 Constitution that "[n]o money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and
implementation of the DAP because of its being neither a fund nor an
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appropriation, but a program or an administrative system of prioritizing
spending; and that the adoption of the DAP was by virtue of the authority of the
President as the Chief Executive to ensure that laws were faithfully executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to stimulate the
economy through accelerated spending. In the context of the DAP’s adoption
and implementation being a function pertaining to the Executive as the main
actor during the Budget Execution Stage under its constitutional mandate to
faithfully execute the laws, including the GAAs, Congress did not need to
legislate to adopt or to implement the DAP. Congress could appropriate but
would have nothing more to do during the Budget Execution Stage. Indeed,
appropriation was the act by which Congress "designates a particular fund, or
sets apart a specified portion of the public revenue or of the money in the public
treasury, to be applied to some general object of governmental expenditure, or
to some individual purchase or expense."124 As pointed out in Gonzales v.
Raquiza:125 ‘"In a strict sense, appropriation has been defined ‘as nothing more
than the legislative authorization prescribed by the Constitution that money
may be paid out of the Treasury,’ while appropriation made by law refers to
‘the act of the legislature setting apart or assigning to a particular use a certain
sum to be used in the payment of debt or dues from the State to its
creditors.’"126
On the other hand, the President, in keeping with his duty to faithfully execute
the laws, had sufficient discretion during the execution of the budget to adapt
the budget to changes in the country’s economic situation.127 He could adopt
a plan like the DAP for the purpose. He could pool the savings and identify the
PAPs to be funded under the DAP. The pooling of savings pursuant to the DAP,
and the identification of the PAPs to be funded under the DAP did not involve
appropriation in the strict sense because the money had been already set apart
from the public treasury by Congress through the GAAs. In such actions, the
Executive did not usurp the power vested in Congress under Section 29(1),
Article VI of the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly
adopted by the Executive to ramp up spending to accelerate economic growth,
the challenges posed by the petitioners constrain us to dissect the mechanics of
the actual execution of the DAP. The management and utilization of the public
wealth inevitably demands a most careful scrutiny of whether the Executive’s
implementation of the DAP was consistent with the Constitution, the relevant
GAAs and other existing laws.
a. Although executive discretion
and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all issues
and needs that may come into play once the budget reaches its execution stage.
Executive discretion is necessary at that stage to achieve a sound fiscal
administration and assure effective budget implementation. The heads of
offices, particularly the President, require flexibility in their operations under
performance budgeting to enable them to make whatever adjustments are
needed to meet established work goals under changing conditions.128 In
particular, the power to transfer funds can give the President the flexibility to
meet unforeseen events that may otherwise impede the efficient implementation
of the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in
allocating funds pursuant to the GAAs,129 particularly when the funds are
grouped to form lump sum accounts.130 It is assumed that the agencies of the
Government enjoy more flexibility when the GAAs provide broader
appropriation items.131 This flexibility comes in the form of policies that the
Executive may adopt during the budget execution phase. The DAP – as a
strategy to improve the country’s economic position – was one policy that the
President decided to carry out in order to fulfill his mandate under the GAAs.
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Denying to the Executive flexibility in the expenditure process would be
counterproductive. In Presidential Spending Power,132 Prof. Louis Fisher, an
American constitutional scholar whose specialties have included budget policy,
has justified extending discretionary authority to the Executive thusly:
[T]he impulse to deny discretionary authority altogether should be resisted.
There are many number of reasons why obligations and outlays by
administrators may have to differ from appropriations by legislators.
Appropriations are made many months, and sometimes years, in advance of
expenditures. Congress acts with imperfect knowledge in trying to legislate in
fields that are highly technical and constantly undergoing change. New
circumstances will develop to make obsolete and mistaken the decisions
reached by Congress at the appropriation stage. It is not practicable for
Congress to adjust to each new development by passing separate supplemental
appropriation bills. Were Congress to control expenditures by confining
administrators to narrow statutory details, it would perhaps protect its power of
the purse but it would not protect the purse itself. The realities and complexities
of public policy require executive discretion for the sound management of
public funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial discretion
for administrators. They need to exercise judgment and take responsibility for
their actions, but those actions ought to be directed toward executing
congressional, not administrative policy. Let there be discretion, but channel it
and use it to satisfy the programs and priorities established by Congress.
In contrast, by allowing to the heads of offices some power to transfer funds
within their respective offices, the Constitution itself ensures the fiscal
autonomy of their offices, and at the same time maintains the separation of
powers among the three main branches of the Government. The Court has
recognized this, and emphasized so in Bengzon v. Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must have
the independence and flexibility needed in the discharge of their constitutional
duties. The imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds appropriated
for their operations is anathema to fiscal autonomy and violative not only of the
express mandate of the Constitution but especially as regards the Supreme
Court, of the independence and separation of powers upon which the entire
fabric of our constitutional system is based.
In the case of the President, the power to transfer funds from one item to another
within the Executive has not been the mere offshoot of established usage, but
has emanated from law itself. It has existed since the time of the American
Governors-General.134 Act No. 1902 (An Act authorizing the Governor-
General to direct any unexpended balances of appropriations be returned to the
general fund of the Insular Treasury and to transfer from the general fund
moneys which have been returned thereto), passed on May 18, 1909 by the First
Philippine Legislature,135 was the first enabling law that granted statutory
authority to the President to transfer funds. The authority was without any
limitation, for the Act explicitly empowered the Governor-General to transfer
any unexpended balance of appropriations for any bureau or office to another,
and to spend such balance as if it had originally been appropriated for that
bureau or office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of funds
that could be transferred, thereby limiting the power to transfer funds. Only
10% of the amounts appropriated for contingent or miscellaneous expenses
could be transferred to a bureau or office, and the transferred funds were to be
used to cover deficiencies in the appropriations also for miscellaneous expenses
of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items under
miscellaneous expenses to any other item of a certain bureau or office was
removed.
During the Commonwealth period, the power of the President to transfer funds
continued to be governed by the GAAs despite the enactment of the
Constitution in 1935. It is notable that the 1935 Constitution did not include a
provision on the power to transfer funds. At any rate, a shift in the extent of the
President’s power to transfer funds was again experienced during this era, with
the President being given more flexibility in implementing the budget. The
GAAs provided that the power to transfer all or portions of the appropriations
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in the Executive Department could be made in the "interest of the public, as the
President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail the President’s
seemingly unbounded discretion in transferring funds.137 Its Committee on the
Budget and Appropriation proposed to prohibit the transfer of funds among the
separate branches of the Government and the independent constitutional bodies,
but to allow instead their respective heads to augment items of appropriations
from savings in their respective budgets under certain limitations.138 The clear
intention of the Convention was to further restrict, not to liberalize, the power
to transfer appropriations.139 Thus, the Committee on the Budget and
Appropriation initially considered setting stringent limitations on the power to
augment, and suggested that the augmentation of an item of appropriation could
be made "by not more than ten percent if the original item of appropriation to
be augmented does not exceed one million pesos, or by not more than five
percent if the original item of appropriation to be augmented exceeds one
million pesos."140 But two members of the Committee objected to the
P1,000,000.00 threshold, saying that the amount was arbitrary and might not be
reasonable in the future. The Committee agreed to eliminate the P1,000,000.00
threshold, and settled on the ten percent limitation.141
In the end, the ten percent limitation was discarded during the plenary of the
Convention, which adopted the following final version under Section 16,
Article VIII of the 1973 Constitution, to wit:
(5) No law shall be passed authorizing any transfer of appropriations; however,
the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may by law be authorized
to augment any item in the general appropriations law for their respective
offices from savings in other items of their respective appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of
funds from one item to another, unless Congress enacted a law authorizing the
President, the Prime Minister, the Speaker, the Chief Justice of the Supreme
Court, and the heads of the Constitutional omissions to transfer funds for the
purpose of augmenting any item from savings in another item in the GAA of
their respective offices. The leeway was limited to augmentation only, and was
further constricted by the condition that the funds to be transferred should come
from savings from another item in the appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its
Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have the
authority to transfer any fund appropriated for the different departments,
bureaus, offices and agencies of the Executive Department which are included
in the General Appropriations Act, to any program, project, or activity of any
department, bureau or office included in the General Appropriations Act or
approved after its enactment.
The President shall, likewise, have the authority to augment any appropriation
of the Executive Department in the General Appropriations Act, from savings
in the appropriations of another department, bureau, office or agency within the
Executive Branch, pursuant to the provisions of Article VIII, Section 16 (5) of
the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of
Section 44 for contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege
granted under said Section 16. It empowers the President to indiscriminately
transfer funds from one department, bureau, office or agency of the Executive
Department to any program, project or activity of any department, bureau or
office included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be transferred are
actually savings in the item from which the same are to be taken, or whether or
not the transfer is for the purpose of augmenting the item to which said transfer
is to be made. It does not only completely disregard the standards set in the
fundamental law, thereby amounting to an undue delegation of legislative
powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional
infirmities render the provision in question null and void.143
It is significant that Demetria was promulgated 25 days after the ratification by
the people of the 1987 Constitution, whose Section 25(5) of Article VI is
identical to Section 16(5), Article VIII of the 1973 Constitution, to wit:
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Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations; however,
the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item
in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.
xxxx
The foregoing history makes it evident that the Constitutional Commission
included Section 25(5), supra, to keep a tight rein on the exercise of the power
to transfer funds appropriated by Congress by the President and the other high
officials of the Government named therein. The Court stated in Nazareth v.
Villar:144
In the funding of current activities, projects, and programs, the general rule
should still be that the budgetary amount contained in the appropriations bill is
the extent Congress will determine as sufficient for the budgetary allocation for
the proponent agency. The only exception is found in Section 25 (5), Article VI
of the Constitution, by which the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions are authorized to transfer
appropriations to augmentany item in the GAA for their respective offices from
the savings in other items of their respective appropriations. The plain language
of the constitutional restriction leaves no room for the petitioner’s posture,
which we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in
Section 25(5), Article VI of the Constitution limiting the authority to transfer
savings only to augment another item in the GAA is strictly but reasonably
construed as exclusive. As the Court has expounded in Lokin, Jr. v.
Commission on Elections:
When the statute itself enumerates the exceptions to the application of the
general rule, the exceptions are strictly but reasonably construed. The
exceptions extend only as far as their language fairly warrants, and all doubts
should be resolved in favor of the general provision rather than the exceptions.
Where the general rule is established by a statute with exceptions, none but the
enacting authority can curtail the former. Not even the courts may add to the
latter by implication, and it is a rule that an express exception excludes all
others, although it is always proper in determining the applicability of the rule
to inquire whether, in a particular case, it accords with reason and justice.
The appropriate and natural office of the exception is to exempt something from
the scope of the general words of a statute, which is otherwise within the scope
and meaning of such general words. Consequently, the existence of an
exception in a statute clarifies the intent that the statute shall apply to all cases
not excepted. Exceptions are subject to the rule of strict construction; hence,
any doubt will be resolved in favor of the general provision and against the
exception. Indeed, the liberal construction of a statute will seem to require in
many circumstances that the exception, by which the operation of the statute is
limited or abridged, should receive a restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a
limitation on the President’s discretion over the appropriations during the
Budget Execution Phase.
b. Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra, must
be made upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of the Constitutional Commissions to transfer funds within
their respective offices;
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(2) The funds to be transferred are savings generated from the appropriations
for their respective offices; and (3) The purpose of the transfer is to augment an
item in the general appropriations law for their respective offices.
b.1. First Requisite–GAAs of 2011 and
2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the Constitution,
must have an implementing law for it to be operative. That law, generally, is
the GAA of a given fiscal year. To comply with the first requisite, the GAAs
should expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high
officials the authority to transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to augment any item in
this Act from savings in other items of their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Section 53. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to augment any item in
this Act from savings in other items of their respective appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the
DBM as justification for the use of savings under the DAP.145
A reading shows, however, that the aforequoted provisions of the GAAs of
2011 and 2012 were textually unfaithful to the Constitution for not carrying the
phrase "for their respective offices" contained in Section 25(5), supra. The
impact of the phrase "for their respective offices" was to authorize only
transfers of funds within their offices (i.e., in the case of the President, the
transfer was to an item of appropriation within the Executive). The provisions
carried a different phrase ("to augment any item in this Act"), and the effect
was that the 2011 and 2012 GAAs thereby literally allowed the transfer of funds
from savings to augment any item in the GAAs even if the item belonged to an
office outside the Executive. To that extent did the 2011 and 2012 GAAs
contravene the Constitution. At the very least, the aforequoted provisions
cannot be used to claim authority to transfer appropriations from the Executive
to another branch, or to a constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the
counterpart provision in the 2013 GAA, to wit:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred for the current
year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section 25(5),
supra, existed, there still remained two other requisites to be met, namely: that
the source of funds to be transferred were savings from appropriations within
the respective offices; and that the transfer must be for the purpose of
augmenting an item of appropriation within the respective offices.
b.2. Second Requisite – There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the unreleased
appropriations and withdrawn unobligated allotments — were not actual
savings within the context of Section 25(5), supra, and the relevant provisions
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of the GAAs. Belgica argues that "savings" should be understood to refer to the
excess money after the items that needed to be funded have been funded, or
those that needed to be paid have been paid pursuant to the budget.146 The
petitioners posit that there could be savings only when the PAPs for which the
funds had been appropriated were actually implemented and completed, or
finally discontinued or abandoned. They insist that savings could not be
realized with certainty in the middle of the fiscal year; and that the funds for
"slow-moving" PAPs could not be considered as savings because such PAPs
had not actually been abandoned or discontinued yet.147 They stress that NBC
No. 541, by allowing the withdrawn funds to be reissued to the "original
program or project from which it was withdrawn," conceded that the PAPs from
which the supposed savings were taken had not been completed, abandoned or
discontinued.148
The OSG represents that "savings" were "appropriations balances," being the
difference between the appropriation authorized by Congress and the actual
amount allotted for the appropriation; that the definition of "savings" in the
GAAs set only the parameters for determining when savings occurred; that it
was still the President (as well as the other officers vested by the Constitution
with the authority to augment) who ultimately determined when savings
actually existed because savings could be determined only during the stage of
budget execution; that the President must be given a wide discretion to
accomplish his tasks; and that the withdrawn unobligated allotments were
savings inasmuch as they were clearly "portions or balances of any
programmed appropriation…free from any obligation or encumbrances which
are (i) still available after the completion or final discontinuance or
abandonment of the work, activity or purpose for which the appropriation is
authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne in
mind. The first principle is that Congress wields the power of the purse.
Congress decides how the budget will be spent; what PAPs to fund; and the
amounts of money to be spent for each PAP. The second principle is that the
Executive, as the department of the Government tasked to enforce the laws, is
expected to faithfully execute the GAA and to spend the budget in accordance
with the provisions of the GAA.149 The Executive is expected to faithfully
implement the PAPs for which Congress allocated funds, and to limit the
expenditures within the allocations, unless exigencies result to deficiencies for
which augmentation is authorized, subject to the conditions provided by law.
The third principle is that in making the President’s power to augment operative
under the GAA, Congress recognizes the need for flexibility in budget
execution. In so doing, Congress diminishes its own power of the purse, for it
delegates a fraction of its power to the Executive. But Congress does not
thereby allow the Executive to override its authority over the purse as to let the
Executive exceed its delegated authority. And the fourth principle is that
savings should be actual. "Actual" denotes something that is real or substantial,
or something that exists presently in fact, as opposed to something that is
merely theoretical, possible, potential or hypothetical.150
The foregoing principles caution us to construe savings strictly against
expanding the scope of the power to augment. It is then indubitable that the
power to augment was to be used only when the purpose for which the funds
had been allocated were already satisfied, or the need for such funds had ceased
to exist, for only then could savings be properly realized. This interpretation
prevents the Executive from unduly transgressing Congress’ power of the
purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013,
reflected this interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this
Act free from any obligation or encumbrance which are: (i) still available after
the completion or final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized; (ii) from appropriations
balances arising from unpaid compensation and related costs pertaining to
vacant positions and leaves of absence without pay; and (iii) from
appropriations balances realized from the implementation of measures resulting
in improved systems and efficiencies and thus enabled agencies to meet and
deliver the required or planned targets, programs and services approved in this
Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a sure
indication that savings could be generated only upon the purpose of the
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appropriation being fulfilled, or upon the need for the appropriation being no
longer existent.
The phrase "free from any obligation or encumbrance" in the definition of
savings in the GAAs conveyed the notion that the appropriation was at that
stage when the appropriation was already obligated and the appropriation was
already released. This interpretation was reinforced by the enumeration of the
three instances for savings to arise, which showed that the appropriation
referred to had reached the agency level. It could not be otherwise, considering
that only when the appropriation had reached the agency level could it be
determined whether (a) the PAP for which the appropriation had been
authorized was completed, finally discontinued, or abandoned; or (b) there were
vacant positions and leaves of absence without pay; or (c) the required or
planned targets, programs and services were realized at a lesser cost because of
the implementation of measures resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came from
"pooling of unreleased appropriations such as unreleased Personnel Services
appropriations which will lapse at the end of the year, unreleased appropriations
of slow moving projects and discontinued projects per Zero-Based Budgeting
findings."
The declaration of the DBM by itself does not state the clear legal basis for the
treatment of unreleased or unalloted appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a mere
description of the status of the items as unalloted or unreleased. They have not
yet ripened into categories of items from which savings can be generated.
Appropriations have been considered "released" if there has already been an
allotment or authorization to incur obligations and disbursement authority. This
means that the DBM has issued either an ABM (for those not needing
clearance), or a SARO (for those needing clearance), and consequently an
NCA, NCAA or CDC, as the case may be. Appropriations remain unreleased,
for instance, because of noncompliance with documentary requirements (like
the Special Budget Request), or simply because of the unavailability of funds.
But the appropriations do not actually reach the agencies to which they were
allocated under the GAAs, and have remained with the DBM technically
speaking. Ergo, unreleased appropriations refer to appropriations with
allotments but without disbursement authority.
For us to consider unreleased appropriations as savings, unless these met the
statutory definition of savings, would seriously undercut the congressional
power of the purse, because such appropriations had not even reached and been
used by the agency concerned vis-à-vis the PAPs for which Congress had
allocated them. However, if an agency has unfilled positions in its plantilla and
did not receive an allotment and NCA for such vacancies, appropriations for
such positions, although unreleased, may already constitute savings for that
agency under the second instance.
Unobligated allotments, on the other hand, were encompassed by the first part
of the definition of "savings" in the GAA, that is, as "portions or balances of
any programmed appropriation in this Act free from any obligation or
encumbrance." But the first part of the definition was further qualified by the
three enumerated instances of when savings would be realized. As such,
unobligated allotments could not be indiscriminately declared as savings
without first determining whether any of the three instances existed. This
signified that the DBM’s withdrawal of unobligated allotments had disregarded
the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that
MOOE appropriations are deemed divided into twelve monthly allocations
within the fiscal year; hence, savings could be generated monthly from the
excess or unused MOOE appropriations other than the Mandatory Expenditures
and Expenditures for Business-type Activities because of the physical
impossibility to obligate and spend such funds as MOOE for a period that
already lapsed. Following this observation, MOOE for future months are not
savings and cannot be transferred.
The DBM’s Memorandum for the President dated June 25, 2012 (which
became the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on the
agencies’ operations, particularly on the implementation of their
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projects/activities, including expenses incurred in undertaking the same, have
been continuously calling the attention of all National Government agencies
(NGAs) with low levels of obligations as of end of the first quarter to speedup
the implementation of their programs and projects in the second quarter.
6.0 Said reminders were made in a series of consultation meetings with the
concerned agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the department’s
disposal, the level of financial performance of some departments registered
below program, with the targeted obligations/disbursements for the first
semester still not being met.
8.0 In order to maximize the use of the available allotment, all unobligated
balances as of June 30, 2012, both for continuing and current allotments shall
be withdrawn and pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on
the list of slow moving projects to be identified by the agencies and their catch
up plans to be evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of unobligated
allotments would be based on whether the allotments pertained to slow-moving
projects, or not. However, NBC No. 541 did not set in clear terms the criteria
for the withdrawal of unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of unobligated allotments as
of June 30, 2012 ofall national government agencies (NGAs) charged against
FY 2011 Continuing Appropriation (R.A. No. 10147) and FY 2012 Current
Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the
implementation of programs and projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits declared
as savings by the agencies concerned based on their undated/validated list of
pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the
"withdrawal of unobligated allotments of agencies with low levels of
obligations"151 "to fund priority and/or fast-moving programs/projects."152
But the fact that the withdrawn allotments could be "[r]eissued for the original
programs and projects of the agencies/OUs concerned, from which the
allotments were withdrawn"153 supported the conclusion that the PAPs had not
yet been finally discontinued or abandoned. Thus, the purpose for which the
withdrawn funds had been appropriated was not yet fulfilled, or did not yet
cease to exist, rendering the declaration of the funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released
allotments in 2011 charged against the 2011 GAA that had remained
unobligated based on the following considerations, to wit:
5.4.1 The departments/agencies’ approved priority programs and projects are
assumed to be implementation-ready and doable during the given fiscal year;
and
5.4.2 The practice of having substantial carryover appropriations may imply
that the agency has a slower-than-programmed implementation capacity or
agency tends to implement projects within a two-year timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the
unobligated allotments for continuing and current appropriations as of June 30,
2012, disregarded the 2-year period of availability of the appropriations for
MOOE and capital outlay extended under Section 65, General Provisions of the
2011 GAA, viz:
Section 65. Availability of Appropriations. — Appropriations for MOOE and
capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end of the
year in which such items were appropriated: PROVIDED, That appropriations
for MOOE and capital outlays under R.A. No. 9970 shall be made available up
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to the end of FY 2011: PROVIDED, FURTHER, That a report on these releases
and obligations shall be submitted to the Senate Committee on Finance and the
House Committee on Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for MOOE and
capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end of the
year in which such items were appropriated: PROVIDED, That a report on
these releases and obligations shall be submitted to the Senate Committee on
Finance and the House Committee on Appropriations, either in printed form or
by way of electronic document.154
Thus, another alleged area of constitutional infirmity was that the DAP and its
relevant issuances shortened the period of availability of the appropriations for
MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all
allotment classes in the 2013 GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations.— All appropriations authorized in
this Act shall be available for release and obligation for the purposes specified,
and under the same special provisions applicable thereto, until the end of FY
2013: PROVIDED, That a report on these releases and obligations shall be
submitted to the Senate Committee on Finance and House Committee on
Appropriations, either in printed form or by way of electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad
sought omnibus authority to consolidate savings and unutilized balances to fund
the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some department will register below
program, even with the availability of funds at their disposal, the targeted
obligations/disbursements for each quarter will not be met. It is important to
note that these funds will lapse at the end of the fiscal year if these remain
unobligated.
8.0 To maximize the use of the available allotment, all unobligated balances at
the end of every quarter, both for continuing and current allotments shall be
withdrawn and pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on
the list of slow moving projects to be identified by the agencies and their catch
up plans to be evaluated by the DBM.
The validity period of the affected appropriations, already given the brief Lifes
pan of one year, was further shortened to only a quarter of a year under the
DBM’s memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings in
order to have a larger fund available for discretionary spending. They aver that
the respondents, by withdrawing unobligated allotments in the middle of the
fiscal year, in effect deprived funding for PAPs with existing appropriations
under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments
were being withdrawn upon the instance of the implementing agencies based
on their own assessment that they could not obligate those allotments pursuant
to the President’s directive for them to spend their appropriations as quickly as
they could in order to ramp up the economy.156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were upon the
initiative of the DBM itself. The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that
shall be withdrawn, all departments/agencies/operating units (OUs) shall
submit to DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;
• Statement of Allotments, Obligation and Balances (SAOB);
• Financial Report of Operations (FRO); and
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• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this
Circular, the agency’s latest report available shall be used by DBM as basis for
withdrawal of allotment. The DBM shall compute/approximate the agency’s
obligation level as of June 30 to derive its unobligated allotments as of same
period. Example: If the March 31 SAOB or FRO reflects actual obligations of
P 800M then the June 30 obligation level shall approximate to P1,600 M (i.e.,
P800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and transfer of
unobligated allotments and the pooling of unreleased appropriations; and that
the unbridled withdrawal of unobligated allotments and the retention of
appropriated funds were akin to the impoundment of appropriations that could
be allowed only in case of "unmanageable national government budget deficit"
under the GAAs,157 thus violating the provisions of the GAAs of 2011, 2012
and 2013 prohibiting the retention or deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541 adopted a spending,
not saving, policy as a last-ditch effort of the Executive to push agencies into
actually spending their appropriations; that such policy did not amount to an
impoundment scheme, because impoundment referred to the decision of the
Executive to refuse to spend funds for political or ideological reasons; and that
the withdrawal of allotments under NBC No. 541 was made pursuant to Section
38, Chapter 5, Book VI of the Administrative Code, by which the President was
granted the authority to suspend or otherwise stop further expenditure of funds
allotted to any agency whenever in his judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer of
unobligated allotments and the pooling of unreleased appropriations were
invalid for being bereft of legal support. Nonetheless, such withdrawal of
unobligated allotments and the retention of appropriated funds cannot be
considered as impoundment.
According to Philippine Constitution Association v. Enriquez:159
"Impoundment refers to a refusal by the President, for whatever reason, to
spend funds made available by Congress. It is the failure to spend or obligate
budget authority of any type." Impoundment under the GAA is understood to
mean the retention or deduction of appropriations. The 2011 GAA authorized
impoundment only in case of unmanageable National Government budget
deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No
appropriations authorized under this Act shall be impounded through retention
or deduction, unless in accordance with the rules and regulations to be issued
by the DBM: PROVIDED, That all the funds appropriated for the purposes,
programs, projects and activities authorized under this Act, except those
covered under the Unprogrammed Fund, shall be released pursuant to Section
33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention or
deduction of appropriations authorized in this Act shall be effected only in cases
where there is an unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this section shall
be construed to mean that (i) the actual national government budget deficit has
exceeded the quarterly budget deficit targets consistent with the full-year target
deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and
approved by Congress pursuant to Section 22, Article VII of the Constitution,
or (ii) there are clear economic indications of an impending occurrence of such
condition, as determined by the Development Budget Coordinating Committee
and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be
regarded as impoundment because it entailed only the transfer of funds, not the
retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012
and 2013 GAAs) be applicable. They uniformly stated:
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Section 68. Prohibition Against Retention/Deduction of Allotment. Fund
releases from appropriations provided in this Act shall be transmitted intact or
in full to the office or agency concerned. No retention or deduction as reserves
or overhead shall be made, except as authorized by law, or upon direction of
the President of the Philippines. The COA shall ensure compliance with this
provision to the extent that sub-allotments by agencies to their subordinate
offices are in conformity with the release documents issued by the DBM.
The provision obviously pertained to the retention or deduction of allotments
upon their release from the DBM, which was a different matter altogether. The
Court should not expand the meaning of the provision by applying it to the
withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative
Code of 1987 to justify the withdrawal of unobligated allotments. But the
provision authorized only the suspension or stoppage of further expenditures,
not the withdrawal of unobligated allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise
provided in the General Appropriations Act and whenever in his judgment the
public interest so requires, the President, upon notice to the head of office
concerned, is authorized to suspend or otherwise stop further expenditure of
funds allotted for any agency, or any other expenditure authorized in the
General Appropriations Act, except for personal services appropriations used
for permanent officials and employees.
Moreover, the DBM did not suspend or stop further expenditures in accordance
with Section 38, supra, but instead transferred the funds to other PAPs.
It is relevant to remind at this juncture that the balances of appropriations that
remained unexpended at the end of the fiscal year were to be reverted to the
General Fund.1âwphi1 This was the mandate of Section 28, Chapter IV, Book
VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations, Continuing
Appropriations.- Unexpended balances of appropriations authorized in the
General Appropriation Act shall revert to the unappropriated surplus of the
General Fund at the end of the fiscal year and shall not thereafter be available
for expenditure except by subsequent legislative enactment: Provided, that
appropriations for capital outlays shall remain valid until fully spent or reverted:
provided, further, that continuing appropriations for current operating
expenditures may be specifically recommended and approved as such in
support of projects whose effective implementation calls for multi-year
expenditure commitments: provided, finally, that the President may authorize
the use of savings realized by an agency during given year to meet non-
recurring expenditures in a subsequent year.
The balances of continuing appropriations shall be reviewed as part of the
annual budget preparation process and the preparation process and the President
may approve upon recommendation of the Secretary, the reversion of funds no
longer needed in connection with the activities funded by said continuing
appropriations.
The Executive could not circumvent this provision by declaring unreleased
appropriations and unobligated allotments as savings prior to the end of the
fiscal year.
b.3. Third Requisite – No funds from
savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
The third requisite for a valid transfer of funds is that the purpose of the transfer
should be "to augment an item in the general appropriations law for the
respective offices." The term "augment" means to enlarge or increase in size,
amount, or degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the
appropriation for the PAP item to be augmented must be deficient, to wit: –
x x x Augmentation implies the existence in this Act of a program, activity, or
project with an appropriation, which upon implementation, or subsequent
evaluation of needed resources, is determined to be deficient. In no case shall a
non-existent program, activity, or project, be funded by augmentation from
savings or by the use of appropriations otherwise authorized in this Act.
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In other words, an appropriation for any PAP must first be determined to be
deficient before it could be augmented from savings. Note is taken of the fact
that the 2013 GAA already made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred for the current
year in any item of their respective appropriations.
As of 2013, a total of P144.4 billion worth of PAPs were implemented through
the DAP.161
Of this amount P82.5 billion were released in 2011 and P54.8 billion in
2012.162 Sec. Abad has reported that 9% of the total DAP releases were applied
to the PAPs identified by the legislators.163
The petitioners disagree, however, and insist that the DAP supported the
following PAPs that had not been covered with appropriations in the respective
GAAs, namely:
(i) P1.5 billion for the Cordillera People’s Liberation Army;
(ii) P1.8 billion for the Moro National Liberation Front;
(iii) P700 million for assistance to Quezon Province;164
(iv) P50 million to P100 (million) each to certain senators;165
(v) P10 billion for the relocation of families living along dangerous zones under
the National Housing Authority;
(vi) P10 billion and P20 billion equity infusion under the Bangko Sentral;
(vii) P5.4 billion landowners’ compensation under the Department of Agrarian
Reform;
(viii) P8.6 billion for the ARMM comprehensive peace and development
program;
(ix) P6.5 billion augmentation of LGU internal revenue allotments
(x) P5 billion for crucial projects like tourism road construction under the
Department of Tourism and the Department of Public Works and Highways;
(xi) P1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) P1.96 billion for the DOH-DPWH rehabilitation of regional health units;
and
(xiii) P4 billion for the DepEd-PPP school infrastructure projects.166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were
implemented, had appropriation covers, and could properly be accounted for
because the funds were released following and pursuant to the standard
practices adopted by the DBM.167 In support of its argument, the OSG has
submitted seven evidence packets containing memoranda, SAROs, and other
pertinent documents relative to the implementation and fund transfers under the
DAP.168
Upon careful review of the documents contained in the seven evidence packets,
we conclude that the "savings" pooled under the DAP were allocated to PAPs
that were not covered by any appropriations in the pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly vaunted
Disaster Risk, Exposure, Assessment and Mitigation (DREAM) project under
the Department of Science and Technology (DOST) covered the amount of
P1.6 Billion,169 broken down as follows:
[next page for tables]
Aside from this transfer under the DAP to the DREAM project exceeding by
almost 300% the appropriation by Congress for the program Generation of new
knowledge and technologies and research capability building in priority areas
identified as strategic to National Development, the Executive allotted funds
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for personnel services and capital outlays. The Executive thereby substituted its
will to that of Congress. Worse, the Executive had not earlier proposed any
amount for personnel services and capital outlays in the NEP that became the
basis of the 2011 GAA.170
It is worth stressing in this connection that the failure of the GAAs to set aside
any amounts for an expense category sufficiently indicated that Congress
purposely did not see fit to fund, much less implement, the PAP concerned.
This indication becomes clearer when even the President himself did not
recommend in the NEP to fund the PAP. The consequence was that any PAP
requiring expenditure that did not receive any appropriation under the GAAs
could only be a new PAP, any funding for which would go beyond the authority
laid down by Congress in enacting the GAAs. That happened in some instances
under the DAP.
In relation to the December 22, 2011 SARO issued to the Philippine Council
for Industry, Energy and Emerging Technology Research and Development
(DOST-PCIEETRD)171 for Establishment of the Advanced Failure Analysis
Laboratory, which reads:
[next page for tables]
the appropriation code and the particulars appearing in the SARO did not
correspond to the program specified in the GAA, whose particulars were
Research and Management Services(inclusive of the following activities: (1)
Technological and Economic Assessment for Industry, Energy and Utilities; (2)
Dissemination of Science and Technology Information; and (3) Management
of PCIERD Information System for Industry, Energy and Utilities. Even
assuming that Development, integration and coordination of the National
Research System for Industry, Energy and Emerging Technology and Related
Fields– the particulars stated in the SARO – could fall under the broad program
description of Research and Management Services– as appearing in the SARO,
it would nonetheless remain a new activity by reason of its not being
specifically stated in the GAA. As such, the DBM, sans legislative
authorization, could not validly fund and implement such PAP under the DAP.
In defending the disbursements, however, the OSG contends that the Executive
enjoyed sound discretion in implementing the budget given the generality in the
language and the broad policy objectives identified under the GAAs;172 and
that the President enjoyed unlimited authority to spend the initial appropriations
under his authority to declare and utilize savings,173 and in keeping with his
duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to spend
in line with its mandate to faithfully execute the laws (which included the
GAAs), such authority did not translate to unfettered discretion that allowed the
President to substitute his own will for that of Congress. He was still required
to remain faithful to the provisions of the GAAs, given that his power to spend
pursuant to the GAAs was but a delegation to him from Congress. Verily, the
power to spend the public wealth resided in Congress, not in the Executive.174
Moreover, leaving the spending power of the Executive unrestricted would
threaten to undo the principle of separation of powers.175
Congress acts as the guardian of the public treasury in faithful discharge of its
power of the purse whenever it deliberates and acts on the budget proposal
submitted by the Executive.176 Its power of the purse is touted as the very
foundation of its institutional strength,177 and underpins "all other legislative
decisions and regulating the balance of influence between the legislative and
executive branches of government."178 Such enormous power encompasses
the capacity to generate money for the Government, to appropriate public funds,
and to spend the money.179 Pertinently, when it exercises its power of the
purse, Congress wields control by specifying the PAPs for which public money
should be spent.
It is the President who proposes the budget but it is Congress that has the final
say on matters of appropriations.180 For this purpose, appropriation involves
two governing principles, namely: (1) "a Principle of the Public Fisc, asserting
that all monies received from whatever source by any part of the government
are public funds;" and (2) "a Principle of Appropriations Control, prohibiting
expenditure of any public money without legislative authorization."181 To
conform with the governing principles, the Executive cannot circumvent the
prohibition by Congress of an expenditure for a PAP by resorting to either
public or private funds.182 Nor could the Executive transfer appropriated funds
resulting in an increase in the budget for one PAP, for by so doing the
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appropriation for another PAP is necessarily decreased. The terms of both
appropriations will thereby be violated.
b.4 Third Requisite – Cross-border
augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and the
Heads of the Constitutional Commissions may be authorized to augment any
item in the GAA "for their respective offices," Section 25(5), supra, has
delineated borders between their offices, such that funds appropriated for one
office are prohibited from crossing over to another office even in the guise of
augmentation of a deficient item or items. Thus, we call such transfers of funds
cross-border transfers or cross-border augmentations.
To be sure, the phrase "respective offices" used in Section 25(5), supra, refers
to the entire Executive, with respect to the President; the Senate, with respect
to the Senate President; the House of Representatives, with respect to the
Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional
Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad admitted making
some cross-border augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of Budget
and Management, did the Executive Department ever redirect any part of
savings of the National Government under your control cross border to another
department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance, Your Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I don’t recall having read your material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of
Representatives. They started building their e-library in 2010 and they had a
budget for about 207 Million but they lack about 43 Million to complete its 250
Million requirements. Prior to that, the COA, in an audit observation informed
the Speaker that they had to continue with that construction otherwise the whole
building, as well as the equipments therein may suffer from serious
deterioration. And at that time, since the budget of the House of Representatives
was not enough to complete 250 Million, they wrote to the President requesting
for an augmentation of that particular item, which was granted, Your Honor.
The second instance in the Memos is a request from the Commission on Audit.
At the time they were pushing very strongly the good governance programs of
the government and therefore, part of that is a requirement to conduct audits as
well as review financial reports of many agencies. And in the performance of
that function, the Commission on Audit needed information technology
equipment as well as hire consultants and litigators to help them with their audit
work and for that they requested funds from the Executive and the President
saw that it was important for the Commission to be provided with those IT
equipments and litigators and consultants and the request was granted, Your
Honor.
JUSTICE BERSAMIN:
These cross border examples, cross border augmentations were not supported
by appropriations…
SECRETARY ABAD:
They were, we were augmenting existing items within their… (interrupted)
JUSTICE BERSAMIN:
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No, appropriations before you augmented because this is a cross border and the
tenor or text of the Constitution is quite clear as far as I am concerned. It says
here, "The power to augment may only be made to increase any item in the
General Appropriations Law for their respective offices." Did you not feel
constricted by this provision?
SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was on the transfer
of appropriations, Your Honor. What we thought we did was to transfer savings
which was needed by the Commission to address deficiency in an existing item
in both the Commission as well as in the House of Representatives; that’s how
we saw…(interrupted)
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
In an extreme instances because…(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, that’s your
feeling.
SECRETARY ABAD:
Well, in that particular situation when the request was made by the Commission
and the House of Representatives, we felt that we needed to respond because
we felt…(interrupted).183
The records show, indeed, that funds amounting to P143,700,000.00 and
P250,000,000.00 were transferred under the DAP respectively to the COA184
and the House of Representatives.185 Those transfers of funds, which
constituted cross-border augmentations for being from the Executive to the
COA and the House of Representatives, are graphed as follows:
[next page for tables]
The respondents further stated in their memorandum that the President "made
available" to the "Commission on Elections the savings of his department upon
[its] request for funds…"187 This was another instance of a cross-border
augmentation.
The respondents justified all the cross-border transfers thusly:
99. The Constitution does not prevent the President from transferring savings
of his department to another department upon the latter’s request, provided it is
the recipient department that uses such funds to augment its own appropriation.
In such a case, the President merely gives the other department access to public
funds but he cannot dictate how they shall be applied by that department whose
fiscal autonomy is guaranteed by the Constitution.188
In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza,
representing Congress, announced a different characterization of the cross-
border transfers of funds as in the nature of "aid" instead of "augmentation,"
viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of the
DAP. What were these cross-border transfers? They are transfers of savings as
defined in the various General Appropriations Act. So, that makes it similar to
the DAP, the use of savings. There was a cross-border which appears to be in
violation of Section 25, paragraph 5 of Article VI, in the sense that the border
was crossed. But never has it been claimed that the purpose was to augment a
deficient item in another department of the government or agency of the
government. The cross-border transfers, if Your Honors please, were in the
nature of [aid] rather than augmentations. Here is a government entity separate
and independent from the Executive Department solely in need of public funds.
The President is there 24 hours a day, 7 days a week. He’s in charge of the
whole operation although six or seven heads of government offices are given
the power to augment. Only the President stationed there and in effect in-charge
and has the responsibility for the failure of any part of the government. You
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have election, for one reason or another, the money is not enough to hold
election. There would be chaos if no money is given as an aid, not to augment, JUSTICE LEONEN:
but as an aid to a department like COA. The President is responsible in a way
that the other heads, given the power to augment, are not. So, he cannot very A while ago, Justice Carpio mentioned that the remedy is might be to go to
well allow this, if Your Honor please.189 Congress. That there are opportunities and there have been opportunities of the
President to actually go to Congress and ask for supplemental budgets?
JUSTICE LEONEN:
HONORABLE MENDOZA:
May I move to another point, maybe just briefly. I am curious that the position
now, I think, of government is that some transfers of savings is now considered If there is time to do that, I would say yes.
to be, if I’m not mistaken, aid not augmentation. Am I correct in my hearing of
your argument? JUSTICE LEONEN:

HONORABLE MENDOZA: So, the theory of aid rather than augmentation applies in extra-ordinary
situation?
That’s our submission, if Your Honor, please.
HONORABLE MENDOZA:
JUSTICE LEONEN:
Very extra-ordinary situations.
May I know, Justice, where can we situate this in the text of the Constitution?
Where do we actually derive the concepts that transfers of appropriation from JUSTICE LEONEN:
one branch to the other or what happened in DAP can be considered a said?
What particular text in the Constitution can we situate this? But Counsel, this would be new doctrine, in case?

HONORABLE MENDOZA: HONORABLE MENDOZA:

There is no particular provision or statutory provision for that matter, if Your Yes, if Your Honor please.190
Honor please. It is drawn from the fact that the Executive is the executive in-
charge of the success of the government. Regardless of the variant characterizations of the cross-border transfers of
funds, the plain text of Section 25(5), supra, disallowing cross border transfers
JUSTICE LEONEN: was disobeyed. Cross-border transfers, whether as augmentation, or as aid,
were prohibited under Section 25(5), supra.
So, the residual powers labelled in Marcos v. Manglapus would be the basis for
this theory of the government? 4.
Sourcing the DAP from unprogrammed
HONORABLE MENDOZA: funds despite the original revenue targets
not having been exceeded was invalid
Yes, if Your Honor, please.
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Funding under the DAP were also sourced from unprogrammed funds provided
in the GAAs for 2011, 2012,and 2013. The respondents stress, however, that
the unprogrammed funds were not brought under the DAP as savings, but as
separate sources of funds; and that, consequently, the release and use of
unprogrammed funds were not subject to the restrictions under Section 25(5),
supra.
The documents contained in the Evidence Packets by the OSG have confirmed
that the unprogrammed funds were treated as separate sources of funds. Even
so, the release and use of the unprogrammed funds were still subject to
restrictions, for, to start with, the GAAs precisely specified the instances when
the unprogrammed funds could be released and the purposes for which they
could be used.
The petitioners point out that a condition for the release of the unprogrammed
funds was that the revenue collections must exceed revenue targets; and that
the release of the unprogrammed funds was illegal because such condition was
not met.191
The respondents disagree, holding that the release and use of the
unprogrammed funds under the DAP were in accordance with the pertinent
provisions of the GAAs. In particular, the DBM avers that the unprogrammed
funds could be availed of when any of the following three instances occur, to
wit: (1) the revenue collections exceeded the original revenue targets proposed
in the BESFs submitted by the President to Congress; (2) new revenues were
collected or realized from sources not originally considered in the BESFs; or(3)
newly-approved loans for foreign assisted projects were secured, or when
conditions were triggered for other sources of funds, such as perfected loan
agreements for foreign-assisted projects.192 This view of the DBM was
adopted by all the respondents in their Consolidated Comment.193
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed
appropriations" as appropriations that provided standby authority to incur
additional agency obligations for priority PAPs when revenue collections
exceeded targets, and when additional foreign funds are generated.194 Contrary
to the DBM’s averment that there were three instances when unprogrammed
funds could be released, the BESFs envisioned only two instances. The third
mentioned by the DBM – the collection of new revenues from sources not
originally considered in the BESFs – was not included. This meant that the
collection of additional revenues from new sources did not warrant the release
of the unprogrammed funds. Hence, even if the revenues not considered in the
BESFs were collected or generated, the basic condition that the revenue
collections should exceed the revenue targets must still be complied with in
order to justify the release of the unprogrammed funds.
The view that there were only two instances when the unprogrammed funds
could be released was bolstered by the following texts of the Special Provisions
of the 2011 and 2012 GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only when
the revenue collections exceed the original revenue targets submitted by the
President of the Philippines to Congress pursuant to Section 22, Article VII of
the Constitution, including savings generated from programmed appropriations
for the year: PROVIDED, That collections arising from sources not considered
in the aforesaid original revenue targets may be used to cover releases from
appropriations in this Fund: PROVIDED, FURTHER, That in case of newly
approved loans for foreign-assisted projects, the existence of a perfected loan
agreement for the purpose shall be sufficient basis for the issuance of a SARO
covering the loan proceeds: PROVIDED, FURTHERMORE, That if there are
savings generated from the programmed appropriations for the first two
quarters of the year, the DBM may, subject to the approval of the President,
release the pertinent appropriations under the Unprogrammed Fund
corresponding to only fifty percent (50%) of the said savings net of revenue
shortfall: PROVIDED, FINALLY, That the release of the balance of the total
savings from programmed appropriations for the year shall be subject to fiscal
programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets submitted by
the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution: PROVIDED, That collections arising from sources not
considered in the aforesaid original revenue targets may be used to cover
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releases from appropriations in this Fund: PROVIDED, FURTHER, That in Consequently, that there were additional revenues from sources not considered
case of newly approved loans for foreign-assisted projects, the existence of a in the revenue target would not be enough. The total revenue collections must
perfected loan agreement for the purpose shall be sufficient basis for the still exceed the original revenue targets to justify the release of the
issuance of a SARO covering the loan proceeds. unprogrammed funds (other than those from newly-approved foreign loans).

As can be noted, the provisos in both provisions to the effect that "collections The present controversy on the unprogrammed funds was rooted in the correct
arising from sources not considered in the aforesaid original revenue targets interpretation of the phrase "revenue collections should exceed the original
may be used to cover releases from appropriations in this Fund" gave the revenue targets." The petitioners take the phrase to mean that the total revenue
authority to use such additional revenues for appropriations funded from the collections must exceed the total revenue target stated in the BESF, but the
unprogrammed funds. They did not at all waive compliance with the basic respondents understand the phrase to refer only to the collections for each
requirement that revenue collections must still exceed the original revenue source of revenue as enumerated in the BESF, with the condition being deemed
targets. complied with once the revenue collections from a particular source already
exceeded the stated target.
In contrast, the texts of the provisos with regard to additional revenues
generated from newly-approved foreign loans were clear to the effect that the The BESF provided for the following sources of revenue, with the
perfected loan agreement would be in itself "sufficient basis" for the issuance corresponding revenue target stated for each source of revenue, to wit:
of a SARO to release the funds but only to the extent of the amount of the loan.
In such instance, the revenue collections need not exceed the revenue targets to TAX REVENUES
warrant the release of the loan proceeds, and the mere perfection of the loan
agreement would suffice. Taxes on Net Income and Profits
Taxes on Property
It can be inferred from the foregoing that under these provisions of the GAAs Taxes on Domestic Goods and Services
the additional revenues from sources not considered in the BESFs must be taken
into account in determining if the revenue collections exceeded the revenue General Sales, Turnover or VAT
targets. The text of the relevant provision of the 2013 GAA, which was Selected Excises on Goods
substantially similar to those of the GAAs for 2011 and 2012, already made this
explicit, thus: Selected Taxes on Services
Taxes on the Use of Goods or Property or Permission to Perform Activities
1. Release of the Fund. The amounts authorized herein shall be released only Other Taxes
when the revenue collections exceed the original revenue targets submitted by Taxes on International Trade and Transactions
the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution, including collections arising from sources not considered NON-TAX REVENUES
in the aforesaid original revenue target, as certified by the BTr: PROVIDED,
That in case of newly approved loans for foreign-assisted projects, the existence Fees and Charges
of a perfected loan agreement for the purpose shall be sufficient basis for the BTR Income
issuance of a SARO covering the loan proceeds.
Government Services
Interest on NG Deposits
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Interest on Advances to Government Corporations
Income from Investments
Interest on Bond Holdings
Guarantee Fee
Gain on Foreign Exchange
NG Income Collected by BTr
Dividends on Stocks
NG Share from Airport Terminal Fee
NG Share from PAGCOR Income
NG Share from MIAA Profit
Privatization
Foreign Grants
Thus, when the Court required the respondents to submit a certification from
the Bureau of Treasury (BTr) to the effect that the revenue collections had
exceeded the original revenue targets,195 they complied by submitting
certifications from the BTr and Department of Finance (DOF) pertaining to
only one identified source of revenue – the dividends from the shares of stock
held by the Government in government-owned and controlled corporations.
To justify the release of the unprogrammed funds for 2011, the OSG presented
the certification dated March 4, 2011 issued by DOF Undersecretary Gil S.
Beltran, as follows:
This is to certify that under the Budget for Expenditures and Sources of
Financing for 2011, the programmed income from dividends from shares of
stock in government-owned and controlled corporations is 5.5 billion.
This is to certify further that based on the records of the Bureau of Treasury,
the National Government has recorded dividend income amounting to P23.8
billion as of 31 January 2011.196
For 2012, the OSG submitted the certification dated April 26, 2012 issued by
National Treasurer Roberto B. Tan, viz:
This is to certify that the actual dividend collections remitted to the National
Government for the period January to March 2012 amounted to P19.419 billion
compared to the full year program of P5.5 billion for 2012.197
And, finally, for 2013, the OSG presented the certification dated July 3, 2013
issued by National Treasurer Rosalia V. De Leon, to wit:
This is to certify that the actual dividend collections remitted to the National
Government for the period January to May 2013 amounted to P12.438 billion
compared to the full year program of P10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build
and operate the NAIA expressway amounting to P11.0 billion in June 2013.199
The certifications reflected that by collecting dividends amounting to P23.8
billion in 2011, P19.419 billion in 2012, and P12.438 billion in 2013 the BTr
had exceeded only the P5.5 billion in target revenues in the form of dividends
from stocks in each of 2011 and 2012, and only the P10 billion in target
revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original revenue
targets was to be construed in light of the purpose for which the unprogrammed
funds were incorporated in the GAAs as standby appropriations to support
additional expenditures for certain priority PAPs should the revenue collections
exceed the resource targets assumed in the budget or when additional foreign
project loan proceeds were realized. The unprogrammed funds were included
in the GAAs to provide ready cover so as not to delay the implementation of
the PAPs should new or additional revenue sources be realized during the
year.200 Given the tenor of the certifications, the unprogrammed funds were
thus not yet supported by the corresponding resources.201
The revenue targets stated in the BESF were intended to address the funding
requirements of the proposed programmed appropriations. In contrast, the
unprogrammed funds, as standby appropriations, were to be released only when
there were revenues in excess of what the programmed appropriations required.
As such, the revenue targets should be considered as a whole, not individually;
otherwise, we would be dealing with artificial revenue surpluses. The
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requirement that revenue collections must exceed revenue target should be
understood to mean that the revenue collections must exceed the total of the
revenue targets stated in the BESF. Moreover, to release the unprogrammed
funds simply because there was an excess revenue as to one source of revenue
would be an unsound fiscal management measure because it would disregard
the budget plan and foster budget deficits, in contravention of the Government’s
surplus budget policy.202
We cannot, therefore, subscribe to the respondents’ view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection Clause, the
system of checks and balances, and the principle of public accountability.
With respect to the challenge against the DAP under the Equal Protection
Clause,203 Luna argues that the implementation of the DAP was "unfair as it
[was] selective" because the funds released under the DAP was not made
available to all the legislators, with some of them refusing to avail themselves
of the DAP funds, and others being unaware of the availability of such funds.
Thus, the DAP practised "undue favoritism" in favor of select legislators in
contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection
Clause because no reasonable classification was used in distributing the funds
under the DAP; and that the Senators who supposedly availed themselves of
said funds were differently treated as to the amounts they respectively received.
Anent the petitioners’ theory that the DAP violated the system of checks and
balances, Luna submits that the grant of the funds under the DAP to some
legislators forced their silence about the issues and anomalies surrounding the
DAP. Meanwhile, Belgica stresses that the DAP, by allowing the legislators to
identify PAPs, authorized them to take part in the implementation and
execution of the GAAs, a function that exclusively belonged to the Executive;
that such situation constituted undue and unjustified legislative encroachment
in the functions of the Executive; and that the President arrogated unto himself
the power of appropriation vested in Congress because NBC No. 541
authorized the use of the funds under the DAP for PAPs not considered in the
2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of
public accountability enshrined in the Constitution,204 because the legislators
relinquished the power of appropriation to the Executive, and exhibited a
reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in
the release of funds under the DAP could be raised only by the affected
Members of Congress themselves, and if the challenge based on the violation
of the Equal Protection Clause was really against the constitutionality of the
DAP, the arguments of the petitioners should be directed to the entitlement of
the legislators to the funds, not to the proposition that all of the legislators
should have been given such entitlement.
The challenge based on the contravention of the Equal Protection Clause, which
focuses on the release of funds under the DAP to legislators, lacks factual and
legal basis. The allegations about Senators and Congressmen being unaware of
the existence and implementation of the DAP, and about some of them having
refused to accept such funds were unsupported with relevant data. Also, the
claim that the Executive discriminated against some legislators on the ground
alone of their receiving less than the others could not of itself warrant a finding
of contravention of the Equal Protection Clause. The denial of equal protection
of any law should be an issue to be raised only by parties who supposedly suffer
it, and, in these cases, such parties would be the few legislators claimed to have
been discriminated against in the releases of funds under the DAP. The reason
for the requirement is that only such affected legislators could properly and
fully bring to the fore when and how the denial of equal protection occurred,
and explain why there was a denial in their situation. The requirement was not
met here. Consequently, the Court was not put in the position to determine if
there was a denial of equal protection. To have the Court do so despite the
inadequacy of the showing of factual and legal support would be to compel it
to speculate, and the outcome would not do justice to those for whose supposed
benefit the claim of denial of equal protection has been made.
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The argument that the release of funds under the DAP effectively stayed the
hands of the legislators from conducting congressional inquiries into the
legality and propriety of the DAP is speculative. That deficiency eliminated any
need to consider and resolve the argument, for it is fundamental that speculation
would not support any proper judicial determination of an issue simply because
nothing concrete can thereby be gained. In order to sustain their constitutional
challenges against official acts of the Government, the petitioners must
discharge the basic burden of proving that the constitutional infirmities actually
existed.205 Simply put, guesswork and speculation cannot overcome the
presumption of the constitutionality of the assailed executive act.
We do not need to discuss whether or not the DAP and its implementation
through the various circulars and memoranda of the DBM transgressed the
system of checks and balances in place in our constitutional system. Our earlier
expositions on the DAP and its implementing issuances infringing the doctrine
of separation of powers effectively addressed this particular concern.
Anent the principle of public accountability being transgressed because the
adoption and implementation of the DAP constituted an assumption by the
Executive of Congress’ power of appropriation, we have already held that the
DAP and its implementing issuances were policies and acts that the Executive
could properly adopt and do in the execution of the GAAs to the extent that
they sought to implement strategies to ramp up or accelerate the economy of
the country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally infirm,
we must now deal with the consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to the
contrary.
When the courts declared a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being unconstitutional
cannot give rise to any right or obligation.206 However, the generality of the
rule makes us ponder whether rigidly applying the rule may at times be
impracticable or wasteful. Should we not recognize the need to except from the
rigid application of the rule the instances in which the void law or executive act
produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely
not a novel one, has been exhaustively explained in De Agbayani v. Philippine
National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional
act, for that matter an executive order or a municipal ordinance likewise
suffering from that infirmity, cannot be the source of any legal rights or duties.
Nor can it justify any official act taken under it. Its repugnancy to the
fundamental law once judicially declared results in its being to all intents and
purposes a mere scrap of paper. As the new Civil Code puts it: ‘When the courts
declare a law to be inconsistent with the Constitution, the former shall be void
and the latter shall govern.’ Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the laws of the
Constitution. It is understandable why it should be so, the Constitution being
supreme and paramount. Any legislative or executive act contrary to its terms
cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may
not however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have
been in force and had to be complied with. This is so as until after the judiciary,
in an appropriate case, declares its invalidity, it is entitled to obedience and
respect. Parties may have acted under it and may have changed their positions.
What could be more fitting than that in a subsequent litigation regard be had to
what has been done while such legislative or executive act was in operation and
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presumed to be valid in all respects. It is now accepted as a doctrine that prior
to its being nullified, its existence as a fact must be reckoned with. This is
merely to reflect awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can
exercise the power of judicial review that may lead to a declaration of nullity.
It would be to deprive the law of its quality of fairness and justice then, if there
be no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: ‘The actual existence
of a statute, prior to such a determination [of unconstitutionality], is an
operative fact and may have consequences which cannot justly be ignored. The
past cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various aspects,
with respect to particular relations, individual and corporate, and particular
conduct, private and official.’"
The doctrine of operative fact recognizes the existence of the law or executive
act prior to the determination of its unconstitutionality as an operative fact that
produced consequences that cannot always be erased, ignored or disregarded.
In short, it nullifies the void law or executive act but sustains its effects. It
provides an exception to the general rule that a void or unconstitutional law
produces no effect.208 But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an unconstitutional law or
executive act, but is resorted to only as a matter of equity and fair play.209 It
applies only to cases where extraordinary circumstances exist, and only when
the extraordinary circumstances have met the stringent conditions that will
permit its application.
We find the doctrine of operative fact applicable to the adoption and
implementation of the DAP. Its application to the DAP proceeds from equity
and fair play. The consequences resulting from the DAP and its related
issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional
executive act. The term executive act is broad enough to include any and all
acts of the Executive, including those that are quasi legislative and quasi-
judicial in nature. The Court held so in Hacienda Luisita, Inc. v. Presidential
Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the applicability of the
operative fact doctrine should be limited to statutes and rules and regulations
issued by the executive department that are accorded the same status as that of
a statute or those which are quasi-legislative in nature. Thus, the minority
concludes that the phrase ‘executive act’ used in the case of De Agbayani v.
Philippine National Bank refers only to acts, orders, and rules and regulations
that have the force and effect of law. The minority also made mention of the
Concurring Opinion of Justice Enrique Fernando in Municipality of Malabang
v. Benito, where it was supposedly made explicit that the operative fact doctrine
applies to executive acts, which are ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of
Malabang case elaborates what ‘executive act’ mean. Moreover, while orders,
rules and regulations issued by the President or the executive branch have fixed
definitions and meaning in the Administrative Code and jurisprudence, the
phrase ‘executive act’ does not have such specific definition under existing
laws. It should be noted that in the cases cited by the minority, nowhere can it
be found that the term ‘executive act’ is confined to the foregoing. Contrarily,
the term ‘executive act’ is broad enough to encompass decisions of
administrative bodies and agencies under the executive department which are
subsequently revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as
Chairman of the Presidential Commission on Good Government (PCGG) and
as Chief Presidential Legal Counsel (CPLC) which was declared
unconstitutional by this Court in Public Interest Center, Inc. v. Elma. In said
case, this Court ruled that the concurrent appointment of Elma to these offices
is in violation of Section 7, par. 2, Article IX-B of the 1987 Constitution, since
these are incompatible offices. Notably, the appointment of Elma as Chairman
of the PCGG and as CPLC is, without a question, an executive act. Prior to the
declaration of unconstitutionality of the said executive act, certain acts or
transactions were made in good faith and in reliance of the appointment of Elma
which cannot just be set aside or invalidated by its subsequent invalidation.
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In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that
despite the invalidity of the jurisdiction of the military courts over civilians,
certain operative facts must be acknowledged to have existed so as not to
trample upon the rights of the accused therein. Relevant thereto, in Olaguer v.
Military Commission No. 34, it was ruled that ‘military tribunals pertain to the
Executive Department of the Government and are simply instrumentalities of
the executive power, provided by the legislature for the President as
Commander-in-Chief to aid him in properly commanding the army and navy
and enforcing discipline therein, and utilized under his orders or those of his
authorized military representatives.’
Evidently, the operative fact doctrine is not confined to statutes and rules and
regulations issued by the executive department that are accorded the same status
as that of a statute or those which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine
only to executive issuances like orders and rules and regulations, said principle
can nonetheless be applied, by analogy, to decisions made by the President or
the agencies under the executive department. This doctrine, in the interest of
justice and equity, can be applied liberally and in a broad sense to encompass
said decisions of the executive branch. In keeping with the demands of equity,
the Court can apply the operative fact doctrine to acts and consequences that
resulted from the reliance not only on a law or executive act which is quasi-
legislative in nature but also on decisions or orders of the executive branch
which were later nullified. This Court is not unmindful that such acts and
consequences must be recognized in the higher interest of justice, equity and
fairness.
Significantly, a decision made by the President or the administrative agencies
has to be complied with because it has the force and effect of law, springing
from the powers of the President under the Constitution and existing laws. Prior
to the nullification or recall of said decision, it may have produced acts and
consequences in conformity to and in reliance of said decision, which must be
respected. It is on this score that the operative fact doctrine should be applied
to acts and consequences that resulted from the implementation of the PARC
Resolution approving the SDP of HLI. (Bold underscoring supplied for
emphasis)
In Commissioner of Internal Revenue v. San Roque Power Corporation,211 the
Court likewise declared that "for the operative fact doctrine to apply, there must
be a ‘legislative or executive measure,’ meaning a law or executive issuance."
Thus, the Court opined there that the operative fact doctrine did not apply to a
mere administrative practice of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the
Commissioner from the time the rule or ruling is issued up to its reversal by the
Commissioner or this Court. The reversal is not given retroactive effect. This,
in essence, is the doctrine of operative fact. There must, however, be a rule or
ruling issued by the Commissioner that is relied upon by the taxpayer in good
faith. A mere administrative practice, not formalized into a rule or ruling, will
not suffice because such a mere administrative practice may not be uniformly
and consistently applied. An administrative practice, if not formalized as a rule
or ruling, will not be known to the general public and can be availed of only by
those with informal contacts with the government agency.
It is clear from the foregoing that the adoption and the implementation of the
DAP and its related issuances were executive acts.1avvphi1 The DAP itself, as
a policy, transcended a merely administrative practice especially after the
Executive, through the DBM, implemented it by issuing various memoranda
and circulars. The pooling of savings pursuant to the DAP from the allotments
made available to the different agencies and departments was consistently
applied throughout the entire Executive. With the Executive, through the DBM,
being in charge of the third phase of the budget cycle – the budget execution
phase, the President could legitimately adopt a policy like the DAP by virtue of
his primary responsibility as the Chief Executive of directing the national
economy towards growth and development. This is simply because savings
could and should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the use of
savings pooled by the Executive to finance the PAPs that were not covered in
the GAA, or that did not have proper appropriation covers, as well as to
augment items pertaining to other departments of the Government in clear
violation of the Constitution. To declare the implementation of the DAP
unconstitutional without recognizing that its prior implementation constituted
an operative fact that produced consequences in the real as well as juristic
worlds of the Government and the Nation is to be impractical and unfair. Unless
374 of 692
the doctrine is held to apply, the Executive as the disburser and the offices under
it and elsewhere as the recipients could be required to undo everything that they
had implemented in good faith under the DAP. That scenario would be
enormously burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond
debate that the implementation of the DAP yielded undeniably positive results
that enhanced the economic welfare of the country. To count the positive results
may be impossible, but the visible ones, like public infrastructure, could easily
include roads, bridges, homes for the homeless, hospitals, classrooms and the
like. Not to apply the doctrine of operative fact to the DAP could literally cause
the physical undoing of such worthy results by destruction, and would result in
most undesirable wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the
doctrine of operative fact does not always apply, and is not always the
consequence of every declaration of constitutional invalidity. It can be invoked
only in situations where the nullification of the effects of what used to be a valid
law would result in inequity and injustice;212 but where no such result would
ensue, the general rule that an unconstitutional law is totally ineffective should
apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can
apply only to the PAPs that can no longer be undone, and whose beneficiaries
relied in good faith on the validity of the DAP, but cannot apply to the authors,
proponents and implementors of the DAP, unless there are concrete findings of
good faith in their favor by the proper tribunals determining their criminal, civil,
administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari
and prohibition; and DECLARES the following acts and practices under the
Disbursement Acceleration Program, National Budget Circular No. 541 and
related executive issuances UNCONSTITUTIONAL for being in violation of
Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation
of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies,
and the declaration of the withdrawn unobligated allotments and unreleased
appropriations as savings prior to the end of the fiscal year and without
complying with the statutory definition of savings contained in the General
Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the
appropriations of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by
any appropriation in the General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite
the absence of a certification by the National Treasurer that the revenue
collections exceeded the revenue targets for non-compliance with the
conditions provided in the relevant General Appropriations Acts.
SO ORDERED.
Ole v. Torres
293 SCRA 141 (1998)
[G.R. No. 127685. July 23, 1998]
BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER
AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT
BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL
COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON
AUDIT, respondents.
DECISION
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople
to prevent the shrinking of the right to privacy, which the revered Mr. Justice
Brandeis considered as "the most comprehensive of rights and the right most
valued by civilized men."[1] Petitioner Ople prays that we invalidate
Administrative Order No. 308 entitled "Adoption of a National Computerized
Identification Reference System" on two important constitutional grounds, viz:
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one, it is a usurpation of the power of Congress to legislate, and two, it
impermissibly intrudes on our citizenry's protected zone of privacy. We grant
the petition for the rights sought to be vindicated by the petitioner need stronger
barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996
and reads as follows:
"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents
with the facility to conveniently transact business with basic service and social
security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently
identify persons seeking basic services on social security and reduce, if not
totally eradicate, fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic
services and social security providing agencies and other government
instrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:
SECTION 1. Establishment of a National Computerized Identification
Reference System. A decentralized Identification Reference System among the
key basic services and social security providers is hereby established.
SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency Coordinating
Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator, National Statistics
Office Managing Director, National Computer Center.
SEC. 3. Secretariat. The National Computer Center (NCC) is hereby designated
as secretariat to the IACC and as such shall provide administrative and technical
support to the IACC.
SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN)
generated by the NSO shall serve as the common reference number to establish
a linkage among concerned agencies. The IACC Secretariat shall coordinate
with the different Social Security and Services Agencies to establish the
standards in the use of Biometrics Technology and in computer application
designs of their respective systems.
SEC. 5. Conduct of Information Dissemination Campaign. The Office of the
Press Secretary, in coordination with the National Statistics Office, the GSIS
and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and the Social Security
Identification Reference.
SEC. 6. Funding. The funds necessary for the implementation of the system
shall be sourced from the respective budgets of the concerned agencies.
SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit
regular reports to the Office of the President, through the IACC, on the status
of implementation of this undertaking.
SEC. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our
Lord, Nineteen Hundred and Ninety-Six.
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(SGD.) FIDEL V. RAMOS"
A.O. No. 308 was published in four newspapers of general circulation on
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed
the instant petition against respondents, then Executive Secretary Ruben Torres
and the heads of the government agencies, who as members of the Inter-Agency
Coordinating Committee, are charged with the implementation of A.O. No.
308. On April 8, 1997, we issued a temporary restraining order enjoining its
implementation.
Petitioner contends:
"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE
ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS
OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR
THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL
USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF
RIGHTS ENSHRINED IN THE CONSTITUTION."[2]
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD
WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM
THE BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN
PRIVACY.[3]
We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold issues
relating to the standing to sue of the petitioner and the justiciability of the case
at bar. More specifically, respondents aver that petitioner has no legal interest
to uphold and that the implementing rules of A.O. No. 308 have yet to be
promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed of
the requisite standing to bring suit raising the issue that the issuance of A.O.
No. 308 is a usurpation of legislative power.[4] As taxpayer and member of the
Government Service Insurance System (GSIS), petitioner can also impugn the
legality of the misalignment of public funds and the misuse of GSIS funds to
implement A.O. No. 308.[5]
The ripeness for adjudication of the petition at bar is not affected by the fact
that the implementing rules of A.O. No. 308 have yet to be promulgated.
Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its
face. His action is not premature for the rules yet to be promulgated cannot cure
its fatal defects. Moreover, the respondents themselves have started the
implementation of A.O. No. 308 without waiting for the rules. As early as
January 19, 1997, respondent Social Security System (SSS) caused the
publication of a notice to bid for the manufacture of the National Identification
(ID) card.[6] Respondent Executive Secretary Torres has publicly announced
that representatives from the GSIS and the SSS have completed the guidelines
for the national identification system.[7] All signals from the respondents show
their unswerving will to implement A.O. No. 308 and we need not wait for the
formality of the rules to pass judgment on its constitutionality. In this light, the
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dissenters insistence that we tighten the rule on standing is not a commendable
stance as its result would be to throttle an important constitutional principle and
a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a
mere administrative order but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of
every Filipino citizen and foreign resident, and more particularly, violates their
right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking
domain of Congress is understandable. The blurring of the demarcation line
between the power of the Legislature to make laws and the power of the
Executive to execute laws will disturb their delicate balance of power and
cannot be allowed. Hence, the exercise by one branch of government of power
belonging to another will be given a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws, and
to alter and repeal them."[8] The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines.[9] The grant of legislative power to Congress is
broad, general and comprehensive.[10] The legislative body possesses plenary
power for all purposes of civil government.[11] Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by Congress, unless
the Constitution has lodged it elsewhere.[12] In fine, except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all
subjects and extends to matters of general concern or common interest.[13]
While Congress is vested with the power to enact laws, the President executes
the laws.[14] The executive power is vested in the President.[15] It is generally
defined as the power to enforce and administer the laws.[16] It is the power of
carrying the laws into practical operation and enforcing their due
observance.[17]
As head of the Executive Department, the President is the Chief Executive. He
represents the government as a whole and sees to it that all laws are enforced
by the officials and employees of his department.[18] He has control over the
executive department, bureaus and offices. This means that he has the authority
to assume directly the functions of the executive department, bureau and office,
or interfere with the discretion of its officials.[19] Corollary to the power of
control, the President also has the duty of supervising the enforcement of laws
for the maintenance of general peace and public order. Thus, he is granted
administrative power over bureaus and offices under his control to enable him
to discharge his duties effectively.[20]
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs.[21] It enables
the President to fix a uniform standard of administrative efficiency and check
the official conduct of his agents.[22] To this end, he can issue administrative
orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject
that is not appropriate to be covered by an administrative order. An
administrative order is:
"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular
aspects of governmental operation in pursuance of his duties as administrative
head shall be promulgated in administrative orders."[23]
An administrative order is an ordinance issued by the President which relates
to specific aspects in the administrative operation of government. It must be in
harmony with the law and should be for the sole purpose of implementing the
law and carrying out the legislative policy.[24] We reject the argument that
A.O. No. 308 implements the legislative policy of the Administrative Code of
1987. The Code is a general law and "incorporates in a unified document the
major structural, functional and procedural principles of governance"[25] and
"embodies changes in administrative structures and procedures designed to
serve the people."[26] The Code is divided into seven (7) Books: Book I deals
with Sovereignty and General Administration, Book II with the Distribution of
Powers of the three branches of Government, Book III on the Office of the
President, Book IV on the Executive Branch, Book V on the Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII on
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Administrative Procedure. These Books contain provisions on the organization,
powers and general administration of the executive, legislative and judicial
branches of government, the organization and administration of departments,
bureaus and offices under the executive branch, the organization and functions
of the Constitutional Commissions and other constitutional bodies, the rules on
the national government budget, as well as guidelines for the exercise by
administrative agencies of quasi-legislative and quasi-judicial powers. The
Code covers both the internal administration of government, i.e, internal
organization, personnel and recruitment, supervision and discipline, and the
effects of the functions performed by administrative officials on private
individuals or parties outside government.[27]
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies-- the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power
of Congress, it ought to be evident that it deals with a subject that should be
covered by law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law
because it confers no right, imposes no duty, affords no protection, and creates
no office. Under A.O. No. 308, a citizen cannot transact business with
government agencies delivering basic services to the people without the
contemplated identification card. No citizen will refuse to get this identification
card for no one can avoid dealing with government. It is thus clear as daylight
that without the ID, a citizen will have difficulty exercising his rights and
enjoying his privileges. Given this reality, the contention that A.O. No. 308
gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach defining
the traditional limits of administrative legislation. As well stated by Fisher: "x
x x Many regulations however, bear directly on the public. It is here that
administrative legislation must be restricted in its scope and application.
Regulations are not supposed to be a substitute for the general policy-making
that Congress enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws."[28]
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it
cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to
be let alone."[29] In the 1965 case of Griswold v. Connecticut,[30] the United
States Supreme Court gave more substance to the right of privacy when it ruled
that the right has a constitutional foundation. It held that there is a right of
privacy which can be found within the penumbras of the First, Third, Fourth,
Fifth and Ninth Amendments,[31] viz:
"Specific guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and substance x x x.
Various guarantees create zones of privacy. The right of association contained
in the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers `in any house'
in time of peace without the consent of the owner is another facet of that
privacy. The Fourth Amendment explicitly affirms the `right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause
enables the citizen to create a zone of privacy which government may not force
him to surrender to his detriment. The Ninth Amendment provides: `The
enumeration in the Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people.'"
In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that
there is a constitutional right to privacy. Speaking thru Mr. Justice, later Chief
Justice, Enrique Fernando, we held:
"xxx
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The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully
it stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the personal
life of the citizen. This is indeed one of the basic distinctions between absolute
and limited government. Ultimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can
control. Protection of this private sector-- protection, in other words, of the
dignity and integrity of the individual--has become increasingly important as
modern society has developed. All the forces of a technological age --
industrialization, urbanization, and organization-- operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain
and support this enclave of private life marks the difference between a
democratic and a totalitarian society.'"
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution.[33] It is
expressly recognized in Section 3(1) of the Bill of Rights:
"Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law."
Other facets of the right to privacy are protected in various provisions of the
Bill of Rights, viz:[34]
"Sec. 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
x x x.
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
x x x.
Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself."
Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts by a person of meddling and prying into the privacy
of another.[35] It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of
another person,[36] and recognizes the privacy of letters and other private
communications.[37] The Revised Penal Code makes a crime the violation of
secrets by an officer,[38] the revelation of trade and industrial secrets,[39] and
trespass to dwelling.[40] Invasion of privacy is an offense in special laws like
the Anti-Wiretapping Law,[41] the Secrecy of Bank Deposit Act[42] and the
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Intellectual Property Code.[43] The Rules of Court on privileged
communication likewise recognize the privacy of certain information.[44]
Unlike the dissenters, we prescind from the premise that the right to privacy is
a fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provide our citizens and foreigners with the
facility to conveniently transact business with basic service and social security
providers and other government instrumentalities and (2) the need to reduce, if
not totally eradicate, fraudulent transactions and misrepresentations by persons
seeking basic services. It is debatable whether these interests are compelling
enough to warrant the issuance of A.O. No. 308. But what is not arguable is the
broadness, the vagueness, the overbreadth of A.O. No. 308 which if
implemented will put our people's right to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a
linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."
Biometry or biometrics is "the science of the application of statistical methods
to biological facts; a mathematical analysis of biological data."[45] The term
"biometrics" has now evolved into a broad category of technologies which
provide precise confirmation of an individual's identity through the use of the
individual's own physiological and behavioral characteristics.[46] A
physiological characteristic is a relatively stable physical characteristic such as
a fingerprint, retinal scan, hand geometry or facial features. A behavioral
characteristic is influenced by the individual's personality and includes voice
print, signature and keystroke.[47] Most biometric identification systems use a
card or personal identification number (PIN) for initial identification. The
biometric measurement is used to verify that the individual holding the card or
entering the PIN is the legitimate owner of the card or PIN.[48]
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in computer
data banks[49] and becomes a means of identifying an individual using a
service. This technology requires one's fingertip to be scanned every time
service or access is provided.[50] Another method is the retinal scan. Retinal
scan technology employs optical technology to map the capillary pattern of the
retina of the eye. This technology produces a unique print similar to a finger
print.[51] Another biometric method is known as the "artificial nose." This
device chemically analyzes the unique combination of substances excreted
from the skin of people.[52] The latest on the list of biometric achievements is
the thermogram. Scientists have found that by taking pictures of a face using
infra-red cameras, a unique heat distribution pattern is seen. The different
densities of bone, skin, fat and blood vessels all contribute to the individual's
personal "heat signature."[53]
In the last few decades, technology has progressed at a galloping rate. Some
science fictions are now science facts. Today, biometrics is no longer limited
to the use of fingerprint to identify an individual. It is a new science that uses
various technologies in encoding any and all biological characteristics of an
individual for identification. It is noteworthy that A.O. No. 308 does not state
what specific biological characteristics and what particular biometrics
technology shall be used to identify people who will seek its coverage.
Considering the banquet of options available to the implementors of A.O. No.
308, the fear that it threatens the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it
does not state whether encoding of data is limited to biological information
alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the
"generation of population data for development planning."[54] This is an
admission that the PRN will not be used solely for identification but for the
generation of other data with remote relation to the avowed purposes of A.O.
No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government
the roving authority to store and retrieve information for a purpose other than
the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot
be underplayed as the dissenters do. Pursuant to said administrative order, an
individual must present his PRN everytime he deals with a government agency
to avail of basic services and security. His transactions with the government
agency will necessarily be recorded-- whether it be in the computer or in the
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documentary file of the agency. The individual's file may include his
transactions for loan availments, income tax returns, statement of assets and
liabilities, reimbursements for medication, hospitalization, etc. The more
frequent the use of the PRN, the better the chance of building a huge and
formidable information base through the electronic linkage of the files.[55] The
data may be gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a covert
invitation to misuse, a temptation that may be too great for some of our
authorities to resist.[56]
We can even grant, arguendo, that the computer data file will be limited to the
name, address and other basic personal information about the individual.[57]
Even that hospitable assumption will not save A.O. No. 308 from constitutional
infirmity for again said order does not tell us in clear and categorical terms how
these information gathered shall be handled. It does not provide who shall
control and access the data, under what circumstances and for what purpose.
These factors are essential to safeguard the privacy and guaranty the integrity
of the information.[58] Well to note, the computer linkage gives other
government agencies access to the information. Yet, there are no controls to
guard against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder, without fear
of sanction or penalty, can make use of the data for whatever purpose, or worse,
manipulate the data stored within the system.[59]
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed for
unequivocally specified purposes.[60] The lack of proper safeguards in this
regard of A.O. No. 308 may interfere with the individual's liberty of abode and
travel by enabling authorities to track down his movement; it may also enable
unscrupulous persons to access confidential information and circumvent the
right against self-incrimination; it may pave the way for "fishing expeditions"
by government authorities and evade the right against unreasonable searches
and seizures.[61] The possibilities of abuse and misuse of the PRN, biometrics
and computer technology are accentuated when we consider that the individual
lacks control over what can be read or placed on his ID, much less verify the
correctness of the data encoded.[62] They threaten the very abuses that the Bill
of Rights seeks to prevent.[63]
The ability of a sophisticated data center to generate a comprehensive cradle-
to-grave dossier on an individual and transmit it over a national network is one
of the most graphic threats of the computer revolution.[64] The computer is
capable of producing a comprehensive dossier on individuals out of information
given at different times and for varied purposes.[65] It can continue adding to
the stored data and keeping the information up to date. Retrieval of stored data
is simple. When information of a privileged character finds its way into the
computer, it can be extracted together with other data on the subject.[66] Once
extracted, the information is putty in the hands of any person. The end of
privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a laidback posture. The Court
will not be true to its role as the ultimate guardian of the people's liberty if it
would not immediately smother the sparks that endanger their rights but would
rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the National ID and the use of
biometrics technology as it stands on quicksand. The reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether by his
conduct, the individual has exhibited an expectation of privacy; and (2) whether
this expectation is one that society recognizes as reasonable.[67] The factual
circumstances of the case determines the reasonableness of the expectation.[68]
However, other factors, such as customs, physical surroundings and practices
of a particular activity, may serve to create or diminish this expectation.[69]
The use of biometrics and computer technology in A.O. No. 308 does not assure
the individual of a reasonable expectation of privacy.[70] As technology
advances, the level of reasonably expected privacy decreases.[71] The measure
of protection granted by the reasonable expectation diminishes as relevant
technology becomes more widely accepted.[72] The security of the computer
data file depends not only on the physical inaccessibility of the file but also on
the advances in hardware and software computer technology. A.O. No. 308 is
so widely drawn that a minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be inferred from its provisions.
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The rules and regulations to be drawn by the IACC cannot remedy this fatal
defect. Rules and regulations merely implement the policy of the law or order.
On its face, A.O. No. 308 gives the IACC virtually unfettered discretion to
determine the metes and bounds of the ID System.
Nor do our present laws provide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act No. 591 penalizes the disclosure
by any person of data furnished by the individual to the NSO with imprisonment
and fine.[73] Republic Act No. 1161 prohibits public disclosure of SSS
employment records and reports.[74] These laws, however, apply to records
and data with the NSO and the SSS. It is not clear whether they may be applied
to data with the other government agencies forming part of the National ID
System. The need to clarify the penal aspect of A.O. No. 308 is another reason
why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of
the right of privacy by using the rational relationship test.[75] He stressed that
the purposes of A.O. No. 308 are: (1) to streamline and speed up the
implementation of basic government services, (2) eradicate fraud by avoiding
duplication of services, and (3) generate population data for development
planning. He concludes that these purposes justify the incursions into the right
to privacy for the means are rationally related to the end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a
valid police power measure. We declared that the law, in compelling a public
officer to make an annual report disclosing his assets and liabilities, his sources
of income and expenses, did not infringe on the individual's right to privacy.
The law was enacted to promote morality in public administration by curtailing
and minimizing the opportunities for official corruption and maintaining a
standard of honesty in the public service.[78]
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is
a statute, not an administrative order. Secondly, R.A. 3019 itself is sufficiently
detailed. The law is clear on what practices were prohibited and penalized, and
it was narrowly drawn to avoid abuses. In the case at bar, A.O. No. 308 may
have been impelled by a worthy purpose, but, it cannot pass constitutional
scrutiny for it is not narrowly drawn. And we now hold that when the integrity
of a fundamental right is at stake, this court will give the challenged law,
administrative order, rule or regulation a stricter scrutiny. It will not do for the
authorities to invoke the presumption of regularity in the performance of
official duties. Nor is it enough for the authorities to prove that their act is not
irrational for a basic right can be diminished, if not defeated, even when the
government does not act irrationally. They must satisfactorily show the
presence of compelling state interests and that the law, rule, or regulation is
narrowly drawn to preclude abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect human rights and to
prevent authoritarianism. In case of doubt, the least we can do is to lean towards
the stance that will not put in danger the rights protected by the Constitution.
The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line.
In Whalen, the United States Supreme Court was presented with the question
of whether the State of New York could keep a centralized computer record of
the names and addresses of all persons who obtained certain drugs pursuant to
a doctor's prescription. The New York State Controlled Substances Act of 1972
required physicians to identify patients obtaining prescription drugs
enumerated in the statute, i.e., drugs with a recognized medical use but with a
potential for abuse, so that the names and addresses of the patients can be
recorded in a centralized computer file of the State Department of Health. The
plaintiffs, who were patients and doctors, claimed that some people might
decline necessary medication because of their fear that the computerized data
may be readily available and open to public disclosure; and that once disclosed,
it may stigmatize them as drug addicts.[80] The plaintiffs alleged that the statute
invaded a constitutionally protected zone of privacy, i.e, the individual interest
in avoiding disclosure of personal matters, and the interest in independence in
making certain kinds of important decisions. The U.S. Supreme Court held that
while an individual's interest in avoiding disclosure of personal matters is an
aspect of the right to privacy, the statute did not pose a grievous threat to
establish a constitutional violation. The Court found that the statute was
necessary to aid in the enforcement of laws designed to minimize the misuse of
dangerous drugs. The patient-identification requirement was a product of an
orderly and rational legislative decision made upon recommendation by a
specially appointed commission which held extensive hearings on the matter.
Moreover, the statute was narrowly drawn and contained numerous safeguards
against indiscriminate disclosure. The statute laid down the procedure and
requirements for the gathering, storage and retrieval of the information. It
enumerated who were authorized to access the data. It also prohibited public
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disclosure of the data by imposing penalties for its violation. In view of these
safeguards, the infringement of the patients' right to privacy was justified by a
valid exercise of police power. As we discussed above, A.O. No. 308 lacks
these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is
not per se against the use of computers to accumulate, store, process, retrieve
and transmit data to improve our bureaucracy. Computers work wonders to
achieve the efficiency which both government and private industry seek. Many
information systems in different countries make use of the computer to facilitate
important social objectives, such as better law enforcement, faster delivery of
public services, more efficient management of credit and insurance programs,
improvement of telecommunications and streamlining of financial
activities.[81] Used wisely, data stored in the computer could help good
administration by making accurate and comprehensive information for those
who have to frame policy and make key decisions.[82] The benefits of the
computer has revolutionized information technology. It developed the
internet,[83] introduced the concept of cyberspace[84] and the information
superhighway where the individual, armed only with his personal computer,
may surf and search all kinds and classes of information from libraries and
databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not bar
all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and the
common good. It merely requires that the law be narrowly focused[85] and a
compelling interest justify such intrusions.[86] Intrusions into the right must be
accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades
individual privacy will be subjected by this Court to strict scrutiny. The reason
for this stance was laid down in Morfe v. Mutuc, to wit:
"The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic distinctions between absolute and
limited government. Ultimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can
control. Protection of this private sector-- protection, in other words, of the
dignity and integrity of the individual-- has become increasingly important as
modern society has developed. All the forces of a technological age--
industrialization, urbanization, and organization-- operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain
and support this enclave of private life marks the difference between a
democratic and a totalitarian society."[87]
IV
The right to privacy is one of the most threatened rights of man living in a mass
society. The threats emanate from various sources-- governments, journalists,
employers, social scientists, etc.[88] In the case at bar, the threat comes from
the executive branch of government which by issuing A.O. No. 308 pressures
the people to surrender their privacy by giving information about themselves
on the pretext that it will facilitate delivery of basic services. Given the record-
keeping power of the computer, only the indifferent will fail to perceive the
danger that A.O. No. 308 gives the government the power to compile a
devastating dossier against unsuspecting citizens. It is timely to take note of the
well-worded warning of Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record of his past and his
limitations. In a way, the threat is that because of its record-keeping, the society
will have lost its benign capacity to forget."[89] Oblivious to this counsel, the
dissents still say we should not be too quick in labelling the right to privacy as
a fundamental right. We close with the statement that the right to privacy was
not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No.
308 entitled "Adoption of a National Computerized Identification Reference
System" declared null and void for being unconstitutional.
SO ORDERED.
People v. Vera
65 Phil. 56 (Nov. 16, 1937)
384 of 692
G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG &
SHANGHAI BANKING CORPORATION, petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and
MARIANO CU UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the
Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking
Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and
McDonough for respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the
issuance of the writ of certiorari and of prohibition to the Court of First Instance
of Manila so that this court may review the actuations of the aforesaid Court of
First Instance in criminal case No. 42649 entitled "The People of the Philippine
Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the
defendant Mariano Cu Unjieng therein for probation under the provisions of
Act No. 4221, and thereafter prohibit the said Court of First Instance from
taking any further action or entertaining further the aforementioned application
for probation, to the end that the defendant Mariano Cu Unjieng may be
forthwith committed to prison in accordance with the final judgment of
conviction rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai
Banking Corporation, are respectively the plaintiff and the offended party, and
the respondent herein Mariano Cu Unjieng is one of the defendants, in the
criminal case entitled "The People of the Philippine Islands vs. Mariano Cu
Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of
Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O.
Vera, is the Judge ad interim of the seventh branch of the Court of First Instance
of Manila, who heard the application of the defendant Mariano Cu Unjieng for
probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First
Instance of Manila on October 15, 1931, petitioner herein Hongkong and
Shanghai Banking Corporation intervening in the case as private prosecutor.
After a protracted trial unparalleled in the annals of Philippine jurisprudence
both in the length of time spent by the court as well as in the volume in the
testimony and the bulk of the exhibits presented, the Court of First Instance of
Manila, on January 8, 1934, rendered a judgment of conviction sentencing the
defendant Mariano Cu Unjieng to indeterminate penalty ranging from four
years and two months of prision correccional to eight years of prision mayor,
to pay the costs and with reservation of civil action to the offended party, the
Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on
March 26, 1935, modified the sentence to an indeterminate penalty of from five
years and six months of prision correccional to seven years, six months and
twenty-seven days of prision mayor, but affirmed the judgment in all other
respects. Mariano Cu Unjieng filed a motion for reconsideration and four
successive motions for new trial which were denied on December 17, 1935, and
final judgment was accordingly entered on December 18, 1935. The defendant
thereupon sought to have the case elevated on certiorari to the Supreme Court
of the United States but the latter denied the petition for certiorari in
November, 1936. This court, on November 24, 1936, denied the petition
subsequently filed by the defendant for leave to file a second alternative motion
for reconsideration or new trial and thereafter remanded the case to the court of
origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by
the herein respondent Mariano Cu Unjieng on November 27, 1936,
before the trial court, under the provisions of Act No. 4221 of the defunct
Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted,
that he has no criminal record and that he would observe good conduct in the
future. The Court of First Instance of Manila, Judge Pedro Tuason presiding,
referred the application for probation of the Insular Probation Office which
recommended denial of the same June 18, 1937. Thereafter, the Court of First
385 of 692
Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the
petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the
granting of probation to the herein respondent Mariano Cu Unjieng. The private
prosecution also filed an opposition on April 5, 1937, alleging, among other
things, that Act No. 4221, assuming that it has not been repealed by section 2
of Article XV of the Constitution, is nevertheless violative of section 1,
subsection (1), Article III of the Constitution guaranteeing equal protection of
the laws for the reason that its applicability is not uniform throughout the
Islands and because section 11 of the said Act endows the provincial boards
with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a
supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative
power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private
prosecution except with respect to the questions raised concerning the
constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a
resolution with a finding that "las pruebas no han establecido de unamanera
concluyente la culpabilidad del peticionario y que todos los hechos probados
no son inconsistentes o incongrentes con su inocencia" and concludes that the
herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the
crime of which he stands convicted by this court in G.R. No. 41200, but denying
the latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y
la historia social que se han expuesto en el cuerpo de esta resolucion, que hacen
al peticionario acreedor de la misma, una parte de la opinion publica, atizada
por los recelos y las suspicacias, podria levantarse indignada contra un sistema
de probacion que permite atisbar en los procedimientos ordinarios de una causa
criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al
traer a la superficie conclusiones enteramente differentes, en menoscabo del
interes publico que demanda el respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed
an exception to the resolution denying probation and a notice of intention to file
a motion for reconsideration. An alternative motion for reconsideration or new
trial was filed by counsel on July 13, 1937. This was supplemented by an
additional motion for reconsideration submitted on July 14, 1937. The aforesaid
motions were set for hearing on July 31, 1937, but said hearing was postponed
at the petition of counsel for the respondent Mariano Cu Unjieng because a
motion for leave to intervene in the case as amici curiae signed by thirty-three
(thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio
Chaves whose signature appears in the aforesaid motion subsequently filed a
petition for leave to withdraw his appearance as amicus curiae on the ground
that the motion for leave to intervene as amici curiae was circulated at a banquet
given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and
that he signed the same "without mature deliberation and purely as a matter of
courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial
court for the issuance of an order of execution of the judgment of this court in
said case and forthwith to commit the herein respondent Mariano Cu Unjieng
to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion
for leave to intervene as amici curiae aforementioned, asking that a date be set
for a hearing of the same and that, at all events, said motion should be denied
with respect to certain attorneys signing the same who were members of the
legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an order requiring all parties
including the movants for intervention as amici curiae to appear before the court
on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila
moved for the hearing of his motion for execution of judgment in preference to
the motion for leave to intervene as amici curiae but, upon objection of counsel
for Mariano Cu Unjieng, he moved for the postponement of the hearing of both
motions. The respondent judge thereupon set the hearing of the motion for
execution on August 21, 1937, but proceeded to consider the motion for leave
to intervene as amici curiae as in order. Evidence as to the circumstances under
which said motion for leave to intervene as amici curiae was signed and
submitted to court was to have been heard on August 19, 1937. But at this
juncture, herein petitioners came to this court on extraordinary legal process to
386 of 692
put an end to what they alleged was an interminable proceeding in the Court of
First Instance of Manila which fostered "the campaign of the defendant
Mariano Cu Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and ridicule because
of the apparent inability of the judicial machinery to make effective a final
judgment of this court imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon
the issuance of a temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari
and prohibition, herein petitioners allege that the respondent judge has acted
without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano
Cu Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is
made to apply only to the provinces of the Philippines; it nowhere states that it
is to be made applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect
that in the absence of a special provision, the term "province" may be construed
to include the City of Manila for the purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not a law of general application
because it is made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No.
4221 would not be applicable to it because it has provided for the salary of a
probation officer as required by section 11 thereof; it being immaterial that
there is an Insular Probation Officer willing to act for the City of Manila, said
Probation Officer provided for in section 10 of Act No. 4221 being different
and distinct from the Probation Officer provided for in section 11 of the same
Act.
II. Because even if the respondent judge originally had jurisdiction to entertain
the application for probation of the respondent Mariano Cu Unjieng, he
nevertheless acted without jurisdiction or in excess thereof in continuing to
entertain the motion for reconsideration and by failing to commit Mariano Cu
Unjieng to prison after he had promulgated his resolution of June 28, 1937,
denying Mariano Cu Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No.
4221 to the granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for
probation on June 28, 1937, it became final and executory at the moment of its
rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or
to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is
innocent of the crime for which he was convicted by final judgment of this
court, which finding is not only presumptuous but without foundation in fact
and in law, and is furthermore in contempt of this court and a violation of the
respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his duty,
which became imperative when he issued his order of June 28, 1937, denying
the application for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy
in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner
Hongkong and Shanghai Banking Corporation further contends that Act No.
4221 of the Philippine Legislature providing for a system of probation for
persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it is violative of section 1, subsection (1), Article III,
of the Constitution of the Philippines guaranteeing equal protection of the laws
because it confers upon the provincial board of its province the absolute
discretion to make said law operative or otherwise in their respective provinces,
387 of 692
because it constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the Jones
Law (section 8) in the Philippine Legislature and by the Constitution (section
1, Art. VI) in the National Assembly; and for the further reason that it gives the
provincial boards, in contravention of the Constitution (section 2, Art. VIII) and
the Jones Law (section 28), the authority to enlarge the powers of the Court of
First Instance of different provinces without uniformity. In another
supplementary petition dated September 14, 1937, the Fiscal of the City of
Manila, in behalf of one of the petitioners, the People of the Philippine Islands,
concurs for the first time with the issues raised by other petitioner regarding the
constitutionality of Act No. 4221, and on the oral argument held on October 6,
1937, further elaborated on the theory that probation is a form of reprieve and
therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief
Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal
filed two memorandums in which he contended that Act No. 4221 not only
encroaches upon the pardoning power to the executive, but also constitute an
unwarranted delegation of legislative power and a denial of the equal protection
of the laws. On October 9, 1937, two memorandums, signed jointly by the City
Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine
Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking
Corporation, one sustaining the power of the state to impugn the validity of its
own laws and the other contending that Act No. 4221 constitutes an
unwarranted delegation of legislative power, were presented. Another joint
memorandum was filed by the same persons on the same day, October 9, 1937,
alleging that Act No. 4221 is unconstitutional because it denies the equal
protection of the laws and constitutes an unlawful delegation of legislative
power and, further, that the whole Act is void: that the Commonwealth is not
estopped from questioning the validity of its laws; that the private prosecution
may intervene in probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the constitutional question
in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral
argument and memorandums, challenge each and every one of the foregoing
proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court
and was still pending resolution before the trial court when the present petition
was filed with this court.
(3) That the petitioners having themselves raised the question as to the
execution of judgment before the trial court, said trial court has acquired
exclusive jurisdiction to resolve the same under the theory that its resolution
denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the
Court of First Instance to decide the question as to whether or not the execution
will lie, this court nevertheless cannot exercise said jurisdiction while the Court
of First Instance has assumed jurisdiction over the same upon motion of herein
petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to
deprive the trial court of its jurisdiction over the case and elevate the
proceedings to this court, should not be tolerated because it impairs the
authority and dignity of the trial court which court while sitting in the probation
cases is "a court of limited jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the
question submitted to and pending resolution by the trial court, the present
action would not lie because the resolution of the trial court denying probation
is appealable; for although the Probation Law does not specifically provide that
an applicant for probation may appeal from a resolution of the Court of First
Instance denying probation, still it is a general rule in this jurisdiction that a
final order, resolution or decision of an inferior court is appealable to the
superior court.
(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and
executory for the reason that the said respondent had filed an alternative motion
for reconsideration and new trial within the requisite period of fifteen days,
388 of 692
which motion the trial court was able to resolve in view of the restraining order
improvidently and erroneously issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable
when he presented his answer to the motion for reconsideration and agreed to
the postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation
is not appealable, it is incumbent upon the accused to file an action for the
issuance of the writ of certiorari with mandamus, it appearing that the trial
court, although it believed that the accused was entitled to probation,
nevertheless denied probation for fear of criticism because the accused is a rich
man; and that, before a petition for certiorari grounded on an irregular exercise
of jurisdiction by the trial court could lie, it is incumbent upon the petitioner to
file a motion for reconsideration specifying the error committed so that the trial
court could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not appealable, the
trial court retains its jurisdiction within a reasonable time to correct or modify
it in accordance with law and justice; that this power to alter or modify an order
or resolution is inherent in the courts and may be exercise either motu proprio
or upon petition of the proper party, the petition in the latter case taking the
form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probation
will be closed from the moment the accused commences to serve his sentence
(Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents
maintain that Act No. 4221 is constitutional because, contrary to the allegations
of the petitioners, it does not constitute an undue delegation of legislative
power, does not infringe the equal protection clause of the Constitution, and
does not encroach upon the pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for the respondents reiterate the
view that section 11 of Act No. 4221 is free from constitutional objections and
contend, in addition, that the private prosecution may not intervene in probation
proceedings, much less question the validity of Act No. 4221; that both the City
Fiscal and the Solicitor-General are estopped from questioning the validity of
the Act; that the validity of Act cannot be attacked for the first time before this
court; that probation in unavailable; and that, in any event, section 11 of the Act
No. 4221 is separable from the rest of the Act. The last memorandum for the
respondent Mariano Cu Unjieng was denied for having been filed out of time
but was admitted by resolution of this court and filed anew on November
5, 1937. This memorandum elaborates on some of the points raised by the
respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the
present case, we noted that the court below, in passing upon the merits of the
application of the respondent Mariano Cu Unjieng and in denying said
application assumed the task not only of considering the merits of the
application, but of passing upon the culpability of the applicant,
notwithstanding the final pronouncement of guilt by this court. (G.R. No.
41200.) Probation implies guilt be final judgment. While a probation case may
look into the circumstances attending the commission of the offense, this does
not authorize it to reverse the findings and conclusive of this court, either
directly or indirectly, especially wherefrom its own admission reliance was
merely had on the printed briefs, averments, and pleadings of the parties. As
already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337),
and reiterated in subsequent cases, "if each and every Court of First Instance
could enjoy the privilege of overruling decisions of the Supreme Court, there
would be no end to litigation, and judicial chaos would result." A becoming
modesty of inferior courts demands conscious realization of the position that
they occupy in the interrelation and operation of the intergrated judicial system
of the nation.
After threshing carefully the multifarious issues raised by both counsel for the
petitioners and the respondents, this court prefers to cut the Gordian knot and
take up at once the two fundamental questions presented, namely, (1) whether
or not the constitutionality of Act No. 4221 has been properly raised in these
proceedings; and (2) in the affirmative, whether or not said Act is constitutional.
Considerations of these issues will involve a discussion of certain incidental
questions raised by the parties.
389 of 692
To arrive at a correct conclusion on the first question, resort to certain guiding
principles is necessary. It is a well-settled rule that the constitutionality of an
act of the legislature will not be determined by the courts unless that question
is properly raised and presented inappropriate cases and is necessary to a
determination of the case; i.e., the issue of constitutionality must be the very lis
mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6
R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently
raised in ordinary actions. Nevertheless, resort may be made to extraordinary
legal remedies, particularly where the remedies in the ordinary course of law
even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs.
Patstone ([1922]), 42 Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the petitioner in mandamus
proceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine
Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed.,
845]), this court declared an act of the legislature unconstitutional in an action
of quo warranto brought in the name of the Government of the Philippines. It
has also been held that the constitutionality of a statute may be questioned in
habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I,
pp. 97, 117), although there are authorities to the contrary; on an application for
injunction to restrain action under the challenged statute (mandatory, see Cruz
vs. Youngberg [1931], 56 Phil., 234); and even on an application for
preliminary injunction where the determination of the constitutional question is
necessary to a decision of the case. (12 C. J., p. 783.) The same may be said as
regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil.,
385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District
Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982;
1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad,
supra, decided by this court twelve years ago was, like the present one, an
original action for certiorari and prohibition. The constitutionality of Act No.
2972, popularly known as the Chinese Bookkeeping Law, was there challenged
by the petitioners, and the constitutional issue was not met squarely by the
respondent in a demurrer. A point was raised "relating to the propriety of the
constitutional question being decided in original proceedings in prohibition."
This court decided to take up the constitutional question and, with two justices
dissenting, held that Act No. 2972 was constitutional. The case was elevated on
writ of certiorari to the Supreme Court of the United States which reversed the
judgment of this court and held that the Act was invalid. (271 U. S., 500; 70
Law. ed., 1059.) On the question of jurisdiction, however, the Federal Supreme
Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the
Philippine supreme court is granted concurrent jurisdiction in prohibition with
courts of first instance over inferior tribunals or persons, and original
jurisdiction over courts of first instance, when such courts are exercising
functions without or in excess of their jurisdiction. It has been held by that court
that the question of the validity of the criminal statute must usually be raised by
a defendant in the trial court and be carried regularly in review to the Supreme
Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But
in this case where a new act seriously affected numerous persons and extensive
property rights, and was likely to cause a multiplicity of actions, the Supreme
Court exercised its discretion to bring the issue to the act's validity promptly
before it and decide in the interest of the orderly administration of justice. The
court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52
Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764;
Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup.
Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61
Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A,
1024). Although objection to the jurisdiction was raise by demurrer to the
petition, this is now disclaimed on behalf of the respondents, and both parties
ask a decision on the merits. In view of the broad powers in prohibition granted
to that court under the Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of
preventing the inferior tribunal from usurping a jurisdiction with which it is not
legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule,
although there is a conflict in the cases, is that the merit of prohibition will not
lie whether the inferior court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in such cases the interior court
having jurisdiction may itself determine the constitutionality of the statute, and
its decision may be subject to review, and consequently the complainant in such
cases ordinarily has adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its jurisdiction
390 of 692
exclusively from an unconstitutional statute, it may be prevented by the writ of
prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree
[1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish
[1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13;
State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields
[1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their
jurisdiction solely from Act No. 4221 which prescribes in detailed manner the
procedure for granting probation to accused persons after their conviction has
become final and before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily the execution
of the sentence is recognized and, according to a number of state courts,
including those of Massachusetts, Michigan, New York, and Ohio, the power
is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115
Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People
ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State
[1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States
([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States
expressed the opinion that under the common law the power of the court was
limited to temporary suspension, and brushed aside the contention as to inherent
judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses against the
criminal laws and upon conviction to impose the punishment provided by law
is judicial, and it is equally to be conceded that, in exerting the powers vested
in them on such subject, courts inherently possess ample right to exercise
reasonable, that is, judicial, discretion to enable them to wisely exert their
authority. But these concessions afford no ground for the contention as to power
here made, since it must rest upon the proposition that the power to enforce
begets inherently a discretion to permanently refuse to do so. And the effect of
the proposition urged upon the distribution of powers made by the Constitution
will become apparent when it is observed that indisputable also is it that the
authority to define and fix the punishment for crime is legislative and includes
the right in advance to bring within judicial discretion, for the purpose of
executing the statute, elements of consideration which would be otherwise
beyond the scope of judicial authority, and that the right to relieve from the
punishment, fixed by law and ascertained according to the methods by it
provided belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director of
Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this
court in 1915, also reached the conclusion that the power to suspend the
execution of sentences pronounced in criminal cases is not inherent in the
judicial function. "All are agreed", he said, "that in the absence of statutory
authority, it does not lie within the power of the courts to grant such
suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore,
when they argue that a Court of First Instance sitting in probation proceedings
is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred
exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered
on application for prohibition where the question has not been properly brought
to the attention of the court by objection of some kind (Hill vs. Tarver [1901],
130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120;
168 S. W., 746). In the case at bar, it is unquestionable that the constitutional
issue has been squarely presented not only before this court by the petitioners
but also before the trial court by the private prosecution. The respondent, Hon.
Jose O Vera, however, acting as judge of the court below, declined to pass upon
the question on the ground that the private prosecutor, not being a party whose
rights are affected by the statute, may not raise said question. The respondent
judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec.
177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59;
113 N. E., 742, 743), as authority for the proposition that a court will not
consider any attack made on the constitutionality of a statute by one who has
no interest in defeating it because his rights are not affected by its operation.
The respondent judge further stated that it may not motu proprio take up the
constitutional question and, agreeing with Cooley that "the power to declare a
legislative enactment void is one which the judge, conscious of the fallibility of
the human judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded
on the assumption that Act No. 4221 is constitutional. While therefore, the court
a quo admits that the constitutional question was raised before it, it refused to
consider the question solely because it was not raised by a proper party.
391 of 692
Respondents herein reiterates this view. The argument is advanced that the
private prosecution has no personality to appear in the hearing of the application
for probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of
the Court of First Instance of Manila, and hence the issue of constitutionality
was not properly raised in the lower court. Although, as a general rule, only
those who are parties to a suit may question the constitutionality of a statute
involved in a judicial decision, it has been held that since the decree pronounced
by a court without jurisdiction is void, where the jurisdiction of the court
depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the
court by persons interested in the effect to be given the statute.(12 C. J., sec.
184, p. 766.) And, even if we were to concede that the issue was not properly
raised in the court below by the proper party, it does not follow that the issue
may not be here raised in an original action of certiorari and prohibitions. It is
true that, as a general rule, the question of constitutionality must be raised at
the earliest opportunity, so that if not raised by the pleadings, ordinarily it may
not be raised at the trial, and if not raised in the trial court, it will not considered
on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del
Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits
of exceptions. Courts, in the exercise of sounds discretion, may determine the
time when a question affecting the constitutionality of a statute should be
presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said that the question
may be raised for the first time at any stage of the proceedings, either in the trial
court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that
it is the duty of a court to pass on the constitutional question, though raised for
the first time on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R.
Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co.
[1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co.,
[1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any time, where it involves
the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57
S., 870.) As to the power of this court to consider the constitutional question
raised for the first time before this court in these proceedings, we turn again and
point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on
the hypotheses that the Hongkong & Shanghai Banking Corporation,
represented by the private prosecution, is not the proper party to raise the
constitutional question here — a point we do not now have to decide — we are
of the opinion that the People of the Philippines, represented by the Solicitor-
General and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity
of a statute must have a personal and substantial interest in the case such that
he has sustained, or will sustained, direct injury as a result of its enforcement.
It goes without saying that if Act No. 4221 really violates the constitution, the
People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of grater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute. Hence, the
well-settled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312;
41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew
a mining corporation, alleging that the statute under which the respondents base
their right was unconstitutional because it impaired the obligation of contracts.
The capacity of the chief law officer of the state to question the constitutionality
of the statute was though, as a general rule, only those who are parties to a suit
may question the constitutionality of a statute involved in a judicial decision, it
has been held that since the decree pronounced by a court without jurisdiction
in void, where the jurisdiction of the court depends on the validity of the statute
in question, the issue of constitutionality will be considered on its being brought
to the attention of the court by persons interested in the effect to begin the
statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the
issue was not properly raised in the court below by the proper party, it does not
follow that the issue may not be here raised in an original action of certiorari
and prohibition. It is true that, as a general rule, the question of constitutionality
must be raised at the earliest opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised a the trial, and if not raised in the trial court, it
will not be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-
Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state
that the general rule admits of exceptions. Courts, in the exercise of sound
discretion, may determine the time when a question affecting the
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constitutionality of a statute should be presented. (In re Woolsey [19884], 95
N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict
of authorities, it is said that the question may be raised for the first time at any
state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.)
Even in civil cases, it has been held that it is the duty of a court to pass on the
constitutional question, though raised for first time on appeal, if it appears that
a determination of the question is necessary to a decision of the case. (McCabe's
Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892;
Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108;
Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And
it has been held that a constitutional question will be considered by an appellate
court at any time, where it involves the jurisdiction of the court below (State vs.
Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to
consider the constitutional question raised for the first time before this court in
these proceedings, we turn again and point with emphasis to the case of Yu
Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong &
Shanghai Banking Corporation, represented by the private prosecution, is not
the proper party to raise the constitutional question here — a point we do not
now have to decide — we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of Manila, is
such a proper party in the present proceedings. The unchallenged rule is that
the person who impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement. It goes without saying that if Act No. 4221
really violates the Constitution, the People of the Philippines, in whose name
the present action is brought, has a substantial interest in having it set aside. Of
greater import than the damage caused by the illegal expenditure of public
funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can
challenge the validity of its own laws. In Government of the Philippine Islands
vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared
an act of the legislature unconstitutional in an action instituted in behalf of the
Government of the Philippines. In Attorney General vs. Perkings([1889], 73
Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through
its Attorney General, instituted quo warranto proceedings to test the right of the
respondents to renew a mining corporation, alleging that the statute under
which the respondents base their right was unconstitutional because it impaired
the obligation of contracts. The capacity of the chief law officer of the state to
question the constitutionality of the statute was itself questioned. Said the
Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the
validity of a law enacted by their representatives; that to an accusation by the
people of Michigan of usurpation their government, a statute enacted by the
people of Michigan is an adequate answer. The last proposition is true, but, if
the statute relied on in justification is unconstitutional, it is statute only in form,
and lacks the force of law, and is of no more saving effect to justify action under
it than if it had never been enacted. The constitution is the supreme law, and to
its behests the courts, the legislature, and the people must bow . . . The
legislature and the respondents are not the only parties in interest upon such
constitutional questions. As was remarked by Mr. Justice Story, in speaking of
an acquiescence by a party affected by an unconstitutional act of the legislature:
"The people have a deep and vested interest in maintaining all the constitutional
limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum.,
314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action
(mandamus) was brought by the Attorney-General of Kansas to test the
constitutionality of a statute of the state. In disposing of the question whether
or not the state may bring the action, the Supreme Court of Kansas said:
. . . the state is a proper party — indeed, the proper party — to bring this action.
The state is always interested where the integrity of its Constitution or statutes
is involved.
"It has an interest in seeing that the will of the Legislature is not disregarded,
and need not, as an individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its
Attorney-General, or county attorney, may exercise his bet judgment as to what
sort of action he will bring to have the matter determined, either by quo
warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac.,
1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State
393 of 692
vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of
Neodesha, 3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W.
Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S.,
823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of
County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State
[1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339;
119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the
case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being
charged with the duty of enforcing the laws, has no right to plead that a law is
unconstitutional. In support of the argument three decisions are cited, viz.: State
ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann.,
1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans
(41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard,
Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do
not forbid a district attorney to plead that a statute is unconstitutional if he finds
if in conflict with one which it is his duty to enforce. In State ex rel. Hall,
District Attorney, vs. Judge, etc., the ruling was the judge should not, merely
because he believed a certain statute to be unconstitutional forbid the district
attorney to file a bill of information charging a person with a violation of the
statute. In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered for decision,
and unless it must be decided in order to determine the right of a party litigant.
State ex rel. Nicholls, Governor, etc., is authority for the proposition merely
that an officer on whom a statute imposes the duty of enforcing its provisions
cannot avoid the duty upon the ground that he considers the statute
unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc.,
is authority for the proposition merely that executive officers, e.g., the state
auditor and state treasurer, should not decline to perform ministerial duties
imposed upon them by a statute, on the ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state, and,
above all, to support the Constitution of the state. If, in the performance of his
duty he finds two statutes in conflict with each other, or one which repeals
another, and if, in his judgment, one of the two statutes is unconstitutional, it is
his duty to enforce the other; and, in order to do so, he is compelled to submit
to the court, by way of a plea, that one of the statutes is unconstitutional. If it
were not so, the power of the Legislature would be free from constitutional
limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the general
proposition that the state may impugn the validity of its laws. They have not
cited any authority running clearly in the opposite direction. In fact, they appear
to have proceeded on the assumption that the rule as stated is sound but that it
has no application in the present case, nor may it be invoked by the City Fiscal
in behalf of the People of the Philippines, one of the petitioners herein, the
principal reasons being that the validity before this court, that the City Fiscal is
estopped from attacking the validity of the Act and, not authorized challenge
the validity of the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past
and all that time has not been attacked as unconstitutional by the Fiscal of
Manila but, on the contrary, has been impliedly regarded by him as
constitutional, is no reason for considering the People of the Philippines
estopped from nor assailing its validity. For courts will pass upon a
constitutional questions only when presented before it in bona fide cases for
determination, and the fact that the question has not been raised before is not a
valid reason for refusing to allow it to be raised later. The fiscal and all others
are justified in relying upon the statute and treating it as valid until it is held
void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act
No. 4221 is necessary to the resolution of the instant case. For, ". . . while the
court will meet the question with firmness, where its decision is indispensable,
it is the part of wisdom, and just respect for the legislature, renders it proper, to
waive it, if the case in which it arises, can be decided on other points." (Ex parte
Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs.
wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a
394 of 692
constitutional question is necessary whenever it is essential to the decision of
the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158
App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann.
Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico
Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs.
Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a
party is founded solely on a statute the validity of which is attacked. (12 C.J.,
p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S.,
972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that
the respondent Cu Unjieng draws his privilege to probation solely from Act No.
4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of
the fact that the Probation Act is a new addition to our statute books and its
validity has never before been passed upon by the courts; that may persons
accused and convicted of crime in the City of Manila have applied for
probation; that some of them are already on probation; that more people will
likely take advantage of the Probation Act in the future; and that the respondent
Mariano Cu Unjieng has been at large for a period of about four years since his
first conviction. All wait the decision of this court on the constitutional
question. Considering, therefore, the importance which the instant case has
assumed and to prevent multiplicity of suits, strong reasons of public policy
demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong
Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed.,
1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101
N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis.,
327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs.
Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an
analogous situation confronted us. We said: "Inasmuch as the property and
personal rights of nearly twelve thousand merchants are affected by these
proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by
the courts, in the interest of the public welfare and for the advancement of
public policy, we have determined to overrule the defense of want of
jurisdiction in order that we may decide the main issue. We have here an
extraordinary situation which calls for a relaxation of the general rule." Our
ruling on this point was sustained by the Supreme Court of the United States.
A more binding authority in support of the view we have taken can not be found.
We have reached the conclusion that the question of the constitutionality of Act
No. 4221 has been properly raised. Now for the main inquiry: Is the Act
unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary
to enforce the Constitution. This court, by clear implication from the provisions
of section 2, subsection 1, and section 10, of Article VIII of the Constitution,
may declare an act of the national legislature invalid because in conflict with
the fundamental lay. It will not shirk from its sworn duty to enforce the
Constitution. And, in clear cases, it will not hesitate to give effect to the
supreme law by setting aside a statute in conflict therewith. This is of the
essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature
that all reasonable doubts should be resolved in favor of the constitutionality of
a statute. An act of the legislature approved by the executive, is presumed to be
within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well. "The
question of the validity of every statute is first determined by the legislative
department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10;
Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson
[1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by
the sanction of the executive. The members of the Legislature and the Chief
Executive have taken an oath to support the Constitution and it must be
presumed that they have been true to this oath and that in enacting and
sanctioning a particular law they did not intend to violate the Constitution. The
courts cannot but cautiously exercise its power to overturn the solemn
declarations of two of the three grand departments of the governments. (6
R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the
judiciary to reflect the wisdom of the people as expressed through an elective
Legislature and an elective Chief Executive. It follows, therefore, that the courts
will not set aside a law as violative of the Constitution except in a clear case.
This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument,
called attention to the fact that the President of the Philippines had already
expressed his opinion against the constitutionality of the Probation Act,
adverting that as to the Executive the resolution of this question was a foregone
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conclusion. Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the President in his
message dated September 1, 1937, recommended to the National Assembly the
immediate repeal of the Probation Act (No. 4221); that this message resulted in
the approval of Bill No. 2417 of the Nationality Assembly repealing the
probation Act, subject to certain conditions therein mentioned; but that said bill
was vetoed by the President on September 13, 1937, much against his wish, "to
have stricken out from the statute books of the Commonwealth a law . . . unfair
and very likely unconstitutional." It is sufficient to observe in this connection
that, in vetoing the bill referred to, the President exercised his constitutional
prerogative. He may express the reasons which he may deem proper for taking
such a step, but his reasons are not binding upon us in the determination of
actual controversies submitted for our determination. Whether or not the
Executive should express or in any manner insinuate his opinion on a matter
encompassed within his broad constitutional power of veto but which happens
to be at the same time pending determination in this court is a question of
propriety for him exclusively to decide or determine. Whatever opinion is
expressed by him under these circumstances, however, cannot sway our
judgment on way or another and prevent us from taking what in our opinion is
the proper course of action to take in a given case. It if is ever necessary for us
to make any vehement affirmance during this formative period of our political
history, it is that we are independent of the Executive no less than of the
Legislative department of our government — independent in the performance
of our functions, undeterred by any consideration, free from politics, indifferent
to popularity, and unafraid of criticism in the accomplishment of our sworn
duty as we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds:
(1) That said Act encroaches upon the pardoning power of the Executive; (2)
that its constitutes an undue delegation of legislative power and (3) that it denies
the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as
the Jones Law, in force at the time of the approval of Act No. 4221, otherwise
known as the Probation Act, vests in the Governor-General of the Philippines
"the exclusive power to grant pardons and reprieves and remit fines and
forfeitures". This power is now vested in the President of the Philippines. (Art.
VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution
differ in some respects. The adjective "exclusive" found in the Jones Law has
been omitted from the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of the offense, either
before or after conviction (Vide Constitution of the United States, Art. II, sec.
2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines
was thus empowered, like the President of the United States, to pardon a person
before the facts of the case were fully brought to light. The framers of our
Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after
conviction". So, too, under the new Constitution, the pardoning power does not
extend to "cases of impeachment". This is also the rule generally followed in
the United States (Vide Constitution of the United States, Art. II, sec. 2). The
rule in England is different. There, a royal pardon can not be pleaded in bar of
an impeachment; "but," says Blackstone, "after the impeachment has been
solemnly heard and determined, it is not understood that the king's royal grace
is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307;
15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep.,
699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason
for the distinction is obvious. In England, Judgment on impeachment is not
confined to mere "removal from office and disqualification to hold and enjoy
any office of honor, trust, or profit under the Government" (Art. IX, sec. 4,
Constitution of the Philippines) but extends to the whole punishment attached
by law to the offense committed. The House of Lords, on a conviction may, by
its sentence, inflict capital punishment, perpetual banishment, perpetual
banishment, fine or imprisonment, depending upon the gravity of the offense
committed, together with removal from office and incapacity to hold office.
(Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of
"commutation" and of the power of the executive to impose, in the pardons he
may grant, such conditions, restrictions and limitations as he may deem proper.
Amnesty may be granted by the President under the Constitution but only with
the concurrence of the National Assembly. We need not dwell at length on the
significance of these fundamental changes. It is sufficient for our purposes to
state that the pardoning power has remained essentially the same. The question
is: Has the pardoning power of the Chief Executive under the Jones Law been
impaired by the Probation Act?
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As already stated, the Jones Law vests the pardoning power exclusively in the
Chief Executive. The exercise of the power may not, therefore, be vested in
anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken
away nor fettered by any legislative restrictions, nor can like power be given by
the legislature to any other officer or authority. The coordinate departments of
government have nothing to do with the pardoning power, since no person
properly belonging to one of the departments can exercise any powers
appertaining to either of the others except in cases expressly provided for by
the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning
power is conferred on the executive without express or implied limitations, the
grant is exclusive, and the legislature can neither exercise such power itself nor
delegate it elsewhere, nor interfere with or control the proper exercise thereof,
. . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any
pardoning power upon the courts it is for that reason unconstitutional and void.
But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme
Court of the United States ruled in 1916 that an order indefinitely suspending
sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed.,
129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief
Justice White, after an exhaustive review of the authorities, expressed the
opinion of the court that under the common law the power of the court was
limited to temporary suspension and that the right to suspend sentenced
absolutely and permanently was vested in the executive branch of the
government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ". .
. and so far as the future is concerned, that is, the causing of the imposition of
penalties as fixed to be subject, by probation legislation or such other means as
the legislative mind may devise, to such judicial discretion as may be adequate
to enable courts to meet by the exercise of an enlarged but wise discretion the
infinite variations which may be presented to them for judgment, recourse must
be had Congress whose legislative power on the subject is in the very nature of
things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F.
[2d], 5, 6.) This decision led the National Probation Association and others to
agitate for the enactment by Congress of a federal probation law. Such action
was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18,
sec. 724). This was followed by an appropriation to defray the salaries and
expenses of a certain number of probation officers chosen by civil service.
(Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72
Law. ed., 309), the Supreme Court of the United States, through Chief Justice
Taft, held that when a person sentenced to imprisonment by a district court has
begun to serve his sentence, that court has no power under the Probation Act of
March 4, 1925 to grant him probation even though the term at which sentence
was imposed had not yet expired. In this case of Murray, the constitutionality
of the probation Act was not considered but was assumed. The court traced the
history of the Act and quoted from the report of the Committee on the Judiciary
of the United States House of Representatives (Report No. 1377, 68th
Congress, 2 Session) the following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district
courts exercised a form of probation either, by suspending sentence or by
placing the defendants under state probation officers or volunteers. In this case,
however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E,
1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied
the right of the district courts to suspend sentenced. In the same opinion the
court pointed out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact
probation legislation. In 1917, a bill was favorably reported by the Judiciary
Committee and passed the House. In 1920, the judiciary Committee again
favorably reported a probation bill to the House, but it was never reached for
definite action.
If this bill is enacted into law, it will bring the policy of the Federal government
with reference to its treatment of those convicted of violations of its criminal
laws in harmony with that of the states of the Union. At the present time every
state has a probation law, and in all but twelve states the law applies both to
adult and juvenile offenders. (see, also, Johnson, Probation for Juveniles and
Adults [1928], Chap. I.)
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The constitutionality of the federal probation law has been sustained by inferior
federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals of
the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions under
consideration have been reviewed by the Circuit Court of Appeals of the Ninth
Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and
the same held in no manner to encroach upon the pardoning power of the
President. This case will be found to contain an able and comprehensive review
of the law applicable here. It arose under the act we have to consider, and to it
and the authorities cited therein special reference is made (Nix vs. James, 7 F.
[2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of the
Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the
Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and
unequivocal language, pointed to Congress as possessing the requisite power to
enact probation laws, that a federal probation law as actually enacted in 1925,
and that the constitutionality of the Act has been assumed by the Supreme Court
of the United States in 1928 and consistently sustained by the inferior federal
courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the
United States, may legally enact a probation law under its broad power to fix
the punishment of any and all penal offenses. This conclusion is supported by
other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A,
1285; 151 Pac., 698, the court said: "It is clearly within the province of the
Legislature to denominate and define all classes of crime, and to prescribe for
each a minimum and maximum punishment." And in State vs. Abbott ([1910],
87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the
court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial
judges, if it sees fit, the largest discretion as to the sentence to be imposed, as
to the beginning and end of the punishment and whether it should be certain or
indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455;
95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed
the penalties for their violation. Invariably, the legislature has demonstrated the
desire to vest in the courts — particularly the trial courts — large discretion in
imposing the penalties which the law prescribes in particular cases. It is
believed that justice can best be served by vesting this power in the courts, they
being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to
refrain from imposing a sentence merely because, taking into consideration the
degree of malice and the injury caused by the offense, the penalty provided by
law is clearly excessive, the courts being allowed in such case to submit to the
Chief Executive, through the Department of Justice, such statement as it may
deem proper (see art. 5, Revised Penal Code), in cases where both mitigating
and aggravating circumstances are attendant in the commission of a crime and
the law provides for a penalty composed of two indivisible penalties, the courts
may allow such circumstances to offset one another in consideration of their
number and importance, and to apply the penalty according to the result of such
compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and
Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised
Penal Code empowers the courts to determine, within the limits of each periods,
in case the penalty prescribed by law contains three periods, the extent of the
evil produced by the crime. In the imposition of fines, the courts are allowed to
fix any amount within the limits established by law, considering not only the
mitigating and aggravating circumstances, but more particularly the wealth or
means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of
the same Code provides that "a discretionary penalty shall be imposed" upon a
person under fifteen but over nine years of age, who has not acted without
discernment, but always lower by two degrees at least than that prescribed by
law for the crime which he has committed. Article 69 of the same Code provides
that in case of "incomplete self-defense", i.e., when the crime committed is not
wholly excusable by reason of the lack of some of the conditions required to
justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty
in the period which may be deemed proper, in view of the number and nature
of the conditions of exemption present or lacking." And, in case the commission
of what are known as "impossible" crimes, "the court, having in mind the social
danger and the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59,
Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive
imprisonment is deducted form the entire term of imprisonment, except in
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certain cases expressly mentioned (art. 29); the death penalty is not imposed
when the guilty person is more than seventy years of age, or where upon appeal
or revision of the case by the Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the imposition of the death
penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended
by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a
woman within the three years next following the date of the sentence or while
she is pregnant, or upon any person over seventy years of age (art. 83); and
when a convict shall become insane or an imbecile after final sentence has been
pronounced, or while he is serving his sentenced, the execution of said sentence
shall be suspended with regard to the personal penalty during the period of such
insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue
harshness of the penal laws is more clearly demonstrated in various other
enactments, including the probation Act. There is the Indeterminate Sentence
Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No.
4225, establishing a system of parole (secs. 5 to 100 and granting the courts
large discretion in imposing the penalties of the law. Section 1 of the law as
amended provides; "hereafter, in imposing a prison sentence for an offenses
punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of which
shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the said Code, and to a minimum which shall be
within the range of the penalty next lower to that prescribed by the Code for the
offense; and if the offense is punished by any other law, the court shall sentence
the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than
the minimum term prescribed by the same." Certain classes of convicts are, by
section 2 of the law, excluded from the operation thereof. The Legislature has
also enacted the Juvenile Delinquency Law (Act No. 3203) which was
subsequently amended by Act No. 3559. Section 7 of the original Act and
section 1 of the amendatory Act have become article 80 of the Revised Penal
Code, amended by Act No. 4117 of the Philippine Legislature and recently
reamended by Commonwealth Act No. 99 of the National Assembly. In this
Act is again manifested the intention of the legislature to "humanize" the penal
laws. It allows, in effect, the modification in particular cases of the penalties
prescribed by law by permitting the suspension of the execution of the judgment
in the discretion of the trial court, after due hearing and after investigation of
the particular circumstances of the offenses, the criminal record, if any, of the
convict, and his social history. The Legislature has in reality decreed that in
certain cases no punishment at all shall be suffered by the convict as long as the
conditions of probation are faithfully observed. It this be so, then, it cannot be
said that the Probation Act comes in conflict with the power of the Chief
Executive to grant pardons and reprieves, because, to use the language of the
Supreme Court of New Mexico, "the element of punishment or the penalty for
the commission of a wrong, while to be declared by the courts as a judicial
function under and within the limits of law as announced by legislative acts,
concerns solely the procedure and conduct of criminal causes, with which the
executive can have nothing to do." (Ex parte Bates, supra.) In Williams vs. State
([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of
the Georgia probation statute against the contention that it attempted to delegate
to the courts the pardoning power lodged by the constitution in the governor
alone is vested with the power to pardon after final sentence has been imposed
by the courts, the power of the courts to imposed any penalty which may be
from time to time prescribed by law and in such manner as may be defined
cannot be questioned."
We realize, of course, the conflict which the American cases disclose. Some
cases hold it unlawful for the legislature to vest in the courts the power to
suspend the operation of a sentenced, by probation or otherwise, as to do so
would encroach upon the pardoning power of the executive. (In re Webb
[1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9
Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev.,
150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim.
Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People
vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep.,
230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.],
1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal
vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E.
858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839;
People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109
Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F.
[2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United
399 of 692
States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark.,
620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166;
122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte
De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897],
118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac.,
1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams
vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill.,
443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23
L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People
vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914],
125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont.,
541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47
L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74
Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte
Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs.
ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856;
36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907],
55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y.
Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49;
Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte
Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108
S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N.
S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn.,
232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State
[1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim.
Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165
S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890;
Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs.
State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927],
100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E.,
460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel.
Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393;
396.) We elect to follow this long catena of authorities holding that the courts
may be legally authorized by the legislature to suspend sentence by the
establishment of a system of probation however characterized. State ex rel.
Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R.,
393), deserved particular mention. In that case, a statute enacted in 1921 which
provided for the suspension of the execution of a sentence until otherwise
ordered by the court, and required that the convicted person be placed under the
charge of a parole or peace officer during the term of such suspension, on such
terms as the court may determine, was held constitutional and as not giving the
court a power in violation of the constitutional provision vesting the pardoning
power in the chief executive of the state. (Vide, also, Re Giannini [1912], 18
Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are
actually district and different from each other, both in origin and in nature. In
People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36
N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals
of New York said:
. . . The power to suspend sentence and the power to grant reprieves and
pardons, as understood when the constitution was adopted, are totally distinct
and different in their nature. The former was always a part of the judicial power;
the latter was always a part of the executive power. The suspension of the
sentence simply postpones the judgment of the court temporarily or
indefinitely, but the conviction and liability following it, and the civil
disabilities, remain and become operative when judgment is rendered. A pardon
reaches both the punishment prescribed for the offense and the guilt of the
offender. It releases the punishment, and blots out of existence the guilt, so that
in the eye of the law, the offender is as innocent as if he had never committed
the offense. It removes the penalties and disabilities, and restores him to all his
civil rights. It makes him, as it were, a new man, and gives him a new credit
and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S.
vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S.,
149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly familiar
with the principles governing the power to grant pardons, and it was conferred
by these instruments upon the executive with full knowledge of the law upon
the subject, and the words of the constitution were used to express the authority
formerly exercised by the English crown, or by its representatives in the
colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this
power was understood, it did not comprehend any part of the judicial functions
to suspend sentence, and it was never intended that the authority to grant
reprieves and pardons should abrogate, or in any degree restrict, the exercise of
400 of 692
that power in regard to its own judgments, that criminal courts has so long
maintained. The two powers, so distinct and different in their nature and
character, were still left separate and distinct, the one to be exercised by the
executive, and the other by the judicial department. We therefore conclude that
a statute which, in terms, authorizes courts of criminal jurisdiction to suspend
sentence in certain cases after conviction, — a power inherent in such courts at
common law, which was understood when the constitution was adopted to be
an ordinary judicial function, and which, ever since its adoption, has been
exercised of legislative power under the constitution. It does not encroach, in
any just sense, upon the powers of the executive, as they have been understood
and practiced from the earliest times. (Quoted with approval in Directors of
Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He is
not finally and completely exonerated. He is not exempt from the entire
punishment which the law inflicts. Under the Probation Act, the probationer's
case is not terminated by the mere fact that he is placed on probation. Section 4
of the Act provides that the probation may be definitely terminated and the
probationer finally discharged from supervision only after the period of
probation shall have been terminated and the probation officer shall have
submitted a report, and the court shall have found that the probationer has
complied with the conditions of probation. The probationer, then, during the
period of probation, remains in legal custody — subject to the control of the
probation officer and of the court; and, he may be rearrested upon the non-
fulfillment of the conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally imposed upon him. (Secs.
2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and
may be far from it. It is really a new mode of punishment, to be applied by the
judge in a proper case, in substitution of the imprisonment and find prescribed
by the criminal laws. For this reason its application is as purely a judicial act as
any other sentence carrying out the law deemed applicable to the offense. The
executive act of pardon, on the contrary, is against the criminal law, which binds
and directs the judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible unconstitutionality of the
Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of
the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A.
[N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the petitioners
as authority in support of their contention that the power to grant pardons and
reprieves, having been vested exclusively upon the Chief Executive by the
Jones Law, may not be conferred by the legislature upon the courts by means
of probation law authorizing the indefinite judicial suspension of sentence. We
have examined that case and found that although the Court of Criminal Appeals
of Texas held that the probation statute of the state in terms conferred on the
district courts the power to grant pardons to persons convicted of crime, it also
distinguished between suspensions sentence on the one hand, and reprieve and
commutation of sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of the
Governor to grant reprieves is settled by the decisions of the various courts; it
being held that the distinction between a "reprieve" and a suspension of
sentence is that a reprieve postpones the execution of the sentence to a day
certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1
Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases
cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict
with the power confiding in the Governor to grant commutations of
punishment, for a commutations is not but to change the punishment assessed
to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac.,
525), the Supreme Court of Montana had under consideration the validity of the
adult probation law of the state enacted in 1913, now found in sections 12078-
12086, Revised Codes of 1921. The court held the law valid as not impinging
upon the pardoning power of the executive. In a unanimous decision penned by
Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well
understood meaning at the time our Constitution was adopted, and no one of
them was intended to comprehend the suspension of the execution of the
judgment as that phrase is employed in sections 12078-12086. A "pardon" is an
act of grace, proceeding from the power intrusted with the execution of the laws
which exempts the individual on whom it is bestowed from the punishment the
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law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150;
8 Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35
So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J.
Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is
a remission of a part of the punishment; a substitution of a less penalty for the
one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563;
Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite"
is the withholding of the sentence for an interval of time (4 Blackstone's
Commentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker,
Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State, 97
Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar
to our section 12078 has been determined; but the same objections have been
urged against parole statutes which vest the power to parole in persons other
than those to whom the power of pardon is granted, and these statutes have been
upheld quite uniformly, as a reference to the numerous cases cited in the notes
to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F,
531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power
of the Executive. The pardoning power, in respect to those serving their
probationary sentences, remains as full and complete as if the Probation Law
had never been enacted. The President may yet pardon the probationer and thus
place it beyond the power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power
of the executive and is not for that reason void, does section 11 thereof
constitute, as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed
among three coordinate and substantially independent organs: the legislative,
the executive and the judicial. Each of these departments of the government
derives its authority from the Constitution which, in turn, is the highest
expression of popular will. Each has exclusive cognizance of the matters within
its jurisdiction, and is supreme within its own sphere.
The power to make laws — the legislative power — is vested in a bicameral
Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly
by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The
Philippine Legislature or the National Assembly may not escape its duties and
responsibilities by delegating that power to any other body or authority. Any
attempt to abdicate the power is unconstitutional and void, on the principle that
potestas delegata non delegare potest. This principle is said to have originated
with the glossators, was introduced into English law through a misreading of
Bracton, there developed as a principle of agency, was established by Lord
Coke in the English public law in decisions forbidding the delegation of judicial
power, and found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the principle of
separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic
statement of the rule is that of Locke, namely: "The legislative neither must nor
can transfer the power of making laws to anybody else, or place it anywhere
but where the people have." (Locke on Civil Government, sec. 142.) Judge
Cooley enunciates the doctrine in the following oft-quoted language: "One of
the settled maxims in constitutional law is, that the power conferred upon the
legislature to make laws cannot be delegated by that department to any other
body or authority. Where the sovereign power of the state has located the
authority, there it must remain; and by the constitutional agency alone the laws
must be made until the Constitution itself is charged. The power to whose
judgment, wisdom, and patriotism this high prerogative has been intrusted
cannot relieve itself of the responsibilities by choosing other agencies upon
which the power shall be devolved, nor can it substitute the judgment, wisdom,
and patriotism of any other body for those to which alone the people have seen
fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th
ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil.,
327.) This court posits the doctrine "on the ethical principle that such a
delegated power constitutes not only a right but a duty to be performed by the
delegate by the instrumentality of his own judgment acting immediately upon
the matter of legislation and not through the intervening mind of another. (U.
S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not
absolute and inflexible. It admits of exceptions. An exceptions sanctioned by
immemorial practice permits the central legislative body to delegate legislative
402 of 692
powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick
[1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes
[1855], 30 N. H., 279.) "It is a cardinal principle of our system of government,
that local affairs shall be managed by local authorities, and general affairs by
the central authorities; and hence while the rule is also fundamental that the
power to make laws cannot be delegated, the creation of the municipalities
exercising local self government has never been held to trench upon that rule.
Such legislation is not regarded as a transfer of general legislative power, but
rather as the grant of the authority to prescribed local regulations, according to
immemorial practice, subject of course to the interposition of the superior in
cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same
principle, Congress is powered to delegate legislative power to such agencies
in the territories of the United States as it may select. A territory stands in the
same relation to Congress as a municipality or city to the state government.
(United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51
L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138;
24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also
sustained the delegation of legislative power to the people at large. Some
authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C.
L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442;
Ann. Cas., 1914C, 616). However, the question of whether or not a state has
ceased to be republican in form because of its adoption of the initiative and
referendum has been held not to be a judicial but a political question (Pacific
States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32
Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked
upon with favor by certain progressive courts, the sting of the decisions of the
more conservative courts has been pretty well drawn. (Opinions of the Justices
[1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland
[1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332;
Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative
power may be delegated by the Constitution itself. Section 14, paragraph 2, of
article VI of the Constitution of the Philippines provides that "The National
Assembly may by law authorize the President, subject to such limitations and
restrictions as it may impose, to fix within specified limits, tariff rates, import
or export quotas, and tonnage and wharfage dues." And section 16 of the same
article of the Constitution provides that "In times of war or other national
emergency, the National Assembly may by law authorize the President, for a
limited period and subject to such restrictions as it may prescribed, to
promulgate rules and regulations to carry out a declared national policy." It is
beyond the scope of this decision to determine whether or not, in the absence
of the foregoing constitutional provisions, the President could be authorized to
exercise the powers thereby vested in him. Upon the other hand, whatever doubt
may have existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove
mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial
boards have provided for the salary of a probation officer at rates not lower than
those now provided for provincial fiscals. Said probation officer shall be
appointed by the Secretary of Justice and shall be subject to the direction of the
Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power
or not, it is usual to inquire whether the statute was complete in all its terms and
provisions when it left the hands of the legislature so that nothing was left to
the judgment of any other appointee or delegate of the legislature. (6 R. C. L.,
p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court
adhered to the foregoing rule when it held an act of the legislature void in so
far as it undertook to authorize the Governor-General, in his discretion, to issue
a proclamation fixing the price of rice and to make the sale of it in violation of
the proclamation a crime. (See and cf. Compañia General de Tabacos vs. Board
of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule,
however, is limited by another rule that to a certain extent matters of detail may
be left to be filled in by rules and regulations to be adopted or promulgated by
executive officers and administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should
take effect in their respective provinces. They are the agents or delegates of the
legislature in this respect. The rules governing delegation of legislative power
to administrative and executive officers are applicable or are at least indicative
of the rule which should be here adopted. An examination of a variety of cases
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on delegation of power to administrative bodies will show that the ratio
decidendi is at variance but, it can be broadly asserted that the rationale revolves
around the presence or absence of a standard or rule of action — or the
sufficiency thereof — in the statute, to aid the delegate in exercising the granted
discretion. In some cases, it is held that the standard is sufficient; in others that
is insufficient; and in still others that it is entirely lacking. As a rule, an act of
the legislature is incomplete and hence invalid if it does not lay down any rule
or definite standard by which the administrative officer or board may be guided
in the exercise of the discretionary powers delegated to it. (See Schecter vs.
United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97
A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N.
E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title
"Constitutional Law", sec 174.) In the case at bar, what rules are to guide the
provincial boards in the exercise of their discretionary power to determine
whether or not the Probation Act shall apply in their respective provinces? What
standards are fixed by the Act? We do not find any and none has been pointed
to us by the respondents. The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards any standard or guide in
the exercise of their discretionary power. What is granted, if we may use the
language of Justice Cardozo in the recent case of Schecter, supra, is a "roving
commission" which enables the provincial boards to exercise arbitrary
discretion. By section 11 if the Act, the legislature does not seemingly on its
own authority extend the benefits of the Probation Act to the provinces but in
reality leaves the entire matter for the various provincial boards to determine.
In other words, the provincial boards of the various provinces are to determine
for themselves, whether the Probation Law shall apply to their provinces or not
at all. The applicability and application of the Probation Act are entirely placed
in the hands of the provincial boards. If the provincial board does not wish to
have the Act applied in its province, all that it has to do is to decline to
appropriate the needed amount for the salary of a probation officer. The plain
language of the Act is not susceptible of any other interpretation. This, to our
minds, is a virtual surrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power
to make the law, which necessarily involves a discretion as to what it shall be,
and conferring an authority or discretion as to its execution, to be exercised
under and in pursuance of the law. The first cannot be done; to the latter no
valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County
Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory
Construction, sec 68.) To the same effect are the decision of this court in
Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil.,
547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court
sustained the validity of the law conferring upon the Governor-General
authority to adjust provincial and municipal boundaries. In the second case, this
court held it lawful for the legislature to direct non-Christian inhabitants to take
up their habitation on unoccupied lands to be selected by the provincial
governor and approved by the provincial board. In the third case, it was held
proper for the legislature to vest in the Governor-General authority to suspend
or not, at his discretion, the prohibition of the importation of the foreign cattle,
such prohibition to be raised "if the conditions of the country make this
advisable or if deceased among foreign cattle has ceased to be a menace to the
agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the
simple transference of details of execution or the promulgation by executive or
administrative officials of rules and regulations to carry into effect the
provisions of a law. If we were, recurrence to our own decisions would be
sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29
Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus
Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218;
Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law
after it leaves the hands of the legislature. It is true that laws may be made
effective on certain contingencies, as by proclamation of the executive or the
adoption by the people of a particular community (6 R. C. L., 116, 170-172;
Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs.
Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the
United State ruled that the legislature may delegate a power not legislative
which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins.
Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is nothing
essentially legislative in ascertaining the existence of facts or conditions as the
basis of the taking into effect of a law. That is a mental process common to all
branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In re
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Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A.,
938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark
[1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the
apparent tendency, however, to relax the rule prohibiting delegation of
legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public
Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign
Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics",
in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the
orthodox pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on the Constitution
of the United States in the following language — speaking of declaration of
legislative power to administrative agencies: "The principle which permits the
legislature to provide that the administrative agent may determine when the
circumstances are such as require the application of a law is defended upon the
ground that at the time this authority is granted, the rule of public policy, which
is the essence of the legislative act, is determined by the legislature. In other
words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and
that, under other circumstances, different of no action at all is to be taken. What
is thus left to the administrative official is not the legislative determination of
what public policy demands, but simply the ascertainment of what the facts of
the case require to be done according to the terms of the law by which he is
governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol.
II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup.
Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as
a declaration of legislative will must, of course, come from Congress, but the
ascertainment of the contingency upon which the Act shall take effect may be
left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs.
Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The
legislature, then may provide that a contingencies leaving to some other person
or body the power to determine when the specified contingencies has arisen.
But, in the case at bar, the legislature has not made the operation of the
Prohibition Act contingent upon specified facts or conditions to be ascertained
by the provincial board. It leaves, as we have already said, the entire operation
or non-operation of the law upon the provincial board. the discretion vested is
arbitrary because it is absolute and unlimited. A provincial board need not
investigate conditions or find any fact, or await the happening of any specified
contingency. It is bound by no rule, — limited by no principle of expendiency
announced by the legislature. It may take into consideration certain facts or
conditions; and, again, it may not. It may have any purpose or no purpose at all.
It need not give any reason whatsoever for refusing or failing to appropriate any
funds for the salary of a probation officer. This is a matter which rest entirely
at its pleasure. The fact that at some future time — we cannot say when — the
provincial boards may appropriate funds for the salaries of probation officers
and thus put the law into operation in the various provinces will not save the
statute. The time of its taking into effect, we reiterate, would yet be based solely
upon the will of the provincial boards and not upon the happening of a certain
specified contingency, or upon the ascertainment of certain facts or conditions
by a person or body other than legislature itself.
The various provincial boards are, in practical effect, endowed with the power
of suspending the operation of the Probation Law in their respective provinces.
In some jurisdiction, constitutions provided that laws may be suspended only
by the legislature or by its authority. Thus, section 28, article I of the
Constitution of Texas provides that "No power of suspending laws in this state
shall be exercised except by the legislature"; and section 26, article I of the
Constitution of Indiana provides "That the operation of the laws shall never be
suspended, except by authority of the General Assembly." Yet, even provisions
of this sort do not confer absolute power of suspension upon the legislature.
While it may be undoubted that the legislature may suspend a law, or the
execution or operation of a law, a law may not be suspended as to certain
individuals only, leaving the law to be enjoyed by others. The suspension must
be general, and cannot be made for individual cases or for particular localities.
In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was
said:
By the twentieth article of the declaration of rights in the constitution of this
commonwealth, it is declared that the power of suspending the laws, or the
execution of the laws, ought never to be exercised but by the legislature, or by
authority derived from it, to be exercised in such particular cases only as the
legislature shall expressly provide for. Many of the articles in that declaration
of rights were adopted from the Magna Charta of England, and from the bill of
rights passed in the reign of William and Mary. The bill of rights contains an
enumeration of the oppressive acts of James II, tending to subvert and extirpate
the protestant religion, and the laws and liberties of the kingdom; and the first
405 of 692
of them is the assuming and exercising a power of dispensing with and
suspending the laws, and the execution of the laws without consent of
parliament. The first article in the claim or declaration of rights contained in the
statute is, that the exercise of such power, by legal authority without consent of
parliament, is illegal. In the tenth section of the same statute it is further
declared and enacted, that "No dispensation by non obstante of or to any statute,
or part thereof, should be allowed; but the same should be held void and of no
effect, except a dispensation be allowed of in such statute." There is an implied
reservation of authority in the parliament to exercise the power here mentioned;
because, according to the theory of the English Constitution, "that absolute
despotic power, which must in all governments reside somewhere," is intrusted
to the parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this particular. Here
the sovereign and absolute power resides in the people; and the legislature can
only exercise what is delegated to them according to the constitution. It is
obvious that the exercise of the power in question would be equally oppressive
to the subject, and subversive of his right to protection, "according to standing
laws," whether exercised by one man or by a number of men. It cannot be
supposed that the people when adopting this general principle from the English
bill of rights and inserting it in our constitution, intended to bestow by
implication on the general court one of the most odious and oppressive
prerogatives of the ancient kings of England. It is manifestly contrary to the
first principles of civil liberty and natural justice, and to the spirit of our
constitution and laws, that any one citizen should enjoy privileges and
advantages which are denied to all others under like circumstances; or that ant
one should be subject to losses, damages, suits, or actions from which all others
under like circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner
of any dog liable to the owner of domestic animals wounded by it for the
damages without proving a knowledge of it vicious disposition. By a provision
of the act, power was given to the board of supervisors to determine whether or
not during the current year their county should be governed by the provisions
of the act of which that section constituted a part. It was held that the legislature
could not confer that power. The court observed that it could no more confer
such a power than to authorize the board of supervisors of a county to abolish
in such county the days of grace on commercial paper, or to suspend the statute
of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute
in Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo.,
529;59 Am. Dec., 275.) In that case a general statute formulating a road system
contained a provision that "if the county court of any county should be of
opinion that the provisions of the act should not be enforced, they might, in
their discretion, suspend the operation of the same for any specified length of
time, and thereupon the act should become inoperative in such county for the
period specified in such order; and thereupon order the roads to be opened and
kept in good repair, under the laws theretofore in force." Said the court: ". . .
this act, by its own provisions, repeals the inconsistent provisions of a former
act, and yet it is left to the county court to say which act shall be enforce in their
county. The act does not submit the question to the county court as an original
question, to be decided by that tribunal, whether the act shall commence its
operation within the county; but it became by its own terms a law in every
county not excepted by name in the act. It did not, then, require the county court
to do any act in order to give it effect. But being the law in the county, and
having by its provisions superseded and abrogated the inconsistent provisions
of previous laws, the county court is . . . empowered, to suspend this act and
revive the repealed provisions of the former act. When the question is before
the county court for that tribunal to determine which law shall be in force, it is
urge before us that the power then to be exercised by the court is strictly
legislative power, which under our constitution, cannot be delegated to that
tribunal or to any other body of men in the state. In the present case, the question
is not presented in the abstract; for the county court of Saline county, after the
act had been for several months in force in that county, did by order suspend its
operation; and during that suspension the offense was committed which is the
subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala.,
392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different from those
applicable to other localities and, while recognizing the force of the principle
hereinabove expressed, courts in may jurisdiction have sustained the
constitutionality of the submission of option laws to the vote of the people. (6
R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in
character which should receive different treatment in different localities placed
under different circumstances. "They relate to subjects which, like the retailing
of intoxicating drinks, or the running at large of cattle in the highways, may be
differently regarded in different localities, and they are sustained on what seems
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to us the impregnable ground, that the subject, though not embraced within the
ordinary powers of municipalities to make by-laws and ordinances, is
nevertheless within the class of public regulations, in respect to which it is
proper that the local judgment should control." (Cooley on Constitutional
Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local
self-government and the propriety of leaving matters of purely local concern in
the hands of local authorities or for the people of small communities to pass
upon, we believe that in matters of general of general legislation like that which
treats of criminals in general, and as regards the general subject of probation,
discretion may not be vested in a manner so unqualified and absolute as
provided in Act No. 4221. True, the statute does not expressly state that the
provincial boards may suspend the operation of the Probation Act in particular
provinces but, considering that, in being vested with the authority to appropriate
or not the necessary funds for the salaries of probation officers, they thereby
are given absolute discretion to determine whether or not the law should take
effect or operate in their respective provinces, the provincial boards are in
reality empowered by the legislature to suspend the operation of the Probation
Act in particular provinces, the Act to be held in abeyance until the provincial
boards should decide otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done but by what may be done
under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922],
43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature
not only in the expression of what may be termed legislative policy but in the
elaboration and execution thereof. "Without this power, legislation would
become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It
has been said that popular government lives because of the inexhaustible
reservoir of power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that these
representatives are no further restrained under our system than by the express
language of the instrument imposing the restraint, or by particular provisions
which by clear intendment, have that effect. (Angara vs. Electoral Commission
[1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz.,
1317.) But, it should be borne in mind that a constitution is both a grant and a
limitation of power and one of these time-honored limitations is that, subject to
certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and
unlawful delegation of legislative authority to the provincial boards and is, for
this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill
of Rights which prohibits the denial to any person of the equal protection of the
laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the
tree grand departments of our government and on the subordinate
instrumentalities and subdivision thereof, and on many constitutional power,
like the police power, taxation and eminent domain. The equal protection of
laws, sententiously observes the Supreme Court of the United States, "is a
pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U.
S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina,
249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may
be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be formulated.
(Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep.,
431; 46 Law. ed., 679.) Class legislation discriminating against some and
favoring others in prohibited. But classification on a reasonable basis, and nor
made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222
U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs.
Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith,
Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to
be reasonable must be based on substantial distinctions which make real
differences; it must be germane to the purposes of the law; it must not be limited
to existing conditions only, and must apply equally to each member of the class.
(Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C.
A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58
N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79,
55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake
Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144;
61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup.
Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921],
257 U. S., 312; 12 C. J., pp. 1148, 1149.)
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In the case at bar, however, the resultant inequality may be said to flow from
the unwarranted delegation of legislative power, although perhaps this is not
necessarily the result in every case. Adopting the example given by one of the
counsel for the petitioners in the course of his oral argument, one province may
appropriate the necessary fund to defray the salary of a probation officer, while
another province may refuse or fail to do so. In such a case, the Probation Act
would be in operation in the former province but not in the latter. This means
that a person otherwise coming within the purview of the law would be liable
to enjoy the benefits of probation in one province while another person
similarly situated in another province would be denied those same benefits.
This is obnoxious discrimination. Contrariwise, it is also possible for all the
provincial boards to appropriate the necessary funds for the salaries of the
probation officers in their respective provinces, in which case no inequality
would result for the obvious reason that probation would be in operation in each
and every province by the affirmative action of appropriation by all the
provincial boards. On that hypothesis, every person coming within the purview
of the Probation Act would be entitled to avail of the benefits of the Act. Neither
will there be any resulting inequality if no province, through its provincial
board, should appropriate any amount for the salary of the probation officer —
which is the situation now — and, also, if we accept the contention that, for the
purpose of the Probation Act, the City of Manila should be considered as a
province and that the municipal board of said city has not made any
appropriation for the salary of the probation officer. These different situations
suggested show, indeed, that while inequality may result in the application of
the law and in the conferment of the benefits therein provided, inequality is not
in all cases the necessary result. But whatever may be the case, it is clear that
in section 11 of the Probation Act creates a situation in which discrimination
and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court
should assume the task of setting aside a law vulnerable on that score, but
premises and circumstances considered, we are of the opinion that section 11
of Act No. 4221 permits of the denial of the equal protection of the law and is
on that account bad. We see no difference between a law which permits of such
denial. A law may appear to be fair on its face and impartial in appearance, yet,
if it permits of unjust and illegal discrimination, it is within the constitutional
prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23
Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543;
Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware
[1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113
U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30
Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct.
Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31
Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918],
247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words,
statutes may be adjudged unconstitutional because of their effect in operation
(General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52
Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944;
Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection
of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U.
S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State
vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering,
84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section
11 of the Probation Act, not only may said Act be in force in one or several
provinces and not be in force in other provinces, but one province may
appropriate for the salary of the probation officer of a given year — and have
probation during that year — and thereafter decline to make further
appropriation, and have no probation is subsequent years. While this situation
goes rather to the abuse of discretion which delegation implies, it is here
indicated to show that the Probation Act sanctions a situation which is
intolerable in a government of laws, and to prove how easy it is, under the Act,
to make the guaranty of the equality clause but "a rope of sand". (Brewer, J.
Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666;
17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case of Ocampo
vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the
Supreme Court of the United States affirmed the decision of this court (18 Phil.,
1) by declining to uphold the contention that there was a denial of the equal
protection of the laws because, as held in Missouri vs. Lewis (Bowman vs.
Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the
equality clause does not require territorial uniformity. It should be observed,
however, that this case concerns the right to preliminary investigations in
criminal cases originally granted by General Orders No. 58. No question of
legislative authority was involved and the alleged denial of the equal protection
of the laws was the result of the subsequent enactment of Act No. 612,
amending the charter of the City of Manila (Act No. 813) and providing in
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section 2 thereof that "in cases triable only in the court of first instance of the
City of Manila, the defendant . . . shall not be entitled as of right to a preliminary
examination in any case where the prosecuting attorney, after a due
investigation of the facts . . . shall have presented an information against him in
proper form . . . ." Upon the other hand, an analysis of the arguments and the
decision indicates that the investigation by the prosecuting attorney — although
not in the form had in the provinces — was considered a reasonable substitute
for the City of Manila, considering the peculiar conditions of the city as found
and taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has
reference to a situation where the constitution of Missouri permits appeals to
the Supreme Court of the state from final judgments of any circuit court, except
those in certain counties for which counties the constitution establishes a
separate court of appeals called St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and it is the constitution
that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional
and void because it is also repugnant to equal-protection clause of our
Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons
already stated, the next inquiry is whether or not the entire Act should be
avoided.
In seeking the legislative intent, the presumption is against any mutilation of a
statute, and the courts will resort to elimination only where an unconstitutional
provision is interjected into a statute otherwise valid, and is so independent and
separable that its removal will leave the constitutional features and purposes of
the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J.
Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard
Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep.,
115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this
court stated the well-established rule concerning partial invalidity of statutes in
the following language:
. . . where part of the a statute is void, as repugnant to the Organic Law, while
another part is valid, the valid portion, if separable from the valid, may stand
and be enforced. But in order to do this, the valid portion must be in so far
independent of the invalid portion that it is fair to presume that the Legislative
would have enacted it by itself if they had supposed that they could not
constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482;
86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek
Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make
a complete, intelligible, and valid statute, which carries out the legislative
intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must
be eliminated without causing results affecting the main purpose of the Act, in
a manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co.,
56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou.,
226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S.,
540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A.,
N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language
used in the invalid part of a statute can have no legal force or efficacy for any
purpose whatever, and what remains must express the legislative will,
independently of the void part, since the court has no power to legislate. (State
vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U.
S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust
Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep.,
912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act
applicable only in those provinces in which the respective provincial boards
provided for the salaries of probation officers were inoperative on constitutional
grounds, the remainder of the Act would still be valid and may be enforced. We
should be inclined to accept the suggestions but for the fact that said section is,
in our opinion, is inseparably linked with the other portions of the Act that with
the elimination of the section what would be left is the bare idealism of the
system, devoid of any practical benefit to a large number of people who may
be deserving of the intended beneficial result of that system. The clear policy
of the law, as may be gleaned from a careful examination of the whole context,
is to make the application of the system dependent entirely upon the affirmative
action of the different provincial boards through appropriation of the salaries
for probation officers at rates not lower than those provided for provincial
fiscals. Without such action on the part of the various boards, no probation
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officers would be appointed by the Secretary of Justice to act in the provinces.
The Philippines is divided or subdivided into provinces and it needs no
argument to show that if not one of the provinces — and this is the actual
situation now — appropriate the necessary fund for the salary of a probation
officer, probation under Act No. 4221 would be illusory. There can be no
probation without a probation officer. Neither can there be a probation officer
without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and visit
the probationer. Every probation officer is given, as to the person placed in
probation under his care, the powers of the police officer. It is the duty of the
probation officer to see that the conditions which are imposed by the court upon
the probationer under his care are complied with. Among those conditions, the
following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation
officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place
of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation
officer concerning his conduct or condition; "(f) Shall endeavor to be employed
regularly; "(g) Shall remain or reside within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual
damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time make;
and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or
regulation, promulgated in accordance with law.
The court is required to notify the probation officer in writing of the period and
terms of probation. Under section 4, it is only after the period of probation, the
submission of a report of the probation officer and appropriate finding of the
court that the probationer has complied with the conditions of probation that
probation may be definitely terminated and the probationer finally discharged
from supervision. Under section 5, if the court finds that there is non-
compliance with said conditions, as reported by the probation officer, it may
issue a warrant for the arrest of the probationer and said probationer may be
committed with or without bail. Upon arraignment and after an opportunity to
be heard, the court may revoke, continue or modify the probation, and if
revoked, the court shall order the execution of the sentence originally imposed.
Section 6 prescribes the duties of probation officers: "It shall be the duty of
every probation officer to furnish to all persons placed on probation under his
supervision a statement of the period and conditions of their probation, and to
instruct them concerning the same; to keep informed concerning their conduct
and condition; to aid and encourage them by friendly advice and admonition,
and by such other measures, not inconsistent with the conditions imposed by
court as may seem most suitable, to bring about improvement in their conduct
and condition; to report in writing to the court having jurisdiction over said
probationers at least once every two months concerning their conduct and
condition; to keep records of their work; make such report as are necessary for
the information of the Secretary of Justice and as the latter may require; and to
perform such other duties as are consistent with the functions of the probation
officer and as the court or judge may direct. The probation officers provided for
in this Act may act as parole officers for any penal or reformatory institution
for adults when so requested by the authorities thereof, and, when designated
by the Secretary of Justice shall act as parole officer of persons released on
parole under Act Number Forty-one Hundred and Three, without additional
compensation."
It is argued, however, that even without section 11 probation officers maybe
appointed in the provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its
supervision and control, a Probation Office under the direction of a Chief
Probation Officer to be appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four eight hundred pesos per
annum. To carry out this Act there is hereby appropriated out of any funds in
410 of 692
the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos
to be disbursed by the Secretary of Justice, who is hereby authorized to appoint
probation officers and the administrative personnel of the probation officer
under civil service regulations from among those who possess the
qualifications, training and experience prescribed by the Bureau of Civil
Service, and shall fix the compensation of such probation officers and
administrative personnel until such positions shall have been included in the
Appropriation Act.
But the probation officers and the administrative personnel referred to in the
foregoing section are clearly not those probation officers required to be
appointed for the provinces under section 11. It may be said, reddendo singula
singulis, that the probation officers referred to in section 10 above-quoted are
to act as such, not in the various provinces, but in the central office known as
the Probation Office established in the Department of Justice, under the
supervision of the Chief Probation Officer. When the law provides that "the
probation officer" shall investigate and make reports to the court (secs. 1 and
4); that "the probation officer" shall supervise and visit the probationer (sec. 2;
sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec.
3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall
truthfully answer any reasonable inquiries on the part of "the probation officer"
concerning his conduct or condition (sec. 3, par. 4); that the court shall notify
"the probation officer" in writing of the period and terms of probation (sec. 3,
last par.), it means the probation officer who is in charge of a particular
probationer in a particular province. It never could have been intention of the
legislature, for instance, to require the probationer in Batanes, to report to a
probationer officer in the City of Manila, or to require a probation officer in
Manila to visit the probationer in the said province of Batanes, to place him
under his care, to supervise his conduct, to instruct him concerning the
conditions of his probation or to perform such other functions as are assigned
to him by law.
That under section 10 the Secretary of Justice may appoint as many probation
officers as there are provinces or groups of provinces is, of course possible. But
this would be arguing on what the law may be or should be and not on what the
law is. Between is and ought there is a far cry. The wisdom and propriety of
legislation is not for us to pass upon. We may think a law better otherwise than
it is. But much as has been said regarding progressive interpretation and judicial
legislation we decline to amend the law. We are not permitted to read into the
law matters and provisions which are not there. Not for any purpose — not even
to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the
Insular Government defray the salaries of probation officers in the provinces
but to make the provinces defray them should they desire to have the Probation
Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes
of this Act", is to be applied, among other things, for the salaries of probation
officers in the central office at Manila. These probation officers are to receive
such compensations as the Secretary of Justice may fix "until such positions
shall have been included in the Appropriation Act". It was the intention of the
legislature to empower the Secretary of Justice to fix the salaries of the
probation officers in the provinces or later on to include said salaries in an
appropriation act. Considering, further, that the sum of P50,000 appropriated in
section 10 is to cover, among other things, the salaries of the administrative
personnel of the Probation Office, what would be left of the amount can hardly
be said to be sufficient to pay even nominal salaries to probation officers in the
provinces. We take judicial notice of the fact that there are 48 provinces in the
Philippines and we do not think it is seriously contended that, with the fifty
thousand pesos appropriated for the central office, there can be in each
province, as intended, a probation officer with a salary not lower than that of a
provincial fiscal. If this a correct, the contention that without section 11 of Act
No. 4221 said act is complete is an impracticable thing under the remainder of
the Act, unless it is conceded that in our case there can be a system of probation
in the provinces without probation officers.
Probation as a development of a modern penology is a commendable system.
Probation laws have been enacted, here and in other countries, to permit what
modern criminologist call the "individualization of the punishment", the
adjustment of the penalty to the character of the criminal and the circumstances
of his particular case. It provides a period of grace in order to aid in the
rehabilitation of a penitent offender. It is believed that, in any cases, convicts
may be reformed and their development into hardened criminals aborted. It,
therefore, takes advantage of an opportunity for reformation and avoids
imprisonment so long as the convicts gives promise of reform. (United States
vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48
Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of
411 of 692
society is its chief end and aim. The benefit to the individual convict is merely
incidental. But while we believe that probation is commendable as a system and
its implantation into the Philippines should be welcomed, we are forced by our
inescapable duty to set the law aside because of the repugnancy to our
fundamental law.
In arriving at this conclusion, we have endeavored to consider the different
aspects presented by able counsel for both parties, as well in their
memorandums as in their oral argument. We have examined the cases brought
to our attention, and others we have been able to reach in the short time at our
command for the study and deliberation of this case. In the examination of the
cases and in then analysis of the legal principles involved we have inclined to
adopt the line of action which in our opinion, is supported better reasoned
authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs.
Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our attention,
except where the point or principle is settled directly or by clear implication by
the more authoritative pronouncements of the Supreme Court of the United
States. This line of approach is justified because:
(a) The constitutional relations between the Federal and the State governments
of the United States and the dual character of the American Government is a
situation which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia
with reference to the Federal Government of the United States is not the
situation of the province with respect to the Insular Government (Art. I, sec. 8
cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives,
84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the United States
do not embrace the integrated judicial system of the Philippines
(Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in
Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and,
"to keep pace with . . . new developments of times and circumstances" (Chief
Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U.
S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919,
141, 142), fundamental principles should be interpreted having in view existing
local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of
prohibition is, accordingly, granted. Without any pronouncement regarding
costs. So ordered.
Estrada v. Sandiganbayan
G.R. No. 148560 (Nov. 19, 2001)
[G.R. No. 148560. November 19, 2001]
JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third
Division) and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his
pen in defense of the rights of the individual from the vast powers of the State
and the inroads of societal pressure. But even as he draws a sacrosanct line
demarcating the limits on individuality beyond which the State cannot tread -
asserting that "individual spontaneity" must be allowed to flourish with very
little regard to social interference - he veritably acknowledges that the exercise
of rights and liberties is imbued with a civic obligation, which society is
justified in enforcing at all cost, against those who would endeavor to withhold
fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or collectively, in
interfering with the liberty of action of any of their number, is self-protection.
The only purpose for which power can be rightfully exercised over any member
of a civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to
self-preservation. With the end of maintaining the integrity and cohesiveness
of the body politic, it behooves the State to formulate a system of laws that
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would compel obeisance to its collective wisdom and inflict punishment for
non-observance.
The movement from Mill's individual liberalism to unsystematic collectivism
wrought changes in the social order, carrying with it a new formulation of
fundamental rights and duties more attuned to the imperatives of contemporary
socio-political ideologies. In the process, the web of rights and State
impositions became tangled and obscured, enmeshed in threads of multiple
shades and colors, the skein irregular and broken. Antagonism, often outright
collision, between the law as the expression of the will of the State, and the
zealous attempts by its members to preserve their individuality and dignity,
inevitably followed. It is when individual rights are pitted against State
authority that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted
under RA 7080 (An Act Defining and Penalizing the Crime of Plunder),[1] as
amended by RA 7659,[2] wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct line which divides the
valid from the constitutionally infirm. He therefore makes a stringent call for
this Court to subject the Plunder Law to the crucible of constitutionality mainly
because, according to him, (a) it suffers from the vice of vagueness; (b) it
dispenses with the "reasonable doubt" standard in criminal prosecutions; and,
(c) it abolishes the element of mens rea in crimes already punishable under The
Revised Penal Code, all of which are purportedly clear violations of the
fundamental rights of the accused to due process and to be informed of the
nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have
transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are
reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business,
enterprise or material possession of any person within the purview of Section
Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination
or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public
funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity
in connection with any government contract or project or by reason of the office
or position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging
to the National Government or any of its subdivisions, agencies or
instrumentalities, or government owned or controlled corporations and their
subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the promise
of future employment in any business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection
or influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the
Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer
who, by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts as described in Section 1 (d) hereof, in the
aggregate amount or total value of at least fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by reclusion
perpetua to death. Any person who participated with the said public officer in
the commission of an offense contributing to the crime of plunder shall likewise
be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances as
provided by the Revised Penal Code shall be considered by the court. The court
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shall declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the deposit
or investment thereof forfeited in favor of the State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder,
it shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to establish beyond reasonable
doubt a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan
eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for
violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to
26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3,
par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c)
Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code
of Conduct and Ethical Standards for Public Officials and Employees); (d)
Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and,
(e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended
by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the
case to the Ombudsman for preliminary investigation with respect to
specification "d" of the charges in the Information in Crim. Case No. 26558;
and, for reconsideration/reinvestigation of the offenses under specifications "a,"
"b," and "c" to give the accused an opportunity to file counter-affidavits and
other documents necessary to prove lack of probable cause. Noticeably, the
grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity to prove lack of
probable cause. The purported ambiguity of the charges and the vagueness of
the law under which they are charged were never raised in that Omnibus Motion
thus indicating the explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in
Crim. Case No. 26558 finding that "a probable cause for the offense of
PLUNDER exists to justify the issuance of warrants for the arrest of the
accused." On 25 June 2001 petitioner's motion for reconsideration was denied
by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No.
26558 on the ground that the facts alleged therein did not constitute an
indictable offense since the law on which it was based was unconstitutional for
vagueness, and that the Amended Information for Plunder charged more than
one (1) offense. On 21 June 2001 the Government filed its Opposition to the
Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted
his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied
petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for certiorari
are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder
Law requires less evidence for proving the predicate crimes of plunder and
therefore violates the rights of the accused to due process; and, (c) Whether
Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is
within the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of
legislation is predicated on the basic principle that a legislative measure is
presumed to be in harmony with the Constitution.[3] Courts invariably train
their sights on this fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of constitutional adjudication. This
strong predilection for constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach upon the duties and
powers of another. Thus it has been said that the presumption is based on the
deference the judicial branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the
courts must assume that the legislature is ever conscious of the borders and
edges of its plenary powers, and has passed the law with full knowledge of the
facts and for the purpose of promoting what is right and advancing the welfare
of the majority. Hence in determining whether the acts of the legislature are in
tune with the fundamental law, courts should proceed with judicial restraint and
act with caution and forbearance. Every intendment of the law must be
adjudged by the courts in favor of its constitutionality, invalidity being a
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measure of last resort. In construing therefore the provisions of a statute, courts
must first ascertain whether an interpretation is fairly possible to sidestep the
question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as long as there
is some basis for the decision of the court, the constitutionality of the challenged
law will not be touched and the case will be decided on other available grounds.
Yet the force of the presumption is not sufficient to catapult a fundamentally
deficient law into the safe environs of constitutionality. Of course, where the
law clearly and palpably transgresses the hallowed domain of the organic law,
it must be struck down on sight lest the positive commands of the fundamental
law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the
party challenging the validity of the statute. He must demonstrate beyond any
tinge of doubt that there is indeed an infringement of the constitution, for absent
such a showing, there can be no finding of unconstitutionality. A doubt, even if
well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt
is to sustain."[5] And petitioner has miserably failed in the instant case to
discharge his burden and overcome the presumption of constitutionality of the
Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-
defined parameters which would enable the accused to determine the nature of
his violation. Section 2 is sufficiently explicit in its description of the acts,
conduct and conditions required or forbidden, and prescribes the elements of
the crime with reasonable certainty and particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a
combination or series of the following overt or criminal acts: (a) through
misappropriation, conversion, misuse, or malversation of public funds or raids
on the public treasury; (b) by receiving, directly or indirectly, any commission,
gift, share, percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government contract or project
or by reason of the office or position of the public officer; (c) by the illegal or
fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities of
Government owned or controlled corporations or their subsidiaries; (d) by
obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of
future employment in any business enterprise or undertaking; (e) by
establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or (f) by taking advantage of official
position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least P50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform
those who are subject to it what conduct would render them liable to its
penalties, its validity will be sustained. It must sufficiently guide the judge in
its application; the counsel, in defending one charged with its violation; and
more importantly, the accused, in identifying the realm of the proscribed
conduct. Indeed, it can be understood with little difficulty that what the assailed
statute punishes is the act of a public officer in amassing or accumulating ill-
gotten wealth of at least P50,000,000.00 through a series or combination of acts
enumerated in Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law,
indicating with reasonable certainty the various elements of the offense which
petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of
the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA'
and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie
'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and
415 of 692
penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659,
committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused,
WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS
OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION,
OR INFLUENCE, did then and there willfully, unlawfully and criminally
amass, accumulate and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE
of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A
series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS,
described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR
LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE,
PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT,
BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG'
ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND
JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing
DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and
benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION
PESOS (P130,000,000.00), more or less, representing a portion of the TWO
HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share
allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or
in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND
OTHER JOHN DOES & JANE DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY
FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR
HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A
TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY
SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND
FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND
BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY
HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID
PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE
EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE
VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in
the amount of MORE OR LESS THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."
416 of 692
We discern nothing in the foregoing that is vague or ambiguous - as there is
obviously none - that will confuse petitioner in his defense. Although subject
to proof, these factual assertions clearly show that the elements of the crime are
easily understood and provide adequate contrast between the innocent and the
prohibited acts. Upon such unequivocal assertions, petitioner is completely
informed of the accusations against him as to enable him to prepare for an
intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory
definition of the terms "combination" and "series" in the key phrase "a
combination or series of overt or criminal acts" found in Sec. 1, par. (d), and
Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to
petitioner, render the Plunder Law unconstitutional for being impermissibly
vague and overbroad and deny him the right to be informed of the nature and
cause of the accusation against him, hence, violative of his fundamental right
to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered
uncertain and void merely because general terms are used therein, or because
of the employment of terms without defining them;[6] much less do we have to
define every word we use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define each and every word in
an enactment. Congress is not restricted in the form of expression of its will,
and its inability to so define the words employed in a statute will not necessarily
result in the vagueness or ambiguity of the law so long as the legislative will is
clear, or at least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a
statute will be interpreted in their natural, plain and ordinary acceptation and
signification,[7] unless it is evident that the legislature intended a technical or
special legal meaning to those words.[8] The intention of the lawmakers - who
are, ordinarily, untrained philologists and lexicographers - to use statutory
phraseology in such a manner is always presumed. Thus, Webster's New
Collegiate Dictionary contains the following commonly accepted definition of
the words "combination" and "series:"
Combination - the result or product of combining; the act or process of
combining. To combine is to bring into such close relationship as to obscure
individual characters.
Series - a number of things or events of the same class coming one after another
in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be understood
in their popular meanings is pristinely evident from the legislative deliberations
on the bill which eventually became RA 7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7
May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say
THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL
ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we mean
to say that number one and two or number one and something else are included,
how about a series of the same act? For example, through misappropriation,
conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated
means not twice of one enumeration.
417 of 692
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, thats it. When we say combination, we mean,
two different acts. It cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: Thats not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is
why, I said, that is a very good suggestion because if it is only one act, it may
fall under ordinary crime but we have here a combination or series of overt or
criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term series?
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination.
Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes one or
maybe even two acts may already result in such a big amount, on line 25, would
the Sponsor consider deleting the words a series of overt or, to read, therefore:
or conspiracy COMMITTED by criminal acts such as. Remove the idea of
necessitating a series. Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the
acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because a series implies several or many; two or
more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the
particular crime. But when we say acts of plunder there should be, at least, two
or more.
SENATOR ROMULO: In other words, that is already covered by existing laws,
Mr. President.
418 of 692
Thus when the Plunder Law speaks of "combination," it is referring to at least
two (2) acts falling under different categories of enumeration provided in Sec.
1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and
fraudulent conveyance of assets belonging to the National Government under
Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or
criminal acts falling under the same category of enumeration found in Sec. 1,
par. (d), say, misappropriation, malversation and raids on the public treasury,
all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature
intended a technical or distinctive meaning for "combination" and "series," it
would have taken greater pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the Sandiganbayan[9] that
this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec.
2-
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination
or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1
(d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts
is directed towards a common purpose or goal which is to enable the public
officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there
must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said
common goal. As commonly understood, the term 'overall unlawful scheme'
indicates a 'general plan of action or method' which the principal accused and
public officer and others conniving with him follow to achieve the aforesaid
common goal. In the alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the overt or criminal acts
must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the
circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is
manifestly misplaced. The doctrine has been formulated in various ways, but is
most commonly stated to the effect that a statute establishing a criminal offense
must define the offense with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited by the statute. It can
only be invoked against that specie of legislation that is utterly vague on its
face, i.e., that which cannot be clarified either by a saving clause or by
construction.
A statute or act may be said to be vague when it lacks comprehensible standards
that men of common intelligence must necessarily guess at its meaning and
differ in its application. In such instance, the statute is repugnant to the
Constitution in two (2) respects - it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of what conduct to
avoid; and, it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.[10]
But the doctrine does not apply as against legislations that are merely couched
in imprecise language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently ambiguous yet fairly
applicable to certain types of activities. The first may be "saved" by proper
construction, while no challenge may be mounted as against the second
whenever directed against such activities.[11] With more reason, the doctrine
cannot be invoked where the assailed statute is clear and free from ambiguity,
as in this case.
The test in determining whether a criminal statute is void for uncertainty is
whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.[12] It must be stressed, however, that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the statute to be upheld - not
absolute precision or mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An act will not be held
invalid merely because it might have been more explicit in its wordings or
detailed in its provisions, especially where, because of the nature of the act, it
would be impossible to provide all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice
Vicente V. Mendoza during the deliberations of the Court that the allegations
that the Plunder Law is vague and overbroad do not justify a facial review of
its validity -
The void-for-vagueness doctrine states that "a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence
419 of 692
must necessarily guess at its meaning and differ as to its application, violates
the first essential of due process of law."[13] The overbreadth doctrine, on the
other hand, decrees that "a governmental purpose may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."[14]
A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes
in a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate that
his own conduct could not be regulated by a statute drawn with narrow
specificity."[15] The possible harm to society in permitting some unprotected
speech to go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to fester because
of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general
in terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to
free speech cases. They are inapt for testing the validity of penal statutes. As
the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we
have not recognized an 'overbreadth' doctrine outside the limited context of the
First Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial challenge to a legislative
act is the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act would
be valid."[18] As for the vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible applications.
"A plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others."[19]
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of
a statute is constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or other
situations in which its application might be unconstitutional."[20] As has been
pointed out, "vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while statutes
found vague as a matter of due process typically are invalidated [only] 'as
applied' to a particular defendant."[21] Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on its face and
in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected.[22] It constitutes a departure
from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract
contexts.[23] But, as the U.S. Supreme Court pointed out in Younger v.
Harris[24]
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process of
the relief sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind
of case that is wholly unsatisfactory for deciding constitutional questions,
whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last
420 of 692
resort,"[25] and is generally disfavored.[26] In determining the constitutionality
of a statute, therefore, its provisions which are alleged to have been violated in
a case must be examined in the light of the conduct with which the defendant
is charged.[27]
In light of the foregoing disquisition, it is evident that the purported ambiguity
of the Plunder Law, so tenaciously claimed and argued at length by petitioner,
is more imagined than real. Ambiguity, where none exists, cannot be created
by dissecting parts and words in the statute to furnish support to critics who
cavil at the want of scientific precision in the law. Every provision of the law
should be construed in relation and with reference to every other part. To be
sure, it will take more than nitpicking to overturn the well-entrenched
presumption of constitutionality and validity of the Plunder Law. A fortiori,
petitioner cannot feign ignorance of what the Plunder Law is all about. Being
one of the Senators who voted for its passage, petitioner must be aware that the
law was extensively deliberated upon by the Senate and its appropriate
committees by reason of which he even registered his affirmative vote with full
knowledge of its legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only
to illustrate and emphasize the point that courts are loathed to declare a statute
void for uncertainty unless the law itself is so imperfect and deficient in its
details, and is susceptible of no reasonable construction that will support and
give it effect. In that case, petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act
for being vague. Petitioners posited, among others, that the term "unwarranted"
is highly imprecise and elastic with no common law meaning or settled
definition by prior judicial or administrative precedents; that, for its vagueness,
Sec. 3, par. (e), violates due process in that it does not give fair warning or
sufficient notice of what it seeks to penalize. Petitioners further argued that the
Information charged them with three (3) distinct offenses, to wit: (a) giving of
"unwarranted" benefits through manifest partiality; (b) giving of "unwarranted"
benefits through evident bad faith; and, (c) giving of "unwarranted" benefits
through gross inexcusable negligence while in the discharge of their official
function and that their right to be informed of the nature and cause of the
accusation against them was violated because they were left to guess which of
the three (3) offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Act does not suffer from the constitutional defect of
vagueness. The phrases "manifest partiality," "evident bad faith," and "gross
and inexcusable negligence" merely describe the different modes by which the
offense penalized in Sec. 3, par. (e), of the statute may be committed, and the
use of all these phrases in the same Information does not mean that the
indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official
support; unjustified; unauthorized (Webster, Third International Dictionary, p.
2514); or without justification or adequate reason (Philadelphia Newspapers,
Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and
Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part,
p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a
corrupt practice and make unlawful the act of the public officer in:
x x x or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial functions
through manifest partiality, evident bad faith or gross inexcusable negligence,
x x x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions
penalize is the act of a public officer, in the discharge of his official,
administrative or judicial functions, in giving any private party benefits,
advantage or preference which is unjustified, unauthorized or without
justification or adequate reason, through manifest partiality, evident bad faith
or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in
the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act, which was understood in its primary and general
acceptation. Consequently, in that case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4
of the Plunder Law circumvents the immutable obligation of the prosecution to
421 of 692
prove beyond reasonable doubt the predicate acts constituting the crime of
plunder when it requires only proof of a pattern of overt or criminal acts
showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder,
it shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to establish beyond reasonable
doubt a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a
criminal prosecution for plunder, as in all other crimes, the accused always has
in his favor the presumption of innocence which is guaranteed by the Bill of
Rights, and unless the State succeeds in demonstrating by proof beyond
reasonable doubt that culpability lies, the accused is entitled to an acquittal.[29]
The use of the "reasonable doubt" standard is indispensable to command the
respect and confidence of the community in the application of criminal law. It
is critical that the moral force of criminal law be not diluted by a standard of
proof that leaves people in doubt whether innocent men are being condemned.
It is also important in our free society that every individual going about his
ordinary affairs has confidence that his government cannot adjudge him guilty
of a criminal offense without convincing a proper factfinder of his guilt with
utmost certainty. This "reasonable doubt" standard has acquired such exalted
stature in the realm of constitutional law as it gives life to the Due Process
Clause which protects the accused against conviction except upon proof beyond
reasonable doubt of every fact necessary to constitute the crime with which he
is charged.[30] The following exchanges between Rep. Rodolfo Albano and
Rep. Pablo Garcia on this score during the deliberations in the floor of the
House of Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA
7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law
that what is alleged in the information must be proven beyond reasonable doubt.
If we will prove only one act and find him guilty of the other acts enumerated
in the information, does that not work against the right of the accused especially
so if the amount committed, say, by falsification is less than P100 million, but
the totality of the crime committed is P100 million since there is malversation,
bribery, falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs
to be proved beyond reasonable doubt. What is required to be proved beyond
reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the
information three pairs of pants, pieces of jewelry. These need not be proved
beyond reasonable doubt, but these will not prevent the conviction of a crime
for which he was charged just because, say, instead of 3 pairs of diamond
earrings the prosecution proved two. Now, what is required to be proved
beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the
crime of plunder the totality of the amount is very important, I feel that such a
series of overt criminal acts has to be taken singly. For instance, in the act of
bribery, he was able to accumulate only P50,000 and in the crime of extortion,
he was only able to accumulate P1 million. Now, when we add the totality of
the other acts as required under this bill through the interpretation on the rule
of evidence, it is just one single act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an
essential element of the crime, there is a need to prove that element beyond
reasonable doubt. For example, one essential element of the crime is that the
amount involved is P100 million. Now, in a series of defalcations and other acts
of corruption in the enumeration the total amount would be P110 or P120
million, but there are certain acts that could not be proved, so, we will sum up
the amounts involved in those transactions which were proved. Now, if the
amount involved in these transactions, proved beyond reasonable doubt, is
P100 million, then there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any manner
refashion the standard quantum of proof in the crime of plunder. The burden
still remains with the prosecution to prove beyond any iota of doubt every fact
or element necessary to constitute the crime.
422 of 692
The thesis that Sec. 4 does away with proof of each and every component of
the crime suffers from a dismal misconception of the import of that provision.
What the prosecution needs to prove beyond reasonable doubt is only a number
of acts sufficient to form a combination or series which would constitute a
pattern and involving an amount of at least P50,000,000.00. There is no need
to prove each and every other act alleged in the Information to have been
committed by the accused in furtherance of the overall unlawful scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate,
supposing that the accused is charged in an Information for plunder with having
committed fifty (50) raids on the public treasury. The prosecution need not
prove all these fifty (50) raids, it being sufficient to prove by pattern at least
two (2) of the raids beyond reasonable doubt provided only that they amounted
to at least P50,000,000.00.[31]
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern arises
where the prosecution is able to prove beyond reasonable doubt the predicate
acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of
the predicate acts. This conclusion is consistent with reason and common sense.
There would be no other explanation for a combination or series of
overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or
conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution
is therefore not required to make a deliberate and conscious effort to prove
pattern as it necessarily follows with the establishment of a series or
combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his
submission that "pattern" is "a very important element of the crime of plunder;"
and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a
substantive element of the crime," such that without it the accused cannot be
convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted
under the Plunder Law without applying Section 4 on the Rule of Evidence if
there is proof beyond reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes
enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are
proved beyond reasonable doubt without applying Section 4, can you not have
a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in
convicting an accused charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4
when there is proof beyond reasonable doubt on the acts charged constituting
plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of the crime of
plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar
as the predicate crimes charged are concerned that you do not have to go that
far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very
important element of the crime of plunder and that cannot be avoided by the
prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all the essential elements
of plunder can be culled and understood from its definition in Sec. 2, in relation
to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and
opening clause of Sec. 4 is clear and unequivocal:
423 of 692
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder
xxxx
It purports to do no more than prescribe a rule of procedure for the prosecution
of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does
not define or establish any substantive right in favor of the accused but only
operates in furtherance of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking Sec. 4, a conviction for
plunder may be had, for what is crucial for the prosecution is to present
sufficient evidence to engender that moral certitude exacted by the fundamental
law to prove the guilt of the accused beyond reasonable doubt. Thus, even
granting for the sake of argument that Sec. 4 is flawed and vitiated for the
reasons advanced by petitioner, it may simply be severed from the rest of the
provisions without necessarily resulting in the demise of the law; after all, the
existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec.
7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the remaining
provisions of this Act and the application of such provisions to other persons or
circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions, assuming
that to be the case although it is not really so, all the provisions thereof should
accordingly be treated independently of each other, especially if by doing so,
the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is
a malum in se which requires proof of criminal intent. Thus, he says, in his
Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element of
mens rea must be proven in a prosecution for plunder. It is noteworthy that the
amended information alleges that the crime of plunder was committed
"willfully, unlawfully and criminally." It thus alleges guilty knowledge on the
part of petitioner.
In support of his contention that the statute eliminates the requirement of mens
rea and that is the reason he claims the statute is void, petitioner cites the
following remarks of Senator Taada made during the deliberation on S.B. No.
733:
SENATOR TAADA . . . And the evidence that will be required to convict him
would not be evidence for each and every individual criminal act but only
evidence sufficient to establish the conspiracy or scheme to commit this crime
of plunder.[33]
However, Senator Taada was discussing 4 as shown by the succeeding portion
of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman's view,
would provide for a speedier and faster process of attending to this kind of
cases?
SENATOR TAADA: Yes, Mr. President . . .[34]
Senator Taada was only saying that where the charge is conspiracy to commit
plunder, the prosecution need not prove each and every criminal act done to
further the scheme or conspiracy, it being enough if it proves beyond reasonable
doubt a pattern of overt or ciminal acts indicative of the overall unlawful
scheme or conspiracy. As far as the acts constituting the pattern are concerned,
however, the elements of the crime must be proved and the requisite mens rea
must be shown.
Indeed, 2 provides that -
Any person who participated with the said public officer in the commission of
an offense contributing to the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court.
424 of 692
The application of mitigating and extenuating circumstances in the Revised
Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly
that mens rea is an element of plunder since the degree of responsibility of the
offender is determined by his criminal intent. It is true that 2 refers to "any
person who participates with the said public officer in the commission of an
offense contributing to the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public officer as principal in the
crime. As Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean."[35]
Finally, any doubt as to whether the crime of plunder is a malum in se must be
deemed to have been resolved in the affirmative by the decision of Congress in
1993 to include it among the heinous crimes punishable by reclusion perpetua
to death. Other heinous crimes are punished with death as a straight penalty in
R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in
People v. Echegaray:[36]
The evil of a crime may take various forms. There are crimes that are, by their
very nature, despicable, either because life was callously taken or the victim is
treated like an animal and utterly dehumanized as to completely disrupt the
normal course of his or her growth as a human being . . . . Seen in this light, the
capital crimes of kidnapping and serious illegal detention for ransom resulting
in the death of the victim or the victim is raped, tortured, or subjected to
dehumanizing acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious
illegal detention, where the victim is detained for more than three days or
serious physical injuries were inflicted on the victim or threats to kill him were
made or the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which are penalized by
reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance
and implications of the subject criminal acts in the scheme of the larger socio-
political and economic context in which the state finds itself to be struggling to
develop and provide for its poor and underprivileged masses. Reeling from
decades of corrupt tyrannical rule that bankrupted the government and
impoverished the population, the Philippine Government must muster the
political will to dismantle the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself in the structures of
society and the psyche of the populace. [With the government] terribly lacking
the money to provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an actual
threat to the very existence of government, and in turn, the very survival of the
people it governs over. Viewed in this context, no less heinous are the effects
and repercussions of crimes like qualified bribery, destructive arson resulting
in death, and drug offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to cause further destruction
and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense
implies that it is a malum in se. For when the acts punished are inherently
immoral or inherently wrong, they are mala in se[37] and it does not matter that
such acts are punished in a special law, especially since in the case of plunder
the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat
prosecutions for plunder as though they are mere prosecutions for violations of
the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking,
without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory
law of RA 7080, on constitutional grounds. Suffice it to say however that it is
now too late in the day for him to resurrect this long dead issue, the same having
been eternally consigned by People v. Echegaray[38] to the archives of
jurisprudential history. The declaration of this Court therein that RA 7659 is
constitutionally valid stands as a declaration of the State, and becomes, by
necessary effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy
of officials in high places which have shaken its very foundation. The anatomy
of graft and corruption has become more elaborate in the corridors of time as
unscrupulous people relentlessly contrive more and more ingenious ways to
bilk the coffers of the government. Drastic and radical measures are imperative
to fight the increasingly sophisticated, extraordinarily methodical and
economically catastrophic looting of the national treasury. Such is the Plunder
425 of 692
Law, especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor and
ultimately consume the moral and institutional fiber of our nation. The Plunder
Law, indeed, is a living testament to the will of the legislature to ultimately
eradicate this scourge and thus secure society against the avarice and other
venalities in public office.
These are times that try men's souls. In the checkered history of this nation, few
issues of national importance can equal the amount of interest and passion
generated by petitioner's ignominious fall from the highest office, and his
eventual prosecution and trial under a virginal statute. This continuing saga has
driven a wedge of dissension among our people that may linger for a long time.
Only by responding to the clarion call for patriotism, to rise above factionalism
and prejudices, shall we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known
as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL.
Consequently, the petition to declare the law unconstitutional is DISMISSED
for lack of merit.
SO ORDERED.
Umali v. Guingona
305 SCRA 533 (1999)
OSMUNDO G. UMALI, petitioner, vs. EXECUTIVE SECRETARY
TEOFISTO T. GUINGONA JR., CHAIRMAN, PRESIDENTIAL
COMMISSION AGAINST GRAFT AND CORRUPTION, THE
SECRETARY OF FINANCE, AND THE COMMISSIONER OF INTERNAL
REVENUE, respondents.
RESOLUTION
PURISIMA, J.:
At bar is a petition for review under Rule 45 of the Revised Rules of Court
assailing the decision of the Court of Appeals dated April 8, 1997, which set
aside the Amended Decision dated December 13, 1995 of the Regional Trial
Court of Makati in Civil Case No. 94-3079, and dismissed the petition for
Certiorari, Prohibition and Injunction brought by petitioner against the
respondents.
The antecedent facts leading to the filing of the present petition are as follows:
On October 27, 1993, petitioner Osmundo Umali was appointed Regional
Director of the Bureau of Internal Revenue by the then President Fidel V.
Ramos. He was assigned in Manila, from November 29, 1993 to March 15,
1994, and in Makati, from March 16, 1994 to August 4, 1994.
On August 1, 1994, President Ramos received a confidential memorandum
against the petitioner for alleged violations of internal revenue laws, rules and
regulations during his incumbency as Regional Director, more particularly the
following malfeasance, misfeasance and nonfeasance, to wit:
A. Issuance of Letters of Authority (LAs) to investigate taxpayers despite the
ban on investigations as ordered in Revenue memorandum Order No. 31-93. In
numerous cases, revenue officers whose names appeared in the LAs as
investigating officers were unaware that such LAs were issued to them. He
issued LAs to favored revenue examiners such as his Secretary, Natividad
Feliciano;
B. Termination of tax cases without the submission of the required investigation
reports, thus exempting the same from examination and review;
C. Terminated cases with reports were submitted directly to and approved by
respondent Umali without being reviewed by the Assessment Division, thus
eliminating the check and balance mechanism designed to guard against abuses
or errors;
D. Unlawful issuance of LAs to taxpayers who were thereafter convinced to
avail of the BIRs compromise and abatement program under RMOs 45093 and
54-93, for which the taxpayers were made, for a monetary consideration, to pay
smaller amounts in lieu of being investigated;
E. Despite the devolution of the authority to issue LAs from Regional Directors
to the Revenue District Officers under RMO 26-94, dated April 14, 1994,
respondent Umali continued to issue antedated LAs in absolute defiance of the
426 of 692
aforesaid issuance, using old LAs requisitioned by him when still Regional
Director of San Pablo Region. In one instance, he issued a termination letter
bearing the San Pablo Region letterhead even when he was already Makati
Regional Director; and
F. In his attempt to cover up his tracks and to muddle the real issue of his
violations of the ban in the issuance of LAs and basic revenue rules and
regulations, respondent enlisted the support of other regional directors for the
purpose of questioning particularly the devolution/centralization of the
functions of the Bureau.[1]
On August 2, 1994, upon receipt of the said confidential memorandum, former
President Ramos authorized the issuance of an Order for the preventive
suspension of Umali and immediately referred the Complaint against the latter
to the Presidential Commission on Anti-Graft and Corruption (PCAGC), for
investigation.
Petitioner was duly informed of the charges against him. In its Order, dated
August 9, 1994, the PCAGC directed him to send in his answer, copies of his
Statement of Assets and Liabilities for the past three years (3), and Personal
Data Sheet. Initial hearing was set on August 25, 1994, at 2:00 p.m., at the
PCAGC Office. On August 23, the petitioner filed his required Answer.
On August 25, 1994, petitioner appeared with his lawyer, Atty. Bienvenido
Santiago before the PCAGC. Counsel for the Commissioner of Internal
Revenue submitted a Progress Report, dated August 24, 1994, on the audit
conducted on the petitioner. As prayed for, petitioner and his lawyer were
granted five (5) days to file a supplemental answer.
The hearing was reset to August 30, 1994, during which the parties were given
a chance to ask clarificatory questions. Petitioner and his counsel did not ask
any question on the genuineness and authenticity of the documents attached as
annexes to the Complaint. Thereafter, the parties agreed to submit the case for
resolution upon the presentation of their respective memoranda.
Petitioner filed his Memorandum on September 6, 1994 while the BIR sent in
its Memorandum on the following day.
After evaluating the evidence on record, the PCAGC issued its Resolution of
September 23, 1994, finding a prima facie evidence to support six (6) of the
twelve (12) charges against petitioner, to wit:
1. On the First Charge Respondent issued 176 Letters of Authority in gross
disobedience to and in violation of RMOs 31-93 and 27-94.
xxx xxx xxx
3. On the Third Charge There is sufficient evidence of a prima facie case of
falsification of official documents as defined in Art. 171, par. 2 and 4 of the
Revised Penal Code, against the respondent for the issuance of 9 LAs and who
did not investigate the tax cases, each LA being a separate offense.
xxx xxx xxx
7. On the Seventh Charge There is sufficient evidence of a prima facie case of
falsification of official documents against respondent for antedating the four
LAs cited in the charge, each LA constituting a separate offense, under Art. 171
(4) of the Revised Penal Code.
8. On the Ninth (sic) Charge There is sufficient evidence to support a prima
facie case of falsification of an official document under Art. 171 (4) of the
Revised Penal Code against the respondent in the tax case of Richfield
International Corp., Inc. for indicating a false date on the letter of termination
he issued to the company. There is, however, insufficient evidence against
respondent in the other tax case of Jayson Auto Supply Co.
9. On the Ninth Charge There is sufficient evidence of a prima facie case of
falsification of official documents in each of the two tax cases cited in his
charge, under the provisions of Art. 171 (4) of the Revised Penal Code, as the
dates of Termination Letters were false.
10. On the Tenth Charge Respondent, by his own admission, violated RMO 36-
87 requiring turn over of all properties and forms to his successor upon transfer
a head of office, and RMO 27-94 requiring the surrender of all unused old forms
of Letters of Authority. The Commission noted the defiant attitude of
427 of 692
respondent, as expressed in his admission, towards valid and legal orders of the
BIR, and his propensity to defy and ignore such orders and regulations.[2]
xxx xxx xxx
On October 6, 1994, acting upon the recommendation of the PCAGC, then
President Ramos issued Administrative Order No. 152 dismissing petitioner
from the service, with forfeiture of retirement and all benefits under the law.
On October 24, 1994, the petitioner moved for reconsideration of his dismissal
but the Office of the President denied the motion for reconsideration on
November 28, 1994.
On December 1, 1994, petitioner brought a Petition for Certiorari, Prohibition
and Injunction, docketed as Civil Case No. 94-3079 before the Regional Trial
Court of Makati, alleging, among others:
I. That the petitioner was suspended and dismissed from the service in violation
of his constitutional right to due process of law; and
II. That the constitutional right of the petitioner to security of tenure was
violated by the respondents.
The case was raffled off to Branch 133 of the Regional Trial Court in Makati,
which issued on December 2, 1994, a Temporary Restraining Order, enjoining
the respondents and/or their representatives from enforcing Administrative
Order No. 152, and directing the parties to observe the status quo until further
orders from the said Court.
On December 23, 1994, the said Regional Trial Court dismissed the petition.
On January 10, 1995, the petitioner presented a motion for reconsideration, this
time, theorizing that the Presidential Commission on Anti-Graft and Corruption
is an unconstitutional office without jurisdiction to conduct the investigation
against him.
Respondents submitted their Opposition/Comment to the Motion for
Reconsideration. Then, the petitioner filed a Motion to Inhibit Judge Inoturan
on the ground that the latter was formerly a Solicitor in the Office of the
Solicitor General and could not be expected to decide the case with utmost
impartiality.
The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr. who, on December
13, 1995, handed down an Amended Decision, granting the petition and
practically reversing the original Decision.
Not satisfied with the Amended Decision of Judge Guadiz, Jr., the respondents
appealed therefrom to the Court of Appeals.
On April 8, 1997, the Ninth Division of the Court of Appeals[3] promulgated
its decision, reversing the Amended Decision of the trial court of origin, and
dismissing Civil Case No. 94-3079. Petitioners motion for reconsideration met
the same fate. It was denied on October 28, 1997.
Undaunted, petitioner found his way to this Court via the petition under
scrutiny.
In the interim that the administrative and civil cases against the petitioner were
pending, the criminal aspect of such cases was referred to the Office of the
Ombudsman for investigation.
On July 25, 1995, after conducting the investigation, Ombudsman Investigators
Merba Waga and Arnulfo Pelagio issued a Resolution finding a probable cause
and recommending the institution in the courts of proper Jurisdiction criminal
cases for Falsification of Public Documents (13 counts) and Open Disobedience
(2 counts) against the petitioner.
However, acting upon petitioners motion for reconsideration Special
Prosecution Officer II Lemuel M. De Guzman set aside the said Resolution of
July 25, 1995, and in lieu thereof, dismissed the charges against petitioner, in
the Order dated November 5, 1996, which was approved by Ombudsman
Aniano Desierto. Accordingly, all the informations against the petitioner
previously sent to the Office of the City Prosecutor, were recalled.
On August 10, 1998, Commissioner Beethoven L. Rualo of the Bureau of
Internal Revenue sent a letter to the Solicitor General informing the latter that
the Bureau of Internal Revenue is no longer interested in pursuing the case
428 of 692
against Atty. Osmundo Umali on the basis of the comment and
recommendation submitted by the Legal Department of the BIR.[4]
Petitioner raised the issues:
1. WHETHER ADMINISTRATIVE ORDER NO. 152 VIOLATED
PETITIONERS RIGHT TO SECURITY OF TENURE;
2. WHETHER PETITIONER WAS DENIED DUE PROCESS IN THE
ISSUANCE OF ADMINISTRATIVE ORDER NO. 152;
3. WHETHER THE PCAGC IS A VALIDLY CONSTITUTED
GOVERNMENT AGENCY AND WHETHER PETITIONER CAN RAISE
THE ISSUE OF ITS CONSTITUTIONALITY BELATEDLY IN ITS
MOTION FOR RECONSIDERATION OF THE TRIAL COURTS
DECISION; AND
5. WHETHER IN THE LIGHT OF THE OMBUDSMAN RESOLUTION
DISMISSING THE CHARGES AGAINST PETITIONER, THERE IS STILL
BASIS FOR PETITIONERS DISMISSAL WITH FORFEITURE OF
BENEFITS AS RULED IN ADMINISTRATIVE ORDER NO. 152.
Petitioner contends that as Regional Director of the Bureau of Internal Revenue
he belongs to the Career Executive Service. Although a presidential appointee
under the direct authority of the President to discipline, he is a career executive
service officer (CESO) with tenurial protection, who can only be removed for
cause. In support of this theory, petitioner cited the case of Larin vs. Executive
Secretary[5] where the court held:
xxx petitioner is a presidential appointee who belongs to the career service of
the Civil Service. Being a presidential appointee, he comes under the direct
disciplining authority of the President. This is in line with the settled principle
that the power to remove is inherent in the power to appoint conferred to the
President by Section 16, Article VII of the constitution. xxx This power of
removal, however, is not an absolute one which accepts no reservation. It must
be pointed out that petitioner is a career service officer. xxx Specifically,
Section 36 of P.D. No. 807, as amended, otherwise known as Civil Service
Decree of the Philippines, is emphatic that career service officers and
employees who enjoy security of tenure may be removed only for any of the
causes enumerated in said law. In other words, the fact that petitioner is a
presidential appointee does not give the appointing authority the license to
remove him at will or at his pleasure for it is an admitted fact that he is likewise
a career service officer who under the law is the recipient of tenurial protection,
thus, may only be removed for cause and in accordance with procedural due
process.
Petitioner maintains that as a career executive service officer, he can only be
removed for cause and under the Administrative Code of 1987,[6] loss of
confidence is not one of the legal causes or grounds for removal. Consequently,
his dismissal from office on the ground of loss of confidence violated his right
to security of tenure; petitioner theorized.
After a careful study, we are of the irresistible conclusion that the Court of
Appeals ruled correctly on the first three issues. To be sure, petitioner was not
denied the right to due process before the PCAGC. Records show that the
petitioner filed his answer and other pleadings with respect to his alleged
violation of internal revenue laws and regulations, and he attended the hearings
before the investigatory body. It is thus decisively clear that his protestation of
non-observance of due process is devoid of any factual or legal basis.
Neither can it be said that there was a violation of what petitioner asserts as his
security of tenure. According to petitioner, as a Regional Director of Bureau of
Internal Revenue, he is a CESO eligible entitled to security of tenure. However,
petitioners claim of CESO eligibility is anemic of evidentiary support. It was
incumbent upon him to prove that he is a CESO eligible but unfortunately, he
failed to adduce sufficient evidence on the matter. His failure to do so is fatal.
As regards the issue of constitutionality of the PCAGC, it was only posed by
petitioner in his motion for reconsideration before the Regional Trial Court of
Makati. It was certainly too late to raise the said issue for the first time at such
late stage of the proceedings below.
How about the fourth issue, whether in view of the Resolution of the
Ombudsman dismissing the charges against petitioner, there still remains a
basis for the latter dismissal with forfeiture of benefits, as directed in
Administrative Order No. 152?
429 of 692

It is worthy to note that in the case under consideration, the administrative
action against the petitioner was taken prior to the institution of the criminal
case. The charges included in Administrative Order No. 152 were based on the
results of investigation conducted by the PCAGC and not on the criminal
charges before the Ombudsman.
In sum, the petition is dismissable on the ground that the issues posited by the
petitioner do not constitute a valid legal basis for overturning the finding and
conclusion arrived at by the Court of Appeals. However, taking into account
the antecedent facts and circumstances aforementioned, the Court, in the
exercise of its equity powers, has decided to consider the dismissal of the
charges against petitioner before the Ombudsman, the succinct and
unmistakable manifestation by the Commissioner of the Bureau of Internal
Revenue that his office is no longer interested in pursuing the case, and the
position taken by the Solicitor General,[7] that there is no more basis for
Administrative Order No. 152, as effective and substantive supervening events
that cannot be overlooked.
WHEREFORE, in light of the foregoing effective and substantive supervening
events, and in the exercise of its equity powers, the Court hereby GRANTS the
petition. Accordingly, Administrative Order No. 152 is considered LIFTED,
and petitioner can be allowed to retire with full benefits. No pronouncement as
to costs.
SO ORDERED.
Arceta v. Mangrobang
G.R. No. 152895 (June 15, 2004)
[G.R. No. 152895. June 15, 2004]
OFELIA V. ARCETA, petitioner, vs. The Honorable MA. CELESTINA C.
MANGROBANG, Presiding Judge, Branch 54, Metropolitan Trial Court of
Navotas, Metro Manila, respondent.
[G.R. No. 153151. June 15, 2004]
GLORIA S. DY, petitioner, vs. The Honorable EDWIN B. RAMIZO, Presiding
Judge, Branch 53, Metropolitan Trial Court of Caloocan City, respondent.
RESOLUTION
QUISUMBING, J.:
For resolution are two consolidated[1] petitions under Rule 65 of the Rules of
Court, for certiorari, prohibition and mandamus, with prayers for a temporary
restraining order. Both assail the constitutionality of the Bouncing Checks Law,
also known as Batas Pambansa Bilang 22.
In G.R. No. 152895, petitioner Ofelia V. Arceta prays that we order the
Metropolitan Trial Court (MeTC) of Navotas, Metro Manila, Branch 54, to
cease and desist from hearing Criminal Case No. 1599-CR for violation of B.P.
Blg. 22, and then dismiss the case against her. In G.R. No. 153151, petitioner
Gloria S. Dy also prays that this Court order the MeTC of Caloocan City to
cease and desist from proceeding with Criminal Case No. 212183, and
subsequently dismiss the case against her. In fine, however, we find that what
both petitioners seek is that the Court should revisit and abandon the doctrine
laid down in Lozano v. Martinez,[2] which upheld the validity of the Bouncing
Checks Law.
The facts of these cases are not in dispute.
1. G.R. No. 152895
The City Prosecutor of Navotas, Metro Manila charged Ofelia V. Arceta with
violating B.P. Blg. 22 in an Information, which was docketed as Criminal Case
No. 1599-CR. The accusatory portion of said Information reads:
That on or about the 16th day of September 1998, in Navotas, Metro Manila,
and within the jurisdiction of this Honorable Court, the above-named accused,
did then and there wilfully, unlawfully and feloniously make or draw and issue
to OSCAR R. CASTRO, to apply on account or for value the check described
below:
Check No : 00082270
Drawn Against : The Region Bank
430 of 692

In the Amount of : P740,000.00
Date : December 21, 1998
Payable to : Cash
said accused well-knowing that at the time of issue Ofelia V. Arceta did not
have sufficient funds or credit with the drawee bank for the payment, which
check when presented for payment within ninety (90) days from the date thereof
was subsequently dishonored by the drawee bank for reason DRAWN
AGAINST INSUFFICIENT FUNDS, and despite receipt of notice of such
dishonor, the accused failed to pay said payee with the face amount of said
check or to make arrangement for full payment thereof within five (5) banking
days after receiving notice.
CONTRARY TO LAW.[3]
Arceta did not move to have the charge against her dismissed or the Information
quashed on the ground that B.P. Blg. 22 was unconstitutional. She reasoned out
that with the Lozano doctrine still in place, such a move would be an exercise
in futility for it was highly unlikely that the trial court would grant her motion
and thus go against prevailing jurisprudence.
On October 21, 2002,[4] Arceta was arraigned and pleaded not guilty to the
charge. However, she manifested that her arraignment should be without
prejudice to the present petition or to any other actions she would take to
suspend proceedings in the trial court.
Arceta then filed the instant petition.
2. G.R. No. 153151
The Office of the City Prosecutor of Caloocan filed a charge sheet against
Gloria S. Dy for violation of the Bouncing Checks Law, docketed by the MeTC
of Caloocan City as Criminal Case No. 212183. Dy allegedly committed the
offense in this wise:
That on or about the month of January 2000 in Caloocan City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there wilfully, unlawfully and feloniously make
and issue Check No. 0000329230 drawn against PRUDENTIAL BANK in the
amount of P2,500,000.00 dated January 19, 2000 to apply for value in favor of
ANITA CHUA well knowing at the time of issue that she has no sufficient
funds in or credit with the drawee bank for the payment of such check in full
upon its presentment which check was subsequently dishonored for the reason
ACCOUNT CLOSED and with intent to defraud failed and still fails to pay the
said complainant the amount of P2,500,000.00 despite receipt of notice from
the drawee bank that said check has been dishonored and had not been paid.
Contrary to Law.[5]
Like Arceta, Dy made no move to dismiss the charges against her on the ground
that B.P. Blg. 22 was unconstitutional. Dy likewise believed that any move on
her part to quash the indictment or to dismiss the charges on said ground would
fail in view of the Lozano ruling. Instead, she filed a petition with this Court
invoking its power of judicial review to have the said law voided for
Constitutional infirmity.
Both Arceta and Dy raise the following identical issues for our resolution:
[a] Does section 1 really penalize the act of issuing a check subsequently
dishonored by the bank for lack of funds?
[b] What is the effect if the dishonored check is not paid pursuant to section 2
of BP 22?
[c] What is the effect if it is so paid?
[d] Does section 2 make BP 22 a debt collecting law under threat of
imprisonment?
[e] Does BP 22 violate the constitutional proscription against imprisonment for
non-payment of debt?
[f] Is BP 22 a valid exercise of the police power of the state?[6]
431 of 692

After minute scrutiny of petitioners submissions, we find that the basic issue
being raised in these special civil actions for certiorari, prohibition, and
mandamus concern the unconstitutionality or invalidity of B.P. Blg. 22.
Otherwise put, the petitions constitute an oblique attack on the constitutionality
of the Bouncing Checks Law, a matter already passed upon by the Court
through Justice (later Chief Justice) Pedro Yap almost two decades ago.
Petitioners add, however, among the pertinent issues one based on the
observable but worrisome transformation of certain metropolitan trial courts
into seeming collection agencies of creditors whose complaints now clog the
court dockets.
But let us return to basics. When the issue of unconstitutionality of a legislative
act is raised, it is the established doctrine that the Court may exercise its power
of judicial review only if the following requisites are present: (1) an actual and
appropriate case and controversy exists; (2) a personal and substantial interest
of the party raising the constitutional question; (3) the exercise of judicial
review is pleaded at the earliest opportunity; and (4) the constitutional question
raised is the very lis mota of the case.[7] Only when these requisites are satisfied
may the Court assume jurisdiction over a question of unconstitutionality or
invalidity of an act of Congress. With due regard to counsels spirited advocacy
in both cases, we are unable to agree that the abovecited requisites have been
adequately met.
Perusal of these petitions reveals that they are primarily anchored on Rule 65,
Section 1[8] of the 1997 Rules of Civil Procedure. In a special civil action of
certiorari the only question that may be raised is whether or not the respondent
has acted without or in excess of jurisdiction or with grave abuse of
discretion.[9] Yet nowhere in these petitions is there any allegation that the
respondent judges acted with grave abuse of discretion amounting to lack or
excess of jurisdiction. A special civil action for certiorari will prosper only if a
grave abuse of discretion is manifested.[10]
Noteworthy, the instant petitions are conspicuously devoid of any attachments
or annexes in the form of a copy of an order, decision, or resolution issued by
the respondent judges so as to place them understandably within the ambit of
Rule 65. What are appended to the petitions are only copies of the Informations
in the respective cases, nothing else. Evidently, these petitions for a writ of
certiorari, prohibition and mandamus do not qualify as the actual and
appropriate cases contemplated by the rules as the first requisite for the exercise
of this Courts power of judicial review. For as the petitions clearly show on
their faces petitioners have not come to us with sufficient cause of action.
Instead, it appears to us that herein petitioners have placed the cart before the
horse, figuratively speaking. Simply put, they have ignored the hierarchy of
courts outlined in Rule 65, Section 4[11] of the 1997 Rules of Civil Procedure.
Seeking judicial review at the earliest opportunity does not mean immediately
elevating the matter to this Court. Earliest opportunity means that the question
of unconstitutionality of the act in question should have been immediately
raised in the proceedings in the court below. Thus, the petitioners should have
moved to quash the separate indictments or moved to dismiss the cases in the
proceedings in the trial courts on the ground of unconstitutionality of B.P. Blg.
22. But the records show that petitioners failed to initiate such moves in the
proceedings below. Needless to emphasize, this Court could not entertain
questions on the invalidity of a statute where that issue was not specifically
raised, insisted upon, and adequately argued.[12] Taking into account the early
stage of the trial proceedings below, the instant petitions are patently premature.
Nor do we find the constitutional question herein raised to be the very lis mota
presented in the controversy below. Every law has in its favor the presumption
of constitutionality, and to justify its nullification, there must be a clear and
unequivocal breach of the Constitution, and not one that is doubtful, speculative
or argumentative.[13] We have examined the contentions of the petitioners
carefully; but they still have to persuade us that B.P. Blg. 22 by itself or in its
implementation transgressed a provision of the Constitution. Even the thesis of
petitioner Dy that the present economic and financial crisis should be a basis to
declare the Bouncing Checks Law constitutionally infirm deserves but scant
consideration. As we stressed in Lozano, it is precisely during trying times that
there exists a most compelling reason to strengthen faith and confidence in the
financial system and any practice tending to destroy confidence in checks as
currency substitutes should be deterred, to prevent havoc in the trading and
financial communities. Further, while indeed the metropolitan trial courts may
be burdened immensely by bouncing checks cases now, that fact is immaterial
to the alleged invalidity of the law being assailed. The solution to the clogging
of dockets in lower courts lies elsewhere.
432 of 692
WHEREFORE, the instant petitions are DISMISSED for utter lack of merit.
SO ORDERED.
Mitra v. Comelec
104 SCRA 58 (1981)
G.R. No. L-56503 April 4, 1981
RAMON MITRA, JR., NAPOLEON RAMA, EMMANUEL T. SANTOS,
ERNIE RONDON, ANTONIO MARTINEZ, JEJOMAR BINAY, RODRIGO
H. MELCHOR, JOAQUIN (Titong) ROCES, RAFAEL YAP, and MEL
LOPEZ, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
FERNANDO, CJ.:
In essence, this petition for mandamus and prohibition is not dissimilar from
the prohibition proceedings just dismissed filed respectively by former
delegates Samuel C. Occena and Ramon A. Gonzales. 1 All three suits proceed
on the assumption that the present Constitution is not in force and effect. There
is this variation. In the last two paragraphs of this petition, the plea is made for
the holding of a plebiscite so that the people may vote on the ratification of the
Constitution, now in force, but as, to them still in the stage of proposal. In the
event it is rejected, so their thinking goes, then the 1935 Constitution, which in
the view of petitioners was suspended by the establishment of an authoritarian
regime by the Commander-in-Chief of the Armed Forces after the proclamation
of martial law, could be once more operative with the lifting of martial law on
January 17, 1981. As in the Occena and Gonzales petitions, there is what was
therein referred to as a "rather unorthodox aspect" in "the assertion that the 1973
Constitution is not the fundamental law, the Javellana ruling to the contrary
notwithstanding." 2 This excerpt from the opinion is, therefore, fully
applicable: "To put it at its mildest, such an approach has the arresting charm
of novelty – but nothing else. It is in fact self-defeating, for if such were indeed
the case, petitioners have come to the wrong forum. We sit as Court duty-bound
to uphold and apply that Constitution. To contend otherwise as was done here
would be, quite clearly, an exercise in futility." 3
A similar judgment is thus indicated. The petition must be dismissed. If there
is a further expression of view on the part of the Court, it is to clear the
misapprehension that seems to be current in certain legal quarters about the
import of the Javellana decision 4 and the role of the President as Commander-
in-Chief during the period of martial law.
1. What is the ruling in Javellana v. Executive Secretary? 5 Rightfully, it
is ranked by eminent jurists and academicians abroad as one of the most
significant manifestations of the exercise of the function of judicial review.
Apparently, this awesome and delicate power has implications still not
adequately grasped. By virtue of this prerogative, the Supreme Court either
checks or legitimates the acts of a coordinate department, challenged in an
appropriate legal proceeding. The decision rendered then, whether one of
approval or of rejection, of validity or of unconstitutionality, is controlling. To
go back to Javellana v. Executive Secretary. The ruling cannot be any clearer.
The dispositive portion reads: "[Accordingly], by virtue of the majority of six
(6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra with the four (4) dissenting votes of the Chief Justice and Justices
Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby
dismissed. This being the vote of the majority, there is no further judicial
obstacle to the new Constitution being considered in force and effect." 6 As far
as there being "no further judicial obstacle" to the operative character of the
1973 Constitution, there can be no doubt that such is the view of eight of the
ten members of the Court. Petitioners apparently did not take note of the
immediately preceding paragraph of the opinion of the then Chief Justice
Concepcion, who, while one of the dissenters, spoke for the Court on the voting:
"On the fifth question of whether the new Constitution of 1973 is in force: Four
(4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that it is in force by virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando
and Teehankee cast no vote thereon on the premise stated in their votes on the
third question that they could not state with judicial certainty whether the
people have accepted or not accepted the Constitution; and Two (2) members
of the Court, namely, Justice Zaldivar and myself voted that the Constitution
433 of 692
proposed by the 1971 Constitutional Convention is not in force; with the result
that there are not enough votes to declare that the new Constitution is not in
force." 7 Both the statements of "there being no further judicial obstacle" as
well as the negative form in which mention is made of there being "not enough
votes to declare that the new Constitution" is not in force reflect the traditional
mode in which constitutional issues are passed upon in accordance with the
American concept of judicial review. The function of judicial review, as
observed by Justice Laurel in the leading case of Angara v. Electoral
Commission, 8 reflects the adoption of the American type of constitutional
government "where the written constitution is interpreted and given effect by
the judicial department." 9 In the event therefore that the decision rendered may
give rise to doubts and perplexities, there is comfort and assurance in the
thought expressed by the same eminent jurist in another leading case of Villena
v. Secretary of Interior: 10 "Familiarity with the essential background of the
type of government established under our Constitution, in the light of certain
well-known principles and practices that go with the system, should offer the
necessary explanation." 11 One of such practices is the manner in which the
dispositive portion of a decision in a suit contesting the validity of a legislative
or executive act is worded. It was noted that Justice Holmes had a penchant for
the double negative. A favorite phrase of his was that the statute "was not
unconstitutional." That is of the essence of judicial review. For one of its basic
postulates is the presumption of validity. The burden of proof is thus on the
person assailing the action taken by a coordinate branch. There is no need
therefore of an affirmative finding as to its being constitutional. It suffices that
it has not been shown to be otherwise. It is likewise by virtue of such
presumption that Justice Malcolm correctly asserted: "To doubt is to sustain."
12 Scholars in the field of constitutional law have even gone further. They
maintain that when the Supreme Court or some members thereof whose votes
are crucial deem the question raised as a political 13 and not judicial resulting
in the dismissal of the action, there was, even then, a manifestation of the power
of judicial review at work. The Court, by ruling that it was without jurisdiction,
allowed the political branches to have their way. In that sense, to use a favorite
phrase of Thomas Reed Powell, the Court was silently vocal and not silently
silent. In Javellana, the Court assumed jurisdiction, but only two of the ten
members then were of the view and so voted that the 1973 Constitution is not
in force. There is no affront to logic, it would seem, for us to dismiss the
petitions and accordingly rule that "there is no further judicial obstacle to the
new Constitution being considered in force and effect." As was pointed out in
the joint decision in the Occena and Gonzales petitions: "That is the meaning
of the concluding statement in Javellana. Since then, this Court has invariably
applied the present Constitution. The latest case in point is People v. Sola,
promulgated barely two weeks ago. During the first year alone of the effectivity
of the present Constitution, at least ten cases may be cited." 14
2. Nor is this all. The scholarly opinion of then Chief Justice Roberto
Concepcion, while in dissent, acknowledged that even without valid
ratification, a new Constitution could come into force and effect by the
acquiescence of the people, referring in particular to the leading case of Taylor
v. Commonwealth. 15 Other cases may be cited. 16 There is this excerpt in a
separate opinion in Javellana: "Independently of the lack of validity of the
ratification of the new Constitution, if it be accepted by the people, in whom
sovereignty resides according to the Constitution, then this Court cannot refuse
to yield assent to such a political decision of the utmost gravity, conclusive in
its effect. Such a fundamental principle is meaningless if it does not imply, to
follow Laski, that the nation as a whole constitutes the "single center of ultimate
reference, necessarily the possessor of that 'power that is able to resolve
disputes by saying the last word." If the origins of the democratic polity
enshrined in the 1935 Constitution with the declaration that the Philippines is a
republican state could be traced back to Athens and to Rome, it is no doubt true,
as McIver pointed out, that only with the recognition of the nation as the
separate political unit in public law is there the juridical recognition of the
people composing it 'as the source of political authority.' From them, as Corwin
did stress, emanate 'the highest possible embodiment of human will,' which is
supreme and must be obeyed. To avoid any confusion and in the interest of
clarity, it should be expressed in the manner ordained by law. Even if such were
not the case, however, once it is manifested, it is to be accepted as final and
authoritative. The government which is merely an agency to register its
commands has no choice but to submit. Its officials must act accordingly. No
agency is exempt from such a duty. not even this Court. In that sense, the lack
of regularity in the method employed to register its wishes is not fatal in its
consequences. Once the fact of acceptance by the people of a new fundamental
law is made evident, the judiciary is left with no choice but to accord it
recognition. The obligation to render obeisance falls on the courts as well." 17
Even petitioners must be aware that aside from the referendum that led to the
ratification of the present Constitution, there was a second one held on July 27
and 28 in 1973, 18 and another on February 27 and 28 in 1975. 19 The 1976
434 of 692
amendments to the Constitution were adopted in the referendum held on
October 16 and 17 of the year. 20 Then on December 17, 1977, there was again
held a referendum. 21 The fact that the people went to the polls would be
indicative of their acquiescence in the present Constitution. Nor could
petitioners be unaware that two elections have been held under the present
Constitution, one for members of the Interim Batasang Pambansa on April 7,
1978 and the other for local government officials on January 30, 1980. In the
face of the above clearly manifested recognition of the force and effect of the
present Constitution, by the people, including those in the opposition, it would
seem that any argument to the contrary should be consigned to a well-merited
limbo.
3. There is an even graver misapprehension of the significance of the
President being the Commander-in-Chief of the Armed Forces and the
restricted concept of martial law as known to American Jurisprudence well-
nigh authoritative in this jurisdiction. The provision of the 1935 Constitution
by virtue of which martial law was declared reads as follows: "The President
shall be commander-in-chief of all Armed Forces of the Philippines and,
whenever it becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion, insurrection, or rebellion. In case of
invasion, insurrection, or rebellion, or imminent danger thereof, when the
public safety requires it, he may suspend the privileges of the writ of habeas
corpus, or place the Philippines or any part thereof under martial law." 22 The
commander-in-chief clause is traceable to the United States Constitution, 23
which however does not empower the American President to declare martial
law. It is quite apparent that the framers of the 1935 Constitution, including
some of the greatest legal luminaries of the Philippines, all devoted to the
concept of civilian supremacy, expanded the commander-in-chief clause on the
assumption that the President, as the highest civilian authority, should not be
bereft of competence to deal with any danger to the State whether posed by
external aggression or internal subversion. He was thus empowered to suspend
the privilege of the writ of habeas corpus and to declare martial law. At any
rate, there was nothing novel in such a provision as far as the Philippines is
concerned. It owed its origin to the Philippine Autonomy Act of 1916, more
popularly known as Jones Law, 24 which was in turn based on the Organic Act
of Hawaii of 1899. 25 State Constitutions of Massachusetts, 26 New
Hampshire, 27 Rhode Island, 28 Vermont, 29 Maine, 30 Maryland, 31
Tennessee, 32 West Virginia, 33 and Alaska 34 likewise contain martial law
provisions. Neither the Colorado nor the Texas Constitutions has a provision of
that character, in the former the privilege of the writ could be suspended 35 and
in the latter a statute was enacted to enable its Governor to do so. 36 As
interpreted by the American Supreme Court in the leading cases of Moyer v.
Peabody, 37 the opinion coming from Justices Holmes, and Sterling v.
Constantine, 38 with Chief Justice Hughes as ponente, these two decisions
along with that of Duncan v. Kahananloku, 39 made clear that martial law as
understood in American jurisprudence is subject to judicial scrutiny and t thus
far from being all encompassing. To be more specific, martial law, according
to Willoughby, "goes no further than to warn citizens that the military powers
have been called upon by the executive to assist him in the maintenance of law
and order, and that, while the emergency lasts, they must upon pain of arrest
and punishment, not commit any acts which will in any way render more
difficult the restoration of order and the enforcement of law." 40 Burdick, 41
Willis, 42 and Schwartz 43 wrote in the same vein. Parenthetically, it may be
observed that President Ferdinand E. Marcos announced in a speech in Hawaii
on April 22, 1980 that the Philippines is partial to the Willoughby approach. 44
There is this modification though as announced in the ponencia of Justice
Makasiar in Aquino, Jr. v. Commission on Elections: 45 "We affirm the
proposition that as Commander-in-Chief and enforcer or administrator of
martial law, the incumbent President of the Philippines can promulgate
proclamations, orders and decrees during the period of Martial Law essential to
the security and preservation of the Republic, to the defense of the political and
social liberties of the people and to the institution of reforms to prevent the
resurgence of rebellion or insurrection or secession or threat thereof as well as
to meet the impact of a worldwide recession, inflation or economic crisis which
presently threatens all nations including highly developed countries. 46 That is
the extent of the influence exerted by the view of Rossiter. 47 There is thus
adherence to the pronouncement of Justice Black in the above-cited Dunca v.
Kahanamoku, 48 a case of Hawaiian origin: "Legislatures and courts are not
merely cherished American institutions; they are indispensable to our
government." 49 The Interim Batasang Pambansa was provided for in the 1976
Amendments to the Constitution, tile opening sentence of its first section
reading: "There shall be, in lieu of the interim National Assembly, an interim
Batasang Pambansa." 50 The judiciary, during the period of martial law from
September 21, 1972 to January 17, 1981, performed its functions and
discharged its responsibility as a separate branch of the government. It never
ceased all the while to exercise the power of judicial review. The validity of the
435 of 692
proclamation of martial law was challenged and unanimously upheld in
Aquino, Jr. v. Commission on Elections. 51 Mention had already been made of
Javellana vs. Executive Secretary, 52 where, as noted, the transcendental issue
posed was whether or not the 1973 Constitution was in force and effect, with
the Court dismissing the Petitions by a vote of six to four and ruling by a vote
of eight to two that there was "no further judicial obstacle to the New
Constitution being considered in force and effect," and Aquino, Jr. v.
Commission on Elections, 53 where the question raised was as to the
competence of the President to issue orders and decrees having the force and
effect of law, with the Court ruling that he could do so, the ratio decidendi being
the aforesaid excerpt quoted from the ponencia of Justice Makasiar. 54 There
are two other decisions equally signifying that this Court had never been
hesitant to assume jurisdiction in cases assailing the validity of Presidential
acts. The first is Aquino, Jr. v. Military Commission, 55 where the power of the
President to create a military commission with jurisdiction to try civilians for
certain specified offences connected with the rebellion, was sustained, No.56
the opinion being penned by Justice Antonio. 56 The other is Sanidad v.
Commission on Elections, 57 where the authority of the President to propose
amendments to the Constitution, the interim National Assembly not having
been convened, was sanctioned. 58 It is not to be lost sight of either that in
Dumiao v. Commission on Elections, 59 decided on January 22, 1980, while
martial law was still in force, this Court nullified a portion of Section 4 of Batas
Pambansa Blg. 52, which would consider the filing of charges for the
commission of any crime arising from acts of disloyalty or amounting to
subversion, insurrection, or rebellion, before the Civil Court or military tribunal
after preliminary investigation as prima facie evidence of such fact. Justice
Melencio-Herrera was the ponente. 60
4. There can be no justification then for the reckless assertion that upon
the proclamation of martial law and while it was in force, constitutionalism, in
terms of the exercise of the power of judicial review and respect for individual
rights, no longer held sway in the Philippines. It was Justice Lionel Keith
Murphy, of the High Court of Australia, whose advocacy of a written bill of
rights for his country has won him an international reputation as a devoted and
eloquent champion of human rights who was the Second Comparative Law
Lecturer of the Integrated Bar of the Philippines. In that lecture, he appraised
the role of this Court during martial law thus: "The judicial system in the
Philippines had undergone difficult times, and much stress has been placed on
it by the necessity to resolve great issues arising in a series of cases: The Anti-
Subversion, The Plebiscite, The Ratification, The Martial Law. The
Referendum, The Right, to Counsel and The Military Tribunal Cases." 61 He
said further: "Throughout these cases, one can observe with admiration the
concern of the judiciary to maintain the fundamental liberties of the people even
under the most difficult conditions." 62 He continued his appraisal of the work
of the Supreme Court during martial law thus: "Violations of human rights have
occurred and do occur in the Philippines. Violations of human rights have
occurred and do occur in Australia. I will mention some shortly. They occur in
the United States and elsewhere. But the Philippines and the United States have
courts which are able to enforce mandatory provisions in the Bill of Rights.
Your Supreme Court does so daily, openly and in reasoned decision given by
your Justices." 63 To paraphrase a recognized authority in American
Constitutional law and one of the most respected American legal scholars,
Professor Paul A. Freund it is not too much to expect of any counsel appearing
before the Supreme Court that there should be on his part a certain degree of
awareness of the pitfalls and delusions of certitude in view of the complexity
of the strands in the web of constitutionalism which the Court must disentangle.
64 There is still much to be said of this aphorism of Justice Holmes: "Certitude
is not the test of certainty." In the field of constitutional law, the need for
reexamining the continuing validity of doctrines in the light of changing
circumstances cannot be denied. Familiarity with such doctrines, to refer anew
to what was stated by Justice Laurel, is, however, a prime requisite.
WHEREFORE, the petition is dismissed for lack of merit.
Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, De Castro
and Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.
Salonga v. Cruz-Pano
134 SCRA 438 (1985)
G.R. No. L-59524 February 18, 1985
436 of 692
JOVITO R. SALONGA, petitioner,
vs.
HON. ERNANI CRUZ PAÑO, Presiding Judge of the Court of First Instance
of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ,
Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon
City) CITY FISCAL SERGIO APOSTOL of Quezon City; COL. BALBINO
DIEGO and COL. ROMAN MADELLA, respondents.
GUTIERREZ, JR., J.:
The petitioner invokes the constitutionally protected right to life and liberty
guaranteed by the due process clause, alleging that no prima facie case has been
established to warrant the filing of an information for subversion against him.
Petitioner asks this Court to prohibit and prevent the respondents from using
the iron arm of the law to harass, oppress, and persecute him, a member of the
democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
A rash of bombings occurred in the Metro Manila area in the months of August,
September and October of 1980. On September 6, 1980, one Victor Burns
Lovely, Jr., a Philippine-born American citizen from Los Angeles, California,
almost killed himself and injured his younger brother, Romeo, as a result of the
explosion of a small bomb inside his room at the YMCA building in Manila.
Found in Lovely's possession by police and military authorities were several
pictures taken sometime in May, 1980 at the birthday party of former
Congressman Raul Daza held at the latter's residence in a Los Angeles suburb.
Petitioner Jovito R. Salonga and his wife were among those whose likenesses
appeared in the group pictures together with other guests, including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by military
and police authorities to the AFP Medical Center (V. Luna Hospital) where he
was placed in the custody and detention of Col. Roman P. Madella, under the
over-all direction of General Fabian Ver, head of the National Intelligence and
Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two
brothers, Romeo and Baltazar Lovely were charged with subversion, illegal
possession of explosives, and damage to property.
On September 12, 1980, bombs once again exploded in Metro Manila including
one which resulted in the death of an American lady who was shopping at
Rustan's Supermarket in Makati and others which caused injuries to a number
of persons.
On September 20, 1980, the President's anniversary television radio press
conference was broadcast. The younger brother of Victor Lovely, Romeo, was
presented during the conference. In his interview, Romeo stated that he had
driven his elder brother, Victor, to the petitioner's house in Greenhills on two
occasions. The first time was on August 20, 1980. Romeo stated that Victor did
not bring any bag with him on that day when he went to the petitioner's
residence and did not carry a bag when he left. The second time was in the
afternoon of August 31, 1980 when he brought Victor only to the gate of the
petitioner's house. Romeo did not enter the petitioner's residence. Neither did
he return that day to pick up his brother.
The next day, newspapers came out with almost Identical headlines stating in
effect that petitioner had been linked to the various bombings in Metro Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's
intensive care unit and transferred to the office of Col. Madella where he was
held incommunicado for some time.
On the night of October 4, 1980, more bombs were reported to have exploded
at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park
Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of
the General Military Council was called for October 6, 1980.
On October 19, 1980, minutes after the President had finished delivering his
speech before the International Conference of the American Society of Travel
Agents at the Philippine International Convention Center, a small bomb
exploded. Within the next twenty-four hours, arrest, search, and seizure orders
(ASSOs) were issued against persons who were apparently implicated by
Victor Lovely in the series of bombings in Metro Manila. One of them was
herein petitioner. Victor Lovely offered himself to be a "state witness" and in
437 of 692
his letter to the President, he stated that he will reveal everything he knows
about the bombings.
On October 21, 1980, elements of the military went to the hospital room of the
petitioner at the Manila Medical Center where he was confined due to his
recurrent and chronic ailment of bronchial asthma and placed him under arrest.
The arresting officer showed the petitioner the ASSO form which however did
not specify the charge or charges against him. For some time, the petitioner's
lawyers were not permitted to visit him in his hospital room until this Court in
the case of Ordoñez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28,
1980) issued an order directing that the petitioner's right to be visited by counsel
be respected.
On November 2, 1980, the petitioner was transferred against his objections
from his hospital arrest to an isolation room without windows in an army prison
camp at Fort Bonifacio, Makati. The petitioner states that he was not informed
why he was transferred and detained, nor was he ever investigated or questioned
by any military or civil authority.
Subsequently, on November 27, 1980, the petitioner was released for
humanitarian reasons from military custody and placed "under house arrest in
the custody of Mrs. Lydia Salonga" still without the benefit of any investigation
or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a
"Notice of Preliminary Investigation" in People v. Benigno Aquino, Jr., et al.
(which included petitioner as a co-accused), stating that "the preliminary
investigation of the above-entitled case has been set at 2:30 o'clock p.m. on
December 12, 1980" and that petitioner was given ten (10) days from receipt of
the charge sheet and the supporting evidence within which to file his counter-
evidence. The petitioner states that up to the time martial law was lifted on
January 17, 1981, and despite assurance to the contrary, he has not received any
copies of the charges against him nor any copies of the so-called supporting
evidence.
On February 9, 1981, the records of the case were turned over by the Judge
Advocate General's Office to the Ministry of Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint accusing
petitioner, among others of having violated Republic Act No. 1700, as amended
by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the
Revised Penal Code. The inquest court set the preliminary investigation for
March 17, 1981.
On March 6, 1981, the petitioner was allowed to leave the country to attend a
series of church conferences and undergo comprehensive medical examinations
of the heart, stomach, liver, eye and ear including a possible removal of his left
eye to save his right eye. Petitioner Salonga almost died as one of the principal
victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on
August 20, 1971. Since then, he has suffered serious disabilities. The petitioner
was riddled with shrapnel and pieces still remain in various parts of his body.
He has an AV fistula caused by a piece of shrapnel lodged one millimeter from
his aorta. The petitioner has limited use of his one remaining hand and arms, is
completely blind and physical in the left eye, and has scar like formations in the
remaining right eye. He is totally deaf in the right ear and partially deaf in the
left ear. The petitioner's physical ailments led him to seek treatment abroad.
On or around March 26, 1981, the counsel for petitioner was furnished a copy
of an amended complaint signed by Gen. Prospero Olivas, dated March 12,
1981, charging the petitioner, along with 39 other accused with the violation of
R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736.
Hearings for preliminary investigation were conducted. The prosecution
presented as its witnesses Ambassador Armando Fernandez, the Consul
General of the Philippines in Los Angeles, California, Col. Balbino Diego,
PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security
Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to dismiss the
charges against petitioner for failure of the prosecution to establish a prima
facie case against him.
On December 2, 1981, the respondent judge denied the motion. On January 4,
1982, he issued a resolution ordering the filing of an information for violation
of the Revised Anti-Subversion Act, as amended, against forty (40) people,
including herein petitioner.
438 of 692
The resolutions of the respondent judge dated December 2, 1981 and January
4, 1982 are now the subject of the petition. It is the contention of the petitioner
that no prima facie case has been established by the prosecution to justify the
filing of an information against him. He states that to sanction his further
prosecution despite the lack of evidence against him would be to admit that no
rule of law exists in the Philippines today.
After a painstaking review of the records, this Court finds the evidence offered
by the prosecution utterly insufficient to establish a prima facie case against the
petitioner. We grant the petition.
However, before going into the merits of the case, we shall pass upon a
procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of a
motion to quash or to dismiss, being interlocutory in character, cannot be
questioned by certiorari; that since the question of dismissal will again be
considered by the court when it decides the case, the movant has a plain, speedy
and adequate remedy in the ordinary course of law; and that public interest
dictates that criminal prosecutions should not be enjoined.
The general rule is correctly stated. However, the respondents fail to appreciate
or take into account certain exceptions when a petition for certiorari is clearly
warranted. The case at bar is one such exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions were
advanced by the respondents to wit:
xxx xxx xxx
... Respondents advert to the rule that when a motion to quash filed by an
accused in a criminal case shall be denied, the remedy of the accused-movant
is not to file a petition for certiorari or mandamus or prohibition, the proper
recourse being to go to trial, without prejudice to his right to reiterate the
grounds invoked in his motion to quash if an adverse judgment is rendered
against him, in the appeal that he may take therefrom in the manner authorized
by law. (Mill v. People, et al., 101 Phil. 599; Echarol v. Purisima, et al., 13
SCRA 309.)
On this argument, we ruled:
There is no disputing the validity and wisdom of the rule invoked by the
respondents. However, it is also recognized that, under certain situations,
recourse to the extraordinary legal remedies of certiorari, prohibition or
mandamus to question the denial of a motion to quash is considered proper in
the interest of "more enlightened and substantial justice", as was so declared in
"Yap v. Lutero, G.R. No. L-12669, April 30, 1969."
Infinitely more important than conventional adherence to general rules of
criminal procedure is respect for the citizen's right to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious
prosecution. The integrity of a democratic society is corrupted if a person is
carelessly included in the trial of around forty persons when on the very face of
the record no evidence linking him to the alleged conspiracy exists. Ex-Senator
Jovito Salonga, himself a victim of the still unresolved and heinous Plaza
Miranda bombings, was arrested at the Manila Medical Center while
hospitalized for bronchial asthma. When arrested, he was not informed of the
nature of the charges against him. Neither was counsel allowed to talk to him
until this Court intervened through the issuance of an order directing that his
lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No.
55345, October 28, 1980). Only after four months of detention was the
petitioner informed for the first time of the nature of the charges against him.
After the preliminary investigation, the petitioner moved to dismiss the
complaint but the same was denied. Subsequently, the respondent judge issued
a resolution ordering the filing of an information after finding that a prima facie
case had been established against an of the forty persons accused.
In the light of the failure to show prima facie that the petitioner was probably
guilty of conspiring to commit the crime, the initial disregard of petitioner's
constitutional rights together with the massive and damaging publicity made
against him, justifies the favorable consideration of this petition by this Court.
With former Senator Benigno Aquino, Jr. now deceased, there are at least 38
other co-accused to be tried with the petitioner. The prosecution must present
proof beyond reasonable doubt against each and every one of the 39 accused,
most of whom have varying participations in the charge for subversion. The
prosecution's star witness Victor Lovely and the only source of information
439 of 692
with regard to the alleged link between the petitioner and the series of terrorist
bombings is now in the United States. There is reason to believe the petitioner's
citation of international news dispatches * that the prosecution may find it
difficult if not infeasible to bring him back to the Philippines to testify against
the petitioner. If Lovely refused to testify before an American federal grand
jury how could he possibly be made to testify when the charges against the
respondent come up in the course of the trial against the 39 accused.
Considering the foregoing, we find it in the interest of justice to resolve at this
stage the issue of whether or not the respondent judge gravely abused his
discretion in issuing the questioned resolutions.
The respondents contend that the prosecution will introduce additional evidence
during the trial and if the evidence, by then, is not sufficient to prove the
petitioner's guilt, he would anyway be acquitted. Yes, but under the
circumstances of this case, at what cost not only to the petitioner but to the basic
fabric of our criminal justice system?
The term "prima facie evidence" denotes evidence which, if unexplained or
uncontradicted, is sufficient to sustain the proposition it supports or to establish
the facts, or to counter-balance the presumption of innocence to warrant a
conviction. The question raised before us now is: Were the evidences against
the petitioner uncontradicted and if they were unexplained or uncontradicted,
would they, standing alone, sufficiently overcome the presumption of
innocence and warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the respondent
judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely.
Ambassador Armando Fernandez, when called upon to testify on subversive
organizations in the United States nowhere mentioned the petitioner as an
organizer, officer or member of the Movement for Free Philippines (MFP), or
any of the organizations mentioned in the complaint. Col. Diego, on the other
hand, when asked what evidence he was able to gather against the petitioner
depended only on the statement of Lovely "that it was the residence of ex-
Senator Salonga where they met together with Renato Tañada, one of the brains
of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting
with several subversive personnel based in the U.S.A. was also revealed to me
by Victor Burns Lovely; 11 and on the group pictures taken at former
Congressman Raul Daza's birthday party. In concluding that a conspiracy exists
to overthrow by violent means the government of the Philippines in the United
States, his only bases were "documentary as well as physical and sworn
statements that were referred to me or taken by me personally," which of course
negate personal knowledge on his part. When asked by the court how he would
categorize petitioner in any of the subversive organizations, whether petitioner
was an organizer, officer or a member, the witness replied:
A. To categorize former Senator Salonga if he were an organizer, he is an
officer or he is a member, your Honor, please, we have to consider the
surrounding circumstances and on his involvement: first, Senator Salonga
wanted always to travel to the United States at least once a year or more often
under the pretext of to undergo some sort of operation and participate in some
sort of seminar. (t.s.n., April 21, 1981, pp- 14-15)
Such testimony, being based on affidavits of other persons and purely hearsay,
can hardly qualify as prima facie evidence of subversion. It should not have
been given credence by the court in the first place. Hearsay evidence, whether
objected to or not, -has no probative value as the affiant could not have been
cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA
223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself,
was personally examined by the court, there was no need for the testimony of
Col. Diego. Thus, the inquest judge should have confined his investigation to
Victor Burns Lovely, the sole witness whose testimony had apparently
implicated petitioner in the bombings which eventually led to the filing of the
information.
Lovely's account of the petitioner's involvement with the former's bombing
mission is found in his sworn statement made before Col. Diego and Lt. Col.
Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was
not presented as a prosecution or state witness but only as a defense witness for
his two younger brothers, Romeo and Baltazar, who were both included in the
complaint but who were later dropped from the information. Victor Lovely was
examined by his counsel and cross-examined by the fiscal. In the process, he
Identified the statement which he made before Col. Diego and Lt. Col. Madella.
After Lovely's testimony, the prosecution made a manifestation before the court
that it was adopting Lovely as a prosecution witness.
440 of 692

According to Lovely's statement, the following events took place:
36. Q. Did Psinakis tell you where to stay?
A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel
where somebody would come to contact me and give the materials needed in
the execution of my mission. I thought this was not safe so I disagreed with
him. Mr. Psinakis changed the plan and instead told me to visit the residence of
Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to
give the materials I needed to accomplish my mission
37. Q. Did you comply as instructed?
A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence
of Mr. Johnny Chua, husband of my business partner, then I went to the
Hospital where I visited my mother and checked-in at Room 303 of the YMCA
at Concepcion Street, Manila.
38. Q. Did you visit the residence of former Senator Jovito Salonga as directed
by Psinakis?
A. I visited Sen. Salonga's place three (3) times, the first visit was August
20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these
visits, I TALKED to him on the phone about three or four times. On my first
visit, I told him "I am expecting an attache case from somebody which will be
delivered to your house," for which Sen. Salonga replied "Wala namang
nagpunta dito at wala namang attache case para sa iyo." However, if your
attache case arrives, I'll just call you." I gave him my number. On my second
visit, Salonga said, "I'll be very busy so just come back on the 31st of August
at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry
back to be at Salonga's place for the appointment. I arrived at Salonga's place
at exactly 4 P.M.
39. Q. What happened then?
A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen.
Salonga joined me in the sala. Sen. Salonga informed me that somebody will
be coming to give me the attache case but did not tell me the name.
40. Q. Are there any subject matters you discuss while waiting for that
somebody to deliver your materials?
A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him
the efforts of Raul Daza in setting up that meeting but I have previous business
commitments at Norfolk, Virginia. I told him, however, that through the efforts
of Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone
booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and the
latest opposition group activities but it seems he is well informed.
41. Q. How long did you wait until that somebody arrived?
A. About thirty (30) minutes.
41. Q. What happened when the man arrived?
A. This man arrived and I was greatly surprised to see Atty. Renato
Tañada Jovy Salonga was the one who met him and as I observed parang nasa
sariling bahay si Tañada nung dumating. They talked for five (5) minutes in
very low tones so I did not hear what they talked about. After their whispering
conversations, Sen. Salonga left and at this time Atty. "Nits" Tañada told me
"Nasa akin ang kailangan mo, nasa kotse."
43. Q. Were the materials given to you?
A. When Sen. Salonga came back, we asked to be permitted to leave and
I rode in Atty. "Nits" Tañadas old Pontiac car colored dirty brown and
proceeded to Broadway Centrum where before I alighted, Atty. Tañada handed
me a "Puma" bag containing all the materials I needed.
xxx xxx xxx
45. Q. What were the contents of the Puma bag?
441 of 692
A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten
(10) pieces electrical blasting caps 4" length, ten (10) pieces non-electrical
blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2)
improvised electrical testers. ten (10) plastic packs of high explosive about 1
pound weight each.
However, in his interview with Mr. Ronnie Nathanielz which was aired on
Channel 4 on November 8, 1980 and which was also offered as evidence by the
accused, Lovely gave a different story which negates the above testimony
insofar as the petitioner's participation was concerned:
xxx xxx xxx
Q. Who were the people that you contacted in Manila and for what
purpose?
A. Before I left for the Philippines, Mr. Psinakis told me to check in at the
Manila Hotel or the Plaza Hotel, and somebody would just deliver the materials
I would need. I disapproved of this, and I told him I would prefer a place that
is familiar to me or who is close to me. Mr. Psinakis suggested the residence of
Sen. Salonga.
And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga,
but he was out. The next day I made a call again. I was able to contact him. I
made an appointment t see him. I went to Sen. Salonga's house the following
day. I asked Sen. Salonga if someone had given him an attache case for me. He
said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told
me "call me again on the 31st of August. I did not call him, I just went to his
house on the 31st of August at 4 P.M. A few minutes after my arrival Atty.
Renato Tañada arrived. When he had a chance to be near me, he (Atty. Tanada)
whispered to me that he had the attache case and the materials I needed in his
car. These materials were given to me by Atty. Tanada When I alighted at the
Broadway Centrum. (Emphasis supplied)
During the cross-examination, counsel for petitioner asked Lovely about the so-
called destabilization plan which the latter mentioned in his sworn statement:
Q. You mentioned in your statement taken on October 17, 1980, marked
Exhibit "G" about the so-called destabilization plan of Aquino. When you
attended the birthday party of Raul Daza wherein Jovito Salonga was also
present, was this destabilization plan as alleged by you already formulated?
WITNESS:
A. Not to my knowledge.
COURT TO WITNESS:
Q. Mr. Witness, who invited you to the party?
A. Raul Daza, your Honor.
Q. Were you told that Mr. Salonga would be present in the party.
A. I am really not quite sure, your Honor.
Q. Alright. You said initially it was social but then it became political.
Was there any political action taken as a result of the party?
A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84).
Counsel for petitioner also asked Lovely whether in view of the latter's
awareness of the physical condition of petitioner, he really implicated petitioner
in any of the bombings that occurred in Metro Manila. The fiscal objected
without stating any ground. In sustaining the objection, the Court said:
Sustained . . . The use of the word 'implicate' might expand the role of Mr.
Salonga. In other words, you are widening the avenue of Mr. Salonga's role
beyond the participation stated in the testimony of this witness about Mr.
Salonga, at least, as far as the evidence is concerned, I supposed, is only being
in the house of Mr. Salonga which was used as the contact point. He never
mentions Mr. Salonga about the bombings. Now these words had to be put in
the mouth of this witness. That would be unfair to Mr. Salonga. (TSN. July 8,
1981, p. 67)
442 of 692
Respondent judge further said:
COURT:
As the Court said earlier, the parts or portions affecting Salonga only refers to
the witness coming to Manila already then the matter of . . . I have gone over
the statement and there is no mention of Salonga insofar as activities in the
United States is concerned. I don't know why it concerns this cross-
examination.
ATTY. YAP:
Because according to him, it was in pursuance of the plan that he came to
Manila.
COURT:
According to him it was Aquino, Daza, and Psinakis who asked him to come
here, but Salonga was introduced only when he (Lovely) came here. Now, the
tendency of the question is also to connect Salonga to the activities in the United
States. It seems to be the thrust of the questions.
COURT:
In other words, the point of the Court as of the time when you asked him
question, the focus on Salonga was only from the time when he met Salonga at
Greenhills. It was the first time that the name of Salonga came up. There was
no mention of Salonga in the formulation of the destabilization plan as affirmed
by him. But you are bringing this up although you are only cross-examining for
Salonga as if his (Lovely's) activities in the United States affected Salonga.
(TSN. July 8, 1981, pp. 73-74).
Apparently, the respondent judge wanted to put things in proper perspective by
limiting the petitioner's alleged "participation" in the bombing mission only to
the fact that petitioner's house was used as a "contact point" between Lovely
and Tañada, which was all that Lovely really stated in his testimony.
However, in the questioned resolution dated December 2, 1981, the respondent
judge suddenly included the "activities" of petitioner in the United States as his
basis for denying the motion to dismiss:
On the activities of Salonga in the United States, the witness, Lovely, in one of
his statements declared: 'To the best of my recollection he mentioned of some
kind of violent struggle in the Philippines being most likely should reforms be
not instituted by President Marcos immediately.
It is therefore clear that the prosecution's evidence has established facts and
circumstances sufficient for a finding that excludes a Motion to Dismiss by
respondent Salonga. The Movement for Free Philippines is undoubtedly a force
born on foreign soil it appears to rely on the resources of foreign entities, and
is being (sic) on gaining ascendancy in the Philippines with the use of force and
for that purpose it has linked itself with even communist organizations to
achieve its end. It appears to rely on aliens for its supporters and financiers.
The jump from the "contact point" theory to the conclusion of involvement in
subversive activities in the United States is not only inexplicable but without
foundation.
The respondents admit that no evidence was presented directly linking
petitioner Salonga to actual acts of violence or terrorism. There is no proof of
his direct participation in any overt acts of subversion. However, he is tagged
as a leader of subversive organizations for two reasons-
(1) Because his house was used as a "contactpoint"; and
(2) Because "he mentioned some kind of violent struggle in the Philippines
being most likely should reforms be not instituted by President Marcos
immediately."
The "contact point" theory or what the petitioner calls the guilt by visit or guilt
by association" theory is too tenuous a basis to conclude that Senator Salonga
was a leader or mastermind of the bombing incidents. To indict a person simply
because some plotters, masquerading as visitors, have somehow met in his
house or office would be to establish a dangerous precedent. The right of
443 of 692
citizens to be secure against abuse of governmental processes in criminal
prosecutions would be seriously undermined.
The testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Tañada could not have
whispered to one another because the petitioner is almost totally deaf. Lovely
could not have met Senator Salonga at a Manglapus party in Washington, D.C.
in 1977 because the petitioner left for the United States only on November,
1978. Senator Salonga denies having known Mr. Lovely in the United States or
in the Philippines. He states that he has hundred of visitors from week to week
in his residence but cannot recall any Victor Lovely.
The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday
party in Los Angeles where Senator Salonga was a guest is not proof of
conspiracy. As stated by the petitioner, in his many years in the turbulent world
of politics, he has posed with all kinds of people in various groups and various
places and could not possibly vouch for their conduct. Commenting on the
matter, newspaper columnist Teodoro Valencia stated that Filipinos love to
pose with important visitors and the picture proves nothing.
It is likewise probable that a national figure and former politician of Senator
Salonga's stature can expect guests and visitors of all kinds to be visiting his
home or office. If a rebel or subversive happens to pose with the petitioner for
a group picture at a birthday party abroad, or even visit him with others in his
home, the petitioner does not thereby become a rebel or subversive, much less
a leader of a subversive group. More credible and stronger evidence is
necessary for an indictment. Nonetheless, even if we discount the flaws in
Lovely's testimony and dismiss the refutations and arguments of the petitioner,
the prosecution evidence is still inadequate to establish a prima facie finding.
The prosecution has not come up with even a single iota of evidence which
could positively link the petitioner to any proscribed activities of the Movement
for Free Philippines or any subversive organization mentioned in the complaint.
Lovely had already testified that during the party of former Congressman Raul
Daza which was alleged to have been attended by a number of members of the
MFP, no political action was taken but only political discussion. Furthermore,
the alleged opinion of the petitioner about the likelihood of a violent struggle
here in the Philippines if reforms are not instituted, assuming that he really
stated the same, is nothing but a legitimate exercise of freedom of thought and
expression. No man deserves punishment for his thoughts. Cogitationis poenam
memo meretur. And as the late Justice Oliver W. Holmes stated in the case of
U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the
Constitution that more imperatively calls for attachment than any other it is the
principle of free thought not free thought for those who agree with us but
freedom for the thought that we hate."
We have adopted the concept that freedom of expression is a "preferred" right
and, therefore, stands on a higher level than substantive economic or other
liberties. The primacy, the high estate accorded freedom of expression is a
fundamental postulate of our constitutional system. (Gonzales v. Commission
on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v.
Connecticut (302 U.S. 319) this must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is the
indispensable condition of nearly every other form of freedom. Protection is
especially mandated for political discussions. This Court is particularly
concerned when allegations are made that restraints have been imposed upon
mere criticisms of government and public officials. Political discussion is
essential to the ascertainment of political truth. It cannot be the basis of criminal
indictments.
The United States Supreme Court in Noto v. United States (367 U.S. 290)
distinguished between the abstract teaching of the moral propriety or even
moral necessity for a resort to force and violence and speech which would
prepare a group for violent action and steel it to such action. In Watts v. United
States (394 U.S. 705), the American court distinguished between criminal
threats and constitutionally protected speech.
It stated:
We do not believe that the kind of political hyperbole indulged in by petitioner
fits within that statutory term. For we must interpret the language Congress
chose against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials. New York
Times Co. v. Sullivan (376 U.S. 254). The language of the political arena, like
444 of 692
the language used in labor disputed is often vituperative abusive, and inexact.
We agree with petitioner that his only offense was a kind of very crude
offensive method of stating a political opposition to the President.
In the case before us, there is no teaching of the moral propriety of a resort to
violence, much less an advocacy of force or a conspiracy to organize the use of
force against the duly constituted authorities. The alleged remark about the
likelihood of violent struggle unless reforms are instituted is not a threat against
the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly
sharp attack which is protected by the guarantee of free speech. Parenthetically,
the American case of Brandenburg v. Ohio (395 U.S. 444) states that the
constitutional guarantees of free speech and free press do not permit a State to
forbid or proscribe advocacy of the use of force or of law violation except where
such advocacy is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action. The words which petitioner allegedly
used according to the best recollections of Mr. Lovely are light years away from
such type of proscribed advocacy.
Political discussion even among those opposed to the present administration is
within the protective clause of freedom of speech and expression. The same
cannot be construed as subversive activities per se or as evidence of
membership in a subversive organization. Under Presidential Decree No. 885,
Section 3, paragraph 6, political discussion will only constitute, prima facie
evidence of membership in a subversive organization if such discussion
amounts to:
(6) Conferring with officers or other members of such association or
organization in furtherance of any plan or enterprise thereof.
As stated earlier, the prosecution has failed to produce evidence that would
establish any link between petitioner and any subversive organization. Even if
we lend credence to Lovely's testimony that a political discussion took place at
Daza's birthday party, no proof whatsoever was adduced that such discussion
was in furtherance of any plan to overthrow the government through illegal
means. The alleged opinion that violent struggle is likely unless reforms are
instituted by no means shows either advocacy of or incitement to violence or
furtherance of the objectives of a subversive organization.
Lovely also declared that he had nothing to do with the bombing on August 22,
1980, which was the only bombing incident that occurred after his arrival in
Manila on August 20, and before the YMCA explosion on September 6, 1980.
(See TSN, pp. 63-63, July 8, 1981). He further testified that:
WITNESS:
Actually, it was not my intention to do some kind of bombing against the
government. My bombing mission was directed against the particular family
(referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10].
Such a statement wholly negates any politically motivated or subversive
assignment which Lovely was supposed to have been commissioned to perform
upon the orders of his co- accused and which was the very reason why they
answer charged in the first place. The respondent judge also asked Lovely about
the possible relation between Cabarrus and petitioner:
COURT:
Q. Did you suspect any relation between Cabarrus and Jovito Salonga,
why did you implicate Jovito Salonga?
A. No, your Honor. I did not try to implicate Salonga.
It should be noted that after Lovely's testimony, the prosecution manifested to
the court that it was adopting him as a prosecution witness. Therefore, the
prosecution became irreversively bound by Lovely's disclaimers on the witness
stand, that it was not his intention "to do some kind of bombing against the
government" and that he "did not try to implicate Salonga", especially since
Lovely is the sole witness adopted by the prosecution who could supposedly
establish the link between the petitioner and the bombing incidents.
The respondent court should have taken these factors into consideration before
concluding that a prima facie case exists against the petitioner. Evidence must
not only proceed from the mouth of a credible witness but it must be credible
in itself such as the common experience and observation of mankind can
approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439).
In the case at bar, the prosecution cannot even present a credible version of the
445 of 692
petitioner's role in the bombings even if it ignores the subsequent disclaimers
of Lovely and without relying on mere affidavits including those made by
Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect. In this
resolution, Lovely's previous declarations about the bombings as part of the
alleged destabilization plan and the people behind the same were accorded such
credibility by the respondent judge as if they had already been proved beyond
reasonable doubt.
The purpose of a preliminary investigation is to secure the innocent against
hasty, malicious and oppressive prosecution, and to protect him from an open
and public accusation of crime, from the trouble, expense and anxiety of a
public trial, and also to protect the state from useless and expensive trials.
(Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The
right to a preliminary investigation is a statutory grant, and to withhold it would
be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA
277) However, in order to satisfy the due process clause it is not enough that
the preliminary investigation is conducted in the sense of making sure that a
transgressor shall not escape with impunity. A preliminary investigation serves
not only the purposes of the State. More important, it is a part of the guarantees
of freedom and fair play which are birthrights of all who live in our country. It
is, therefore, imperative upon the fiscal or the judge as the case may be, to
relieve the accused from the pain of going through a trial once it is ascertained
that the evidence is insufficient to sustain a prima facie case or that no probable
cause exists to form a sufficient belief as to the guilt of the accused. Although
there is no general formula or fixed rule for the determination of probable cause
since the same must be decided in the light of the conditions obtaining in given
situations and its existence depends to a large degree upon the finding or
opinion of the judge conducting the examination, such a finding should not
disregard the facts before the judge nor run counter to the clear dictates of
reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The
judge or fiscal, therefore, should not go on with the prosecution in the hope that
some credible evidence might later turn up during trial for this would be a
flagrant violation of a basic right which the courts are created to uphold. It bears
repeating that the judiciary lives up to its mission by vitalizing and not
denigrating constitutional rights. So it has been before. It should continue to be
so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93).
The Court had already deliberated on this case, a consensus on the Court's
judgment had been arrived at, and a draft ponencia was circulating for
concurrences and separate opinions, if any, when on January 18, 1985,
respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal
Sergio Apostol to drop the subversion case against the petitioner. Pursuant to
instructions of the Minister of Justice, the prosecution restudied its evidence
and decided to seek the exclusion of petitioner Jovito Salonga as one of the
accused in the information filed under the questioned resolution.
We were constrained by this action of the prosecution and the respondent Judge
to withdraw the draft ponencia from circulating for concurrences and signatures
and to place it once again in the Court's crowded agenda for further
deliberations.
Insofar as the absence of a prima facie case to warrant the filing of subversion
charges is concerned, this decision has been rendered moot and academic by
the action of the prosecution.
Respondent Fiscal Sergio Apostol correctly points out, however, that he is not
precluded from filing new charges for the same acts because the petitioner has
not been arraigned and double jeopardy does not apply. in that sense, the case
is not completely academic.
Recent developments in this case serve to focus attention on a not too well
known aspect of the Supreme Court's functions.
The setting aside or declaring void, in proper cases, of intrusions of State
authority into areas reserved by the Bill of Rights for the individual as
constitutionally protected spheres where even the awesome powers of
Government may not enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of
educating bench and bar on the extent of protection given by constitutional
guarantees.
446 of 692
In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a
P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, Javier v. Comelec
escaped from the provincial jail while his petition was pending. The petition 144 SCRA 194 (1988)
became moot because of his escape but we nonetheless rendered a decision and
stated: missing**

The fact that the case is moot and academic should not preclude this Tribunal Belgica v. Ochoa
from setting forth in language clear and unmistakable, the obligation of fidelity G.R. No. 208566 (November 19, 2013)
on the part of lower court judges to the unequivocal command of the
Constitution that excessive bail shall not be required. [repeated case :-)]
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of Imbong v. Ochoa
the Philippines could validly be created through an executive order was mooted G.R. No. 204819 (April 8, 2014)
by Presidential Decree No. 15, the Center's new charter pursuant to the
President's legislative powers under martial law. Stan, this Court discussed the
G.R. No. 204819 April 8, 2014
constitutional mandate on the preservation and development of Filipino culture
for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution).
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and
in behalf of their minor children, LUCIA CARLOS IMBONG and
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the
BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD
pendency of the case, 26 petitioners were released from custody and one
DEVELOPMENT CENTER, INC., Petitioners,
withdrew his petition. The sole remaining petitioner was facing charges of
vs.
murder, subversion, and illegal possession of firearms. The fact that the petition
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
was moot and academic did not prevent this Court in the exercise of its symbolic
B. ABAD, Secretary, Department of Budget and Management, HON.
function from promulgating one of the most voluminous decisions ever printed
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
in the Reports.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
In this case, the respondents agree with our earlier finding that the prosecution
Government, Respondents.
evidence miserably fails to establish a prima facie case against the petitioner,
either as a co-conspirator of a destabilization plan to overthrow the government
x---------------------------------x
or as an officer or leader of any subversive organization. They have taken the
initiative of dropping the charges against the petitioner. We reiterate the rule,
G.R. No. 204934
however, that this Court will not validate the filing of an information based on
the kind of evidence against the petitioner found in the records.
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC.
[ALFI], represented by its President, Maria Concepcion S. Noche, Spouses
WHEREFORE, the petition is DISMISSED for having become moot and
Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
academic.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. &
Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
SO ORDERED.
447 of 692
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C.
Tansingco for themselves and on behalf of their minor children, Therese
Antonette C. Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C.
Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C. Tansingco,
Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf
of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta,
Spouses Renato C. Castor & Mildred C. Castor for themselves and on behalf of
their minor children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul
C. Castor & Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho
for themselves and on behalf of their minor children Margarita Racho, Mikaela
Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses Alfred R. Racho
& Francine V. Racho for themselves and on behalf of their minor children
Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho &
Laura Racho, Spouses David R. Racho & Armilyn A. Racho for themselves
and on behalf of their minor child Gabriel Racho, Mindy M. Juatas and on
behalf of her minor children Elijah Gerald Juatas and Elian Gabriel Juatas,
Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws,
Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports, HON. CORAZON
SOLIMAN, Secretary, Department of Social Welfare and Development, HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ARSENIO M. BALISACAN, Socio-Economic
Planning Secretary and NEDA Director-General, THE PHILIPPINE
COMMISSION ON WOMEN, represented by its Chairperson, Remedios
lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE
CORPORATION, represented by its President Eduardo Banzon, THE
LEAGUE OF PROVINCES OF THE PHILIPPINES, represented by its
President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES,
represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President
Donato Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO
S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary, Department of Education; and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B.
Lumicao, M.D., as President and in his personal capacity, ROSEVALE
FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as
member of the school board and in his personal capacity, ROSEMARIE R.
ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd.,
ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I.
YAP, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE
OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management; HON. ENRIQUE T. ONA, Secretary, Department of Health;
HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
448 of 692
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
HON. SENATE PRESIDENT, HON. SPEAKER OF THE HOUSE OF
REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE
APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H.
LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG SECRETARY
MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO,
Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein
represented by its National President, Atty. Ricardo M . Ribo, and in his own
behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes,
Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E.
Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M.
Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS
II, Secretary, Department of Interior and Local Government, HON. CORAZON
J. SOLIMAN, Secretary, Department of Social Welfare and Development,
HON. ARSENIO BALISACAN, Director-General, National Economic and
Development Authority, HON. SUZETTE H. LAZO, Director-General, Food
and Drugs Administration, THE BOARD OF DIRECTORS, Philippine Health
Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine
Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D.,
CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADO-LUMITAO,
M.D., collectively known as Doctors For Life, and ANTHONY PEREZ,
MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD,
WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY
LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO
B. ABAD, Secretary of the Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary of the Department of Health; HON. ARMIN A.
LUISTRO, Secretary of the Department of Education; and HON. MANUELA.
ROXAS II, Secretary of the Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD &
ALA F. PAGUIA, for themselves, their Posterity, and the rest of Filipino
posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma
Melegrito, as Executive Director, and in her personal capacity, JOSELYN B.
BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
449 of 692
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III,
Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE
OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health,
HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON.
MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA,
ATTY. CITA BORROMEO-GARCIA, STELLAACEDERA, ATTY.
BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE
SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B.
LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA EMMA R.
ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE
T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports and HON. MANUEL
A. ROXAS II, Secretary, Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS
ARTADI SARMIENTO AND FRANCESCA ISABELLE BESINGA-
SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and
DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM,
Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T.
ONA, Secretary of the Department of Health, and HON. ARMIN A.
LUISTRO,Secretary of the Department of Budget and Management,
Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess
his beliefs , and to live as he believes he ought to live, consistent with the liberty
of others and with the common good."1
450 of 692
To this day, poverty is still a major stumbling block to the nation's emergence
as a developed country, leaving our people beleaguered in a state of hunger,
illiteracy and unemployment. While governmental policies have been geared
towards the revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor, but every
member of society. The government continues to tread on a trying path to the
realization of its very purpose, that is, the general welfare of the Filipino people
and the development of the country as a whole. The legislative branch, as the
main facet of a representative government, endeavors to enact laws and policies
that aim to remedy looming societal woes, while the executive is closed set to
fully implement these measures and bring concrete and substantial solutions
within the reach of Juan dela Cruz. Seemingly distant is the judicial branch,
oftentimes regarded as an inert governmental body that merely casts its
watchful eyes on clashing stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the Judiciary then willingly
embarks on its solemn duty to interpret legislation vis-a-vis the most vital and
enduring principle that holds Philippine society together - the supremacy of the
Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of
population growth control, abortion and contraception. As in every democratic
society, diametrically opposed views on the subjects and their perceived
consequences freely circulate in various media. From television debates2 to
sticker campaigns,3 from rallies by socio-political activists to mass gatherings
organized by members of the clergy4 - the clash between the seemingly
antithetical ideologies of the religious conservatives and progressive liberals
has caused a deep division in every level of the society. Despite calls to
withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise
known as the Responsible Parenthood and Reproductive Health Act of 2012
(RH Law), was enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers
from various sectors of society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the
Court now faces the iuris controversy, as presented in fourteen (14) petitions
and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M.
Imbong and Lovely Ann C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their minor children; and the Magnificat
Child Leaming Center, Inc., a domestic, privately-owned educational
institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche7 and
several others8 in their personal capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas,
Inc., and Valeriano S. Avila, in their capacities as citizens and taxpayers (Task
Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De
Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned
educational institution, and several others,13 in their capacities as citizens
(Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen
(Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the
Catholic Xybrspace Apostolate of the Philippines,16 in their capacities as a
citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and
taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their
capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens,
451 of 692
taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is also
proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar (Pro-
Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27
Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni
Catalufia Causing, in their capacities as citizens, taxpayers and members of the
Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and
several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ
Foundation, Inc. and several others,31 in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein
M. Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his
capacity as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B
UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from
conception.35
• The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal
access to contraceptives which are hazardous to one's health, as it causes cancer
and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend
that the RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. For
the petitioners, the use of public funds for purposes that are believed to be
contrary to their beliefs is included in the constitutional mandate ensuring
religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of
criminal prosecution, imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who seek advice on
reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against
their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of
the RH Law (RH-IRR),39 provides that skilled health professionals who are
public officers such as, but not limited to, Provincial, City, or Municipal Health
Officers, medical officers, medical specialists, rural health physicians, hospital
staff nurses, public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be considered as
conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory
sex education in schools should not be allowed as it is an affront to their
religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not
absolute, they argue that the RH Law fails to satisfy the "clear and present
danger test" and the "compelling state interest test" to justify the regulation of
the right to free exercise of religion and the right to free speech.42
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• The RH Law violates the constitutional provision on involuntary servitude.
According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth program,
they are compelled to provide forty-eight (48) hours of pro bona services for
indigent women, under threat of criminal prosecution, imprisonment and other
forms of punishment.43
The petitioners explain that since a majority of patients are covered by
PhilHealth, a medical practitioner would effectively be forced to render
reproductive health services since the lack of PhilHealth accreditation would
mean that the majority of the public would no longer be able to avail of the
practitioners services.44
• The RH Law violates the right to equal protection of the law. It is claimed that
the RH Law discriminates against the poor as it makes them the primary target
of the government program that promotes contraceptive use. The petitioners
argue that, rather than promoting reproductive health among the poor, the RH
Law seeks to introduce contraceptives that would effectively reduce the number
of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process clause of
the Constitution. In imposing the penalty of imprisonment and/or fine for "any
violation," it is vague because it does not define the type of conduct to be treated
as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right
to due process by removing from them (the people) the right to manage their
own affairs and to decide what kind of health facility they shall be and what
kind of services they shall offer."47 It ignores the management prerogative
inherent in corporations for employers to conduct their affairs in accordance
with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain
a full range of family planning methods is plainly to curtail his right to expound
only his own preferred way of family planning. The petitioners note that
although exemption is granted to institutions owned and operated by religious
groups, they are still forced to refer their patients to another healthcare facility
willing to perform the service or procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between
the spouses and impedes the right of spouses to mutually decide on matters
pertaining to the overall well-being of their family. In the same breath, it is also
claimed that the parents of a child who has suffered a miscarriage are deprived
of parental authority to determine whether their child should use
contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of
legislative authority. The petitioners question the delegation by Congress to the
FDA of the power to determine whether a product is non-abortifacient and to
be included in the Emergency Drugs List (EDL).51
• The RH Law violates the one subject/one bill rule provision under Section 26(
1 ), Article VI of the Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local Government Units
(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM). It is
contended that the RH Law, providing for reproductive health measures at the
local government level and the ARMM, infringes upon the powers devolved to
LGUs and the ARMM under the Local Government Code and R.A . No.
9054.54
Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law.
Aside from the Office of the Solicitor General (OSG) which commented on the
petitions in behalf of the respondents,55 Congressman Edcel C. Lagman,56
former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie
Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for
Reproductive Health (C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty.
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Joan De Venecia60 also filed their respective Comments-in-Intervention in
conjunction with several others. On June 4, 2013, Senator Pia Juliana S.
Cayetano was also granted leave to intervene.61
The respondents, aside from traversing the substantive arguments of the
petitioners, pray for the dismissal of the petitions for the principal reasons that
1] there is no actual case or controversy and, therefore, the issues are not yet
ripe for judicial determination.; 2] some petitioners lack standing to question
the RH Law; and 3] the petitions are essentially petitions for declaratory relief
over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed
legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court
issued the Status Quo Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of
the parties to determine and/or identify the pertinent issues raised by the parties
and the sequence by which these issues were to be discussed in the oral
arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the
cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda
within sixty (60) days and, at the same time posed several questions for their
clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back
as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to
Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs
and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation and
distribution is by a duly licensed drug store or pharmaceutical company and
with the prescription of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions
relative to "dispensing of abortifacients or anti-conceptional substances and
devices." Under Section 37 thereof, it was provided that "no drug or chemical
product or device capable of provoking abortion or preventing conception as
classified by the Food and Drug Administration shall be delivered or sold to
any person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be considered
as the principal element for long-term economic development, enacted
measures that promoted male vasectomy and tubal ligation to mitigate
population growth.67 Among these measures included R.A. No. 6365,
approved on August 16, 1971, entitled "An Act Establishing a National Policy
on Population, Creating the Commission on Population and for Other Purposes.
" The law envisioned that "family planning will be made part of a broad
educational program; safe and effective means will be provided to couples
desiring to space or limit family size; mortality and morbidity rates will be
further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos
issued Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972, which,
among others, made "family planning a part of a broad educational program,"
provided "family planning services as a part of over-all health care," and made
"available all acceptable methods of contraception, except abortion, to all
Filipino citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning
methods evolved from being a component of demographic management, to one
centered on the promotion of public health, particularly, reproductive health.69
Under that policy, the country gave priority to one's right to freely choose the
method of family planning to be adopted, in conformity with its adherence to
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the commitments made in the International Conference on Population and
Development.70 Thus, on August 14, 2009, the country enacted R.A. No. 9710
or "The Magna Carta for Women, " which, among others, mandated the State
to provide for comprehensive health services and programs for women,
including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept
on galloping at an uncontrollable pace. From a paltry number of just over 27
million Filipinos in 1960, the population of the country reached over 76 million
in the year 2000 and over 92 million in 2010.72 The executive and the
legislative, thus, felt that the measures were still not adequate. To rein in the
problem, the RH Law was enacted to provide Filipinos, especially the poor and
the marginalized, access and information to the full range of modem family
planning methods, and to ensure that its objective to provide for the peoples'
right to reproductive health be achieved. To make it more effective, the RH
Law made it mandatory for health providers to provide information on the full
range of modem family planning methods, supplies and services, and for
schools to provide reproductive health education. To put teeth to it, the RH Law
criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make
effective the current laws on contraception, women's health and population
control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates the
right to health of women and the sanctity of life, which the State is mandated
to protect and promote. Thus, ALFI prays that "the status quo ante - the situation
prior to the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives
per se. As provided under Republic Act No. 5921 and Republic Act No. 4729,
the sale and distribution of contraceptives are prohibited unless dispensed by a
prescription duly licensed by a physician. What the Petitioners find deplorable
and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials
in the remotest areas of the country - is made to play in the implementation of
the contraception program to the fullest extent possible using taxpayers' money.
The State then will be the funder and provider of all forms of family planning
methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning
methods, devices and supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the
Court has synthesized and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial
review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
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4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing
rules, it behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial
review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts
that it should submit to the legislative and political wisdom of Congress and
respect the compromises made in the crafting of the RH Law, it being "a product
of a majoritarian democratic process"75 and "characterized by an inordinate
amount of transparency."76 The OSG posits that the authority of the Court to
review social legislation like the RH Law by certiorari is "weak," since the
Constitution vests the discretion to implement the constitutional policies and
positive norms with the political departments, in particular, with Congress.77
It further asserts that in view of the Court's ruling in Southern Hemisphere v.
Anti-Terrorism Council,78 the remedies of certiorari and prohibition utilized
by the petitioners are improper to assail the validity of the acts of the
legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper
considering that the assailed law has yet to be enforced and applied to the
petitioners, and that the government has yet to distribute reproductive health
devices that are abortive. It claims that the RH Law cannot be challenged "on
its face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions
of the Executive and the Legislature, it is often sought that the Court temper its
exercise of judicial power and accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of government,
which obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction and is supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be
vested in the Congress of the Philippines;82 (b) the executive power shall be
vested in the President of the Philippines;83 and (c) the judicial power shall be
vested in one Supreme Court and in such lower courts as may be established by
law.84 The Constitution has truly blocked out with deft strokes and in bold
lines, the allotment of powers among the three branches of government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of
the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and
caution.86
It has also long been observed, however, that in times of social disquietude or
political instability, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated.87 In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a co-
equal branch done within its sphere of competence and authority, but at the
same time, allows it to cross the line of separation - but only at a very limited
and specific point - to determine whether the acts of the executive and the
legislative branches are null because they were undertaken with grave abuse of
discretion.88 Thus, while the Court may not pass upon questions of wisdom,
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justice or expediency of the RH Law, it may do so where an attendant
unconstitutionality or grave abuse of discretion results.89 The Court must
demonstrate its unflinching commitment to protect those cherished rights and
principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of
review may be limited, the Constitution makes no distinction as to the kind of
legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier point.
The Court may pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective wisdom but,
rather, to make sure that they have acted in consonance with their respective
authorities and rights as mandated of them by the Constitution. If after said
review, the Court finds no constitutional violations of any sort, then, it has no
more authority of proscribing the actions under review.90 This is in line with
Article VIII, Section 1 of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94
and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound
by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "judicial review is essential for the maintenance and enforcement of
the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the
boundaries of authority and control between them. To him, judicial review is
the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional
violation. Jurisprudence is replete with the rule that the power of judicial review
is limited by four exacting requisites, viz : (a) there must be an actual case or
controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any
actual case or controversy because the RH Law has yet to be implemented.97
They claim that the questions raised by the petitions are not yet concrete and
ripe for adjudication since no one has been charged with violating any of its
provisions and that there is no showing that any of the petitioners' rights has
been adversely affected by its operation.98 In short, it is contended that judicial
review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be
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justiciable-definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement
of ripeness.101 A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. For
a case to be considered ripe for adjudication, it is a prerequisite that something
has then been accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to himself as a result of the challenged action.
He must show that he has sustained or is immediately in danger of sustaining
some direct injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented Memorandum
of Agreement on the Ancestral Domain (MOA-AD) was put in question, it was
argued that the Court has no authority to pass upon the issues raised as there
was yet no concrete act performed that could possibly violate the petitioners'
and the intervenors' rights. Citing precedents, the Court ruled that the fact of the
law or act in question being not yet effective does not negate ripeness. Concrete
acts under a law are not necessary to render the controversy ripe. Even a
singular violation of the Constitution and/or the law is enough to awaken
judicial duty.
In this case, the Court is of the view that an actual case or controversy exists
and that the same is ripe for judicial determination. Considering that the RH
Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that the
subject petitions present a justiciable controversy. As stated earlier, when an
action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to
settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health
officers who are threatened to be dismissed from the service with forfeiture of
retirement and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject
petitions, contending that the RH Law cannot be challenged "on its face" as it
is not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a
First Amendment Challenge, is one that is launched to assail the validity of
statutes concerning not only protected speech, but also all other rights in the
First Amendment.106 These include religious freedom, freedom of the press,
and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.107 After all, the fundamental right to
religious freedom, freedom of the press and peaceful assembly are but
component rights of the right to one's freedom of expression, as they are modes
which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has
been generally maintained, albeit with some modifications. While this Court
has withheld the application of facial challenges to strictly penal statues,108 it
has expanded its scope to cover statutes not only regulating free speech, but
also those involving religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For unlike its counterpart in
the U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which
are legally demandable and enforceable, but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.110
Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever
vigilant with its duty to maintain the supremacy of the Constitution.
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Consequently, considering that the foregoing petitions have seriously alleged
that the constitutional human rights to life, speech and religion and other
fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred petitions
and to determine if the RH Law can indeed pass constitutional scrutiny. To
dismiss these petitions on the simple expedient that there exist no actual case
or controversy, would diminish this Court as a reactive branch of government,
acting only when the Fundamental Law has been transgressed, to the detriment
of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their
respective petitions. It contends that the "as applied challenge" lodged by the
petitioners cannot prosper as the assailed law has yet to be enforced and applied
against them,111 and the government has yet to distribute reproductive health
devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers in establishing
the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest
in a case such that the party has sustained or will sustain direct injury as a result
of the challenged governmental act.113 It requires a personal stake in the
outcome of the controversy as to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one
can challenge the constitutionality of a statute only if he asserts a violation of
his own rights. The rule prohibits one from challenging the constitutionality of
the statute grounded on a violation of the rights of third persons not before the
court. This rule is also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a
matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in
cases of paramount importance where serious constitutional questions are
involved, the standing requirement may be relaxed and a suit may be allowed
to prosper even where there is no direct injury to the party claiming the right of
judicial review. In the first Emergency Powers Cases,118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive
orders although they had only an indirect and general interest shared in common
with the public.
With these said, even if the constitutionality of the RH Law may not be assailed
through an "as-applied challenge, still, the Court has time and again acted
liberally on the locus s tandi requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or with material interest affected
by a Government act, provided a constitutional issue of transcendental
importance is invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one occasion, waived or relaxed,
thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers,
voters or legislators, to sue in the public interest, albeit they may not have been
directly injured by the operation of a law or any other government act. As held
in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved in
this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral well being
of this nation, specially the youth; hence, their proper and just determination is
an imperative need. This is in accordance with the well-entrenched principle
that rules of procedure are not inflexible tools designed to hinder or delay, but
to facilitate and promote the administration of justice. Their strict and rigid
application, which would result in technicalities that tend to frustrate, rather
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than promote substantial justice, must always be eschewed. (Emphasis
supplied)
In view of the seriousness, novelty and weight as precedents, not only to the
public, but also to the bench and bar, the issues raised must be resolved for the
guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and expression
and other constitutional rights. Mindful of all these and the fact that the issues
of contraception and reproductive health have already caused deep division
among a broad spectrum of society, the Court entertains no doubt that the
petitions raise issues of transcendental importance warranting immediate court
adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for
a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when
rights enshrined in the Constitution are being imperilled to be violated. To do
so, when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions
for declaratory relief over which the Court has no original jurisdiction.120
Suffice it to state that most of the petitions are praying for injunctive reliefs and
so the Court would just consider them as petitions for prohibition under Rule
65, over which it has original jurisdiction. Where the case has far-reaching
implications and prays for injunctive reliefs, the Court may consider them as
petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that
it violates Section 26(1 ), Article VI of the Constitution,122 prescribing the one
subject-one title rule. According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the constitutional
standards of due process by concealing its true intent - to act as a population
control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth
or population control measure,124 and that the concepts of "responsible
parenthood" and "reproductive health" are both interrelated as they are
inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees
it as principally a population control measure. The corpus of the RH Law is
geared towards the reduction of the country's population. While it claims to
save lives and keep our women and children healthy, it also promotes
pregnancy-preventing products. As stated earlier, the RH Law emphasizes the
need to provide Filipinos, especially the poor and the marginalized, with access
to information on the full range of modem family planning products and
methods. These family planning methods, natural or modem, however, are
clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce
the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-
natal care as well. A large portion of the law, however, covers the dissemination
of information and provisions on access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality reproductive health care services,
methods, devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the
RH Law.126 Indeed, remove the provisions that refer to contraception or are
related to it and the RH Law loses its very foundation.127 As earlier explained,
"the other positive provisions such as skilled birth attendance, maternal care
including pre-and post-natal services, prevention and management of
reproductive tract infections including HIV/AIDS are already provided for in
the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In
Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis
Joseph G Escudero, it was written:
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It is well-settled that the "one title-one subject" rule does not require the
Congress to employ in the title of the enactment language of such precision as
to mirror, fully index or catalogue all the contents and the minute details therein.
The rule is sufficiently complied with if the title is comprehensive enough as to
include the general object which the statute seeks to effect, and where, as here,
the persons interested are informed of the nature, scope and consequences of
the proposed law and its operation. Moreover, this Court has invariably adopted
a liberal rather than technical construction of the rule "so as not to cripple or
impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that
both "reproductive health" and "responsible parenthood" are interrelated and
germane to the overriding objective to control the population growth. As
expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human
rights of all persons including their right to equality and nondiscrimination of
these rights, the right to sustainable human development, the right to health
which includes reproductive health, the right to education and information, and
the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood.
The one subject/one title rule expresses the principle that the title of a law must
not be "so uncertain that the average person reading it would not be informed
of the purpose of the enactment or put on inquiry as to its contents, or which is
misleading, either in referring to or indicating one subject where another or
different one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible
parenthood" which bears to the attainment of the goal of achieving "sustainable
human development" as stated under its terms, the Court finds no reason to
believe that Congress intentionally sought to deceive the public as to the
contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health
of the unborn child under Section 12, Article II of the Constitution. The assailed
legislation allowing access to abortifacients/abortives effectively sanctions
abortion.130
According to the petitioners, despite its express terms prohibiting abortion,
Section 4(a) of the RH Law considers contraceptives that prevent the fertilized
ovum to reach and be implanted in the mother's womb as an abortifacient; thus,
sanctioning contraceptives that take effect after fertilization and prior to
implantation, contrary to the intent of the Framers of the Constitution to afford
protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-
abortifacient" hormonal contraceptives, intrauterine devices, injectables and
other safe, legal, non-abortifacient and effective family planning products and
supplies, medical research shows that contraceptives use results in abortion as
they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes
natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food
and Drug Administration (FDA) to certify that the product or supply is not to
be used as an abortifacient, the assailed legislation effectively confirms that
abortifacients are not prohibited. Also considering that the FDA is not the
agency that will actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the
Framers of the Constitution was simply the prohibition of abortion. They
contend that the RH Law does not violate the Constitution since the said law
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emphasizes that only "non-abortifacient" reproductive health care services,
methods, devices products and supplies shall be made accessible to the
public.134
According to the OSG, Congress has made a legislative determination that
contraceptives are not abortifacients by enacting the RH Law. As the RH Law
was enacted with due consideration to various studies and consultations with
the World Health Organization (WHO) and other experts in the medical field,
it is asserted that the Court afford deference and respect to such a determination
and pass judgment only when a particular drug or device is later on determined
as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of
one's right to life is not violated considering that various studies of the WHO
show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the
implantation of the fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to
life.137
Even if not formally established, the right to life, being grounded on natural
law, is inherent and, therefore, not a creation of, or dependent upon a particular
law, custom, or belief. It precedes and transcends any authority or the laws of
men.
In this jurisdiction, the right to life is given more than ample protection. Section
1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods
in the Philippines is not of recent vintage. From the enactment of R.A. No.
4729, entitled "An Act To Regulate The Sale, Dispensation, and/or Distribution
of Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on
contraceptive drugs and devices which prevent fertilization,138 to the
promotion of male vasectomy and tubal ligation,139 and the ratification of
numerous international agreements, the country has long recognized the need
to promote population control through the use of contraceptives in order to
achieve long-term economic development. Through the years, however, the use
of contraceptives and other family planning methods evolved from being a
component of demographic management, to one centered on the promotion of
public health, particularly, reproductive health.140
This has resulted in the enactment of various measures promoting women's
rights and health and the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of
Women" were legislated. Notwithstanding this paradigm shift, the Philippine
national population program has always been grounded two cornerstone
principles: "principle of no-abortion" and the "principle of non-coercion."141
As will be discussed later, these principles are not merely grounded on
administrative policy, but rather, originates from the constitutional protection
expressly provided to afford protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of
when life begins is a scientific and medical issue that should not be decided, at
this stage, without proper hearing and evidence. During the deliberation,
however, it was agreed upon that the individual members of the Court could
express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of the youth for
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civic efficiency and the development of moral character shall receive the
support of the Government.
Textually, the Constitution affords protection to the unborn from conception.
This is undisputable because before conception, there is no unborn to speak of.
For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen
because, amazingly, there are quarters who have conveniently disregarded the
scientific fact that conception is reckoned from fertilization. They are waving
the view that life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is
synonymous with "fertilization" of the female ovum by the male sperm.142 On
the other side of the spectrum are those who assert that conception refers to the
"implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should
be interpreted in their plain and ordinary meaning. As held in the recent case of
Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation. It is a well-settled
principle of constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where technical
terms are employed. As much as possible, the words of the Constitution should
be understood in the sense they have in common use. What it says according to
the text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Verba legis non est recedendum - from the words
of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed
that the words in which constitutional provisions are couched express the
objective sought to be attained; and second, because the Constitution is not
primarily a lawyer's document but essentially that of the people, in whose
consciousness it should ever be present as an important condition for the rule
of law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable
sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of
becoming pregnant, formation of a viable zygote; the fertilization that results in
a new entity capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in human
life capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil
personality first before he/she could die. Even a child inside the womb already
has life. No less than the Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US
Supreme Court, said that the State "has respect for human life at all stages in
the pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or
cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the
Framers regarding the term "conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
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Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is
fertilized by the sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning
of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first
question that needs to be answered is: Is the fertilized ovum alive? Biologically
categorically says yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself. It begins doing this
upon fertilization. Secondly, as it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in the continuous process of cell
division. All these processes are vital signs of life. Therefore, there is no
question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes."
At the moment of conception, the nuclei of the ovum and the sperm rupture. As
this happens 23 chromosomes from the ovum combine with 23 chromosomes
of the sperm to form a total of 46 chromosomes. A chromosome count of 46 is
found only - and I repeat, only in human cells. Therefore, the fertilized ovum is
human.
Since these questions have been answered affirmatively, we must conclude that
if the fertilized ovum is both alive and human, then, as night follows day, it
must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not
"from the moment of fertilization" was not because of doubt when human life
begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described
by us here before with the scientific phrase "fertilized ovum" may be beyond
the comprehension of some people; we want to use the simpler phrase "from
the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under
the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose
of writing a Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to
the Commissioner's own admission, he would leave it to Congress to define
when life begins. So, Congress can define life to begin from six months after
fertilization; and that would really be very, very, dangerous. It is now
determined by science that life begins from the moment of conception. There
can be no doubt about it. So we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point.
Actually, that is one of the questions I was going to raise during the period of
interpellations but it has been expressed already. The provision, as proposed
right now states:
The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the
egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
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Mr. Gascon: Therefore that does not leave to Congress the right to determine
whether certain contraceptives that we know today are abortifacient or not
because it is a fact that some of the so-called contraceptives deter the rooting of
the ovum in the uterus. If fertilization has already occurred, the next process is
for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the
fertilized ovum to reach the uterus. Therefore, if we take the provision as it is
proposed, these so called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned
under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state
whether or not these certain contraceptives are abortifacient. Scientifically and
based on the provision as it is now proposed, they are already considered
abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the
Constitution emphasized that the State shall provide equal protection to both
the mother and the unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and the female ovum. It
is also apparent is that the Framers of the Constitution intended that to prohibit
Congress from enacting measures that would allow it determine when life
begins.
Equally apparent, however, is that the Framers of the Constitution did not
intend to ban all contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized that the determination
of whether a contraceptive device is an abortifacient is a question of fact which
should be left to the courts to decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized
ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the female
ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-
life, to the point that I would like not only to protect the life of the unborn, but
also the lives of the millions of people in the world by fighting for a nuclear-
free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment
of conception." I raised some of these implications this afternoon when I
interjected in the interpellation of Commissioner Regalado. I would like to ask
that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to
certain contraceptives which are already being encouraged at this point in time.
Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be
preventive. There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg
which has already been fertilized from taking route to the uterus. So if we say
"from the moment of conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is
even admitted by petitioners during the oral arguments. There it was conceded
that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:
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 Alright.
Before the union of the eggs, egg and the sperm, there is no life yet.
Atty. Noche:
Justice Bersamin:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
There is no life.
Medical Meaning
Atty. Noche:
That conception begins at fertilization is not bereft of medical foundation.
So, there is no life to be protected. Mosby s Medical, Nursing, and Allied Health Dictionary defines conception as
"the beginning of pregnancy usually taken to be the instant a spermatozoon
Justice Bersamin: enters an ovum and forms a viable zygote."159

To be protected. It describes fertilization as "the union of male and female gametes to form a
zygote from which the embryo develops."160
Atty. Noche:
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used
Under Section 12, yes. by medical schools in the Philippines, also concludes that human life (human
person) begins at the moment of fertilization with the union of the egg and the
Justice Bersamin: sperm resulting in the formation of a new individual, with a unique genetic
composition that dictates all developmental stages that ensue.
So you have no objection to condoms?
Similarly, recent medical research on the matter also reveals that: "Human
Atty. Noche: development begins after the union of male and female gametes or germ cells
during a process known as fertilization (conception). Fertilization is a sequence
Not under Section 12, Article II. of events that begins with the contact of a sperm (spermatozoon) with a
secondary oocyte (ovum) and ends with the fusion of their pronuclei (the
Justice Bersamin: haploid nuclei of the sperm and ovum) and the mingling of their chromosomes
to form a new cell. This fertilized ovum, known as a zygote, is a large diploid
Even if there is already information that condoms sometimes have porosity? cell that is the beginning, or primordium, of a human being."162

Atty. Noche: The authors of Human Embryology & Teratology163 mirror the same position.
They wrote: "Although life is a continuous process, fertilization is a critical
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, landmark because, under ordinary circumstances, a new, genetically distinct
but I am discussing here Section 12, Article II, Your Honor, yes. human organism is thereby formed.... The combination of 23 chromosomes
present in each pronucleus results in 46 chromosomes in the zygote. Thus the
Justice Bersamin: diploid number is restored and the embryonic genome is formed. The embryo
now exists as a genetic unity."
466 of 692

In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and
therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that
PMA maintains its strong position that fertilization is sacred because it is at this
stage that conception, and thus human life, begins. Human lives are sacred from
the moment of conception, and that destroying those new lives is never licit, no
matter what the purported good outcome would be. In terms of biology and
human embryology, a human being begins immediately at fertilization and after
that, there is no point along the continuous line of human embryogenesis where
only a "potential" human being can be posited. Any philosophical, legal, or
political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human
organism and that the life of a new human being commences at a scientifically
well defined "moment of conception." This conclusion is objective, consistent
with the factual evidence, and independent of any specific ethical, moral,
political, or religious view of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical
parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism
and that the life of a new human being commences at a scientifically well-
defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by
Hon. Lagman that life begins at implantation.165 According to him,
"fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the
implantation of the fertilized ovum is the commencement of conception and it
is only after implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or
scientific mooring. It does not pertain to the beginning of life but to the viability
of the fetus. The fertilized ovum/zygote is not an inanimate object - it is a living
human being complete with DNA and 46 chromosomes.168 Implantation has
been conceptualized only for convenience by those who had population control
in mind. To adopt it would constitute textual infidelity not only to the RH Law
but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the
utilization of any drug or device that would prevent the implantation of the fetus
at the uterine wall. It would be provocative and further aggravate religious-
based divisiveness.
It would legally permit what the Constitution proscribes - abortion and
abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the Framers was captured in the
record of the proceedings of the 1986 Constitutional Commission.
Commissioner Bernardo Villegas, the principal proponent of the protection of
the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever
passed by Congress or any pro-abortion decision passed by the Supreme
Court.169
A reading of the RH Law would show that it is in line with this intent and
actually proscribes abortion. While the Court has opted not to make any
determination, at this stage, when life begins, it finds that the RH Law itself
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clearly mandates that protection be afforded from the moment of fertilization.
As pointed out by Justice Carpio, the RH Law is replete with provisions that
embody the policy of the law to protect to the fertilized ovum and that it should
be afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of
the Revised Penal Code, which penalizes the destruction or expulsion of the
fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following
terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods,
facilities, services and supplies that contribute to reproductive health and well-
being by addressing reproductive health-related problems. It also includes
sexual health, the purpose of which is the enhancement of life and personal
relations. The elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to
decide freely and responsibly whether or not to have children; the number,
spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual
health and reproductive health: Provided, however, That reproductive health
rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any
law, presidential decree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as
the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients. To be clear, Section 4(a) of the RH Law defines an abortifacient
as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from
the moment of fertilization. By using the word " or," the RH Law prohibits not
only drugs or devices that prevent implantation, but also those that induce
abortion and those that induce the destruction of a fetus inside the mother's
womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's
womb, upon determination of the FDA.
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Contrary to the assertions made by the petitioners, the Court finds that the RH
Law, consistent with the Constitution, recognizes that the fertilized ovum
already has life and that the State has a bounden duty to protect it. The
conclusion becomes clear because the RH Law, first, prohibits any drug or
device that induces abortion (first kind), which, as discussed exhaustively
above, refers to that which induces the killing or the destruction of the fertilized
ovum, and, second, prohibits any drug or device the fertilized ovum to reach
and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum
to reach and be implanted in the mother's womb is an abortifacient (third kind),
the RH Law does not intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also does not declare either that
protection will only be given upon implantation, as the petitioners likewise
suggest. Rather, it recognizes that: one, there is a need to protect the fertilized
ovum which already has life, and two, the fertilized ovum must be protected the
moment it becomes existent - all the way until it reaches and implants in the
mother's womb. After all, if life is only recognized and afforded protection from
the moment the fertilized ovum implants - there is nothing to prevent any drug
or device from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the
fertilized ovum, the RH Law does not sanction abortion. To repeat, it is the
Court's position that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its viability is sustained but
that instance of implantation is not the point of beginning of life. It started
earlier. And as defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the
law that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made
available on the condition that it is not to be used as an abortifacient" as empty
as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or
device will not all be used as an abortifacient, since the agency cannot be
present in every instance when the contraceptive product or supply will be
used.171
Pursuant to its declared policy of providing access only to safe, legal and non-
abortifacient contraceptives, however, the Court finds that the proviso of
Section 9, as worded, should bend to the legislative intent and mean that "any
product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on
the condition that it cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of the same section that
provides:
Provided, further, That the foregoing offices shall not purchase or acquire by
any means emergency contraceptive pills, postcoital pills, abortifacients that
will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR
gravely abused their office when they redefined the meaning of abortifacient.
The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or
the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
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determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven
modern family planning method, device, or health product, whether natural or
artificial, that prevents pregnancy but does not primarily destroy a fertilized
ovum or prevent a fertilized ovum from being implanted in the mother's womb
in doses of its approved indication as determined by the Food and Drug
Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and
recognizes as "abortifacient" only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well
taken. As they pointed out, with the insertion of the word "primarily," Section
3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G)
of the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH Law
and should, therefore, be declared invalid. There is danger that the insertion of
the qualifier "primarily" will pave the way for the approval of contraceptives
which may harm or destroy the life of the unborn from conception/fertilization
in violation of Article II, Section 12 of the Constitution. With such qualification
in the RH-IRR, it appears to insinuate that a contraceptive will only be
considered as an "abortifacient" if its sole known effect is abortion or, as
pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the
approval of contraceptives which are actually abortifacients because of their
fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that
these contraceptives cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the RH Law and its declared
policy against abortion, the undeniable conclusion is that contraceptives to be
included in the PNDFS and the EDL will not only be those contraceptives that
do not have the primary action of causing abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb, but also those that do not have the
secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in
line with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily"
in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold
the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would
effectively "open the floodgates to the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied
in the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the National Drug Formulary
and the inclusion of the same in the regular purchase of essential medicines and
supplies of all national hospitals.176 Citing various studies on the matter, the
petitioners posit that the risk of developing breast and cervical cancer is greatly
increased in women who use oral contraceptives as compared to women who
never use them. They point out that the risk is decreased when the use of
contraceptives is discontinued. Further, it is contended that the use of combined
oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an
indeterminate effect on risk of myocardial infarction.177 Given the definition
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of "reproductive health" and "sexual health" under Sections 4(p)178 and (w)179
of the RH Law, the petitioners assert that the assailed legislation only seeks to
ensure that women have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is
not self-executory, it being a mere statement of the administration's principle
and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of
women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this
regard, the Constitution is replete with provisions protecting and promoting the
right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to
provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall
be priority for the needs of the underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower development,
and research, responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for
their rehabilitation, self-development, and self-reliance, and their integration
into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-
executing. Unless the provisions clearly express the contrary, the provisions of
the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions.182 In Manila Prince
Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all provisions of
the constitution are self-executing. If the constitutional provisions are treated
as requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law.
This can be cataclysmic. That is why the prevailing view is, as it has always
been, that –
... in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing. . . . Unless the contrary is clearly intended, the
provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the
will of the lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly
ALFI, do not question contraception and contraceptives per se.184 In fact,
ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the
sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be
maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave
intact the provisions of R.A. No. 4729. There is no intention at all to do away
with it. It is still a good law and its requirements are still in to be complied with.
Thus, the Court agrees with the observation of respondent Lagman that the
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effectivity of the RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and dispensation of contraceptive
drugs and devices will still require the prescription of a licensed physician. With
R.A. No. 4729 in place, there exists adequate safeguards to ensure the public
that only contraceptives that are safe are made available to the public. As aptly
explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same
cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation,
and/ or Distribution of Contraceptive Drugs and Devices" and Republic Act No.
5921 or "An Act Regulating the Practice of Pharmacy and Setting Standards of
Pharmaceutical Education in the Philippines and for Other Purposes" are not
repealed by the RH Law and the provisions of said Acts are not inconsistent
with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive
drugs and devices are particularly governed by RA No. 4729 which provides in
full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to
sell, dispense or otherwise distribute whether for or without consideration, any
contraceptive drug or device, unless such sale, dispensation or distribution is
by a duly licensed drug store or pharmaceutical company and with the
prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is
used exclusively for the purpose of preventing fertilization of the female ovum:
and
"(b) "Contraceptive device" is any instrument, device, material, or agent
introduced into the female reproductive system for the primary purpose of
preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this
Act shall be punished with a fine of not more than five hundred pesos or an
imprisonment of not less than six months or more than one year or both in the
discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921
provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No
medicine, pharmaceutical, or drug of whatever nature and kind or device shall
be compounded, dispensed, sold or resold, or otherwise be made available to
the consuming public except through a prescription drugstore or hospital
pharmacy, duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and
other relevant statutes, the pretension of the petitioners that the RH Law will
lead to the unmitigated proliferation of contraceptives, whether harmful or not,
is completely unwarranted and baseless.186 [Emphases in the Original.
Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the
RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The
DOH shall procure, distribute to LGUs and monitor the usage of family
planning supplies for the whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and implement this procurement
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and distribution program. The supply and budget allotments shall be based on,
among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or
limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must
consider the provisions of R.A. No. 4729, which is still in effect, and ensure
that the contraceptives that it will procure shall be from a duly licensed drug
store or pharmaceutical company and that the actual dispensation of these
contraceptive drugs and devices will done following a prescription of a
qualified medical practitioner. The distribution of contraceptive drugs and
devices must not be indiscriminately done. The public health must be protected
by all possible means. As pointed out by Justice De Castro, a heavy
responsibility and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury,
illness or loss of life resulting from or incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await
its determination which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines available to the
public are safe for public consumption. Consequently, the Court finds that, at
this point, the attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the constitutional
yardstick as expounded herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that
hormonal contraceptives and intra-uterine devices are safe and non-
abortifacient. The first sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the mandatory "shall" is to be
construed as operative only after they have been tested, evaluated, and approved
by the FDA. The FDA, not Congress, has the expertise to determine whether a
particular hormonal contraceptive or intrauterine device is safe and non-
abortifacient. The provision of the third sentence concerning the requirements
for the inclusion or removal of a particular family planning supply from the
EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal
contraceptives, intra-uterine devices, injectables, and other safe, legal, non-
abortifacient and effective family planning products and supplies by the
National Drug Formulary in the EDL is not mandatory. There must first be a
determination by the FDA that they are in fact safe, legal, non-abortifacient and
effective family planning products and supplies. There can be no
predetermination by Congress that the gamut of contraceptives are "safe, legal,
non-abortifacient and effective" without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not
covered by the constitutional proscription, there are those who, because of their
religious education and background, sincerely believe that contraceptives,
whether abortifacient or not, are evil. Some of these are medical practitioners
who essentially claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and cooperation in all things
dealing with contraceptive use. Petitioner PAX explained that "contraception is
gravely opposed to marital chastity, it is contrary to the good of the transmission
of life, and to the reciprocal self-giving of the spouses; it harms true love and
denies the sovereign rule of God in the transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives,
arguing that the expenditure of their taxes on contraceptives violates the
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guarantee of religious freedom since contraceptives contravene their religious
beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also imposes
upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able
to provide for the patient's needs. For the petitioners, this amounts to requiring
the conscientious objector to cooperate with the very thing he refuses to do
without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the
conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals
to conscientiously object, such as: a) those working in public health facilities
referred to in Section 7; b) public officers involved in the implementation of the
law referred to in Section 23(b ); and c) teachers in public schools referred to
in Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that
the requirement to refer the matter to another health care service provider is still
considered a compulsion on those objecting healthcare service providers. They
add that compelling them to do the act against their will violates the Doctrine
of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos. Authorizing the use of
contraceptives with abortive effects, mandatory sex education, mandatory pro-
bono reproductive health services to indigents encroach upon the religious
freedom of those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to
refer the person seeking reproductive health care services to another provider
infringes on one's freedom of religion as it forces the objector to become an
unwilling participant in the commission of a serious sin under Catholic
teachings. While the right to act on one's belief may be regulated by the State,
the acts prohibited by the RH Law are passive acts which produce neither harm
nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest
to justify regulation of religious freedom because it mentions no emergency,
risk or threat that endangers state interests. It does not explain how the rights of
the people (to equality, non-discrimination of rights, sustainable human
development, health, education, information, choice and to make decisions
according to religious convictions, ethics, cultural beliefs and the demands of
responsible parenthood) are being threatened or are not being met as to justify
the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring
would-be couples to attend family planning and responsible parenthood
seminars and to obtain a certificate of compliance. They claim that the provision
forces individuals to participate in the implementation of the RH Law even if it
contravenes their religious beliefs.195 As the assailed law dangles the threat of
penalty of fine and/or imprisonment in case of non-compliance with its
provisions, the petitioners claim that the RH Law forcing them to provide,
support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of
religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide
that a specific mode or type of contraceptives be used, be it natural or artificial.
It neither imposes nor sanctions any religion or belief.196 They point out that
the RH Law only seeks to serve the public interest by providing accessible,
effective and quality reproductive health services to ensure maternal and child
health, in line with the State's duty to bring to reality the social justice health
guarantees of the Constitution,197 and that what the law only prohibits are
those acts or practices, which deprive others of their right to reproductive
health.198 They assert that the assailed law only seeks to guarantee informed
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choice, which is an assurance that no one will be compelled to violate his
religion against his free will.199
The respondents add that by asserting that only natural family planning should
be allowed, the petitioners are effectively going against the constitutional right
to religious freedom, the same right they invoked to assail the constitutionality
of the RH Law.200 In other words, by seeking the declaration that the RH Law
is unconstitutional, the petitioners are asking that the Court recognize only the
Catholic Church's sanctioned natural family planning methods and impose this
on the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does not
violate the constitutional guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the religious objector, on one
hand, who is allowed to keep silent but is required to refer -and that of the
citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the
respondents, the concession given by the State under Section 7 and 23(a)(3) is
sufficient accommodation to the right to freely exercise one's religion without
unnecessarily infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as
the duty to refer is limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the
respondents claim that it is a reasonable regulation providing an opportunity for
would-be couples to have access to information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is argued that those who object
to any information received on account of their attendance in the required
seminars are not compelled to accept information given to them. They are
completely free to reject any information they do not agree with and retain the
freedom to decide on matters of family life without intervention of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural
family planning is the only method acceptable to Catholics and the Catholic
hierarchy. Citing various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception throughout the years
and note the general acceptance of the benefits of contraceptives by its
followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It
is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in practice,
has allowed these various religious, cultural, social and racial groups to thrive
in a single society together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the non-believers. The
undisputed fact is that our people generally believe in a deity, whatever they
conceived Him to be, and to whom they call for guidance and enlightenment in
crafting our fundamental law. Thus, the preamble of the present Constitution
reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order
to build a just and humane society, and establish a Government that shall
embody our ideals and aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our posterity, the blessings
of independence and democracy under the rule of law and a regime of truth,
justice, freedom, love, equality, and peace, do ordain and promulgate this
Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it
means that the State recognizes with respect the influence of religion in so far
as it instills into the mind the purest principles of morality.205 Moreover, in
recognition of the contributions of religion to society, the 1935, 1973 and 1987
constitutions contain benevolent and accommodating provisions towards
religions such as tax exemption of church property, salary of religious officers
in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State
would not encroach into the affairs of the church, and vice-versa. The principle
of separation of Church and State was, thus, enshrined in Article II, Section 6
of the 1987 Constitution, viz:
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Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1âwphi1 Generally, the State cannot meddle in the internal affairs of the
church, much less question its faith and dogmas or dictate upon it. It cannot
favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the
citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely
believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred
over another, the Constitution in the above-cited provision utilizes the term
"church" in its generic sense, which refers to a temple, a mosque, an iglesia, or
any other house of God which metaphorically symbolizes a religious
organization. Thus, the "Church" means the religious congregations
collectively.
Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and
Article VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or
to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions. It mandates a strict
neutrality in affairs among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public resources for the support
or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures
the free exercise of one's chosen form of religion within limits of utmost
amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be characterized as being only
indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But
if the state regulates conduct by enacting, within its power, a general law which
has for its purpose and effect to advance the state's secular goals, the statute is
valid despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld v. Brown,
366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S.
420, 444-5 and 449).
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As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of
individual religious beliefs and practices. In simplest terms, the free exercise
clause prohibits government from inhibiting religious beliefs with penalties for
religious beliefs and practice, while the establishment clause prohibits
government from inhibiting religious belief with rewards for religious beliefs
and practices. In other words, the two religion clauses were intended to deny
government the power to use either the carrot or the stick to influence individual
religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that
the guarantee of religious freedom is comprised of two parts: the freedom to
believe, and the freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however
strange, bizarre and unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards. But between
the freedom of belief and the exercise of said belief, there is quite a stretch of
road to travel.212
The second part however, is limited and subject to the awesome power of the
State and can be enjoyed only with proper regard to the rights of others. It is
"subject to regulation where the belief is translated into external acts that affect
the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the
Court adheres to the doctrine of benevolent neutrality. This has been clearly
decided by the Court in Estrada v. Escritor, (Escritor)214 where it was stated
"that benevolent neutrality-accommodation, whether mandatory or permissive,
is the spirit, intent and framework underlying the Philippine Constitution."215
In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government's favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a person's
or institution's religion."216 "What is sought under the theory of
accommodation is not a declaration of unconstitutionality of a facially neutral
law, but an exemption from its application or its 'burdensome effect,' whether
by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling
state interest test is proper.218 Underlying the compelling state interest test is
the notion that free exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the "immediate
and grave danger" test as well as the doctrine that a law of general applicability
may burden religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano , German went back to the
Gerona rule. Ebralinag then employed the "grave and immediate danger" test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went
back to the " clear and present danger" test in the maiden case of A merican
Bible Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in one form or
another, religious speech as this test is often used in cases on freedom of
expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and
law. Gerona, however, which was the authority cited by German has been
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overruled by Ebralinag which employed the "grave and immediate danger" test
. Victoriano was the only case that employed the "compelling state interest"
test, but as explained previously, the use of the test was inappropriate to the
facts of the case.
The case at bar does not involve speech as in A merican Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and "grave
and immediate danger" tests were appropriate as speech has easily discernible
or immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not
appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test
is proper where conduct is involved for the whole gamut of human conduct has
different effects on the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that would protect the
interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a fundamental
right that enjoys a preferred position in the hierarchy of rights - "the most
inalienable and sacred of all human rights", in the words of Jefferson. This right
is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised
upon an acknowledgment of such higher sovereignty, thus the Filipinos implore
the "aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state interest
is therefore not appropriate. Instead, only a compelling interest of the state can
prevail over the fundamental right to religious liberty. The test requires the state
to carry a heavy burden, a compelling one, for to do otherwise would allow the
state to batter religion, especially the less powerful ones until they are
destroyed. In determining which shall prevail between the state's interest and
religious liberty, reasonableness shall be the guide. The "compelling state
interest" serves the purpose of revering religious liberty while at the same time
affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In
the end, the "compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without which, religious
liberty will not be preserved. [Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine
whether the use of contraceptives or one's participation in the support of modem
reproductive health measures is moral from a religious standpoint or whether
the same is right or wrong according to one's dogma or belief. For the Court has
declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably
ecclesiastical matters which are outside the province of the civil courts."220
The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bench should be
understood only in this realm where it has authority. Stated otherwise, while
the Court stands without authority to rule on ecclesiastical matters, as vanguard
of the Constitution, it does have authority to determine whether the RH Law
contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and
religious beliefs and convictions. It is replete with assurances the no one can be
compelled to violate the tenets of his religion or defy his religious convictions
against his free will. Provisions in the RH Law respecting religious freedom are
the following:
1. The State recognizes and guarantees the human rights of all persons including
their right to equality and nondiscrimination of these rights, the right to
sustainable human development, the right to health which includes reproductive
health, the right to education and information, and the right to choose and make
decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2,
Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation. Pursuant
thereto, the State shall defend:
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(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2,
Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to
all methods of family planning, including effective natural and modern methods
which have been proven medically safe, legal, non-abortifacient, and effective
in accordance with scientific and evidence-based medical research standards
such as those registered and approved by the FDA for the poor and marginalized
as identified through the NHTS-PR and other government measures of
identifying marginalization: Provided, That the State shall also provide funding
support to promote modern natural methods of family planning, especially the
Billings Ovulation Method, consistent with the needs of acceptors and their
religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to
have the number of children they desire with due consideration to the health,
particularly of women, and the resources available and affordable to them and
in accordance with existing laws, public morals and their religious convictions.
[Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning
methods that are in accordance with their religious convictions and cultural
beliefs, taking into consideration the State's obligations under various human
rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and
people's organizations, civil society, faith-based organizations, the religious
sector and communities is crucial to ensure that reproductive health and
population and development policies, plans, and programs will address the
priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond
to the needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number of
children, spacing and timing of their children according to their own family life
aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use
of contraceptives. To some medical practitioners, however, the whole idea of
using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government
can do with religion, it also limits what religious sects can or cannot do with
the government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to
restrict other groups. To do so, in simple terms, would cause the State to adhere
to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State
cannot enhance its population control program through the RH Law simply
because the promotion of contraceptive use is contrary to their religious beliefs.
Indeed, the State is not precluded to pursue its legitimate secular objectives
without being dictated upon by the policies of any one religion. One cannot
refuse to pay his taxes simply because it will cloud his conscience. The
demarcation line between Church and State demands that one render unto
Caesar the things that are Caesar's and unto God the things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the Non-Establishment
Clause, the same conclusion cannot be reached with respect to Sections 7, 23
and 24 thereof. The said provisions commonly mandate that a hospital or a
medical practitioner to immediately refer a person seeking health care and
services under the law to another accessible healthcare provider despite their
conscientious objections based on religious or ethical beliefs.
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In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line with
the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious objector's claim to religious freedom
would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of
conscientious objectors for exemption from the RH Law deserves no less than
strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right
to religious freedom has been burdened. As in Escritor, there is no doubt that
an intense tug-of-war plagues a conscientious objector. One side coaxes him
into obedience to the law and the abandonment of his religious beliefs, while
the other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose
religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law
violates the religious belief and conviction of a conscientious objector. Once
the medical practitioner, against his will, refers a patient seeking information
on modem reproductive health products, services, procedures and methods, his
conscience is immediately burdened as he has been compelled to perform an
act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner
Bernas) has written, "at the basis of the free exercise clause is the respect for
the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is,
however, a false compromise because it makes pro-life health providers
complicit in the performance of an act that they find morally repugnant or
offensive. They cannot, in conscience, do indirectly what they cannot do
directly. One may not be the principal, but he is equally guilty if he abets the
offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with
the right to free speech, it being an externalization of one's thought and
conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded
to individuals in communicating their beliefs to others as well as the protection
for simply being silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty not to utter what is not in
his mind.223 While the RH Law seeks to provide freedom of choice through
informed consent, freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct
or indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to provide
access and information on reproductive health products, services, procedures
and methods to enable the people to determine the timing, number and spacing
of the birth of their children, the Court is of the strong view that the religious
freedom of health providers, whether public or private, should be accorded
primacy. Accordingly, a conscientious objector should be exempt from
compliance with the mandates of the RH Law. If he would be compelled to act
contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise
of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session,
found in the case of Doogan and Wood v. NHS Greater Glasgow and Clyde
Health Board,225 that the midwives claiming to be conscientious objectors
under the provisions of Scotland's Abortion Act of 1967, could not be required
to delegate, supervise or support staff on their labor ward who were involved
in abortions.226 The Inner House stated "that if 'participation' were defined
according to whether the person was taking part 'directly' or ' indirectly' this
would actually mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle
was the same - they could not be forced to assist abortions if it would be against
their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service
providers. Considering that Section 24 of the RH Law penalizes such
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institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down for
being violative of the freedom of religion. The same applies to Section 23(a)(l)
and (a)(2) in relation to Section 24, considering that in the dissemination of
information regarding programs and services and in the performance of
reproductive health procedures, the religious freedom of health care service
providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess
his beliefs, and to live as he believes he ought to live, consistent with the liberty
of others and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour
to ensure compliance. Without set consequences for either an active violation
or mere inaction, a law tends to be toothless and ineffectual. Nonetheless, when
what is bartered for an effective implementation of a law is a constitutionally-
protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a
patient to another, or who declines to perform reproductive health procedure on
a patient because incompatible religious beliefs, is a clear inhibition of a
constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal
health officers, chiefs of hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The
conscientious objection clause should be equally protective of the religious
belief of public health officers. There is no perceptible distinction why they
should not be considered exempt from the mandates of the law. The protection
accorded to other conscientious objectors should equally apply to all medical
practitioners without distinction whether they belong to the public or private
sector. After all, the freedom to believe is intrinsic in every individual and the
protective robe that guarantees its free exercise is not taken off even if one
acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in
the hierarchy of human values. The mind must be free to think what it wills,
whether in the secular or religious sphere, to give expression to its beliefs by
oral discourse or through the media and, thus, seek other candid views in
occasions or gatherings or in more permanent aggrupation. Embraced in such
concept then are freedom of religion, freedom of speech, of the press, assembly
and petition, and freedom of association.229
The discriminatory provision is void not only because no such exception is
stated in the RH Law itself but also because it is violative of the equal protection
clause in the Constitution. Quoting respondent Lagman, if there is any conflict
between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on
page 52, you mentioned RH Law is replete with provisions in upholding the
freedom of religion and respecting religious convictions. Earlier, you affirmed
this with qualifications. Now, you have read, I presumed you have read the
IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not
thoroughly dissected the nuances of the provisions.
Justice Mendoza:
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I will read to you one provision. It's Section 5.24. This I cannot find in the RH
Law. But in the IRR it says: " .... skilled health professionals such as provincial,
city or municipal health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged
with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who
can be conscientious objectors, skilled health professionals cannot be
considered conscientious objectors. Do you agree with this? Is this not against
the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must
prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents,
in defense of the subject provisions, were able to: 1] demonstrate a more
compelling state interest to restrain conscientious objectors in their choice of
services to render; and 2] discharge the burden of proof that the obligatory
character of the law is the least intrusive means to achieve the objectives of the
law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in
vain. The OSG was curiously silent in the establishment of a more compelling
state interest that would rationalize the curbing of a conscientious objector's
right not to adhere to an action contrary to his religious convictions. During the
oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the
compelling State interest in imposing this duty to refer to a conscientious
objector which refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling
State interest, this is an ordinary health legislation involving professionals. This
is not a free speech matter or a pure free exercise matter. This is a regulation by
the State of the relationship between medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would limit the
free exercise clause of the conscientious objectors, however few in number.
Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom. If
the government fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable.232
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Freedom of religion means more than just the freedom to believe. It also means
the freedom to act or not to act according to what one believes. And this
freedom is violated when one is compelled to act against one's belief or is
prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of
an individual in the perceived scenario of the subject provisions. After all, a
couple who plans the timing, number and spacing of the birth of their children
refers to a future event that is contingent on whether or not the mother decides
to adopt or use the information, product, method or supply given to her or
whether she even decides to become pregnant at all. On the other hand, the
burden placed upon those who object to contraceptive use is immediate and
occurs the moment a patient seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement
of the conscientious objector's religious freedom, the respondents have failed
to demonstrate "the gravest abuses, endangering paramount interests" which
could limit or override a person's fundamental right to religious freedom. Also,
the respondents have not presented any government effort exerted to show that
the means it takes to achieve its legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring would only be
momentary, considering that the act of referral by a conscientious objector is
the very action being contested as violative of religious freedom, it behooves
the respondents to demonstrate that no other means can be undertaken by the
State to achieve its objective without violating the rights of the conscientious
objector. The health concerns of women may still be addressed by other
practitioners who may perform reproductive health-related procedures with
open willingness and motivation. Suffice it to say, a person who is forced to
perform an act in utter reluctance deserves the protection of the Court as the
last vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to
ensure that the right to health is protected. Considering other legislations as they
stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The
Magna Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna Carta on
comprehensive health services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. -
The State shall, at all times, provide for a comprehensive, culture-sensitive, and
gender-responsive health services and programs covering all stages of a
woman's life cycle and which addresses the major causes of women's mortality
and morbidity: Provided, That in the provision for comprehensive health
services, due respect shall be accorded to women's religious convictions, the
rights of the spouses to found a family in accordance with their religious
convictions, and the demands of responsible parenthood, and the right of
women to protection from hazardous drugs, devices, interventions, and
substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy
and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health
services without prejudice to the primary right and duty of parents to educate
their children;
(5) Prevention and management of reproductive tract infections, including
sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and
cervical cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related
complications;
(8) In cases of violence against women and children, women and children
victims and survivors shall be provided with comprehensive health services that
include psychosocial, therapeutic, medical, and legal interventions and
assistance towards healing, recovery, and empowerment;
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(9) Prevention and management of infertility and sexual dysfunction pursuant
to ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of
women and girls. In addition, healthy lifestyle activities are encouraged and
promoted through programs and projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education. - The State shall provide
women in all sectors with appropriate, timely, complete, and accurate
information and education on all the above-stated aspects of women's health in
government education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth
and the development of moral character and the right of children to be brought
up in an atmosphere of morality and rectitude for the enrichment and
strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x."235 He, however,
failed to substantiate this point by concrete facts and figures from reputable
sources.
The undisputed fact, however, is that the World Health Organization reported
that the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a measure
that puts an unwarrantable stranglehold on religious beliefs in exchange for
blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set
forth in the law. While generally healthcare service providers cannot be forced
to render reproductive health care procedures if doing it would contravene their
religious beliefs, an exception must be made in life-threatening cases that
require the performance of emergency procedures. In these situations, the right
to life of the mother should be given preference, considering that a referral by
a medical practitioner would amount to a denial of service, resulting to
unnecessarily placing the life of a mother in grave danger. Thus, during the oral
arguments, Atty. Liban, representing CFC, manifested: "the forced referral
clause that we are objecting on grounds of violation of freedom of religion does
not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the
RH Bill in the House of Representatives of the principle of double-effect
wherein intentional harm on the life of either the mother of the child is never
justified to bring about a "good" effect. In a conflict situation between the life
of the child and the life of the mother, the doctor is morally obliged always to
try to save both lives. However, he can act in favor of one (not necessarily the
mother) when it is medically impossible to save both, provided that no direct
harm is intended to the other. If the above principles are observed, the loss of
the child's life or the mother's life is not intentional and, therefore, unavoidable.
Hence, the doctor would not be guilty of abortion or murder. The mother is
never pitted against the child because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures
endangering the life of the child may be resorted to even if is against the
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religious sentiments of the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case would have been more
than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the
issuance of a marriage license, the Court finds the same to be a reasonable
exercise of police power by the government. A cursory reading of the assailed
provision bares that the religious freedom of the petitioners is not at all violated.
All the law requires is for would-be spouses to attend a seminar on parenthood,
family planning breastfeeding and infant nutrition. It does not even mandate the
type of family planning methods to be included in the seminar, whether they be
natural or artificial. As correctly noted by the OSG, those who receive any
information during their attendance in the required seminars are not compelled
to accept the information given to them, are completely free to reject the
information they find unacceptable, and retain the freedom to decide on matters
of family life without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates
the provisions of the Constitution by intruding into marital privacy and
autonomy. It argues that it cultivates disunity and fosters animosity in the
family rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it
is the basic social institution. In fact, one article, Article XV, is devoted entirely
to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its
total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation and
other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population
growth, contains provisions which tend to wreck the family as a solid social
institution. It bars the husband and/or the father from participating in the
decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply because
she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures
on any person of legal age on the ground of lack of consent or authorization of
the following persons in the following instances:
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(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall prevail.
[Emphasis supplied]
The above provision refers to reproductive health procedures like tubal
litigation and vasectomy which, by their very nature, should require mutual
consent and decision between the husband and the wife as they affect issues
intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to
found a family." One person cannot found a family. The right, therefore, is
shared by both spouses. In the same Section 3, their right "to participate in the
planning and implementation of policies and programs that affect them " is
equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making.
By giving absolute authority to the spouse who would undergo a procedure, and
barring the other spouse from participating in the decision would drive a wedge
between the husband and wife, possibly result in bitter animosity, and endanger
the marriage and the family, all for the sake of reducing the population. This
would be a marked departure from the policy of the State to protect marriage as
an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter
which belongs to the couple, not just one of them. Any decision they would
reach would affect their future as a family because the size of the family or the
number of their children significantly matters. The decision whether or not to
undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally
guaranteed private right. Unless it prejudices the State, which has not shown
any compelling interest, the State should see to it that they chart their destiny
together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710,
otherwise known as the "Magna Carta for Women," provides that women shall
have equal rights in all matters relating to marriage and family relations,
including the joint decision on the number and spacing of their children. Indeed,
responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not
be allowed to betray the constitutional mandate to protect and strengthen the
family by giving to only one spouse the absolute authority to decide whether to
undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to
privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it
is fully deserving of constitutional protection."244 Marje adopted the ruling of
the US Supreme Court in Griswold v. Connecticut,245 where Justice William
O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our
political parties, older than our school system. Marriage is a coming together
for better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony
in living, not political faiths; a bilateral loyalty, not commercial or social
projects. Yet it is an association for as noble a purpose as any involved in our
prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons.
Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that help
give them life and substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the
minor, who will be undergoing a procedure, is already a parent or has had a
miscarriage. Section 7 of the RH law provides:
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SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services,
whether natural or artificial: Provided, That minors will not be allowed access
to modern methods of family planning without written consent from their
parents or guardian/s except when the minor is already a parent or has had a
miscarriage.
There can be no other interpretation of this provision except that when a minor
is already a parent or has had a miscarriage, the parents are excluded from the
decision making process of the minor with regard to family planning. Even if
she is not yet emancipated, the parental authority is already cut off just because
there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care,
advice, and guidance of her own parents. The State cannot replace her natural
mother and father when it comes to providing her needs and comfort. To say
that their consent is no longer relevant is clearly anti-family. It does not promote
unity in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the
natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall receive the
support of the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of
parents. It imports the assertion that the right of parents is superior to that of the
State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of
the recognition that the State affords couples entering into the special contract
of marriage to as one unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
already a parent or has had a miscarriage. Only a compelling state interest can
justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in
the second paragraph of Section 7 or with respect to the consenting spouse
under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern
family planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection to the
acquisition of information by the minor referred to under the exception in the
second paragraph of Section 7 that would enable her to take proper care of her
own body and that of her unborn child. After all, Section 12, Article II of the
Constitution mandates the State to protect both the life of the mother as that of
the unborn child. Considering that information to enable a person to make
informed decisions is essential in the protection and maintenance of ones'
health, access to such information with respect to reproductive health must be
allowed. In this situation, the fear that parents might be deprived of their
parental control is unfounded because they are not prohibited to exercise
parental guidance and control over their minor child and assist her in deciding
whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In
such cases, the life of the minor who has already suffered a miscarriage and that
of the spouse should not be put at grave risk simply for lack of consent. It should
be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be
struck down. By effectively limiting the requirement of parental consent to
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"only in elective surgical procedures," it denies the parents their right of
parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case of an
abused child as provided in the first sentence of Section 23(a)(2)(ii), the parents
should not be deprived of their constitutional right of parental authority. To
deny them of this right would be an affront to the constitutional mandate to
protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these provisions
effectively force educational institutions to teach reproductive health education
even if they believe that the same is not suitable to be taught to their
students.250 Citing various studies conducted in the United States and
statistical data gathered in the country, the petitioners aver that the prevalence
of contraceptives has led to an increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion and euthanasia; the
"feminization of poverty"; the aging of society; and promotion of promiscuity
among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of
the RH Law is premature because the Department of Education, Culture and
Sports has yet to formulate a curriculum on age-appropriate reproductive health
education. One can only speculate on the content, manner and medium of
instruction that will be used to educate the adolescents and whether they will
contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this particular issue,
the Court declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the
natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and development of moral character shall receive the support
of the Government. Like the 1973 Constitution and the 1935 Constitution, the
1987 Constitution affirms the State recognition of the invaluable role of parents
in preparing the youth to become productive members of society. Notably, it
places more importance on the role of parents in the development of their
children by recognizing that said role shall be "primary," that is, that the right
of parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in
the moral development of the youth. Indeed, the Constitution makes mention
of the importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-
appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination;
sexual abuse and violence against women and children and other forms of
gender based violence and teen pregnancy; physical, social and emotional
changes in adolescents; women's rights and children's rights; responsible
teenage behavior; gender and development; and responsible parenthood, and
that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself
provides for the teaching of responsible teenage behavior, gender sensitivity
and physical and emotional changes among adolescents - the Court finds that
the legal mandate provided under the assailed provision supplements, rather
than supplants, the rights and duties of the parents in the moral development of
their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive
health education program shall be developed in conjunction with parent-
teacher-community associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious beliefs of the
petitioners. By imposing such a condition, it becomes apparent that the
petitioners' contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection
to their participation in the reproductive health education program provided
under Section 14 of the RH Law on the ground that the same violates their
religious beliefs, the Court reserves its judgment should an actual case be filed
before it.
6 - Due Process
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The petitioners contend that the RH Law suffers from vagueness and, thus
violates the due process clause of the Constitution. According to them, Section
23 (a)(l) mentions a "private health service provider" among those who may be
held punishable but does not define who is a "private health care service
provider." They argue that confusion further results since Section 7 only makes
reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts
hospitals operated by religious groups from rendering reproductive health
service and modern family planning methods. It is unclear, however, if these
institutions are also exempt from giving reproductive health information under
Section 23(a)(l), or from rendering reproductive health procedures under
Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define
"incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle.255 Moreover, in
determining whether the words used in a statute are vague, words must not only
be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every part of it must be
construed together with the other parts and kept subservient to the general intent
of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health
care service provider," reference must be made to Section 4(n) of the RH Law
which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care
institution, which is duly licensed and accredited and devoted primarily to the
maintenance and operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals suffering from illness,
disease, injury, disability or deformity, or in need of obstetrical or other medical
and nursing care; (2) public health care professional, who is a doctor of
medicine, a nurse or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has
undergone training programs under any accredited government and NGO and
who voluntarily renders primarily health care services in the community after
having been accredited to function as such by the local health board in
accordance with the guidelines promulgated by the Department of Health
(DOH) .
Further, the use of the term "private health care institution" in Section 7 of the
law, instead of "private health care service provider," should not be a cause of
confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from
being obligated to render reproductive health service and modem family
planning methods, includes exemption from being obligated to give
reproductive health information and to render reproductive health procedures.
Clearly, subject to the qualifications and exemptions earlier discussed, the right
to be exempt from being obligated to render reproductive health service and
modem family planning methods, necessarily includes exemption from being
obligated to give reproductive health information and to render reproductive
health procedures. The terms "service" and "methods" are broad enough to
include the providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes
health care service providers who intentionally withhold, restrict and provide
incorrect information regarding reproductive health programs and services. For
ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
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(1) Knowingly withhold information or restrict the dissemination thereof, and/
or intentionally provide incorrect information regarding programs and services
on reproductive health including the right to informed choice and access to a
full range of legal, medically-safe, non-abortifacient and effective family
planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with
a copy or model or with established rules; inaccurate, faulty; failing to agree
with the requirements of duty, morality or propriety; and failing to coincide
with the truth. 257 On the other hand, the word "knowingly" means with
awareness or deliberateness that is intentional.258 Used together in relation to
Section 23(a)(l), they connote a sense of malice and ill motive to mislead or
misrepresent the public as to the nature and effect of programs and services on
reproductive health. Public health and safety demand that health care service
providers give their honest and correct medical information in accordance with
what is acceptable in medical practice. While health care service providers are
not barred from expressing their own personal opinions regarding the programs
and services on reproductive health, their right must be tempered with the need
to provide public health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause
under the Constitution as it discriminates against the poor because it makes
them the primary target of the government program that promotes contraceptive
use . They argue that, rather than promoting reproductive health among the
poor, the RH Law introduces contraceptives that would effectively reduce the
number of the poor. Their bases are the various provisions in the RH Law
dealing with the poor, especially those mentioned in the guiding principles259
and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the
mandatory reproductive health education program imposed by the RH Law
renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to
expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and
fair play. It has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or hostility from
the government. Arbitrariness in general may be challenged on the basis of the
due process clause. But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal protection
clause.
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper execution through
the state's duly constituted authorities." "In other words, the concept of equal
justice under the law requires the state to govern impartially, and it may not
draw distinctions between individuals solely on differences that are irrelevant
to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those
of the legislature. Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of a
state denying equal protection of the laws, through whatever agency or
whatever guise is taken.
It, however, does not require the universal application of the laws to all persons
or things without distinction. What it simply requires is equality among equals
as determined according to a valid classification. Indeed, the equal protection
clause permits classification. Such classification, however, to be valid must
pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose
of the law; (3) It is not limited to existing conditions only; and (4) It applies
equally to all members of the same class. "Superficial differences do not make
for a valid classification."
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For a classification to meet the requirements of constitutionality, it must include
or embrace all persons who naturally belong to the class. "The classification
will be regarded as invalid if all the members of the class are not similarly
treated, both as to rights conferred and obligations imposed. It is not necessary
that the classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in equal degree.
Substantial similarity will suffice; and as long as this is achieved, all those
covered by the classification are to be treated equally. The mere fact that an
individual belonging to a class differs from the other members, as long as that
class is substantially distinguishable from all others, does not justify the non-
application of the law to him."
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It must
be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. [Emphases supplied; citations
excluded]
To provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal protection
clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the health
development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall
be priority for the needs of the underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and
marginalized couples who are suffering from fertility issues and desire to have
children. There is, therefore, no merit to the contention that the RH Law only
seeks to target the poor to reduce their number. While the RH Law admits the
use of contraceptives, it does not, as elucidated above, sanction abortion. As
Section 3(1) explains, the "promotion and/or stabilization of the population
growth rate is incidental to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may
have and does not impose conditions upon couples who intend to have children.
While the petitioners surmise that the assailed law seeks to charge couples with
the duty to have children only if they would raise them in a truly humane way,
a deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to
promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the
mandatory reproductive health education program under Section 14, suffice it
to state that the mere fact that the children of those who are less fortunate attend
public educational institutions does not amount to substantial distinction
sufficient to annul the assailed provision. On the other hand, substantial
distinction rests between public educational institutions and private educational
institutions, particularly because there is a need to recognize the academic
freedom of private educational institutions especially with respect to religious
instruction and to consider their sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates
the constitutional prohibition against involuntary servitude. They posit that
Section 17 of the assailed legislation requiring private and non-government
health care service providers to render forty-eight (48) hours of pro bono
reproductive health services, actually amounts to involuntary servitude because
it requires medical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section
17 can hardly be considered as forced labor analogous to slavery, as
reproductive health care service providers have the discretion as to the manner
and time of giving pro bono services. Moreover, the OSG points out that the
imposition is within the powers of the government, the accreditation of medical
practitioners with PhilHealth being a privilege and not a right.
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The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued
with public interest that it is both a power and a duty of the State to control and
regulate it in order to protect and promote the public welfare. Like the legal
profession, the practice of medicine is not a right but a privileged burdened with
conditions as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress263 to prescribe the qualifications for the
practice of professions or trades which affect the public welfare, the public
health, the public morals, and the public safety; and to regulate or control such
professions or trades, even to the point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude
connotes the presence of force, threats, intimidation or other similar means of
coercion and compulsion.265 A reading of the assailed provision, however,
reveals that it only encourages private and non- government reproductive
healthcare service providers to render pro bono service. Other than non-
accreditation with PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of health service they wish
to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render
pro bono service against their will. While the rendering of such service was
made a prerequisite to accreditation with PhilHealth, the Court does not
consider the same to be an unreasonable burden, but rather, a necessary
incentive imposed by Congress in the furtherance of a perceived legitimate state
interest.
Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as long
as their religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the
power to determine whether or not a supply or product is to be included in the
Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only
have the power but also the competency to evaluate, register and cover health
services and methods. It is the only government entity empowered to render
such services and highly proficient to do so. It should be understood that health
services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711
reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office
to be called the Food and Drug Administration (FDA) in the Department of
Health (DOH). Said Administration shall be under the Office of the Secretary
and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and
regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health
products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health
products standards, and to recommend standards of identity, purity, safety,
efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as
basis for the issuance of appropriate authorization and spot-check for
compliance with regulations regarding operation of manufacturers, importers,
exporters, distributors, wholesalers, drug outlets, and other establishments and
facilities of health products, as determined by the FDA;
"x x x
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"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health products
to report to the FDA any incident that reasonably indicates that said product has
caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for
health products, whether or not registered with the FDA Provided, That for
registered health products, the cease and desist order is valid for thirty (30) days
and may be extended for sixty ( 60) days only after due process has been
observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health
product found to have caused death, serious illness or serious injury to a
consumer or patient, or is found to be imminently injurious, unsafe, dangerous,
or grossly deceptive, and to require all concerned to implement the risk
management plan which is a requirement for the issuance of the appropriate
authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA
are specific to enable the agency to carry out the mandates of the law. Being
the country's premiere and sole agency that ensures the safety of food and
medicines available to the public, the FDA was equipped with the necessary
powers and functions to make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure public health and
safety by permitting only food and medicines that are safe includes "service"
and "methods." From the declared policy of the RH Law, it is clear that
Congress intended that the public be given only those medicines that are proven
medically safe, legal, non-abortifacient, and effective in accordance with
scientific and evidence-based medical research standards. The philosophy
behind the permitted delegation was explained in Echagaray v. Secretary of
Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the
growing inability of the legislature to cope directly with the many problems
demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon present day
undertakings, the legislature may not have the competence, let alone the interest
and the time, to provide the required direct and efficacious, not to say specific
solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH
Law infringes upon the powers devolved to local government units (LGUs)
under Section 17 of the Local Government Code. Said Section 17 vested upon
the LGUs the duties and functions pertaining to the delivery of basic services
and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue
exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of
national agencies and offices devolved to them pursuant to this Code. Local
government units shall likewise exercise such other powers and discharge such
other functions and responsibilities as are necessary, appropriate, or incidental
to efficient and effective provision of the basic services and facilities
enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions
and responsibilities that have already been devolved upon them from the
national agencies on the aspect of providing for basic services and facilities in
their respective jurisdictions, paragraph (c) of the same provision provides a
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categorical exception of cases involving nationally-funded projects, facilities,
programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by the
National Government under the annual General Appropriations Act, other
special laws, pertinent executive orders, and those wholly or partially funded
from foreign sources, are not covered under this Section, except in those cases
where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the national government is
that, unless an LGU is particularly designated as the implementing agency, it
has no power over a program for which funding has been provided by the
national government under the annual general appropriations act, even if the
program involves the delivery of basic services within the jurisdiction of the
LGU.269 A complete relinquishment of central government powers on the
matter of providing basic facilities and services cannot be implied as the Local
Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to
the establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say when
it comes to national priority programs which the local government is called
upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely
encouraged to provide these services. There is nothing in the wording of the
law which can be construed as making the availability of these services
mandatory for the LGUs. For said reason, it cannot be said that the RH Law
amounts to an undue encroachment by the national government upon the
autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments
can be equally applied to the ARMM. The RH Law does not infringe upon its
autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or
the organic act of the ARMM, alluded to by petitioner Tillah to justify the
exemption of the operation of the RH Law in the autonomous region, refer to
the policy statements for the guidance of the regional government. These
provisions relied upon by the petitioners simply delineate the powers that may
be exercised by the regional government, which can, in no manner, be
characterized as an abdication by the State of its power to enact legislation that
would benefit the general welfare. After all, despite the veritable autonomy
granted the ARMM, the Constitution and the supporting jurisprudence, as they
now stand, reject the notion of imperium et imperio in the relationship between
the national and the regional governments.274 Except for the express and
implied limitations imposed on it by the Constitution, Congress cannot be
restricted to exercise its inherent and plenary power to legislate on all subjects
which extends to all matters of general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice
it to say that the Court does not duly recognize it as a legal basis for upholding
or invalidating a law. Our only guidepost is the Constitution. While every law
enacted by man emanated from what is perceived as natural law, the Court is
not obliged to see if a statute, executive issuance or ordinance is in conformity
to it. To begin with, it is not enacted by an acceptable legitimate body.
Moreover, natural laws are mere thoughts and notions on inherent rights
espoused by theorists, philosophers and theologists. The jurists of the
philosophical school are interested in the law as an abstraction, rather than in
the actual law of the past or present.277 Unless, a natural right has been
transformed into a written law, it cannot serve as a basis to strike down a law.
In Republic v. Sandiganbayan,278 the very case cited by the petitioners, it was
explained that the Court is not duty-bound to examine every law or action and
whether it conforms with both the Constitution and natural law. Rather, natural
law is to be used sparingly only in the most peculiar of circumstances involving
rights inherent to man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking
away of life. It does not allow abortion in any shape or form. It only seeks to
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enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it
seeks to provide access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare services, methods, devices, and
supplies. As earlier pointed out, however, the religious freedom of some sectors
of society cannot be trampled upon in pursuit of what the law hopes to achieve.
After all, the Constitutional safeguard to religious freedom is a recognition that
man stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious
group cannot be allowed to impose its beliefs on the rest of the society.
Philippine modem society leaves enough room for diversity and pluralism. As
such, everyone should be tolerant and open-minded so that peace and harmony
may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape
the Court that what it seeks to address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause of these perennial
issues is not the large population but the unequal distribution of wealth. Even
if population growth is controlled, poverty will remain as long as the country's
wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long
run. The European and Asian countries, which embarked on such a program
generations ago , are now burdened with ageing populations. The number of
their young workers is dwindling with adverse effects on their economy. These
young workers represent a significant human capital which could have helped
them invigorate, innovate and fuel their economy. These countries are now
trying to reverse their programs, but they are still struggling. For one,
Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our
Overseas Filipino Workers. This is because we have an ample supply of young
able-bodied workers. What would happen if the country would be weighed
down by an ageing population and the fewer younger generation would not be
able to support them? This would be the situation when our total fertility rate
would go down below the replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State
should not use coercive measures (like the penal provisions of the RH Law
against conscientious objectors) to solve it. Nonetheless, the policy of the Court
is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its
duty is to say what the law is as enacted by the lawmaking body. That is not the
same as saying what the law should be or what is the correct rule in a given set
of circumstances. It is not the province of the judiciary to look into the wisdom
of the law nor to question the policies adopted by the legislative branch. Nor is
it the business of this Tribunal to remedy every unjust situation that may arise
from the application of a particular law. It is for the legislature to enact remedial
legislation if that would be necessary in the premises. But as always, with apt
judicial caution and cold neutrality, the Court must carry out the delicate
function of interpreting the law, guided by the Constitution and existing
legislation and mindful of settled jurisprudence. The Court's function is
therefore limited, and accordingly, must confine itself to the judicial task of
saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws,
but with coercive measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No. 6365), the
Contraceptive Act (R.A. No. 4729) and the reproductive health for women or
The Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of
the assailed legislation. All the same, the principle of "no-abortion" and "non-
coercion" in the adoption of any family planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the
Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with
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respect to the following provisions which are declared 7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the
UNCONSTITUTIONAL: rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a)
require private health facilities and non-maternity specialty hospitals and 8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
hospitals owned and operated by a religious group to refer patients, not in an "primarily" in defining abortifacients and contraceptives, as they are ultra vires
emergency or life-threatening case, as defined under Republic Act No. 8344, to and, therefore, null and void for contravening Section 4(a) of the RH Law and
another health facility which is conveniently accessible; and b) allow minor- violating Section 12, Article II of the Constitution.
parents or minors who have suffered a miscarriage access to modem methods
of family planning without written consent from their parents or guardian/s; The Status Quo Ante Order issued by the Court on March 19, 2013 as extended
by its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the provisions
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly of R.A. No. 10354 which have been herein declared as constitutional.
Section 5 .24 thereof, insofar as they punish any healthcare service provider
who fails and or refuses to disseminate information regarding programs and SO ORDERED.
services on reproductive health regardless of his or her religious beliefs.
Francisco v. House of Representatives
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar G.R. No. 160261 (Nov. 10, 2003)
as they allow a married individual, not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to undergo reproductive health [repeated case :-)]
procedures without the consent of the spouse;
Magallona v. Ermita
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar G.R. No. 187167 (July 16, 2011)
as they limit the requirement of parental consent only to elective surgical
procedures.
PROF. MERLIN M. MAGALLONA, G.R No. 187167
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly AKBAYAN PARTY-LIST REP. RISA
Section 5.24 thereof, insofar as they punish any healthcare service provider who HONTIVEROS, PROF. HARRY C. Present:
fails and/or refuses to refer a patient not in an emergency or life-threatening ROQUE, JR., AND UNIVERSITY OF
case, as defined under Republic Act No. 8344, to another health care service THE PHILIPPINES COLLEGE OF CORONA, C.J.,
provider within the same facility or one which is conveniently accessible LAW STUDENTS, ALITHEA CARPIO,
regardless of his or her religious beliefs; BARBARA ACAS, VOLTAIRE VELASCO, JR.,
ALFERES, CZARINA MAY LEONARDO-DE CASTRO,
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly ALTEZ, FRANCIS ALVIN ASILO, BRION,
Section 5 .24 thereof, insofar as they punish any public officer who refuses to SHERYL BALOT, RUBY AMOR PERALTA,
support reproductive health programs or shall do any act that hinders the full BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,
implementation of a reproductive health program, regardless of his or her ROMINA BERNARDO, VALERIE DEL CASTILLO,
religious beliefs; PAGASA BUENAVENTURA, EDAN ABAD,

496 of 692
MARRI CAETE, VANN ALLEN VILLARAMA, JR.,
DELA CRUZ, RENE DELORINO, PEREZ,
PAULYN MAY DUMAN, SHARON MENDOZA, and
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.
GIRLIE FERRER, RAOULLE OSEN
FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT,
MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE
TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III,
Petitioners,
- versus -
HON. EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT
OF BUDGET AND MANAGEMENT,
HON. DIONY VENTURA, IN HIS
CAPACITY AS ADMINISTRATOR OF
THE NATIONAL MAPPING &
RESOURCE INFORMATION
AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE
PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES Promulgated:
TO THE UNITED NATIONS,
Respondents. July 16, 2011
x -----------------------------------------------------------------------------------------x
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the
maritime baselines of the Philippines as an archipelagic State.3 This law
followed the framing of the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the
sovereign right of States parties over their territorial sea, the breadth of which,
however, was left undetermined. Attempts to fill this void during the second
round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for
legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the drawing of baselines around Sabah in
North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute
now under scrutiny. The change was prompted by the need to make RA 3046
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compliant with the terms of the United Nations Convention on the Law of the
Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6
Among others, UNCLOS III prescribes the water-land ratio, length, and contour
of baselines of archipelagic States like the Philippines7 and sets the deadline
for the filing of application for the extended continental shelf.8 Complying with
these requirements, RA 9522 shortened one baseline, optimized the location of
some basepoints around the Philippine archipelago and classified adjacent
territories, namely, the Kalayaan Island Group (KIG) and the Scarborough
Shoal, as regimes of islands whose islands generate their own applicable
maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective
capacities as citizens, taxpayers or x x x legislators,9 as the case may be, assail
the constitutionality of RA 9522 on two principal grounds, namely: (1) RA
9522 reduces Philippine maritime territory, and logically, the reach of the
Philippine states sovereign power, in violation of Article 1 of the 1987
Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary
treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines
to maritime passage by all vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the countrys nuclear-free
policy, and damaging marine resources, in violation of relevant constitutional
provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as regime
of islands not only results in the loss of a large maritime area but also prejudices
the livelihood of subsistence fishermen.14 To buttress their argument of
territorial diminution, petitioners facially attack RA 9522 for what it excluded
and included its failure to reference either the Treaty of Paris or Sabah and its
use of UNCLOS IIIs framework of regime of islands to determine the maritime
zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues
questioning (1) the petitions compliance with the case or controversy
requirement for judicial review grounded on petitioners alleged lack of locus
standi and (2) the propriety of the writs of certiorari and prohibition to assail
the constitutionality of RA 9522. On the merits, respondents defended RA 9522
as the countrys compliance with the terms of UNCLOS III, preserving
Philippine territory over the KIG or Scarborough Shoal. Respondents add that
RA 9522 does not undermine the countrys security, environment and economic
interests or relinquish the Philippines claim over Sabah.
Respondents also question the normative force, under international law, of
petitioners assertion that what Spain ceded to the United States under the Treaty
of Paris were the islands and all the waters found within the boundaries of the
rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to
assail the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to
bring this suit as citizens and (2) the writs of certiorari and prohibition are
proper remedies to test the constitutionality of RA 9522. On the merits, we find
no basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators
and taxpayers because the petition alleges neither infringement of legislative
prerogative15 nor misuse of public funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners locus standi
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as citizens with constitutionally sufficient interest in the resolution of the merits
of the case which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar nature of RA
9522, it is understandably difficult to find other litigants possessing a more
direct and specific interest to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents
seek a strict observance of the offices of the writs of certiorari and prohibition,
noting that the writs cannot issue absent any showing of grave abuse of
discretion in the exercise of judicial, quasi-judicial or ministerial powers on the
part of respondents and resulting prejudice on the part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this
Court exercises its constitutional power of judicial review, however, we have,
by tradition, viewed the writs of certiorari and prohibition as proper remedial
vehicles to test the constitutionality of statutes,19 and indeed, of acts of other
branches of government.20 Issues of constitutional import are sometimes
crafted out of statutes which, while having no bearing on the personal interests
of the petitioners, carry such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the case and pass upon
the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 dismembers a large portion of the national
territory21 because it discards the pre-UNCLOS III demarcation of Philippine
territory under the Treaty of Paris and related treaties, successively encoded in
the definition of national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign control over waters,
beyond the territorial sea recognized at the time of the Treaty of Paris, that
Spain supposedly ceded to the United States. Petitioners argue that from the
Treaty of Paris technical description, Philippine sovereignty over territorial
waters extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones
(i.e., the territorial waters [12 nautical miles from the baselines], contiguous
zone [24 nautical miles from the baselines], exclusive economic zone [200
nautical miles from the baselines]), and continental shelves that UNCLOS III
delimits.23 UNCLOS III was the culmination of decades-long negotiations
among United Nations members to codify norms regulating the conduct of
States in the worlds oceans and submarine areas, recognizing coastal and
archipelagic States graduated authority over a limited span of waters and
submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS
III States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic starting
points to measure the breadth of the maritime zones and continental shelf.
Article 48 of UNCLOS III on archipelagic States like ours could not be any
clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf. The breadth of the
territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)
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Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within
which States parties exercise treaty-based rights, namely, the exercise of
sovereignty over territorial waters (Article 2), the jurisdiction to enforce
customs, fiscal, immigration, and sanitation laws in the contiguous zone
(Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris,
the baselines of the Philippines would still have to be drawn in accordance with
RA 9522 because this is the only way to draw the baselines in conformity with
UNCLOS III. The baselines cannot be drawn from the boundaries or other
portions of the rectangular area delineated in the Treaty of Paris, but from the
outermost islands and drying reefs of the archipelago.24
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with
the treatys terms to delimit maritime zones and continental shelves. Territorial
claims to land features are outside UNCLOS III, and are instead governed by
the rules on general international law.26
RA 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that area.27
Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the
Philippine archipelagic baselines results in the loss of about 15,000 square
nautical miles of territorial waters, prejudicing the livelihood of subsistence
fishermen.28 A comparison of the configuration of the baselines drawn under
RA 3046 and RA 9522 and the extent of maritime space encompassed by each
law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this
view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows
that RA 9522 merely followed the basepoints mapped by RA 3046, save for at
least nine basepoints that RA 9522 skipped to optimize the location of
basepoints and adjust the length of one baseline (and thus comply with
UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046,
as under RA 9522, the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners argument branding RA 9522
as a statutory renunciation of the Philippines claim over the KIG, assuming that
baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial
waters under RA 9522 is similarly unfounded both in fact and law. On the
contrary, RA 9522, by optimizing the location of basepoints, increased the
Philippines total maritime space (covering its internal waters, territorial sea and
exclusive economic zone) by 145,216 square nautical miles, as shown in the
table below:
[see next page for table]
Thus, as the map below shows, the reach of the exclusive economic zone drawn
under RA 9522 even extends way beyond the waters covered by the rectangular
demarcation under the Treaty of Paris. Of course, where there are overlapping
exclusive economic zones of opposite or adjacent States, there will have to be
a delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by
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RA 9522 itself. Section 2 of the law commits to text the Philippines continued
claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as Regime
of Islands under the Republic of the Philippines consistent with Article 121 of
the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No.
1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III.
First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such
baselines shall not depart to any appreciable extent from the general
configuration of the archipelago. Second, Article 47 (2) of UNCLOS III
requires that the length of the baselines shall not exceed 100 nautical miles,
save for three per cent (3%) of the total number of baselines which can reach
up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32
and the Scarborough Shoal for several decades, these outlying areas are located
at an appreciable distance from the nearest shoreline of the Philippine
archipelago,33 such that any straight baseline loped around them from the
nearest basepoint will inevitably depart to an appreciable extent from the
general configuration of the archipelago.
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-
Santiago, took pains to emphasize the foregoing during the Senate
deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the
Spratlys and the Scarborough Shoal are outside our archipelagic baseline
because if we put them inside our baselines we might be accused of violating
the provision of international law which states: The drawing of such baseline
shall not depart to any appreciable extent from the general configuration of the
archipelago. So sa loob ng ating baseline, dapat magkalapit ang mga islands.
Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa
atin although we are still allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or
the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang
dating archipelagic baselines para lamang masama itong dalawang circles,
hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because
of the rule that it should follow the natural configuration of the archipelago.34
(Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
IIIs limits. The need to shorten this baseline, and in addition, to optimize the
location of basepoints using current maps, became imperative as discussed by
respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines
to draw the outer limits of its maritime zones including the extended continental
shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by
R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical
deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash
to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum
length allowed under Article 47(2) of the [UNCLOS III], which states that The
length of such baselines shall not exceed 100 nautical miles, except that up to
3 per cent of the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an additional
2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to Palawan were later found
501 of 692
to be located either inland or on water, not on low-water line and drying reefs
as prescribed by Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough
Shoal as Regime[s] of Islands under the Republic of the Philippines consistent
with Article 12136 of UNCLOS III manifests the Philippine States responsible
observance of its pacta sunt servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any naturally formed area of land, surrounded by
water, which is above water at high tide, such as portions of the KIG, qualifies
under the category of regime of islands, whose islands generate their own
applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize
the Philippines claim over Sabah in North Borneo is also untenable. Section 2
of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing
the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of
the baselines of the territorial sea around the territory of Sabah, situated in North
Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that
the law unconstitutionally converts internal waters into archipelagic waters,
hence subjecting these waters to the right of innocent and sea lanes passage
under UNCLOS III, including overflight. Petitioners extrapolate that these
passage rights indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution.38
Whether referred to as Philippine internal waters under Article I of the
Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]),
the Philippines exercises sovereignty over the body of water lying landward of
the baselines, including the air space over it and the submarine areas
underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic
waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by
the archipelagic baselines drawn in accordance with article 47, described as
archipelagic waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as
well as to their bed and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not
in other respects affect the status of the archipelagic waters, including the sea
lanes, or the exercise by the archipelagic State of its sovereignty over such
waters and their air space, bed and subsoil, and the resources contained therein.
(Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal
and international law norms subjecting the territorial sea or archipelagic waters
to necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law
principle of freedom of navigation. Thus, domestically, the political branches
of the Philippine government, in the competent discharge of their constitutional
powers, may pass legislation designating routes within the archipelagic waters
502 of 692
to regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical
highways for sea lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified
in UNCLOS III, operate to grant innocent passage rights over the territorial sea
or archipelagic waters, subject to the treatys limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary
international law,43 thus automatically incorporated in the corpus of Philippine
law.44 No modern State can validly invoke its sovereignty to absolutely forbid
innocent passage that is exercised in accordance with customary international
law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage45 does not place them
in lesser footing vis--vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through
archipelagic waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from the coast, as archipelagic
waters subject to their territorial sovereignty. More importantly, the recognition
of archipelagic States archipelago and the waters enclosed by their baselines as
one cohesive entity prevents the treatment of their islands as separate islands
under UNCLOS III.46 Separate islands generate their own maritime zones,
placing the waters between islands separated by more than 24 nautical miles
beyond the States territorial sovereignty, subjecting these waters to the rights
of other States under UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in Article II
(Declaration of Principles and State Policies)48 must also fail. Our present state
of jurisprudence considers the provisions in Article II as mere legislative
guides, which, absent enabling legislation, do not embody judicially
enforceable constitutional rights x x x.49 Article II provisions serve as guides
in formulating and interpreting implementing legislation, as well as in
interpreting executory provisions of the Constitution. Although Oposa v.
Factoran50 treated the right to a healthful and balanced ecology under Section
16 of Article II as an exception, the present petition lacks factual basis to
substantiate the claimed constitutional violation. The other provisions
petitioners cite, relating to the protection of marine wealth (Article XII, Section
2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are not
violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of
all living and non-living resources within such zone. Such a maritime
delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS
III, the international community will of course reject it and will refuse to be
bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS
III creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States
to exclusively exploit the resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial sea
before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522.54 We have looked at the relevant
provision of UNCLOS III55 and we find petitioners reading plausible.
Nevertheless, the prerogative of choosing this option belongs to Congress, not
to this Court. Moreover, the luxury of choosing this option comes at a very
steep price. Absent an UNCLOS III compliant baselines law, an archipelagic
State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is
measured. This is recipe for a two-fronted disaster: first, it sends an open
invitation to the seafaring powers to freely enter and exploit the resources in the
waters and submarine areas around our archipelago; and second, it weakens the
countrys case in any international dispute over Philippine maritime space.
These are consequences Congress wisely avoided.
503 of 692
The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an
internationally-recognized delimitation of the breadth of the Philippines
maritime zones and continental shelf. RA 9522 is therefore a most vital step on
the part of the Philippines in safeguarding its maritime zones, consistent with
the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
Pablo Ocampo v. HRET
G.R. No. 158466 (June 15, 2004)
G.R. No. 158466 June 15, 2004
PABLO V. OCAMPO, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO
B. CRESPO a.k.a. MARK JIMENEZ, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The wreath of victory cannot be transferred from the disqualified winner to the
repudiated loser because the law then as now only authorizes a declaration of
election in favor of the person who obtained a plurality of votes and does not
entitle a candidate receiving the next highest number of votes to be declared
elected.1
This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, filed by petitioner Pablo V. Ocampo. He alleged that
the House of Representatives Electoral Tribunal (HRET), herein public
respondent, committed grave abuse of discretion in issuing in HRET Case No.
01-024, Pablo Ocampo vs. Mario "Mark Jimenez" Crespo, the (a) Resolution2
dated March 27, 2003 holding that "protestant" (herein petitioner) cannot be
proclaimed the duly elected Representative of the 6th District of Manila since
being a second placer, he "cannot be proclaimed the first among the remaining
qualified candidates"; and (b) Resolution3 dated June 2, 2003 denying his
motion for reconsideration.
The facts are uncontroverted:
On May 23, 2001, the Manila City Board of Canvassers proclaimed private
respondent Mario B. Crespo, a.k.a. Mark Jimenez, the duly elected
Congressman of the 6th District of Manila pursuant to the May 14, 2001
elections. He was credited with 32,097 votes or a margin of 768 votes over
petitioner who obtained 31,329 votes.
On May 31, 2001, petitioner filed with the HRET an electoral protest4 against
private respondent, impugning the election in 807 precincts in the 6th District
of Manila on the following grounds: (1) misreading of votes garnered by
petitioner; (2) falsification of election returns; (3) substitution of election
returns; (4) use of marked, spurious, fake and stray ballots; and (5) presence of
ballots written by one person or two persons. The case was docketed as HRET
Case No. 01-024. Petitioner prayed that a revision and appreciation of the
ballots in the 807 contested precincts be conducted; and that, thereafter, he be
proclaimed the duly elected Congressman of the 6th District of Manila.
On June 18, 2001, private respondent filed his answer with counter-protest5
vehemently denying that he engaged in massive vote buying. He also opposed
petitioner’s allegation that there is a need for the revision and appreciation of
ballots.
After the preliminary conference between the parties on July 12, 2001, the
HRET issued a Resolution6 limiting the issues to: first, whether massive vote-
buying was committed by private respondent; and second, whether petitioner
can be proclaimed the duly elected Representative of the 6th District of Manila.
504 of 692
Meanwhile, on March 6, 2003, the HRET, in HRET Cases Nos. 01-020,
Bienvenido Abante & Prudencio Jalandoni vs. Mario Crespo, and 01-023,
Rosenda Ann M. Ocampo vs. Mario Crespo, issued Resolutions declaring that
private respondent is "ineligible for the Office of Representative of Sixth
District of Manila for lack of residence in the district" and ordering "him to
vacate his office."7 Private respondent filed a motion for reconsideration but
was denied.8
On March 12, 2003, petitioner filed a motion to implement Section 6 of
Republic Act No. 6646,9 which reads:
"Section 6. Effects of Disqualification Case. – Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted
for and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof, order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong."
Petitioner averred that since private respondent was declared disqualified in
HRET Cases Nos. 01-020 and 01-023, the votes cast for him should not be
counted. And having garnered the second highest number of votes, he
(petitioner) should be declared the winner in the May 14, 2001 elections and
proclaimed the duly elected Congressman of the 6th District of Manila.
On March 26, 2003, private respondent filed an opposition to petitioner’s
motion to implement the afore-quoted provision.
On March 27, 2003, the HRET issued a Resolution holding that private
respondent was guilty of vote-buying and disqualifying him as Congressman of
the 6th District of Manila. Anent the second issue of whether petitioner can be
proclaimed the duly elected Congressman, the HRET held:
"x x x Jurisprudence has long established the doctrine that a second placer
cannot be proclaimed the first among the remaining qualified candidates. The
fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected
does not necessarily give the candidate who obtained the second highest
number of votes the right to be declared the winner of the elective office. x x x
It is of no moment that there is only a margin of 768 votes between protestant
and protestee. Whether the margin is ten or ten thousand, it still remains that
protestant did not receive the mandate of the majority during the elections.
Thus, to proclaim him as the duly elected representative in the stead of protestee
would be anathema to the most basic precepts of republicanism and democracy
as enshrined within our Constitution. In effect, we would be advocating a
massive disenfranchisement of the majority of the voters of the sixth district of
Manila.
Congressional elections are different from local government elections. In local
government elections, when the winning candidate for governor or mayor is
subsequently disqualified, the vice-governor or the vice-mayor, as the case may
be, succeeds to the position by virtue of the Local Government Code. It is
different in elections for representative. When a voter chooses his congressional
candidate, he chooses only one. If his choice is concurred in by the majority of
voters, that candidate is declared the winner. Voters are not afforded the
opportunity of electing a ‘substitute congressman’ in the eventuality that their
first choice dies, resigns, is disqualified, or in any other way leaves the post
vacant. There can only be one representative for that particular legislative
district. There are no runners-up or second placers. Thus, when the person
vested with the mandate of the majority is disqualified from holding the post he
was elected to, the only recourse to ascertain the new choice of the electorate is
to hold another election. x x x
This does not mean that the Sixth Legislative District of Manila will be without
adequate representation in Congress. Article VI, Section 9 of the Constitution,
and Republic Act No. 6645 allows Congress to call a special election to fill up
this vacancy. There are at least 13 months until the next congressional elections,
which is more than sufficient time within which to hold a special election to
enable the electorate of the Sixth District of Manila to elect their representative.
For this reason, the Tribunal holds that protestant cannot be proclaimed as the
duly elected representative of the Sixth legislative District of Manila.
505 of 692
In view of the conclusion herein reached, it is unnecessary to rule on the recount
and revision of ballots in the protested and counter-protested precincts.
WHEREFORE, the Tribunal Resolved to:
xxxxxx
2) DENY protestant’s (petitioner) Motion to Implement Section 6, Republic
Act No. 6646 by declaring the votes cast for Mario Crespo as stray votes."
Petitioner filed a partial motion for reconsideration but was denied. Hence, the
present petition for certiorari.
Petitioner contends that the HRET committed grave abuse of discretion when
it ruled that "it is unnecessary to rule on the recount and revision of ballots in
the protested and counter-protested precincts." He maintains that it is the
ministerial duty of the HRET to implement the provisions of Section 6, R.A.
No. 6646 specifically providing that "any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for
him shall not be counted."
In his comment, private respondent counters that what the law requires is that
the disqualification by final judgment takes place before the election. Here, the
HRET Resolutions disqualifying him as Representative of the 6th District of
Manila were rendered long after the May 14, 2001 elections. He also claims
that the Resolutions are not yet final and executory because they are the subjects
of certiorari proceedings before this Court. Hence, all his votes shall be counted
and none shall be considered stray.
The HRET, in its comment, through the Office of the Solicitor General, merely
reiterates its ruling.
The petition must be dismissed.
The issues here are: (1) whether the votes cast in favor of private respondent
should not be counted pursuant to Section 6 of R.A. No. 6646; and (2) whether
petitioner, a second placer in the May 14, 2001 congressional elections, can be
proclaimed the duly elected Congressman of the 6th District of Manila.
The issues raised are not novel. In Codilla, Sr. vs. De Venecia,10 we expounded
on the application of Section 6, R.A. No. 6646. There, we emphasized that there
must be a final judgment before the election in order that the votes of a
disqualified candidate can be considered "stray", thus:
"Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code
require a final judgment before the election for the votes of a disqualified
candidate to be considered "stray." Hence, when a candidate has not yet been
disqualified by final judgment during the election day and was voted for, the
votes cast in his favor cannot be declared stray. To do so would amount to
disenfranchising the electorate in whom sovereignty resides."
The obvious rationale behind the foregoing ruling is that in voting for a
candidate who has not been disqualified by final judgment during the election
day, the people voted for him bona fide, without any intention to misapply their
franchise, and in the honest belief that the candidate was then qualified to be
the person to whom they would entrust the exercise of the powers of
government.11
In the present case, private respondent was declared disqualified almost twenty-
two (22) months after the May 14, 2001 elections. Obviously, the requirement
of "final judgment before election" is absent. Therefore, petitioner can not
invoke Section 6 of R.A. No. 6646.
Anent the second issue, we revert back to the settled jurisprudence that the
subsequent disqualification of a candidate who obtained the highest number of
votes does not entitle the candidate who garnered the second highest number of
votes to be declared the winner.12 This principle has been reiterated in a
number our decisions, such as Labo, Jr. vs. COMELEC,13 Abella vs.
COMELEC,14 Benito vs. COMELEC15 and Domino vs. COMELEC.16 As a
matter of fact, even as early as 1912, it was held that the candidate who lost in
an election cannot be proclaimed the winner in the event that the candidate who
won is found to be ineligible for the office for which he was elected.17
In Geronimo vs. Ramos,18 if the winning candidate is not qualified and cannot
qualify for the office to which he was elected, a permanent vacancy is thus
created. The second placer is just that, a second placer – he lost in the elections,
506 of 692
he was repudiated by either the majority or plurality of voters. He could not be
proclaimed winner as he could not be considered the first among the qualified
candidates. To rule otherwise is to misconstrue the nature of the democratic
electroral process and the sociological and psychological underpinnings behind
voters’ preferences.19
At any rate, the petition has become moot and academic. The Twelfth Congress
formally adjourned on June 11, 2004. And on May 17, 2004, the City Board of
Canvassers proclaimed Bienvenido Abante the duly elected Congressman of
the Sixth District of Manila pursuant to the May 10, 2004 elections.
In the recent case of Enrile vs. Senate Electoral Tribunal,20 we ruled that 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. Worth
reiterating is our pronouncement in Gancho-on vs. Secretary of Labor and
Employment, thus:21
"It is a rule of universal application, almost, that courts of justice constituted to
pass upon substantial rights will not consider questions in which no actual
interests are involved; they decline jurisdiction of moot cases. And where the
issue has become moot and academic, there is no justiciable controversy, so
that a declaration thereon would be of no practical use or value. There is no
actual substantial relief to which petitioner would be entitled and which would
be negated by the dismissal of the petition."
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Villavicencio v. Lukban
39 Phil. 778 (1919)
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the
one which this application for habeas corpus submits for decision. While hardly
to be expected to be met with in this modern epoch of triumphant democracy,
yet, after all, the cause presents no great difficulty if there is kept in the forefront
of our minds the basic principles of popular government, and if we give
expression to the paramount purpose for which the courts, as an independent
power of such a government, were constituted. The primary question is — Shall
the judiciary permit a government of the men instead of a government of laws
to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but
which might prove profitable reading for other departments of the government,
the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best
of all reasons, to exterminate vice, ordered the segregated district for women of
ill repute, which had been permitted for a number of years in the city of Manila,
closed. Between October 16 and October 25, 1918, the women were kept
confined to their houses in the district by the police. Presumably, during this
period, the city authorities quietly perfected arrangements with the Bureau of
Labor for sending the women to Davao, Mindanao, as laborers; with some
government office for the use of the coastguard cutters Corregidor and Negros,
and with the Constabulary for a guard of soldiers. At any rate, about midnight
of October 25, the police, acting pursuant to orders from the chief of police,
Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended
upon the houses, hustled some 170 inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival. The women were given no
opportunity to collect their belongings, and apparently were under the
impression that they were being taken to a police station for an investigation.
They had no knowledge that they were destined for a life in Mindanao. They
had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary
guests were received on board the steamers by a representative of the Bureau
507 of 692
of Labor and a detachment of Constabulary soldiers. The two steamers with
their unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were
landed and receipted for as laborers by Francisco Sales, provincial governor of
Davao, and by Feliciano Yñigo and Rafael Castillo. The governor and the
hacendero Yñigo, who appear as parties in the case, had no previous
notification that the women were prostitutes who had been expelled from the
city of Manila. The further happenings to these women and the serious charges
growing out of alleged ill-treatment are of public interest, but are not essential
to the disposition of this case. Suffice it to say, generally, that some of the
women married, others assumed more or less clandestine relations with men,
others went to work in different capacities, others assumed a life unknown and
disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros
were putting in to Davao, the attorney for the relatives and friends of a
considerable number of the deportees presented an application for habeas
corpus to a member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the women who
were sent away from Manila to Davao and, as the same questions concerned
them all, the application will be considered as including them. The application
set forth the salient facts, which need not be repeated, and alleged that the
women were illegally restrained of their liberty by Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, and by
certain unknown parties. The writ was made returnable before the full court.
The city fiscal appeared for the respondents, Lukban and Hohmann, admitted
certain facts relative to sequestration and deportation, and prayed that the writ
should not be granted because the petitioners were not proper parties, because
the action should have been begun in the Court of First Instance for Davao,
Department of Mindanao and Sulu, because the respondents did not have any
of the women under their custody or control, and because their jurisdiction did
not extend beyond the boundaries of the city of Manila. According to an exhibit
attached to the answer of the fiscal, the 170 women were destined to be laborers,
at good salaries, on the haciendas of Yñigo and Governor Sales. In open court,
the fiscal admitted, in answer to question of a member of the court, that these
women had been sent out of Manila without their consent. The court awarded
the writ, in an order of November 4, that directed Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco
Sales, governor of the province of Davao, and Feliciano Yñigo, an hacendero
of Davao, to bring before the court the persons therein named, alleged to be
deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their
own expense. On motion of counsel for petitioners, their testimony was taken
before the clerk of the Supreme Court sitting as commissioners. On the day
named in the order, December 2nd, 1918, none of the persons in whose behalf
the writ was issued were produced in court by the respondents. It has been
shown that three of those who had been able to come back to Manila through
their own efforts, were notified by the police and the secret service to appear
before the court. The fiscal appeared, repeated the facts more comprehensively,
reiterated the stand taken by him when pleading to the original petition copied
a telegram from the Mayor of the city of Manila to the provincial governor of
Davao and the answer thereto, and telegrams that had passed between the
Director of Labor and the attorney for that Bureau then in Davao, and offered
certain affidavits showing that the women were contained with their life in
Mindanao and did not wish to return to Manila. Respondents Sales answered
alleging that it was not possible to fulfill the order of the Supreme Court because
the women had never been under his control, because they were at liberty in the
Province of Davao, and because they had married or signed contracts as
laborers. Respondent Yñigo answered alleging that he did not have any of the
women under his control and that therefore it was impossible for him to obey
the mandate. The court, after due deliberation, on December 10, 1918,
promulgated a second order, which related that the respondents had not
complied with the original order to the satisfaction of the court nor explained
their failure to do so, and therefore directed that those of the women not in
Manila be brought before the court by respondents Lukban, Hohmann, Sales,
and Yñigo on January 13, 1919, unless the women should, in written statements
voluntarily made before the judge of first instance of Davao or the clerk of that
court, renounce the right, or unless the respondents should demonstrate some
other legal motives that made compliance impossible. It was further stated that
the question of whether the respondents were in contempt of court would later
be decided and the reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the
women, of certain detectives and policemen, and of the provincial governor of
508 of 692
Davao, was taken before the clerk of the Supreme Court sitting as commissioner
and the clerk of the Court of First Instance of Davao acting in the same capacity.
On January 13, 1919, the respondents technically presented before the Court
the women who had returned to the city through their own efforts and eight
others who had been brought to Manila by the respondents. Attorneys for the
respondents, by their returns, once again recounted the facts and further
endeavored to account for all of the persons involved in the habeas corpus. In
substance, it was stated that the respondents, through their representatives and
agents, had succeeded in bringing from Davao with their consent eight women;
that eighty-one women were found in Davao who, on notice that if they desired
they could return to Manila, transportation fee, renounced the right through
sworn statements; that fifty-nine had already returned to Manila by other
means, and that despite all efforts to find them twenty-six could not be located.
Both counsel for petitioners and the city fiscal were permitted to submit
memoranda. The first formally asked the court to find Justo Lukban, Mayor of
the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose
Rodriguez and Fernando Ordax, members of the police force of the city of
Manila, Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the
attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of
Manila, in contempt of court. The city fiscal requested that the replica al
memorandum de los recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ
of habeas corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled — these one hundred and seventy
women were isolated from society, and then at night, without their consent and
without any opportunity to consult with friends or to defend their rights, were
forcibly hustled on board steamers for transportation to regions unknown.
Despite the feeble attempt to prove that the women left voluntarily and gladly,
that such was not the case is shown by the mere fact that the presence of the
police and the constabulary was deemed necessary and that these officers of the
law chose the shades of night to cloak their secret and stealthy acts. Indeed, this
is a fact impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question — By
authority of what law did the Mayor and the Chief of Police presume to act in
deporting by duress these persons from Manila to another distant locality within
the Philippine Islands? We turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine Islands in conformity with
an Act of congress. The Governor-General can order the eviction of undesirable
aliens after a hearing from the Islands. Act No. 519 of the Philippine
Commission and section 733 of the Revised Ordinances of the city of Manila
provide for the conviction and punishment by a court of justice of any person
who is a common prostitute. Act No. 899 authorizes the return of any citizen of
the United States, who may have been convicted of vagrancy, to the homeland.
New York and other States have statutes providing for the commitment to the
House of Refuge of women convicted of being common prostitutes. Always a
law! Even when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it is done
pursuant to some law or order. But one can search in vain for any law, order, or
regulation, which even hints at the right of the Mayor of the city of Manila or
the chief of police of that city to force citizens of the Philippine Islands — and
these women despite their being in a sense lepers of society are nevertheless
not chattels but Philippine citizens protected by the same constitutional
guaranties as are other citizens — to change their domicile from Manila to
another locality. On the contrary, Philippine penal law specifically punishes any
public officer who, not being expressly authorized by law or regulation,
compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed
so important as to be found in the Bill of Rights of the Constitution. Under the
American constitutional system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so elementary in nature as not even
to require a constitutional sanction. Even the Governor-General of the
Philippine Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such arbitrary
prerogative, either inherent or express. Much less, therefore, has the executive
of a municipality, who acts within a sphere of delegated powers. If the mayor
and the chief of police could, at their mere behest or even for the most
praiseworthy of motives, render the liberty of the citizen so insecure, then the
presidents and chiefs of police of one thousand other municipalities of the
Philippines have the same privilege. If these officials can take to themselves
such power, then any other official can do the same. And if any official can
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exercise the power, then all persons would have just as much right to do so.
And if a prostitute could be sent against her wishes and under no law from one
locality to another within the country, then officialdom can hold the same club
over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that — "No freeman
shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free
customs, or be outlawed, or exiled, or any other wise destroyed; nor will we
pass upon him nor condemn him, but by lawful judgment of his peers or by the
law of the land. We will sell to no man, we will not deny or defer to any man
either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat.
at Large, 7.) No official, no matter how high, is above the law. The courts are
the forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the opinion of
the Supreme Court of the United States, "is the only supreme power in our
system of government, and every man who by accepting office participates in
its functions is only the more strongly bound to submit to that supremacy, and
to observe the limitations which it imposes upon the exercise of the authority
which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said
Justice Matthews of the same high tribunal in another case, "that one man may
be compelled to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence of
slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this
explains the motive in issuing the writ of habeas corpus, and makes clear why
we said in the very beginning that the primary question was whether the courts
should permit a government of men or a government of laws to be established
in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The
remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3)
habeas corpus.
The first is an optional but rather slow process by which the aggrieved party
may recoup money damages. It may still rest with the parties in interest to
pursue such an action, but it was never intended effectively and promptly to
meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these
Islands provides:
Any public officer not thereunto authorized by law or by regulations of a
general character in force in the Philippines who shall banish any person to a
place more than two hundred kilometers distant from his domicile, except it be
by virtue of the judgment of a court, shall be punished by a fine of not less than
three hundred and twenty-five and not more than three thousand two hundred
and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation
of a general character in force in the Philippines who shall compel any person
to change his domicile or residence shall suffer the penalty of destierro and a
fine of not less than six hundred and twenty-five and not more than six thousand
two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper
prosecuting officers find that any public officer has violated this provision of
law, these prosecutors will institute and press a criminal prosecution just as
vigorously as they have defended the same official in this action. Nevertheless,
that the act may be a crime and that the persons guilty thereof can be proceeded
against, is no bar to the instant proceedings. To quote the words of Judge Cooley
in a case which will later be referred to — "It would be a monstrous anomaly
in the law if to an application by one unlawfully confined, ta be restored to his
liberty, it could be a sufficient answer that the confinement was a crime, and
therefore might be continued indefinitely until the guilty party was tried and
punished therefor by the slow process of criminal procedure." (In the matter of
Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised
and exists as a speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of personal freedom. Any
further rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three
specific objections to its issuance in this instance. The fiscal has argued (l) that
there is a defect in parties petitioners, (2) that the Supreme Court should not a
assume jurisdiction, and (3) that the person in question are not restrained of
their liberty by respondents. It was finally suggested that the jurisdiction of the
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Mayor and the chief of police of the city of Manila only extends to the city
limits and that perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners
were relatives and friends of the deportees. The way the expulsion was
conducted by the city officials made it impossible for the women to sign a
petition for habeas corpus. It was consequently proper for the writ to be
submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78;
Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal
liberty, even makes it the duty of a court or judge to grant a writ of habeas
corpus if there is evidence that within the court's jurisdiction a person is unjustly
imprisoned or restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court
of First Instance of Davao or should have been made returnable before that
court. It is a general rule of good practice that, to avoid unnecessary expense
and inconvenience, petitions for habeas corpus should be presented to the
nearest judge of the court of first instance. But this is not a hard and fast rule.
The writ of habeas corpus may be granted by the Supreme Court or any judge
thereof enforcible anywhere in the Philippine Islands. (Code of Criminal
Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall
be made returnable before the Supreme Court or before an inferior court rests
in the discretion of the Supreme Court and is dependent on the particular
circumstances. In this instance it was not shown that the Court of First Instance
of Davao was in session, or that the women had any means by which to advance
their plea before that court. On the other hand, it was shown that the petitioners
with their attorneys, and the two original respondents with their attorney, were
in Manila; it was shown that the case involved parties situated in different parts
of the Islands; it was shown that the women might still be imprisoned or
restrained of their liberty; and it was shown that if the writ was to accomplish
its purpose, it must be taken cognizance of and decided immediately by the
appellate court. The failure of the superior court to consider the application and
then to grant the writ would have amounted to a denial of the benefits of the
writ.
The last argument of the fiscal is more plausible and more difficult to meet.
When the writ was prayed for, says counsel, the parties in whose behalf it was
asked were under no restraint; the women, it is claimed, were free in Davao,
and the jurisdiction of the mayor and the chief of police did not extend beyond
the city limits. At first blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first principles of the
writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint
of liberty. The essential object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as distinguished from voluntary,
and to relieve a person therefrom if such restraint is illegal. Any restraint which
will preclude freedom of action is sufficient. The forcible taking of these
women from Manila by officials of that city, who handed them over to other
parties, who deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been imprisoned. Placed
in Davao without either money or personal belongings, they were prevented
from exercising the liberty of going when and where they pleased. The restraint
of liberty which began in Manila continued until the aggrieved parties were
returned to Manila and released or until they freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean.
The chief executive of any municipality in the Philippines could forcibly and
illegally take a private citizen and place him beyond the boundaries of the
municipality, and then, when called upon to defend his official action, could
calmly fold his hands and claim that the person was under no restraint and that
he, the official, had no jurisdiction over this other municipality. We believe the
true principle should be that, if the respondent is within the jurisdiction of the
court and has it in his power to obey the order of the court and thus to undo the
wrong that he has inflicted, he should be compelled to do so. Even if the party
to whom the writ is addressed has illegally parted with the custody of a person
before the application for the writ is no reason why the writ should not issue. If
the mayor and the chief of police, acting under no authority of law, could deport
these women from the city of Manila to Davao, the same officials must
necessarily have the same means to return them from Davao to Manila. The
respondents, within the reach of process, may not be permitted to restrain a
fellow citizen of her liberty by forcing her to change her domicile and to avow
the act with impunity in the courts, while the person who has lost her birthright
of liberty has no effective recourse. The great writ of liberty may not thus be
easily evaded.
511 of 692

It must be that some such question has heretofore been presented to the courts
for decision. Nevertheless, strange as it may seem, a close examination of the
authorities fails to reveal any analogous case. Certain decisions of respectable
courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early
date as to whether or not a writ of habeas corpus would issue from the Supreme
Court to a person within the jurisdiction of the State to bring into the State a
minor child under guardianship in the State, who has been and continues to be
detained in another State. The membership of the Michigan Supreme Court at
this time was notable. It was composed of Martin, chief justice, and Cooley,
Campbell, and Christiancy, justices. On the question presented the court was
equally divided. Campbell, J., with whom concurred Martin, C. J., held that the
writ should be quashed. Cooley, J., one of the most distinguished American
judges and law-writers, with whom concurred Christiancy, J., held that the writ
should issue. Since the opinion of Justice Campbell was predicated to a large
extent on his conception of the English decisions, and since, as will hereafter
appear, the English courts have taken a contrary view, only the following
eloquent passages from the opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue
the present writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries
and a half have been expended upon the Magna Charta, and rivers of blood shed
for its establishment; after its many confirmations, until Coke could declare in
his speech on the petition of right that "Magna Charta was such a fellow that he
will have no sovereign," and after the extension of its benefits and securities by
the petition of right, bill of rights and habeas corpus acts, it should now be
discovered that evasion of that great clause for the protection of personal
liberty, which is the life and soul of the whole instrument, is so easy as is
claimed here. If it is so, it is important that it be determined without delay, that
the legislature may apply the proper remedy, as I can not doubt they would, on
the subject being brought to their notice. . . .
The second proposition — that the statutory provisions are confined to the case
of imprisonment within the state — seems to me to be based upon a
misconception as to the source of our jurisdiction. It was never the case in
England that the court of king's bench derived its jurisdiction to issue and
enforce this writ from the statute. Statutes were not passed to give the right, but
to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this
writ is, that it is directed to and served upon, not the person confined, but his
jailor. It does not reach the former except through the latter. The officer or
person who serves it does not unbar the prison doors, and set the prisoner free,
but the court relieves him by compelling the oppressor to release his constraint.
The whole force of the writ is spent upon the respondent, and if he fails to obey
it, the means to be resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if any other
means are resorted to, they are only auxiliary to those which are usual. The
place of confinement is, therefore, not important to the relief, if the guilty party
is within reach of process, so that by the power of the court he can be compelled
to release his grasp. The difficulty of affording redress is not increased by the
confinement being beyond the limits of the state, except as greater distance may
affect it. The important question is, where the power of control exercised? And
I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)
The opinion of Judge Cooley has since been accepted as authoritative by other
courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911],
Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child
had been taken out of English by the respondent. A writ of habeas corpus was
issued by the Queen's Bench Division upon the application of the mother and
her husband directing the defendant to produce the child. The judge at chambers
gave defendant until a certain date to produce the child, but he did not do so.
His return stated that the child before the issuance of the writ had been handed
over by him to another; that it was no longer in his custody or control, and that
it was impossible for him to obey the writ. He was found in contempt of court.
On appeal, the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22.
That writ commanded the defendant to have the body of the child before a judge
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in chambers at the Royal Courts of Justice immediately after the receipt of the
writ, together with the cause of her being taken and detained. That is a command
to bring the child before the judge and must be obeyed, unless some lawful
reason can be shown to excuse the nonproduction of the child. If it could be
shown that by reason of his having lawfully parted with the possession of the
child before the issuing of the writ, the defendant had no longer power to
produce the child, that might be an answer; but in the absence of any lawful
reason he is bound to produce the child, and, if he does not, he is in contempt
of the Court for not obeying the writ without lawful excuse. Many efforts have
been made in argument to shift the question of contempt to some anterior period
for the purpose of showing that what was done at some time prior to the writ
cannot be a contempt. But the question is not as to what was done before the
issue of the writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in obedience to its
commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233;
The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus
was directed to the defendant to have before the circuit court of the District of
Columbia three colored persons, with the cause of their detention. Davis, in his
return to the writ, stated on oath that he had purchased the negroes as slaves in
the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that
they were then beyond his control and out of his custody. The evidence tended
to show that Davis had removed the negroes because he suspected they would
apply for a writ of habeas corpus. The court held the return to be evasive and
insufficient, and that Davis was bound to produce the negroes, and Davis being
present in court, and refusing to produce them, ordered that he be committed to
the custody of the marshall until he should produce the negroes, or be otherwise
discharged in due course of law. The court afterwards ordered that Davis be
released upon the production of two of the negroes, for one of the negroes had
run away and been lodged in jail in Maryland. Davis produced the two negroes
on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622,
Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church
on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense
offered by the respondents constituted a legitimate bar to the granting of the
writ of habeas corpus.
There remains to be considered whether the respondent complied with the two
orders of the Supreme Court awarding the writ of habeas corpus, and if it be
found that they did not, whether the contempt should be punished or be taken
as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yñigo to present the persons named in the writ
before the court on December 2, 1918. The order was dated November 4, 1918.
The respondents were thus given ample time, practically one month, to comply
with the writ. As far as the record discloses, the Mayor of the city of Manila
waited until the 21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women who desired
to return to Manila, but who should not be permitted to do so because of having
contracted debts. The half-hearted effort naturally resulted in none of the parties
in question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses
were open: (1) They could have produced the bodies of the persons according
to the command of the writ; or (2) they could have shown by affidavit that on
account of sickness or infirmity those persons could not safely be brought
before the court; or (3) they could have presented affidavits to show that the
parties in question or their attorney waived the right to be present. (Code of
Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in
whose behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to
show that the women were contended with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That
through ordinary diligence a considerable number of the women, at least sixty,
could have been brought back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number either returned at their own
expense or were produced at the second hearing by the respondents.
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The court, at the time the return to its first order was made, would have been
warranted summarily in finding the respondents guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the
non-production of the persons were far from sufficient. The, authorities cited
herein pertaining to somewhat similar facts all tend to indicate with what
exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the Court, said:
"We thought that, having brought about that state of things by his own illegal
act, he must take the consequences; and we said that he was bound to use every
effort to get the child back; that he must do much more than write letters for the
purpose; that he must advertise in America, and even if necessary himself go
after the child, and do everything that mortal man could do in the matter; and
that the court would only accept clear proof of an absolute impossibility by way
of excuse." In other words, the return did not show that every possible effort to
produce the women was made by the respondents. That the court forebore at
this time to take drastic action was because it did not wish to see presented to
the public gaze the spectacle of a clash between executive officials and the
judiciary, and because it desired to give the respondents another chance to
demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have
become more zealous and to have shown a better spirit. Agents were dispatched
to Mindanao, placards were posted, the constabulary and the municipal police
joined in rounding up the women, and a steamer with free transportation to
Manila was provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the record
might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it. Our finding to this effect
may be influenced somewhat by our sincere desire to see this unhappy incident
finally closed. If any wrong is now being perpetrated in Davao, it should receive
an executive investigation. If any particular individual is still restrained of her
liberty, it can be made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial
compliance with it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the
city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police
force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of
Labor, Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of
the city of Manila.
The power to punish for contempt of court should be exercised on the
preservative and not on the vindictive principle. Only occasionally should the
court invoke its inherent power in order to retain that respect without which the
administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer
a valid excuse, a court must, to vindicate its authority, adjudge the respondent
to be guilty of contempt, and must order him either imprisoned or fined. An
officer's failure to produce the body of a person in obedience to a writ of habeas
corpus when he has power to do so, is a contempt committed in the face of the
court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C.,
407.)
With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible
exception of the first named, has flatly disobeyed the court by acting in
opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and
Joaquin only followed the orders of their chiefs, and while, under the law of
public officers, this does not exonerate them entirely, it is nevertheless a
powerful mitigating circumstance. The hacendero Yñigo appears to have been
drawn into the case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to have done no
more than to fulfill his duty as the legal representative of the city government.
Finding him innocent of any disrespect to the court, his counter-motion to strike
from the record the memorandum of attorney for the petitioners, which brings
him into this undesirable position, must be granted. When all is said and done,
as far as this record discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish the same, who
made arrangements for the steamers and the constabulary, who conducted the
negotiations with the Bureau of Labor, and who later, as the head of the city
government, had it within his power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor of the city of Manila. His
intention to suppress the social evil was commendable. His methods were
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unlawful. His regard for the writ of habeas corpus issued by the court was only
tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil
Procedure, which relates to the penalty for disobeying the writ, and in
pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of the
court are inclined to this stern view. It would also be possible to find that since
respondent Lukban did comply substantially with the second order of the court,
he has purged his contempt of the first order. Some members of the court are
inclined to this merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first mandate of
the court tended to belittle and embarrass the administration of justice to such
an extent that his later activity may be considered only as extenuating his
conduct. A nominal fine will at once command such respect without being
unduly oppressive — such an amount is P100.
In resume — as before stated, no further action on the writ of habeas corpus is
necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and
Diaz are found not to be in contempt of court. Respondent Lukban is found in
contempt of court and shall pay into the office of the clerk of the Supreme Court
within five days the sum of one hundred pesos (P100). The motion of the fiscal
of the city of Manila to strike from the record the Replica al Memorandum de
los Recurridos of January 25, 1919, is granted. Costs shall be taxed against
respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to
express the hope that this decision may serve to bulwark the fortifications of an
orderly government of laws and to protect individual liberty from illegal
encroachment.
Arellano, C.J., Avanceña and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the
decision of the habeas corpus proceeding against Justo Lukban, the mayor of
this city.
There is nothing in the record that shows the motive which impelled Mayor
Lukban to oblige a great number of women of various ages, inmates of the
houses of prostitution situated in Gardenia Street, district of Sampaloc, to
change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the
opening of public houses of prostitution, as those in the said Gardenia Street,
Sampaloc. For this reason, when more than one hundred and fifty women were
assembled and placed aboard a steamer and transported to Davao, considering
that the existence of the said houses of prostitution has been tolerated for so
long a time, it is undeniable that the mayor of the city, in proceeding in the
manner shown, acted without authority of any legal provision which constitutes
an exception to the laws guaranteeing the liberty and the individual rights of the
residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by the police
in complying with the order of the mayor of the city; neither do we believe in
the necessity of taking them to the distant district of Davao. The said
governmental authority, in carrying out his intention to suppress the segregated
district or the community formed by those women in Gardenia Street, could
have obliged the said women to return to their former residences in this city or
in the provinces, without the necessity of transporting them to Mindanao; hence
the said official is obliged to bring back the women who are still in Davao so
that they may return to the places in which they lived prior to their becoming
inmates of certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this
court, we do not find any apparent disobedience and marked absence of respect
in the steps taken by the mayor of the city and his subordinates, if we take into
account the difficulties encountered in bringing the said women who were free
at Davao and presenting them before this court within the time fixed, inasmuch
as it does not appear that the said women were living together in a given place.
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It was not because they were really detained, but because on the first days there
were no houses in which they could live with a relative independent from one
another, and as a proof that they were free a number of them returned to Manila
and the others succeeded in living separate from their companions who
continued living together.
To determine whether or not the mayor acted with a good purpose and legal
object and whether he has acted in good or bad faith in proceeding to dissolve
the said community of prostitutes and to oblige them to change their domicile,
it is necessary to consider not only the rights and interests of the said women
and especially of the patrons who have been directing and conducting such a
reproachable enterprise and shameful business in one of the suburbs of this city,
but also the rights and interests of the very numerous people of Manila where
relatively a few transients accidentally and for some days reside, the inhabitants
thereof being more than three hundred thousand (300,000) who can not, with
indifference and without repugnance, live in the same place with so many
unfortunate women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of
social morality are to be taken into account, it is not possible to sustain that it
is legal and permissible to establish a house of pandering or prostitution in the
midst of an enlightened population, for, although there were no positive laws
prohibiting the existence of such houses within a district of Manila, the dictates
of common sense and dictates of conscience of its inhabitants are sufficient to
warrant the public administration, acting correctly, in exercising the inevitable
duty of ordering the closing and abandonment of a house of prostitution
ostensibly open to the public, and of obliging the inmates thereof to leave it,
although such a house is inhabited by its true owner who invokes in his behalf
the protection of the constitutional law guaranteeing his liberty, his individual
rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious
disease cannot invoke in his favor the constitutional law which guarantees his
liberty and individual rights, should the administrative authority order his
hospitalization, reclusion, or concentration in a certain island or distant point in
order to free from contagious the great majority of the inhabitants of the country
who fortunately do not have such diseases. The same reasons exist or stand
good with respect to the unfortunate women dedicated to prostitution, and such
reasons become stronger because the first persons named have contracted their
diseases without their knowledge and even against their will, whereas the
unfortunate prostitutes voluntarily adopted such manner of living and
spontaneously accepted all its consequences, knowing positively that their
constant intercourse with men of all classes, notwithstanding the cleanliness
and precaution which they are wont to adopt, gives way to the spread or
multiplication of the disease known as syphilis, a venereal disease, which,
although it constitutes a secret disease among men and women, is still
prejudicial to the human species in the same degree, scope, and seriousness as
cholera, tuberculosis, leprosy, pest, typhoid, and other contagious diseases
which produce great mortality and very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to
her sex, which can give her sufficient remuneration for her subsistence, prefers
to put herself under the will of another woman who is usually older than she is
and who is the manager or owner of a house of prostitution, or spontaneously
dedicates herself to this shameful profession, it is undeniable that she
voluntarily and with her own knowledge renounces her liberty and individual
rights guaranteed by the Constitution, because it is evident that she can not join
the society of decent women nor can she expect to get the same respect that is
due to the latter, nor is it possible for her to live within the community or society
with the same liberty and rights enjoyed by every citizen. Considering her
dishonorable conduct and life, she should therefore be comprised within that
class which is always subject to the police and sanitary regulations conducive
to the maintenance of public decency and morality and to the conservation of
public health, and for this reason it should not permitted that the unfortunate
women dedicated to prostitution evade the just orders and resolutions adopted
by the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor
women, but those who have been worrying so much about the prejudice
resulting from a governmental measure, which being a very drastic remedy may
be considered arbitrary, have failed to consider with due reflection the interests
of the inhabitants of this city in general and particularly the duties and
responsibilities weighing upon the authorities which administer and govern it;
they have forgotten that many of those who criticize and censure the mayor are
fathers of families and are in duty bound to take care of their children.
516 of 692
For the foregoing reasons, we reach the conclusion that when the petitioners,
because of the abnormal life they assumed, were obliged to change their
residence not by a private citizen but by the mayor of the city who is directly
responsible for the conservation of public health and social morality, the latter
could take the step he had taken, availing himself of the services of the police
in good faith and only with the purpose of protecting the immense majority of
the population from the social evils and diseases which the houses of
prostitution situated in Gardenia Street have been producing, which houses
have been constituting for years a true center for the propagation of general
diseases and other evils derived therefrom. Hence, in ordering the dissolution
and abandonment of the said houses of prostitution and the change of the
domicile of the inmates thereof, the mayor did not in bad faith violate the
constitutional laws which guarantees the liberty and the individual rights of
every Filipino, inasmuch as the women petitioners do not absolutely enjoy the
said liberty and rights, the exercise of which they have voluntarily renounced
in exchange for the free practice of their shameful profession.
In very highly advanced and civilized countries, there have been adopted by the
administrative authorities similar measures, more or less rigorous, respecting
prostitutes, considering them prejudicial to the people, although it is true that
in the execution of such measures more humane and less drastic procedures,
fortiter in re et suaviter in forma, have been adopted, but such procedures have
always had in view the ultimate object of the Government for the sake of the
community, that is, putting an end to the living together in a certain place of
women dedicated to prostitution and changing their domicile, with the
problematical hope that they adopt another manner of living which is better and
more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that
Mayor Justo Lukban is obliged to take back and restore the said women who
are at present found in Davao, and who desire to return to their former
respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk of
court their preference to reside in Davao, which manifestation must be made
under oath. This resolution must be transmitted to the mayor within the shortest
time possible for its due compliance. The costs shall be charged de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision
rendered in these proceedings, with respect to the finding as to the importance
of the contempt committed, according to the same decision, by Justo Lukban,
Mayor of the city of Manila, and the consequent imposition upon him of a
nominal fine of P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yñigo to present the persons named in the writ
before the court on December 2, 1918. The order was dated November 4, 1918.
The respondents were thus given ample time, practically one month, to comply
with the writ. As far as the record disclosed, the mayor of the city of Manila
waited until the 21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the Attorney for the Bureau
of Labor to the telegram of his chief, there were then in Davao women who
desired to return to Manila, but who should not be permitted to do so because
of having contracted debts. The half-hearted effort naturally resulted in none of
the parties in question being brought before the court on the day named.
In accordance with section 87 of General Orders No. 58, as said in the same
decision, the respondents, for the purpose of complying with the order of the
court, could have, (1) produced the bodies of the persons according to the
command of the writ; (2) shown by affidavits that on account of sickness or
infirmity the said women could not safely be brought before this court; and (3)
presented affidavits to show that the parties in question or their lawyers waived
their right to be present. According to the same decision, the said respondents
". . . did not produce the bodies of the persons in whose behalf the writ was
granted; did not show impossibility of performance; and did not present
writings, that waived the right to be present by those interested. Instead, a few
stereotyped affidavits purporting to show that the women were contented with
their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable
number of the women, at least sixty, could have been brought back to Manila
is demonstrated by the fact that during this time they were easily to be found in
the municipality of Davao, and that about this number either returned at their
own expense or were produced at the second hearing by the respondents."
517 of 692

The majority opinion also recognized that, "That court, at the time the return to
its first order was made, would have been warranted summarily in finding the
respondent guilty of contempt of court, and in sending them to jail until they
obeyed the order. Their excuses for the non production of the persons were far
from sufficient." To corroborate this, the majority decision cites the case of the
Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that
the return did not show that every possible effort to produce the women was
made by the respondents."
When the said return by the respondents was made to this court in banc and the
case discussed, my opinion was that Mayor Lukban should have been
immediately punished for contempt. Nevertheless, a second order referred to in
the decision was issued on December 10, 1918, requiring the respondents to
produce before the court, on January 13, 1919, the women who were not in
Manila, unless they could show that it was impossible to comply with the said
order on the two grounds previously mentioned. With respect to this second
order, the same decision has the following to say:
In response to the second order of the court, the respondents appear to have
become more zealous and to have shown a better spirit. Agents were dispatched
to Mindanao, placards were posted, the constabulary and the municipal police
joined in rounding up the women, and a steamer with free transportation to
Manila was provided. While charges and countercharges in such a bitterly
contested case are to be expected, and while a critical reading of the record
might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse
from the date of the issuance of the first order on November 4th till the 21st of
the same month before taking the first step for compliance with the mandate of
the said order; he waited till the 21st of November, as the decision says, before
he sent a telegram to the provincial governor o f Davao and naturally this half-
hearted effort, as is so qualified in the decision, resulted in that none of the
women appeared before this court on December 2nd. Thus, the said order was
not complied with, and in addition to this noncompliance there was the
circumstances that seven of the said women having returned to Manila at their
own expense before the said second day of December and being in the
antechamber of the court room, which fact was known to Chief of Police
Hohmann, who was then present at the trial and to the attorney for the
respondents, were not produced before the court by the respondents nor did the
latter show any effort to present them, in spite of the fact that their attention
was called to this particular by the undersigned.
The result of the said second order was, as is said in the same decision, that the
respondents, on January 13th, the day fixed for the protection of the women
before this court, presented technically the seven (7) women above-mentioned
who had returned to the city at their own expense and the other eight (8) women
whom the respondents themselves brought to Manila, alleging moreover that
their agents and subordinates succeeded in bringing them from Davao with their
consent; that in Davao they found eighty-one (81) women who, when asked if
they desired to return to Manila with free transportation, renounced such a right,
as is shown in the affidavits presented by the respondents to this effect; that,
through other means, fifty-nine (59) women have already returned to Manila,
but notwithstanding the efforts made to find them it was not possible to locate
the whereabouts of twenty-six (26) of them. Thus, in short, out of the one
hundred and eighty-one (181) women who, as has been previously said, have
been illegally detained by Mayor Lukban and Chief of Police Hohmann and
transported to Davao against their will, only eight (8) have been brought to
Manila and presented before this court by the respondents in compliance with
the said two orders. Fifty-nine (59) of them have returned to Manila through
other means not furnished by the respondents, twenty-six of whom were
brought by the attorney for the petitioners, Mendoza, on his return from Davao.
The said attorney paid out of his own pocket the transportation of the said
twenty-six women. Adding to these numbers the other seven (7) women who
returned to this city at their own expense before January 13 we have a total of
sixty-six (66), which evidently proves, on the one hand, the falsity of the
allegation by the respondents in their first answer at the trial of December 2,
1918, giving as one of the reasons for their inability to present any of the said
women that the latter were content with their life in Mindanao and did not desire
to return to Manila; and, on the other hand, that the respondents, especially the
first named, that is Mayor Justo Lukban, who acted as chief and principal in all
that refers to the compliance with the orders issued by this court, could bring
before December 2nd, the date of the first hearing of the case, as well as before
518 of 692
January 13th, the date fixed for the compliance with the second order, if not the
seventy-four (74) women already indicated, at least a great number of them, or
at least sixty (60) of them, as is said in the majority decision, inasmuch as the
said respondent could count upon the aid of the Constabulary forces and the
municipal police, and had transportation facilities for the purpose. But the said
respondent mayor brought only eight (8) of the women before this court on
January 13th. This fact can not, in my judgment, with due respect to the
majority opinion, justify the conclusion that the said respondent has
substantially complied with the second order of this court, but on the other hand
demonstrates that he had not complied with the mandate of this court in its first
and second orders; that neither of the said orders has been complied with by the
respondent Justo Lukban, Mayor of the city of Manila, who is, according to the
majority decision, principally responsible for the contempt, to which conclusion
I agree. The conduct of the said respondent with respect to the second order
confirms the contempt committed by non-compliance with the first order and
constitutes a new contempt because of non-compliance with the second,
because of the production of only eight (8) of the one hundred and eighty-one
(181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women
who could not be found in Davao, demonstrates in my opinion that,
notwithstanding the nature of the case which deals with the remedy of habeas
corpus, presented by the petitioners and involving the question whether they
should or not be granted their liberty, the respondent has not given due attention
to the same nor has he made any effort to comply with the second order. In
other words, he has disobeyed the said two orders; has despised the authority
of this court; has failed to give the respect due to justice; and lastly, he has
created and placed obstacles to the administration of justice in the said habeas
corpus proceeding, thus preventing, because of his notorious disobedience, the
resolution of the said proceeding with the promptness which the nature of the
same required.
Contempt of court has been defined as a despising of the authority, justice, or
dignity of the court; and he is guilty of contempt whose conduct is such as tends
to bring the authority and administration of the law into disrespect or disregard.
. . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court
constitutes contempt, unless the defendant is unable to comply therewith.
(Ruling Case Law, vol. 6, p. 502.)
It is contempt to employ a subterfuge to evade the judgment of the court, or to
obstruct or attempt to obstruct the service of legal process. If a person hinders
or prevents the service of process by deceiving the officer or circumventing him
by any means, the result is the same as though he had obstructed by some direct
means. (Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often do, of
enforcing respect for the law and for the means it has provided in civilized
communities for establishing justice, since true respect never comes in that way,
it is apparent nevertheless that the power to enforce decorum in the courts and
obedience to their orders and just measures is so essentially a part of the life of
the courts that it would be difficult to conceive of their usefulness or efficiency
as existing without it. Therefore it may be said generally that where due respect
for the courts as ministers of the law is wanting, a necessity arises for the use
of compulsion, not, however, so much to excite individual respect as to compel
obedience or to remove an unlawful or unwarranted interference with the
administration of justice. (Ruling Case Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the law itself, and has been
exercised from the earliest times. In England it has been exerted when the
contempt consisted of scandalizing the sovereign or his ministers, the law-
making power, or the courts. In the American states the power to punish for
contempt, so far as the executive department and the ministers of state are
concerned, and in some degree so far as the legislative department is concerned,
is obsolete, but it has been almost universally preserved so far as regards the
judicial department. The power which the courts have of vindicating their own
authority is a necessary incident to every court of justice, whether of record or
not; and the authority for issuing attachments in a proper case for contempts out
of court, it has been declared, stands upon the same immemorial usage as
supports the whole fabric of the common law. . . . (Ruling Case Law, vol. 6, p.
489.)
The undisputed importance of the orders of this court which have been
disobeyed; the loss of the prestige of the authority of the court which issued the
519 of 692
said orders, which loss might have been caused by noncompliance with the
same orders on the part of the respondent Justo Lukban; the damages which
might have been suffered by some of the women illegally detained, in view of
the fact that they were not brought to Manila by the respondents to be presented
before the court and of the further fact that some of them were obliged to come
to this city at their own expense while still others were brought to Manila by
the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was necessarily incurred
in the resolution of the petition interposed by the said petitioners and which was
due to the fact that the said orders were not opportunately and duly obeyed and
complied with, are circumstances which should be taken into account in
imposing upon the respondent Justo Lukban the penalty corresponding to the
contempt committed by him, a penalty which, according to section 236 of the
Code of Civil Procedure, should consist of a fine not exceeding P1,000 or
imprisonment not exceeding months, or both such fine and imprisonment. In
the imposition of the penalty, there should also be taken into consideration the
special circumstance that the contempt was committed by a public authority,
the mayor of the city of Manila, the first executive authority of the city, and
consequently, the person obliged to be the first in giving an example of
obedience and respect for the laws and the valid and just orders of the duly
constituted authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that justice may be
administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there
should be imposed upon the respondent Justo Lukban a fine of five hundred
pesos (P500), and all the costs should be charged against him. Lastly, I believe
it to be my duty to state here that the records of this proceeding should be
transmitted to the Attorney-General in order that, after a study of the same and
deduction from the testimony which he may deem necessary, and the proper
transmittal of the same to the fiscal of the city of Manila and to the provincial
fiscal of Davao, both the latter shall present the corresponding informations for
the prosecution and punishment of the crimes which have been committed on
the occasion when the illegal detention of the women was carried into effect by
Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann,
and also of those crimes committed by reason of the same detention and while
the women were in Davao. This will be one of the means whereby the just hope
expressed in the majority decision will be realized, that is, that in the Philippine
Islands there should exist a government of laws and not a government of men
and that this decision may serve to bulwark the fortifications of an orderly
Government of laws and to protect individual liberty from illegal
encroachments.
Inchong v. Hernandez
101 Phil. 115
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien residents,
corporations and partnerships adversely affected. by Republic Act No. 1180,
petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO
SARMIENTO, City Treasurer of Manila, respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates
for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de
Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for
respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and
constitutionality of a legislative enactment, fundamental and far-reaching in
significance. The enactment poses questions of due process, police power and
equal protection of the laws. It also poses an important issue of fact, that is
whether the conditions which the disputed law purports to remedy really or
actually exist. Admittedly springing from a deep, militant, and positive
520 of 692
nationalistic impulse, the law purports to protect citizen and country from the
alien retailer. Through it, and within the field of economy it regulates, Congress
attempts to translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival and welfare,
into a concrete and tangible measures designed to free the national retailer from
the competing dominance of the alien, so that the country and the nation may
be free from a supposed economic dependence and bondage. Do the facts and
circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In
effect it nationalizes the retail trade business. The main provisions of the Act
are: (1) a prohibition against persons, not citizens of the Philippines, and against
associations, partnerships, or corporations the capital of which are not wholly
owned by citizens of the Philippines, from engaging directly or indirectly in the
retail trade; (2) an exception from the above prohibition in favor of aliens
actually engaged in said business on May 15, 1954, who are allowed to continue
to engaged therein, unless their licenses are forfeited in accordance with the
law, until their death or voluntary retirement in case of natural persons, and for
ten years after the approval of the Act or until the expiration of term in case of
juridical persons; (3) an exception therefrom in favor of citizens and juridical
entities of the United States; (4) a provision for the forfeiture of licenses (to
engage in the retail business) for violation of the laws on nationalization,
control weights and measures and labor and other laws relating to trade,
commerce and industry; (5) a prohibition against the establishment or opening
by aliens actually engaged in the retail business of additional stores or branches
of retail business, (6) a provision requiring aliens actually engaged in the retail
business to present for registration with the proper authorities a verified
statement concerning their businesses, giving, among other matters, the nature
of the business, their assets and liabilities and their offices and principal offices
of judicial entities; and (7) a provision allowing the heirs of aliens now engaged
in the retail business who die, to continue such business for a period of six
months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents
corporations and partnerships adversely affected by the provisions of Republic
Act. No. 1180, brought this action to obtain a judicial declaration that said Act
is unconstitutional, and to enjoin the Secretary of Finance and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act, contending that:
(1) it denies to alien residents the equal protection of the laws and deprives of
their liberty and property without due process of law ; (2) the subject of the Act
is not expressed or comprehended in the title thereof; (3) the Act violates
international and treaty obligations of the Republic of the Philippines; (4) the
provisions of the Act against the transmission by aliens of their retail business
thru hereditary succession, and those requiring 100% Filipino capitalization for
a corporation or entity to entitle it to engage in the retail business, violate the
spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the
Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend
that: (1) the Act was passed in the valid exercise of the police power of the
State, which exercise is authorized in the Constitution in the interest of national
economic survival; (2) the Act has only one subject embraced in the title; (3)
no treaty or international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property is not
impaired, and the institution of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
There is no question that the Act was approved in the exercise of the police
power, but petitioner claims that its exercise in this instance is attended by a
violation of the constitutional requirements of due process and equal protection
of the laws. But before proceeding to the consideration and resolution of the
ultimate issue involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever
recurrent conflict between police power and the guarantees of due process and
equal protection of the laws. What is the scope of police power, and how are
the due process and equal protection clauses related to it? What is the province
and power of the legislature, and what is the function and duty of the courts?
521 of 692
These consideration must be clearly and correctly understood that their
application to the facts of the case may be brought forth with clarity and the
issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become
almost impossible to limit its sweep. As it derives its existence from the very
existence of the State itself, it does not need to be expressed or defined in its
scope; it is said to be co-extensive with self-protection and survival, and as such
it is the most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a modern democratic
framework where the demands of society and of nations have multiplied to
almost unimaginable proportions; the field and scope of police power has
become almost boundless, just as the fields of public interest and public welfare
have become almost all-embracing and have transcended human foresight.
Otherwise stated, as we cannot foresee the needs and demands of public interest
and welfare in this constantly changing and progressive world, so we cannot
delimit beforehand the extent or scope of police power by which and through
which the State seeks to attain or achieve interest or welfare. So it is that
Constitutions do not define the scope or extent of the police power of the State;
what they do is to set forth the limitations thereof. The most important of these
are the due process clause and the equal protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are found in the
following provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without
due process of law, nor any person be denied the equal protection of the laws.
(Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty
and freedom in democracies, are not limited to citizens alone but are admittedly
universal in their application, without regard to any differences of race, of color,
or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and individual or
class privilege, as well as hostile discrimination or the oppression of inequality.
It is not intended to prohibit legislation, which is limited either in the object to
which it is directed or by territory within which is to operate. It does not demand
absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed
by legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable grounds
exists for making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of legislation enacted
in pursuance of the police power. Is there public interest, a public purpose; is
public welfare involved? Is the Act reasonably necessary for the
accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or reason in connection with the
matter involved; or has there not been a capricious use of the legislative power?
Can the aims conceived be achieved by the means used, or is it not merely an
unjustified interference with private interest? These are the questions that we
ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process
and equal protection of the laws is more apparent than real. Properly related,
the power and the guarantees are supposed to coexist. The balancing is the
essence or, shall it be said, the indispensable means for the attainment of
legitimate aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there can neither be
absolute liberty, for that would mean license and anarchy. So the State can
deprive persons of life, liberty and property, provided there is due process of
law; and persons may be classified into classes and groups, provided everyone
is given the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on public interest
and welfare, and a reasonable relation must exist between purposes and means.
And if distinction and classification has been made, there must be a reasonable
basis for said distinction.
522 of 692

e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper place and role of
the courts? It must not be overlooked, in the first place, that the legislature,
which is the constitutional repository of police power and exercises the
prerogative of determining the policy of the State, is by force of circumstances
primarily the judge of necessity, adequacy or reasonableness and wisdom, of
any law promulgated in the exercise of the police power, or of the measures
adopted to implement the public policy or to achieve public interest. On the
other hand, courts, although zealous guardians of individual liberty and right,
have nevertheless evinced a reluctance to interfere with the exercise of the
legislative prerogative. They have done so early where there has been a clear,
patent or palpable arbitrary and unreasonable abuse of the legislative
prerogative. Moreover, courts are not supposed to override legitimate policy,
and courts never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly
into the issue involved. If the disputed legislation were merely a regulation, as
its title indicates, there would be no question that it falls within the legitimate
scope of legislative power. But it goes further and prohibits a group of residents,
the aliens, from engaging therein. The problem becomes more complex because
its subject is a common, trade or occupation, as old as society itself, which from
the immemorial has always been open to residents, irrespective of race, color
or citizenship.
a. Importance of retail trade in the economy of the nation. —
In a primitive economy where families produce all that they consume and
consume all that they produce, the dealer, of course, is unknown. But as group
life develops and families begin to live in communities producing more than
what they consume and needing an infinite number of things they do not
produce, the dealer comes into existence. As villages develop into big
communities and specialization in production begins, the dealer's importance is
enhanced. Under modern conditions and standards of living, in which man's
needs have multiplied and diversified to unlimited extents and proportions, the
retailer comes as essential as the producer, because thru him the infinite variety
of articles, goods and needed for daily life are placed within the easy reach of
consumers. Retail dealers perform the functions of capillaries in the human
body, thru which all the needed food and supplies are ministered to members
of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of
the community. He ministers to the resident's daily needs, food in all its
increasing forms, and the various little gadgets and things needed for home and
daily life. He provides his customers around his store with the rice or corn, the
fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths
to sell, even the needle and the thread to sew them or darn the clothes that wear
out. The retailer, therefore, from the lowly peddler, the owner of a small sari-
sari store, to the operator of a department store or, a supermarket is so much a
part of day-to-day existence.
b. The alien retailer's trait. —
The alien retailer must have started plying his trades in this country in the bigger
centers of population (Time there was when he was unknown in provincial
towns and villages). Slowly but gradually be invaded towns and villages; now
he predominates in the cities and big centers of population. He even pioneers,
in far away nooks where the beginnings of community life appear, ministering
to the daily needs of the residents and purchasing their agricultural produce for
sale in the towns. It is an undeniable fact that in many communities the alien
has replaced the native retailer. He has shown in this trade, industry without
limit, and the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur;
insults of ill-bred and insolent neighbors and customers are made in his face,
but he heeds them not, and he forgets and forgives. The community takes note
of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance. —
There is a general feeling on the part of the public, which appears to be true to
fact, about the controlling and dominant position that the alien retailer holds in
the nation's economy. Food and other essentials, clothing, almost all articles of
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daily life reach the residents mostly through him. In big cities and centers of
population he has acquired not only predominance, but apparent control over
distribution of almost all kinds of goods, such as lumber, hardware, textiles,
groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And
were it not for some national corporations like the Naric, the Namarco, the
Facomas and the Acefa, his control over principal foods and products would
easily become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade.
In one breath it is said that the fear is unfounded and the threat is imagined; in
another, it is charged that the law is merely the result of radicalism and pure
and unabashed nationalism. Alienage, it is said, is not an element of control;
also so many unmanageable factors in the retail business make control virtually
impossible. The first argument which brings up an issue of fact merits serious
consideration. The others are matters of opinion within the exclusive
competence of the legislature and beyond our prerogative to pass upon and
decide.
The best evidence are the statistics on the retail trade, which put down the
figures in black and white. Between the constitutional convention year (1935),
when the fear of alien domination and control of the retail trade already filled
the minds of our leaders with fears and misgivings, and the year of the
enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the
alien of the retail trade, as witness the following tables:
[see next page for tables]
The above statistics do not include corporations and partnerships, while the
figures on Filipino establishments already include mere market vendors, whose
capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross
sales, alien participation has steadily increased during the years. It is true, of
course, that Filipinos have the edge in the number of retailers, but aliens more
than make up for the numerical gap through their assests and gross sales which
average between six and seven times those of the very many Filipino retailers.
Numbers in retailers, here, do not imply superiority; the alien invests more
capital, buys and sells six to seven times more, and gains much more. The same
official report, pointing out to the known predominance of foreign elements in
the retail trade, remarks that the Filipino retailers were largely engaged in minor
retailer enterprises. As observed by respondents, the native investment is thinly
spread, and the Filipino retailer is practically helpless in matters of capital,
credit, price and supply.
d. Alien control and threat, subject of apprehension in Constitutional
convention. —
It is this domination and control, which we believe has been sufficiently shown
to exist, that is the legislature's target in the enactment of the disputed
nationalization would never have been adopted. The framers of our Constitution
also believed in the existence of this alien dominance and control when they
approved a resolution categorically declaring among other things, that "it is the
sense of the Convention that the public interest requires the nationalization of
the retail trade; . . . ." (II Aruego, The Framing of the Philippine Constitution,
662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and
the events since then have not been either pleasant or comforting. Dean Sinco
of the University of the Philippines College of Law, commenting on the
patrimony clause of the Preamble opines that the fathers of our Constitution
were merely translating the general preoccupation of Filipinos "of the dangers
from alien interests that had already brought under their control the commercial
and other economic activities of the country" (Sinco, Phil. Political Law, 10th
ed., p. 114); and analyzing the concern of the members of the constitutional
convention for the economic life of the citizens, in connection with the
nationalistic provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic
life of the country is not desirable and that if such a situation should remain,
political independence alone is no guarantee to national stability and strength.
Filipino private capital is not big enough to wrest from alien hands the control
of the national economy. Moreover, it is but of recent formation and hence,
largely inexperienced, timid and hesitant. Under such conditions, the
government as the instrumentality of the national will, has to step in and assume
the initiative, if not the leadership, in the struggle for the economic freedom of
the nation in somewhat the same way that it did in the crusade for political
freedom. Thus . . . it (the Constitution) envisages an organized movement for
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the protection of the nation not only against the possibilities of armed invasion
but also against its economic subjugation by alien interests in the economic
field. (Phil. Political Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other
quarters. Filipino businessmen, manufacturers and producers believe so; they
fear the dangers coming from alien control, and they express sentiments of
economic independence. Witness thereto is Resolution No. 1, approved on July
18, 1953, of the Fifth National convention of Filipino Businessmen, and a
similar resolution, approved on March 20, 1954, of the Second National
Convention of Manufacturers and Producers. The man in the street also
believes, and fears, alien predominance and control; so our newspapers, which
have editorially pointed out not only to control but to alien stranglehold. We,
therefore, find alien domination and control to be a fact, a reality proved by
official statistics, and felt by all the sections and groups that compose the
Filipino community.
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade does not seem
to lie in the predominance alone; there is a prevailing feeling that such
predominance may truly endanger the national interest. With ample capital,
unity of purpose and action and thorough organization, alien retailers and
merchants can act in such complete unison and concert on such vital matters as
the fixing of prices, the determination of the amount of goods or articles to be
made available in the market, and even the choice of the goods or articles they
would or would not patronize or distribute, that fears of dislocation of the
national economy and of the complete subservience of national economy and
of the consuming public are not entirely unfounded. Nationals, producers and
consumers alike can be placed completely at their mercy. This is easily
illustrated. Suppose an article of daily use is desired to be prescribed by the
aliens, because the producer or importer does not offer them sufficient profits,
or because a new competing article offers bigger profits for its introduction. All
that aliens would do is to agree to refuse to sell the first article, eliminating it
from their stocks, offering the new one as a substitute. Hence, the producers or
importers of the prescribed article, or its consumers, find the article suddenly
out of the prescribed article, or its consumers, find the article suddenly out of
circulation. Freedom of trade is thus curtailed and free enterprise
correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious
influences of alien domination. Grave abuses have characterized the exercise
of the retail trade by aliens. It is a fact within judicial notice, which courts of
justice may not properly overlook or ignore in the interests of truth and justice,
that there exists a general feeling on the part of the public that alien participation
in the retail trade has been attended by a pernicious and intolerable practices,
the mention of a few of which would suffice for our purposes; that at some time
or other they have cornered the market of essential commodities, like corn and
rice, creating artificial scarcities to justify and enhance profits to unreasonable
proportions; that they have hoarded essential foods to the inconvenience and
prejudice of the consuming public, so much so that the Government has had to
establish the National Rice and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that they have violated price
control laws, especially on foods and essential commodities, such that the
legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their
immediate and automatic deportation for price control convictions; that they
have secret combinations among themselves to control prices, cheating the
operation of the law of supply and demand; that they have connived to boycott
honest merchants and traders who would not cater or yield to their demands, in
unlawful restraint of freedom of trade and enterprise. They are believed by the
public to have evaded tax laws, smuggled goods and money into and out of the
land, violated import and export prohibitions, control laws and the like, in
derision and contempt of lawful authority. It is also believed that they have
engaged in corrupting public officials with fabulous bribes, indirectly causing
the prevalence of graft and corruption in the Government. As a matter of fact
appeals to unscrupulous aliens have been made both by the Government and by
their own lawful diplomatic representatives, action which impliedly admits a
prevailing feeling about the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things
may come in the future. The present dominance of the alien retailer, especially
in the big centers of population, therefore, becomes a potential source of danger
on occasions of war or other calamity. We do not have here in this country
isolated groups of harmless aliens retailing goods among nationals; what we
have are well organized and powerful groups that dominate the distribution of
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goods and commodities in the communities and big centers of population. They
owe no allegiance or loyalty to the State, and the State cannot rely upon them
in times of crisis or emergency. While the national holds his life, his person and
his property subject to the needs of his country, the alien may even become the
potential enemy of the State.
f. Law enacted in interest of national economic survival and security. —
We are fully satisfied upon a consideration of all the facts and circumstances
that the disputed law is not the product of racial hostility, prejudice or
discrimination, but the expression of the legitimate desire and determination of
the people, thru their authorized representatives, to free the nation from the
economic situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of the public, nay
of the national security itself, and indisputably falls within the scope of police
power, thru which and by which the State insures its existence and security and
the supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next question that now
poses solution is, Does the law deny the equal protection of the laws? As
pointed out above, the mere fact of alienage is the root and cause of the
distinction between the alien and the national as a trader. The alien resident
owes allegiance to the country of his birth or his adopted country; his stay here
is for personal convenience; he is attracted by the lure of gain and profit. His
aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is
naturally lacking in that spirit of loyalty and enthusiasm for this country where
he temporarily stays and makes his living, or of that spirit of regard, sympathy
and consideration for his Filipino customers as would prevent him from taking
advantage of their weakness and exploiting them. The faster he makes his pile,
the earlier can the alien go back to his beloved country and his beloved kin and
countrymen. The experience of the country is that the alien retailer has shown
such utter disregard for his customers and the people on whom he makes his
profit, that it has been found necessary to adopt the legislation, radical as it may
seem.
Another objection to the alien retailer in this country is that he never really
makes a genuine contribution to national income and wealth. He undoubtedly
contributes to general distribution, but the gains and profits he makes are not
invested in industries that would help the country's economy and increase
national wealth. The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting the very
important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already
pointed out above, their secret manipulations of stocks of commodities and
prices, their utter disregard of the welfare of their customers and of the ultimate
happiness of the people of the nation of which they are mere guests, which
practices, manipulations and disregard do not attend the exercise of the trade
by the nationals, show the existence of real and actual, positive and fundamental
differences between an alien and a national which fully justify the legislative
classification adopted in the retail trade measure. These differences are
certainly a valid reason for the State to prefer the national over the alien in the
retail trade. We would be doing violence to fact and reality were we to hold that
no reason or ground for a legitimate distinction can be found between one and
the other.
b. Difference in alien aims and purposes sufficient basis for distinction. —
The above objectionable characteristics of the exercise of the retail trade by the
aliens, which are actual and real, furnish sufficient grounds for legislative
classification of retail traders into nationals and aliens. Some may disagree with
the wisdom of the legislature's classification. To this we answer, that this is the
prerogative of the law-making power. Since the Court finds that the
classification is actual, real and reasonable, and all persons of one class are
treated alike, and as it cannot be said that the classification is patently
unreasonable and unfounded, it is in duty bound to declare that the legislature
acted within its legitimate prerogative and it can not declare that the act
transcends the limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and
classifications among persons is not curtailed or denied by the equal protection
of the laws clause. The legislative power admits of a wide scope of discretion,
and a law can be violative of the constitutional limitation only when the
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classification is without reasonable basis. In addition to the authorities we have
earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas
Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the application
of equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not
take from the state the power to classify in the adoption of police laws, but
admits of the exercise of the wide scope of discretion in that regard, and avoids
what is done only when it is without any reasonable basis, and therefore is
purely arbitrary. 2. A classification having some reasonable basis does not
offend against that clause merely because it is not made with mathematical
nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably
can be conceived that would sustain it, the existence of that state of facts at the
time the law was enacted must be assumed. 4. One who assails the classification
in such a law must carry the burden of showing that it does not rest upon any
reasonable basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification. —
The question as to whether or not citizenship is a legal and valid ground for
classification has already been affirmatively decided in this jurisdiction as well
as in various courts in the United States. In the case of Smith Bell & Co. vs.
Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine
Legislature was in issue, because of a condition therein limiting the ownership
of vessels engaged in coastwise trade to corporations formed by citizens of the
Philippine Islands or the United States, thus denying the right to aliens, it was
held that the Philippine Legislature did not violate the equal protection clause
of the Philippine Bill of Rights. The legislature in enacting the law had as
ultimate purpose the encouragement of Philippine shipbuilding and the safety
for these Islands from foreign interlopers. We held that this was a valid exercise
of the police power, and all presumptions are in favor of its constitutionality. In
substance, we held that the limitation of domestic ownership of vessels engaged
in coastwise trade to citizens of the Philippines does not violate the equal
protection of the law and due process or law clauses of the Philippine Bill of
Rights. In rendering said decision we quoted with approval the concurring
opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as
follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for
example, acts licensing gaming houses, retailers of spirituous liquors, etc. The
act, in this instance, is distinctly of that character, and forms part of an extensive
system, the object of which is to encourage American shipping, and place them
on an equal footing with the shipping of other nations. Almost every
commercial nation reserves to its own subjects a monopoly of its coasting trade;
and a countervailing privilege in favor of American shipping is contemplated,
in the whole legislation of the United States on this subject. It is not to give the
vessel an American character, that the license is granted; that effect has been
correctly attributed to the act of her enrollment. But it is to confer on her
American privileges, as contra distinguished from foreign; and to preserve the
Government from fraud by foreigners; in surreptitiously intruding themselves
into the American commercial marine, as well as frauds upon the revenue in
the trade coastwise, that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a
classification otherwise justified simply because the limitation of the class falls
along the lines of nationality. That would be requiring a higher degree of
protection for aliens as a class than for similar classes than for similar classes
of American citizens. Broadly speaking, the difference in status between
citizens and aliens constitutes a basis for reasonable classification in the
exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on
the licensing of hawkers and peddlers, which provided that no one can obtain a
license unless he is, or has declared his intention, to become a citizen of the
United States, was held valid, for the following reason: It may seem wise to the
legislature to limit the business of those who are supposed to have regard for
the welfare, good order and happiness of the community, and the court cannot
question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309
(Ohio, 1912), a statute which prevented certain persons, among them aliens,
from engaging in the traffic of liquors, was found not to be the result of race
hatred, or in hospitality, or a deliberate purpose to discriminate, but was based
on the belief that an alien cannot be sufficiently acquainted with "our
institutions and our life as to enable him to appreciate the relation of this
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particular business to our entire social fabric", and was not, therefore, invalid.
In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the
U.S. Supreme Court had under consideration an ordinance of the city of
Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to
aliens. It held that plainly irrational discrimination against aliens is prohibited,
but it does not follow that alien race and allegiance may not bear in some
instances such a relation to a legitimate object of legislation as to be made the
basis of permitted classification, and that it could not state that the legislation
is clearly wrong; and that latitude must be allowed for the legislative
appraisement of local conditions and for the legislative choice of methods for
controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129
(Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle,
210 P. 30 (Washington, 1922), the business of pawn brooking was considered
as having tendencies injuring public interest, and limiting it to citizens is within
the scope of police power. A similar statute denying aliens the right to engage
in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon,
1924), the court said that aliens are judicially known to have different interests,
knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance
of licenses to them for the business of pawnbroker, pool, billiard, card room,
dance hall, is not an infringement of constitutional rights. In Templar vs.
Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law
prohibiting the licensing of aliens as barbers was held void, but the reason for
the decision was the court's findings that the exercise of the business by the
aliens does not in any way affect the morals, the health, or even the convenience
of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479
(1947), a California statute banning the issuance of commercial fishing licenses
to person ineligible to citizenship was held void, because the law conflicts with
Federal power over immigration, and because there is no public interest in the
mere claim of ownership of the waters and the fish in them, so there was no
adequate justification for the discrimination. It further added that the law was
the outgrowth of antagonism toward the persons of Japanese ancestry.
However, two Justices dissented on the theory that fishing rights have been
treated traditionally as natural resources. In Fraser vs. McConway & Tarley
Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on
every employer of foreign-born unnaturalized male persons over 21 years of
age, was declared void because the court found that there was no reason for the
classification and the tax was an arbitrary deduction from the daily wage of an
employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State courts in the
United States hold that the distinction between aliens and citizens is not a valid
ground for classification. But in this decision the laws declared invalid were
found to be either arbitrary, unreasonable or capricious, or were the result or
product of racial antagonism and hostility, and there was no question of public
interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059
(1925), the United States Supreme Court declared invalid a Philippine law
making unlawful the keeping of books of account in any language other than
English, Spanish or any other local dialect, but the main reasons for the
decisions are: (1) that if Chinese were driven out of business there would be no
other system of distribution, and (2) that the Chinese would fall prey to all kinds
of fraud, because they would be deprived of their right to be advised of their
business and to direct its conduct. The real reason for the decision, therefore, is
the court's belief that no public benefit would be derived from the operations of
the law and on the other hand it would deprive Chinese of something
indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed
220 (1885) an ordinance conferring powers on officials to withhold consent in
the operation of laundries both as to persons and place, was declared invalid,
but the court said that the power granted was arbitrary, that there was no reason
for the discrimination which attended the administration and implementation of
the law, and that the motive thereof was mere racial hostility. In State vs.
Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as
hawkers and peddlers was declared void, because the discrimination bore no
reasonable and just relation to the act in respect to which the classification was
proposed.
The case at bar is radically different, and the facts make them so. As we already
have said, aliens do not naturally possess the sympathetic consideration and
regard for the customers with whom they come in daily contact, nor the patriotic
desire to help bolster the nation's economy, except in so far as it enhances their
profit, nor the loyalty and allegiance which the national owes to the land. These
limitations on the qualifications of the aliens have been shown on many
occasions and instances, especially in times of crisis and emergency. We can
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do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340,
342, to drive home the reality and significance of the distinction between the
alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country
are without the intimate knowledge of our laws, customs, and usages that our
own people have. So it is likewise known that certain classes of aliens are of
different psychology from our fellow countrymen. Furthermore, it is natural
and reasonable to suppose that the foreign born, whose allegiance is first to their
own country, and whose ideals of governmental environment and control have
been engendered and formed under entirely different regimes and political
systems, have not the same inspiration for the public weal, nor are they as well
disposed toward the United States, as those who by citizenship, are a part of the
government itself. Further enlargement, is unnecessary. I have said enough so
that obviously it cannot be affirmed with absolute confidence that the
Legislature was without plausible reason for making the classification, and
therefore appropriate discriminations against aliens as it relates to the subject
of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
— In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
We now come to due process as a limitation on the exercise of the police power.
It has been stated by the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only
that the law shall not be unreasonable, arbitrary or capricious, and that the
means selected shall have a real and substantial relation to the subject sought to
be attained. . . . .
xxx xxx xxx
So far as the requirement of due process is concerned and in the absence of
other constitutional restriction a state is free to adopt whatever economic policy
may reasonably be deemed to promote public welfare, and to enforce that policy
by legislation adapted to its purpose. The courts are without authority either to
declare such policy, or, when it is declared by the legislature, to override it. If
the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due
process are satisfied, and judicial determination to that effect renders a court
functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in
considering the scope of the police power in a constitutional sense, for the test
used to determine the constitutionality of the means employed by the legislature
is to inquire whether the restriction it imposes on rights secured to individuals
by the Bill of Rights are unreasonable, and not whether it imposes any
restrictions on such rights. . . .
xxx xxx xxx
. . . . A statute to be within this power must also be reasonable in its operation
upon the persons whom it affects, must not be for the annoyance of a particular
class, and must not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-
1075.)
. . . . To justify the state in thus interposing its authority in behalf of the public,
it must appear, first, that the interests of the public generally, as distinguished
from those of a particular class, require such interference; and second, that the
means are reasonably necessary for the accomplishment of the purpose, and not
unduly oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes
this test of constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of
the police power to regulate the operation of a business, is or is not
constitutional, one of the first questions to be considered by the court is whether
the power as exercised has a sufficient foundation in reason in connection with
the matter involved, or is an arbitrary, oppressive, and capricious use of that
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power, without substantial relation to the health, safety, morals, comfort, and
general welfare of the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary occupation, one
of those privileges long ago recognized as essential to the orderly pursuant of
happiness by free men; that it is a gainful and honest occupation and therefore
beyond the power of the legislature to prohibit and penalized. This arguments
overlooks fact and reality and rests on an incorrect assumption and premise,
i.e., that in this country where the occupation is engaged in by petitioner, it has
been so engaged by him, by the alien in an honest creditable and unimpeachable
manner, without harm or injury to the citizens and without ultimate danger to
their economic peace, tranquility and welfare. But the Legislature has found, as
we have also found and indicated, that the privilege has been so grossly abused
by the alien, thru the illegitimate use of pernicious designs and practices, that
he now enjoys a monopolistic control of the occupation and threatens a deadly
stranglehold on the nation's economy endangering the national security in times
of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which
overlooks and ignores the facts and circumstances, but this, Is the exclusion in
the future of aliens from the retail trade unreasonable. Arbitrary capricious,
taking into account the illegitimate and pernicious form and manner in which
the aliens have heretofore engaged therein? As thus correctly stated the answer
is clear. The law in question is deemed absolutely necessary to bring about the
desired legislative objective, i.e., to free national economy from alien control
and dominance. It is not necessarily unreasonable because it affects private
rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness
of a law is the appropriateness or adequacy under all circumstances of the
means adopted to carry out its purpose into effect (Id.) Judged by this test,
disputed legislation, which is not merely reasonable but actually necessary,
must be considered not to have infringed the constitutional limitation of
reasonableness.
The necessity of the law in question is explained in the explanatory note that
accompanied the bill, which later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent
persons who are not citizens of the Philippines from having a strangle hold upon
our economic life. If the persons who control this vital artery of our economic
life are the ones who owe no allegiance to this Republic, who have no profound
devotion to our free institutions, and who have no permanent stake in our
people's welfare, we are not really the masters of our destiny. All aspects of our
life, even our national security, will be at the mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive
persons who are not citizens of the Philippines of their means of livelihood.
While this bill seeks to take away from the hands of persons who are not citizens
of the Philippines a power that can be wielded to paralyze all aspects of our
national life and endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic
independence is none the less legitimate. Freedom and liberty are not real and
positive if the people are subject to the economic control and domination of
others, especially if not of their own race or country. The removal and
eradication of the shackles of foreign economic control and domination, is one
of the noblest motives that a national legislature may pursue. It is impossible to
conceive that legislation that seeks to bring it about can infringe the
constitutional limitation of due process. The attainment of a legitimate
aspiration of a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of
legislative action. —
The framers of the Constitution could not have intended to impose the
constitutional restrictions of due process on the attainment of such a noble
motive as freedom from economic control and domination, thru the exercise of
the police power. The fathers of the Constitution must have given to the
legislature full authority and power to enact legislation that would promote the
supreme happiness of the people, their freedom and liberty. On the precise issue
now before us, they expressly made their voice clear; they adopted a resolution
expressing their belief that the legislation in question is within the scope of the
legislative power. Thus they declared the their Resolution:
530 of 692

That it is the sense of the Convention that the public interest requires the
nationalization of retail trade; but it abstain from approving the amendment
introduced by the Delegate for Manila, Mr. Araneta, and others on this matter
because it is convinced that the National Assembly is authorized to promulgate
a law which limits to Filipino and American citizens the privilege to engage in
the retail trade. (11 Aruego, The Framing of the Philippine Constitution, quoted
on pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various
provisions of the Constitution. Thus in the preamble, a principle objective is the
conservation of the patrimony of the nation and as corollary the provision
limiting to citizens of the Philippines the exploitation, development and
utilization of its natural resources. And in Section 8 of Article XIV, it is
provided that "no franchise, certificate, or any other form of authorization for
the operation of the public utility shall be granted except to citizens of the
Philippines." The nationalization of the retail trade is only a continuance of the
nationalistic protective policy laid down as a primary objective of the
Constitution. Can it be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid
and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as
manifested in the approval of the radical measures is, therefore, fully justified.
It would have been recreant to its duties towards the country and its people
would it view the sorry plight of the nationals with the complacency and refuse
or neglect to adopt a remedy commensurate with the demands of public interest
and national survival. As the repository of the sovereign power of legislation,
the Legislature was in duty bound to face the problem and meet, through
adequate measures, the danger and threat that alien domination of retail trade
poses to national economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals how tolerant,
how reasonable the Legislature has been. The law is made prospective and
recognizes the right and privilege of those already engaged in the occupation to
continue therein during the rest of their lives; and similar recognition of the
right to continue is accorded associations of aliens. The right or privilege is
denied to those only upon conviction of certain offenses. In the deliberations of
the Court on this case, attention was called to the fact that the privilege should
not have been denied to children and heirs of aliens now engaged in the retail
trade. Such provision would defeat the law itself, its aims and purposes. Beside,
the exercise of legislative discretion is not subject to judicial review. It is well
settled that the Court will not inquire into the motives of the Legislature, nor
pass upon general matters of legislative judgment. The Legislature is primarily
the judge of the necessity of an enactment or of any of its provisions, and every
presumption is in favor of its validity, and though the Court may hold views
inconsistent with the wisdom of the law, it may not annul the legislation if not
palpably in excess of the legislative power. Furthermore, the test of the validity
of a law attacked as a violation of due process, is not its reasonableness, but its
unreasonableness, and we find the provisions are not unreasonable. These
principles also answer various other arguments raised against the law, some of
which are: that the law does not promote general welfare; that thousands of
aliens would be thrown out of employment; that prices will increase because of
the elimination of competition; that there is no need for the legislation; that
adequate replacement is problematical; that there may be general breakdown;
that there would be repercussions from foreigners; etc. Many of these
arguments are directed against the supposed wisdom of the law which lies
solely within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim
that the title thereof is misleading or deceptive, as it conceals the real purpose
of the bill which is to nationalize the retail business and prohibit aliens from
engaging therein. The constitutional provision which is claimed to be violated
in Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject
which shall be expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely
fails to appraise the legislators or the public of the nature, scope and
consequences of the law or its operation (I Sutherland, Statutory Construction,
Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the
531 of 692
bill fails to show the presence of duplicity. It is true that the term "regulate"
does not and may not readily and at first glance convey the idea of
"nationalization" and "prohibition", which terms express the two main purposes
and objectives of the law. But "regulate" is a broader term than either
prohibition or nationalization. Both of these have always been included within
the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the
Legislature may prohibit the sale of intoxicating liquors. (Sweet vs. City of
Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act
of the Legislature shall be stated in the tale, the title to regulate the sale of
intoxicating liquors, etc." sufficiently expresses the subject of an act prohibiting
the sale of such liquors to minors and to persons in the habit of getting
intoxicated; such matters being properly included within the subject of
regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of
Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of
restraint and prohibition of acts usually done in connection with the thing to be
regulated. While word regulate does not ordinarily convey meaning of prohibit,
there is no absolute reason why it should not have such meaning when used in
delegating police power in connection with a thing the best or only efficacious
regulation of which involves suppression. (State vs. Morton, 162 So. 718, 182
La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also
been said that the title need not be an index to the entire contents of the law (I
Sutherland, Statutory Construction, See. 4803, p. 345.) The above rule was
followed the title of the Act in question adopted the more general term
"regulate" instead of "nationalize" or "prohibit". Furthermore, the law also
contains other rules for the regulation of the retail trade which may not be
included in the terms "nationalization" or "prohibition"; so were the title
changed from "regulate" to "nationalize" or "prohibit", there would have been
many provisions not falling within the scope of the title which would have made
the Act invalid. The use of the term "regulate", therefore, is in accord with the
principle governing the drafting of statutes, under which a simple or general
term should be adopted in the title, which would include all other provisions
found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be
embraced in its title is to apprise the legislators of the purposes, the nature and
scope of its provisions, and prevent the enactment into law of matters which
have received the notice, action and study of the legislators or of the public. In
the case at bar it cannot be claimed that the legislators have been appraised of
the nature of the law, especially the nationalization and the prohibition
provisions. The legislators took active interest in the discussion of the law, and
a great many of the persons affected by the prohibitions in the law conducted a
campaign against its approval. It cannot be claimed, therefore, that the reasons
for declaring the law invalid ever existed. The objection must therefore, be
overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed
violation thereby of the Charter of the United Nations and of the Declaration of
the Human Rights adopted by the United Nations General Assembly. We find
no merit in the Nations Charter imposes no strict or legal obligations regarding
the rights and freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains
nothing more than a mere recommendation or a common standard of
achievement for all peoples and all nations (Id. p. 39.) That such is the import
of the United Nations Charter aid of the Declaration of Human Rights can be
inferred the fact that members of the United Nations Organizations, such as
Norway and Denmark, prohibit foreigners from engaging in retail trade, and in
most nations of the world laws against foreigners engaged in domestic trade are
adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic
of China of April 18, 1947 is also claimed to be violated by the law in question.
All that the treaty guarantees is equality of treatment to the Chinese nationals
"upon the same terms as the nationals of any other country." But the nationals
of China are not discriminating against because nationals of all other countries,
except those of the United States, who are granted special rights by the
Constitution, are all prohibited from engaging in the retail trade. But even
532 of 692
supposing that the law infringes upon the said treaty, the treaty is always subject
to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258,
Fed. 257, 260), and the same may never curtail or restrict the scope of the police
power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was
enacted to remedy a real actual threat and danger to national economy posed by
alien dominance and control of the retail business and free citizens and country
from dominance and control; that the enactment clearly falls within the scope
of the police power of the State, thru which and by which it protects its own
personality and insures its security and future; that the law does not violate the
equal protection clause of the Constitution because sufficient grounds exist for
the distinction between alien and citizen in the exercise of the occupation
regulated, nor the due process of law clause, because the law is prospective in
operation and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege; that the wisdom and efficacy
of the law to carry out its objectives appear to us to be plainly evident — as a
matter of fact it seems not only appropriate but actually necessary — and that
in any case such matter falls within the prerogative of the Legislature, with
whose power and discretion the Judicial department of the Government may
not interfere; that the provisions of the law are clearly embraced in the title, and
this suffers from no duplicity and has not misled the legislators or the segment
of the population affected; and that it cannot be said to be void for supposed
conflict with treaty obligations because no treaty has actually been entered into
on the subject and the police power may not be curtailed or surrendered by any
treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law
could have been made less harsh in its impact on the aliens. Thus it is stated
that the more time should have been given in the law for the liquidation of
existing businesses when the time comes for them to close. Our legal duty,
however, is merely to determine if the law falls within the scope of legislative
authority and does not transcend the limitations of due process and equal
protection guaranteed in the Constitution. Remedies against the harshness of
the law should be addressed to the Legislature; they are beyond our power and
jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L.,
Endencia and Felix, JJ., concur.
In Re Garcia
2 SCRA 984 (1961)
August 15, 1961
IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the
Philippine Bar without taking the examination. ARTURO EFREN GARCIA,
petitioner.
RESOLUTION
BARRERA, J.:
Arturo E. Garcia has applied for admission to the practice of law in the
Philippines without submitting to the required bar examinations. In his verified
petition, he avers, among others, that he is a Filipino citizen born in Bacolor
City, Province of Negros Occidental, of Filipino parentage; that he had taken
and finished in Spain, the course of "Bachillerato Superior"; that he was
approved, selected and qualified by the "Instituto de Cervantes" for admission
to the Central University of Madrid where he studied and finished the law
course graduating there as "Licenciado En Derecho"; that thereafter he was
allowed to practice the law profession in Spain; and that under the provision of
the Treaty of Academic Degrees and the Exercise of Professions between the
Republic of the Philippines and the Spanish state, he is entitled to practice the
law profession in the Philippines without submitting to the required bar
examinations.
After due consideration, the Court resolved to deny the petition on the following
grounds:
533 of 692
(1) the provisions of the Treaty on Academic Degrees and the Exercise of or supplement such rules being reserved only to the Congress of the Philippines.
Professions between the Republic of the Philippines and the Spanish State can (See Sec. 13, Art VIII, Phil. Constitution).
not be invoked by applicant. Under Article 11 thereof;
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes, Dizon, De Leon and
The Nationals of each of the two countries who shall have obtained recognition Natividad, JJ., concur.
of the validity of their academic degrees by virtue of the stipulations of this Bautista Angelo, J., on leave, took no part.
Treaty, can practice their professions within the territory of the Other, . . .. Concepcion, J., took no part.
(Emphasis supplied).
People v. Lagman and Zosa
from which it could clearly be discerned that said Treaty was intended to govern 66 Phil. 13 (1933)
Filipino citizens desiring to practice their profession in Spain, and the citizens
of Spain desiring to practice their professions in the Philippines. Applicant is a G.R. No. L-45892 July 13, 1938
Filipino citizen desiring to practice the legal profession in the Philippines. He
is therefore subject to the laws of his own country and is not entitled to the THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
privileges extended to Spanish nationals desiring to practice in the Philippines. vs.
TRANQUILINO LAGMAN, defendant-appellant.
(2) Article I of the Treaty, in its pertinent part, provides .
-----------------------------
The nationals of both countries who shall have obtained degree or diplomas to
practice the liberal professions in either of the Contracting States, issued by G.R. No. L-45893 July 13, 1938
competent national authorities, shall be deemed competent to exercise said
professions in the territory of the Other, subject to the laws and regulations of THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
the latter. . . .. vs.
PRIMITIVO DE SOSA, defendant-appellant.
It is clear, therefore, that the privileges provided in the Treaty invoked by the
applicant are made expressly subject to the laws and regulations of the Severino P. Izon for appellants.
contracting State in whose territory it is desired to exercise the legal profession; Office of the Solicitor-General Tuason for appellee.
and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof,
which have the force of law, require that before anyone can practice the legal AVANCEÑA, J.:
profession in the Philippine he must first successfully pass the required bar
examinations; and In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino
and Primitivo de Sosa are charged with a violation of section 60 of
(3) The aforementioned Treaty, concluded between the Republic of the Commonwealth Act No. 1, known as the National Defense Law. It is alleged
Philippines and the Spanish State could not have been intended to modify the that these two appellants, being Filipinos and having reached the age of twenty
laws and regulations governing admission to the practice of law in the years in 1936, willfully and unlawfully refused to register in the military service
Philippines, for the reason that the Executive Department may not encroach between the 1st and 7th of April of said year, notwithstanding the fact that they
upon the constitutional prerogative of the Supreme Court to promulgate rules had been required to do so. The evidence shows that these two appellants were
for admission to the practice of law in the Philippines, the lower to repeal, alter
534 of 692
duly notified by the corresponding authorities to appear before the Acceptance
Board in order to register for military service in accordance with law, and that
the said appellants, in spite of these notices, had not registered up to the date of
the filing of the information.
The appellants do not deny these facts, but they allege in defense that they have
not registered in the military service because Primitivo de Sosa is fatherless and
has a mother and a brother eight years old to support, and Tranquilino Lagman
also has a father to support, has no military learnings, and does not wish to kill
or be killed.
Each of these appellants was sentenced by the Court of First Instance to one
month and one day of imprisonment, with the costs.
In this instance, the validity of the National Defense Law, under which the
accused were sentenced, is impugned on the ground that it is unconstitutional.
Section 2, Article II of the Constitution of the Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of government, and in the
fulfillment of this duty all citizens may be required by law to render personal
military or civil service.
The National Defense Law, in so far as it establishes compulsory military
service, does not go against this constitutional provision but is, on the contrary,
in faithful compliance therewith. The duty of the Government to defend the
State cannot be performed except through an army. To leave the organization
of an army to the will of the citizens would be to make this duty of the
Government excusable should there be no sufficient men who volunteer to
enlist therein.1ªvvphïl.nët
In the United States the courts have held in a series of decisions that the
compulsory military service adopted by reason of the civil war and the world
war does not violate the Constitution, because the power to establish it is
derived from that granted to Congress to declare war and to organize and
maintain an army. This is so because the right of the Government to require
compulsory military service is a consequence of its duty to defend the State and
is reciprocal with its duty to defend the life, liberty, and property of the citizen.
In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385),
it was said that, without violating the Constitution, a person may be compelled
by force, if need be, against his will, against his pecuniary interests, and even
against his religious or political convictions, to take his place in the ranks of the
army of his country, and risk the chance of being shot down in its defense. In
the case of United States vs. Olson (253 Fed., 233), it was also said that this is
not deprivation of property without due process of law, because, in its just
sense, there is no right of property to an office or employment.
The circumstance that these decisions refer to laws enacted by reason on the
actual existence of war does not make our case any different, inasmuch as, in
the last analysis, what justifies compulsory military service is the defense of the
State, whether actual or whether in preparation to make it more effective, in
case of need. The circumstance that the appellants have dependent families to
support does not excuse them from their duty to present themselves before the
Acceptance Board because, if such circumstance exists, they can ask for
determent in complying with their duty and, at all events, they can obtain the
proper pecuniary allowance to attend to these family responsibilities (secs. 65
and 69 of Commonwealth Act No. 1).
The appealed judgment rendered in these two cases is affirmed, with the costs
to the appellants. So ordered
Benevolent Neutrality Doctrine, Estrada v. Escritor
AM No. P-02-1651 (August 4, 2003)
A.M. No. P-02-1651 August 4, 2003
ALEJANDRO ESTRADA, complainant,
vs.
SOLEDAD S. ESCRITOR, respondent.
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law where man
stands accountable to an authority higher than the state. To be held on balance
are the state's interest and the respondent's religious freedom. In this highly
sensitive area of law, the task of balancing between authority and liberty is most
535 of 692
delicate because to the person invoking religious freedom, the consequences of
the case are not only temporal. The task is not made easier by the American
origin of our religion clauses and the wealth of U.S. jurisprudence on these
clauses for in the United States, there is probably no more intensely
controverted area of constitutional interpretation than the religion clauses.1 The
U.S. Supreme Court itself has acknowledged that in this constitutional area,
there is "considerable internal inconsistency in the opinions of the Court."2 As
stated by a professor of law, "(i)t is by now notorious that legal doctrines and
judicial decisions in the area of religious freedom are in serious disarray. In
perhaps no other area of constitutional law have confusion and inconsistency
achieved such undisputed sovereignty."3 Nevertheless, this thicket is the only
path to take to conquer the mountain of a legal problem the case at bar presents.
Both the penetrating and panoramic view this climb would provide will largely
chart the course of religious freedom in Philippine jurisdiction. That the
religious freedom question arose in an administrative case involving only one
person does not alter the paramount importance of the question for the
"constitution commands the positive protection by government of religious
freedom -not only for a minority, however small- not only for a majority,
however large- but for each of us."4
I. Facts
The facts of the case will determine whether respondent will prevail in her plea
of religious freedom. It is necessary therefore to lay down the facts in detail,
careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada
wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional
Trial Court of Las Piñas City, requesting for an investigation of rumors that
respondent Soledad Escritor, court interpreter in said court, is living with a man
not her husband. They allegedly have a child of eighteen to twenty years old.
Estrada is not personally related either to Escritor or her partner and is a resident
not of Las Piñas City but of Bacoor, Cavite. Nevertheless, he filed the charge
against Escritor as he believes that she is committing an immoral act that
tarnishes the image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her act.5
Judge Caoibes referred the letter to Escritor who stated that "there is no truth as
to the veracity of the allegation" and challenged Estrada to "appear in the open
and prove his allegation in the proper forum."6 Judge Caoibes set a preliminary
conference on October 12, 2000. Escritor moved for the inhibition of Judge
Caoibes from hearing her case to avoid suspicion and bias as she previously
filed an administrative complaint against him and said case was still pending in
the Office of the Court Administrator (OCA). Escritor's motion was denied. The
preliminary conference proceeded with both Estrada and Escritor in attendance.
Estrada confirmed that he filed the letter-complaint for immorality against
Escritor because in his frequent visits to the Hall of Justice of Las Piñas City,
he learned from conversations therein that Escritor was living with a man not
her husband and that she had an eighteen to twenty-year old son by this man.
This prompted him to write to Judge Caoibes as he believed that employees of
the judiciary should be respectable and Escritor's live-in arrangement did not
command respect.7
Respondent Escritor testified that when she entered the judiciary in 1999,8 she
was already a widow, her husband having died in 1998.9 She admitted that she
has been living with Luciano Quilapio, Jr. without the benefit of marriage for
twenty years and that they have a son. But as a member of the religious sect
known as the Jehovah's Witnesses and the Watch Tower and Bible Tract
Society, their conjugal arrangement is in conformity with their religious beliefs.
In fact, after ten years of living together, she executed on July 28, 1991 a
"Declaration of Pledging Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D.
Quilapio, Jr., as my mate in marital relationship; that I have done all within my
ability to obtain legal recognition of this relationship by the proper public
authorities and that it is because of having been unable to do so that I therefore
make this public declaration pledging faithfulness in this marital relationship.
I recognize this relationship as a binding tie before 'Jehovah' God and before all
persons to be held to and honored in full accord with the principles of God's
Word. I will continue to seek the means to obtain legal recognition of this
relationship by the civil authorities and if at any future time a change in
circumstances make this possible, I promise to legalize this union.
536 of 692
Signed this 28th day of July 1991.10
Escritor's partner, Quilapio, executed a similar pledge on the same day.11 Both
pledges were executed in Atimonan, Quezon and signed by three witnesses. At
the time Escritor executed her pledge, her husband was still alive but living with
another woman. Quilapio was likewise married at that time, but had been
separated in fact from his wife. During her testimony, Escritor volunteered to
present members of her congregation to confirm the truthfulness of their
"Declarations of Pledging Faithfulness," but Judge Caoibes deemed it
unnecessary and considered her identification of her signature and the signature
of Quilapio sufficient authentication of the documents.12
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo
L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting
Court Administrator Zenaida N. Elepaño, directed Escritor to comment on the
charge against her. In her comment, Escritor reiterated her religious
congregation's approval of her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates to state
with candor that there is no truth as to the veracity of same allegation. Included
herewith are documents denominated as Declaration of Pledging Faithfulness
(Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital
relationship with the witnesses concurring their acceptance to the arrangement
as approved by the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch.
Same marital arrangement is recognized as a binding tie before "JEHOVAH"
God and before all persons to be held to and honored in full accord with the
principles of God's Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the Court with
verification from the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch . . . to which undersigned believes to be a high authority in
relation to her case.13
Deputy Court Administrator Christopher O. Lock recommended that the case
be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las
Piñas City for investigation, report and recommendation. In the course of Judge
Maceda's investigation, Escritor again testified that her congregation allows her
conjugal arrangement with Quilapio and it does not consider it immoral. She
offered to supply the investigating judge some clippings which explain the basis
of her congregation's belief and practice regarding her conjugal arrangement.
Escritor started living with Quilapio twenty years ago when her husband was
still alive but living with another woman. She met this woman who confirmed
to her that she was living with her (Escritor's) husband.14
Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also
testified. He had been a presiding minister since 1991 and in such capacity is
aware of the rules and regulations of their congregation. He explained the
import of and procedure for executing a "Declaration of Pledging Faithfulness",
viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you
cite some particular rules and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the
parties involved and then we request them to execute a Public Declaration of
Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of
faithfulness, who are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the elders of the
congregation; the couple, who is a member (sic) of the congregation, baptized
member and true member of the congregation.
Q: What standard rules and regulations do you have in relation with this
document?
537 of 692
A: Actually, sir, the signing of that document, ah, with the couple has
consent to marital relationship (sic) gives the Christian Congregation view that
the couple has put themselves on record before God and man that they are
faithful to each other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a
document between the parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge
of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who
contracted with the opposite member of my congregation, opposite sex, and that
this document will give us the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness,
it is a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living
under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as
to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the
contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein stated in the Book of
Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the Bible, Jesus
said "that everyone divorcing his wife, except on account of fornication, makes
her a subject for adultery, and whoever marries a divorced woman commits
adultery.15
Escritor and Quilapio transferred to Salazar's Congregation, the Almanza
Congregation in Las Piñas, in May 2001. The declarations having been
executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of
the personal circumstances of Escritor and Quilapio when they executed their
declarations. However, when the two transferred to Almanza, Salazar inquired
about their status from the Atimonan Congregation, gathered comments of the
elders therein, and requested a copy of their declarations. The Almanza
Congregation assumed that the personal circumstances of the couple had been
considered by the Atimonan Congregation when they executed their
declarations.
Escritor and Quilapio's declarations are recorded in the Watch Tower Central
office. They were executed in the usual and approved form prescribed by the
Watch Tower Bible and Tract Society which was lifted from the article,
"Maintaining Marriage in Honor Before God and Men,"16 in the March 15,
1977 issue of the Watch Tower magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovah's Witnesses
congregation and is binding within the congregation all over the world except
in countries where divorce is allowed. The Jehovah's congregation requires that
at the time the declarations are executed, the couple cannot secure the civil
authorities' approval of the marital relationship because of legal impediments.
It is thus standard practice of the congregation to check the couple's marital
status before giving imprimatur to the conjugal arrangement. The execution of
the declaration finds scriptural basis in Matthew 5:32 that when the spouse
commits adultery, the offended spouse can remarry. The marital status of the
declarants and their respective spouses' commission of adultery are investigated
before the declarations are executed. Thus, in the case of Escritor, it is presumed
that the Atimonan Congregation conducted an investigation on her marital
status before the declaration was approved and the declaration is valid
everywhere, including the Almanza Congregation. That Escritor's and
Quilapio's declarations were approved are shown by the signatures of three
witnesses, the elders in the Atimonan Congregation. Salazar confirmed from
the congregation's branch office that these three witnesses are elders in the
Atimonan Congregation. Although in 1998 Escritor was widowed, thereby
lifting the legal impediment to marry on her part, her mate is still not capacitated
to remarry. Thus, their declarations remain valid. Once all legal impediments
538 of 692
for both are lifted, the couple can already register their marriage with the civil
authorities and the validity of the declarations ceases. The elders in the
congregations can then solemnize their marriage as authorized by Philippine
law. In sum, therefore, insofar as the congregation is concerned, there is nothing
immoral about the conjugal arrangement between Escritor and Quilapio and
they remain members in good standing in the congregation.17
Salvador Reyes, a minister at the General de Leon, Valenzuela City
Congregation of the Jehovah's Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the Philippines,
Inc., presented the original copy of the magazine article entitled, "Maintaining
Marriage Before God and Men" to which Escritor and Minister Salazar referred
in their testimonies. The article appeared in the March 15, 1977 issue of the
Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo,
President of the Watch Tower Bible and Tract Society of the Philippines, Inc.,
authorized Reyes to represent him in authenticating the article. The article is
distributed to the Jehovah's Witnesses congregations which also distribute them
to the public.18
The parties submitted their respective memoranda to the investigating judge.
Both stated that the issue for resolution is whether or not the relationship
between respondent Escritor and Quilapio is valid and binding in their own
religious congregation, the Jehovah's Witnesses. Complainant Estrada adds
however, that the effect of the relationship to Escritor's administrative liability
must likewise be determined. Estrada argued, through counsel, that the
Declaration of Pledging Faithfulness recognizes the supremacy of the "proper
public authorities" such that she bound herself "to seek means to . . . legalize
their union." Thus, even assuming arguendo that the declaration is valid and
binding in her congregation, it is binding only to her co-members in the
congregation and serves only the internal purpose of displaying to the rest of
the congregation that she and her mate are a respectable and morally upright
couple. Their religious belief and practice, however, cannot override the norms
of conduct required by law for government employees. To rule otherwise would
create a dangerous precedent as those who cannot legalize their live-in
relationship can simply join the Jehovah's Witnesses congregation and use their
religion as a defense against legal liability.19
On the other hand, respondent Escritor reiterates the validity of her conjugal
arrangement with Quilapio based on the belief and practice of her religion, the
Jehovah's Witnesses. She quoted portions of the magazine article entitled,
"Maintaining Marriage Before God and Men," in her memorandum signed by
herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by
the respondent and her mate greatly affect the administrative liability of
respondent. Jehovah's Witnesses admit and recognize (sic) the supremacy of
the proper public authorities in the marriage arrangement. However, it is helpful
to understand the relative nature of Caesar's authority regarding marriage. From
country to country, marriage and divorce legislation presents a multitude of
different angles and aspects. Rather than becoming entangled in a confusion of
technicalities, the Christian, or the one desiring to become a disciple of God's
Son, can be guided by basic Scriptural principles that hold true in all cases.
God's view is of first concern. So, first of all the person must consider whether
that one's present relationship, or the relationship into which he or she
contemplates entering, is one that could meet with God's approval, or whether
in itself, it violates the standards of God's Word. Take, for example, the
situation where a man lives with a wife but also spends time living with another
woman as a concubine. As long as such a state of concubinage prevails, the
relationship of the second woman can never be harmonized with Christian
principles, nor could any declaration on the part of the woman or the man make
it so. The only right course is cessation of the relationship. Similarly with an
incestuous relationship with a member of one's immediate family, or a
homosexual relationship or other such situation condemned by God's Word. It
is not the lack of any legal validation that makes such relationships
unacceptable; they are in themselves unscriptural and hence, immoral. Hence,
a person involved in such a situation could not make any kind of "Declaration
of Faithfulness," since it would have no merit in God's eyes.
If the relationship is such that it can have God's approval, then, a second
principle to consider is that one should do all one can to establish the
honorableness of one's marital union in the eyes of all. (Heb. 13:4). If divorce
is possible, then such step should now be taken so that, having obtained the
divorce (on whatever legal grounds may be available), the present union can
receive civil validation as a recognized marriage.
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Finally, if the marital relationship is not one out of harmony with the principles
of God's Word, and if one has done all that can reasonably be done to have it
recognized by civil authorities and has been blocked in doing so, then, a
Declaration Pledging Faithfulness can be signed. In some cases, as has been
noted, the extreme slowness of official action may make accomplishing of legal
steps a matter of many, many years of effort. Or it may be that the costs
represent a crushingly heavy burden that the individual would need years to be
able to meet. In such cases, the declaration pledging faithfulness will provide
the congregation with the basis for viewing the existing union as honorable
while the individual continues conscientiously to work out the legal aspects to
the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister of
Jehovah God, should be able to approach the matter in a balanced way, neither
underestimating nor overestimating the validation offered by the political state.
She always gives primary concern to God's view of the union. Along with this,
every effort should be made to set a fine example of faithfulness and devotion
to one's mate, thus, keeping the marriage "honorable among all." Such course
will bring God's blessing and result to the honor and praise of the author of
marriage, Jehovah God. (1 Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge that
complainant's Memorandum came from Judge Caoibes' chambers21 whom she
claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found
Escritor's factual allegations credible as they were supported by testimonial and
documentary evidence. He also noted that "(b)y strict Catholic standards, the
live-in relationship of respondent with her mate should fall within the definition
of immoral conduct, to wit: 'that which is willful, flagrant, or shameless, and
which shows a moral indifference to the opinion of the good and respectable
members of the community' (7 C.J.S. 959)' (Delos Reyes vs. Aznar, 179 SCRA,
at p. 666)." He pointed out, however, that "the more relevant question is
whether or not to exact from respondent Escritor, a member of 'Jehovah's
Witnesses,' the strict moral standards of the Catholic faith in determining her
administrative responsibility in the case at bar."22 The investigating judge
acknowledged that "religious freedom is a fundamental right which is entitled
to the highest priority and the amplest protection among human rights, for it
involves the relationship of man to his Creator (at p. 270, EBRALINAG supra,
citing Chief Justice Enrique M. Fernando's separate opinion in German vs.
Barangan, 135 SCRA 514, 530-531)" and thereby recommended the dismissal
of the complaint against Escritor.23
After considering the Report and Recommendation of Executive Judge
Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but
departed from his recommendation to dismiss the complaint. DCA Lock
stressed that although Escritor had become capacitated to marry by the time she
joined the judiciary as her husband had died a year before, "it is due to her
relationship with a married man, voluntarily carried on, that respondent may
still be subject to disciplinary action."24 Considering the ruling of the Court in
Dicdican v. Fernan, et al.25 that "court personnel have been enjoined to adhere
to the exacting standards of morality and decency in their professional and
private conduct in order to preserve the good name and integrity of the court of
justice," DCA Lock found Escritor's defense of freedom of religion unavailing
to warrant dismissal of the charge of immorality. Accordingly, he
recommended that respondent be found guilty of immorality and that she be
penalized with suspension of six months and one day without pay with a
warning that a repetition of a similar act will be dealt with more severely in
accordance with the Civil Service Rules.26
II. Issue
Whether or not respondent should be found guilty of the administrative charge
of "gross and immoral conduct." To resolve this issue, it is necessary to
determine the sub-issue of whether or not respondent's right to religious
freedom should carve out an exception from the prevailing jurisprudence on
illicit relations for which government employees are held administratively
liable.
III. Applicable Laws
540 of 692
Respondent is charged with committing "gross and immoral conduct" under
Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code
which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the
Civil Service shall be suspended or dismissed except for cause as provided by
law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in layman's terms, invokes the
religious beliefs and practices and moral standards of her religion, the Jehovah's
Witnesses, in asserting that her conjugal arrangement with a man not her legal
husband does not constitute disgraceful and immoral conduct for which she
should be held administratively liable. While not articulated by respondent, she
invokes religious freedom under Article III, Section 5 of the Constitution,
which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be well to
understand not only its birth in the United States, but its conception in the Old
World. One cannot understand, much less intelligently criticize the approaches
of the courts and the political branches to religious freedom in the recent past
in the United States without a deep appreciation of the roots of these
controversies in the ancient and medieval world and in the American
experience.27 This fresh look at the religion clauses is proper in deciding this
case of first impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive man's life, from birth to death, was marked by
religious ceremonies. Tribal society survived because religious sanctions
effectively elicited adherence to social customs. A person who broke a custom
violated a taboo which would then bring upon him "the wrathful vengeance of
a superhuman mysterious power."28 Distinction between the religious and non-
religious would thus have been meaningless to him. He sought protection from
all kinds of evil - whether a wild beast or tribe enemy and lightning or wind -
from the same person. The head of the clan or the Old Man of the tribe or the
king protected his wards against both human and superhuman enemies. In time,
the king not only interceded for his people with the divine powers, but he
himself was looked upon as a divine being and his laws as divine decrees.29
Time came, however, when the function of acting as intermediary between
human and spiritual powers became sufficiently differentiated from the
responsibility of leading the tribe in war and policing it in peace as to require
the full-time services of a special priest class. This saw the birth of the social
and communal problem of the competing claims of the king and priest.
Nevertheless, from the beginning, the king and not the priest was superior. The
head of the tribe was the warrior, and although he also performed priestly
functions, he carried out these functions because he was the head and
representative of the community.30
There being no distinction between the religious and the secular, the same
authority that promulgated laws regulating relations between man and man
promulgated laws concerning man's obligations to the supernatural. This
authority was the king who was the head of the state and the source of all law
and who only delegated performance of rituals and sacrifice to the priests. The
Code of Hammurabi, king of Babylonia, imposed penalties for homicide,
larceny, perjury, and other crimes; regulated the fees of surgeons and the wages
of masons and tailors and prescribed rules for inheritance of property;31 and
also catalogued the gods and assigned them their places in the divine hierarchy
so as to put Hammurabi's own god to a position of equality with existing
gods.32 In sum, the relationship of religion to the state (king) in pre-Hebreic
times may be characterized as a union of the two forces, with the state almost
universally the dominant partner.33
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With the rise of the Hebrew state, a new term had to be coined to describe the
relation of the Hebrew state with the Mosaic religion: theocracy. The authority
and power of the state was ascribed to God.34 The Mosaic creed was not merely
regarded as the religion of the state, it was (at least until Saul) the state itself.
Among the Hebrews, patriarch, prophet, and priest preceded king and prince.
As man of God, Moses decided when the people should travel and when to pitch
camp, when they should make war and when peace. Saul and David were made
kings by the prophet Samuel, disciple of Eli the priest. Like the Code of
Hammurabi, the Mosaic code combined civil laws with religious mandates, but
unlike the Hammurabi Code, religious laws were not of secondary importance.
On the contrary, religious motivation was primary and all-embracing: sacrifices
were made and Israel was prohibited from exacting usury, mistreating aliens or
using false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as an
engine to advance the purposes of the state. Hammurabi unified Mesopotamia
and established Babylon as its capital by elevating its city-god to a primary
position over the previous reigning gods.35 Moses, on the other hand,
capitalized on the natural yearnings of the Hebrew slaves for freedom and
independence to further God's purposes. Liberation and Exodus were preludes
to Sinai and the receipt of the Divine Law. The conquest of Canaan was a
preparation for the building of the temple and the full worship of God.36
Upon the monotheism of Moses was the theocracy of Israel founded. This
monotheism, more than anything else, charted not only the future of religion in
western civilization, but equally, the future of the relationship between religion
and state in the west. This fact is acknowledged by many writers, among whom
is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and
universal God that introduced a religious exclusivism leading to compulsion
and persecution in the realm of religion. Ancient religions were regarded as
confined to each separate people believing in them, and the question of change
from one religious belief to another did not arise. It was not until an exclusive
fellowship, that the questions of proselytism, change of belief and liberty of
religion arose.37 (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this
period, religion was not only superior to the state, but it was all of the state. The
Law of God as transmitted through Moses and his successors was the whole of
government.
With Saul, however, the state rose to be the rival and ultimately, the master, of
religion. Saul and David each received their kingdom from Samuel the prophet
and disciple of Eli the priest, but soon the king dominated prophet and priest.
Saul disobeyed and even sought to slay Samuel the prophet of God.38 Under
Solomon, the subordination of religion to state became complete; he used
religion as an engine to further the state's purposes. He reformed the order of
priesthood established by Moses because the high priest under that order
endorsed the claim of his rival to the throne.39
The subordination of religion to the state was also true in pre-Christian Rome
which engaged in emperor-worship. When Augustus became head of the
Roman state and the priestly hierarchy, he placed religion at a high esteem as
part of a political plan to establish the real religion of pre-Christian Rome - the
worship of the head of the state. He set his great uncle Julius Caesar among the
gods, and commanded that worship of Divine Julius should not be less than
worship of Apollo, Jupiter and other gods. When Augustus died, he also joined
the ranks of the gods, as other emperors before him.40
The onset of Christianity, however, posed a difficulty to the emperor as the
Christians' dogmatic exclusiveness prevented them from paying homage to
publicly accepted gods. In the first two centuries after the death of Jesus,
Christians were subjected to persecution. By the time of the emperor Trajan,
Christians were considered outlaws. Their crime was "hatred of the human
race", placing them in the same category as pirates and brigands and other
"enemies of mankind" who were subject to summary punishments.41
In 284, Diocletian became emperor and sought to reorganize the empire and
make its administration more efficient. But the closely-knit hierarchically
controlled church presented a serious problem, being a state within a state over
which he had no control. He had two options: either to force it into submission
and break its power or enter into an alliance with it and procure political control
over it. He opted for force and revived the persecution, destroyed the churches,
542 of 692
confiscated sacred books, imprisoned the clergy and by torture forced them to
sacrifice.42 But his efforts proved futile.
The later emperor, Constantine, took the second option of alliance. Constantine
joined with Galerius and Licinius, his two co-rulers of the empire, in issuing an
edict of toleration to Christians "on condition that nothing is done by them
contrary to discipline."43 A year later, after Galerius died, Constantine and
Licius jointly issued the epochal Edict of Milan (312 or 313), a document of
monumental importance in the history of religious liberty. It provided "that
liberty of worship shall not be denied to any, but that the mind and will of every
individual shall be free to manage divine affairs according to his own choice."
(emphasis supplied) Thus, all restrictive statutes were abrogated and it was
enacted "that every person who cherishes the desire to observe the Christian
religion shall freely and unconditionally proceed to observe the same without
let or hindrance." Furthermore, it was provided that the "same free and open
power to follow their own religion or worship is granted also to others, in
accordance with the tranquillity of our times, in order that every person may
have free opportunity to worship the object of his choice."(emphasis
supplied)44
Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power. Religion became an
engine of state policy as Constantine considered Christianity a means of
unifying his complex empire. Within seven years after the Edict of Milan, under
the emperor's command, great Christian edifices were erected, the clergy were
freed from public burdens others had to bear, and private heathen sacrifices
were forbidden.
The favors granted to Christianity came at a price: state interference in religious
affairs. Constantine and his successors called and dismissed church councils,
and enforced unity of belief and practice. Until recently the church had been
the victim of persecution and repression, but this time it welcomed the state's
persecution and repression of the nonconformist and the orthodox on the belief
that it was better for heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state was not
easy. It was a constant struggle of one claiming dominance over the other. In
time, however, after the collapse and disintegration of the Roman Empire, and
while monarchical states were gradually being consolidated among the
numerous feudal holdings, the church stood as the one permanent, stable and
universal power. Not surprisingly, therefore, it claimed not merely equality but
superiority over the secular states. This claim, symbolized by Pope Leo's
crowning of Charlemagne, became the church's accepted principle of its
relationship to the state in the Middle Ages. As viewed by the church, the union
of church and state was now a union of the state in the church. The rulers of the
states did not concede to this claim of supremacy. Thus, while Charlemagne
received his crown from the Pope, he himself crowned his own son as successor
to nullify the inference of supremacy.45 The whole history of medieval Europe
was a struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At about the
second quarter of the 13th century, the Inquisition was established, the purpose
of which was the discovery and extermination of heresy. Accused heretics were
tortured with the approval of the church in the bull Ad extirpanda issued by
Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation
aimed at reforming the Catholic Church and resulting in the establishment of
Protestant churches. While Protestants are accustomed to ascribe to the
Reformation the rise of religious liberty and its acceptance as the principle
governing the relations between a democratic state and its citizens, history
shows that it is more accurate to say that the "same causes that gave rise to the
Protestant revolution also resulted in the widespread acceptance of the principle
of religious liberty, and ultimately of the principle of separation of church and
state."46 Pleas for tolerance and freedom of conscience can without doubt be
found in the writings of leaders of the Reformation. But just as Protestants
living in the countries of papists pleaded for toleration of religion, so did the
papists that lived where Protestants were dominant.47 Papist and Protestant
governments alike accepted the idea of cooperation between church and state
and regarded as essential to national unity the uniformity of at least the outward
manifestations of religion.48 Certainly, Luther, leader of the Reformation,
stated that "neither pope, nor bishop, nor any man whatever has the right of
making one syllable binding on a Christian man, unless it be done with his own
consent."49 But when the tables had turned and he was no longer the hunted
heretic, he likewise stated when he made an alliance with the secular powers
that "(h)eretics are not to be disputed with, but to be condemned unheard, and
whilst they perish by fire, the faithful ought to pursue the evil to its source, and
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bathe their hands in the blood of the Catholic bishops, and of the Pope, who is
a devil in disguise."50 To Luther, unity among the peoples in the interests of
the state was an important consideration. Other personalities in the Reformation
such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use
of the state as an engine to further religion. In establishing theocracy in Geneva,
Calvin made absence from the sermon a crime, he included criticism of the
clergy in the crime of blasphemy punishable by death, and to eliminate heresy,
he cooperated in the Inquisition.51
There were, however, those who truly advocated religious liberty. Erasmus,
who belonged to the Renaissance than the Reformation, wrote that "(t)he
terrible papal edict, the more terrible imperial edict, the imprisonments, the
confiscations, the recantations, the fagots and burnings, all these things I can
see accomplish nothing except to make the evil more widespread."52 The
minority or dissident sects also ardently advocated religious liberty. The
Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and
the Friends of the Quakers founded by George Fox in the 17th century, endorsed
the supremacy and freedom of the individual conscience. They regarded
religion as outside the realm of political governments.53 The English Baptists
proclaimed that the "magistrate is not to meddle with religion or matters of
conscience, nor compel men to this or that form of religion."54
Thus, out of the Reformation, three rationalizations of church-state relations
may be distinguished: the Erastian (after the German doctor Erastus), the
theocratic, and the separatist. The first assumed state superiority in
ecclesiastical affairs and the use of religion as an engine of state policy as
demonstrated by Luther's belief that civic cohesion could not exist without
religious unity so that coercion to achieve religious unity was justified. The
second was founded on ecclesiastical supremacy and the use of state machinery
to further religious interests as promoted by Calvin. The third, which was yet
to achieve ultimate and complete expression in the New World, was discernibly
in its incipient form in the arguments of some dissident minorities that the
magistrate should not intermeddle in religious affairs.55 After the Reformation,
Erastianism pervaded all Europe except for Calvin's theocratic Geneva. In
England, perhaps more than in any other country, Erastianism was at its height.
To illustrate, a statute was enacted by Parliament in 1678, which, to encourage
woolen trade, imposed on all clergymen the duty of seeing to it that no person
was buried in a shroud made of any substance other than wool.56 Under
Elizabeth, supremacy of the crown over the church was complete: ecclesiastical
offices were regulated by her proclamations, recusants were fined and
imprisoned, Jesuits and proselytizing priests were put to death for high treason,
the thirty-nine Articles of the Church of England were adopted and English
Protestantism attained its present doctrinal status.57 Elizabeth was to be
recognized as "the only Supreme Governor of this realm . . . as well in all
spiritual or ecclesiastical things or causes as temporal." She and her successors
were vested, in their dominions, with "all manner of jurisdictions, privileges,
and preeminences, in any wise touching or concerning any spiritual or
ecclesiastical jurisdiction."58 Later, however, Cromwell established the
constitution in 1647 which granted full liberty to all Protestant sects, but denied
toleration to Catholics.59 In 1689, William III issued the Act of Toleration
which established a de facto toleration for all except Catholics. The Catholics
achieved religious liberty in the 19th century when the Roman Catholic Relief
Act of 1829 was adopted. The Jews followed suit in 1858 when they were
finally permitted to sit in Parliament.60
When the representatives of the American states met in Philadelphia in 1787 to
draft the constitutional foundation of the new republic, the theocratic state
which had flourished intermittently in Israel, Judea, the Holy Roman Empire
and Geneva was completely gone. The prevailing church-state relationship in
Europe was Erastianism embodied in the system of jurisdictionalism whereby
one faith was favored as the official state-supported religion, but other faiths
were permitted to exist with freedom in various degrees. No nation had yet
adopted as the basis of its church-state relations the principle of the mutual
independence of religion and government and the concomitant principle that
neither might be used as an engine to further the policies of the other, although
the principle was in its seminal form in the arguments of some dissident
minorities and intellectual leaders of the Renaissance. The religious wars of
16th and 17th century Europe were a thing of the past by the time America
declared its independence from the Old World, but their memory was still vivid
in the minds of the Constitutional Fathers as expressed by the United States
Supreme Court, viz:
The centuries immediately before and contemporaneous with the colonization
of America had been filled with turmoil, civil strife, and persecution generated
in large part by established sects determined to maintain their absolute political
and religious supremacy. With the power of government supporting them, at
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various times and places, Catholics had persecuted Protestants, Protestants had
persecuted Catholics, Protestant sects had persecuted other protestant sects,
Catholics of one shade of belief had persecuted Catholics of another shade of
belief, and all of these had from time to time persecuted Jews. In efforts to force
loyalty to whatever religious group happened to be on top and in league with
the government of a particular time and place, men and women had been fined,
cast in jail, cruelly tortured, and killed. Among the offenses for which these
punishments had been inflicted were such things as speaking disrespectfully of
the views of ministers of government-established churches, non-attendance at
those churches, expressions of non-belief in their doctrines, and failure to pay
taxes and tithes to support them.61
In 1784, James Madison captured in this statement the entire history of church-
state relations in Europe up to the time the United States Constitution was
adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular
arm to extinguish religious discord, by proscribing all differences in religious
opinions.62
In sum, this history shows two salient features: First, with minor exceptions,
the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love and
of the Prince of Peace. Second, likewise with minor exceptions, this history
witnessed the unscrupulous use of religion by secular powers to promote
secular purposes and policies, and the willing acceptance of that role by the
vanguards of religion in exchange for the favors and mundane benefits
conferred by ambitious princes and emperors in exchange for religion's
invaluable service. This was the context in which the unique experiment of the
principle of religious freedom and separation of church and state saw its birth
in American constitutional democracy and in human history.63
V. Factors Contributing to the Adoption of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglican-
dominated England, established many of the American colonies. British
thought pervaded these colonies as the immigrants brought with them their
religious and political ideas from England and English books and pamphlets
largely provided their cultural fare.64 But although these settlers escaped from
Europe to be freed from bondage of laws which compelled them to support and
attend government favored churches, some of these settlers themselves
transplanted into American soil the oppressive practices they escaped from. The
charters granted by the English Crown to the individuals and companies
designated to make the laws which would control the destinies of the colonials
authorized them to erect religious establishments, which all, whether believers
or not, were required to support or attend.65 At one time, six of the colonies
established a state religion. Other colonies, however, such as Rhode Island and
Delaware tolerated a high degree of religious diversity. Still others, which
originally tolerated only a single religion, eventually extended support to
several different faiths.66
This was the state of the American colonies when the unique American
experiment of separation of church and state came about. The birth of the
experiment cannot be attributed to a single cause or event. Rather, a number of
interdependent practical and ideological factors contributed in bringing it forth.
Among these were the "English Act of Toleration of 1689, the multiplicity of
sects, the lack of church affiliation on the part of most Americans, the rise of
commercial intercourse, the exigencies of the Revolutionary War, the
Williams-Penn tradition and the success of their experiments, the writings of
Locke, the social contract theory, the Great Awakening, and the influence of
European rationalism and deism."67 Each of these factors shall be briefly
discussed.
First, the practical factors. England's policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects in the
colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a particular
time in order to encourage trade and commerce. The colonies were large
financial investments which would be profitable only if people would settle
there. It would be difficult to engage in trade with persons one seeks to destroy
for religious belief, thus tolerance was a necessity. This tended to distract the
colonies from their preoccupations over their religion and its exclusiveness,
encouraging them "to think less of the Church and more of the State and of
commerce."68 The diversity brought about by the colonies' open gates
encouraged religious freedom and non-establishment in several ways. First, as
there were too many dissenting sects to abolish, there was no alternative but to
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learn to live together. Secondly, because of the daily exposure to different
religions, the passionate conviction in the exclusive rightness of one's religion,
which impels persecution for the sake of one's religion, waned. Finally, because
of the great diversity of the sects, religious uniformity was not possible, and
without such uniformity, establishment could not survive.69
But while there was a multiplicity of denomination, paradoxically, there was a
scarcity of adherents. Only about four percent of the entire population of the
country had a church affiliation at the time the republic was founded.70 This
might be attributed to the drifting to the American colonies of the skepticism
that characterized European Enlightenment.71 Economic considerations might
have also been a factor. The individualism of the American colonist, manifested
in the multiplicity of sects, also resulted in much unaffiliated religion which
treated religion as a personal non-institutional matter. The prevalence of lack
of church affiliation contributed to religious liberty and disestablishment as
persons who were not connected with any church were not likely to persecute
others for similar independence nor accede to compulsory taxation to support a
church to which they did not belong.72
However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act of
Toleration of 1689. In England, this Act conferred on Protestant dissenters the
right to hold public services subject to registration of their ministers and places
of worship.73 Although the toleration accorded to Protestant dissenters who
qualified under its terms was only a modest advance in religious freedom, it
nevertheless was of some influence to the American experiment.74 Even then,
for practical considerations, concessions had to be made to other dissenting
churches to ensure their cooperation in the War of Independence which thus
had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th century,
an evangelical religious revival originating in New England, caused a break
with formal church religion and a resistance to coercion by established
churches. This movement emphasized an emotional, personal religion that
appealed directly to the individual, putting emphasis on the rights and duties of
the individual conscience and its answerability exclusively to God. Thus,
although they had no quarrel with orthodox Christian theology as in fact they
were fundamentalists, this group became staunch advocates of separation of
church and state.75
Then there was the Williams-Penn tradition. Roger Williams was the founder
of the colony of Rhode Island where he established a community of Baptists,
Quakers and other nonconformists. In this colony, religious freedom was not
based on practical considerations but on the concept of mutual independence of
religion and government. In 1663, Rhode Island obtained a charter from the
British crown which declared that settlers have it "much on their heart to hold
forth a livelie experiment that a most flourishing civil state may best be
maintained . . . with full libertie in religious concernments."76 In Williams'
pamphlet, The Bloudy Tenent of Persecution for cause of Conscience,
discussed in a Conference between Truth and Peace,77 he articulated the
philosophical basis for his argument of religious liberty. To him, religious
freedom and separation of church and state did not constitute two but only one
principle. Religious persecution is wrong because it "confounds the Civil and
Religious" and because "States . . . are proved essentially Civil. The "power of
true discerning the true fear of God" is not one of the powers that the people
have transferred to Civil Authority.78 Williams' Bloudy Tenet is considered an
epochal milestone in the history of religious freedom and the separation of
church and state.79
William Penn, proprietor of the land that became Pennsylvania, was also an
ardent advocate of toleration, having been imprisoned for his religious
convictions as a member of the despised Quakers. He opposed coercion in
matters of conscience because "imposition, restraint and persecution for
conscience sake, highly invade the Divine prerogative." Aside from his
idealism, proprietary interests made toleration in Pennsylvania necessary. He
attracted large numbers of settlers by promising religious toleration, thus
bringing in immigrants both from the Continent and Britain. At the end of the
colonial period, Pennsylvania had the greatest variety of religious groups. Penn
was responsible in large part for the "Concessions and agreements of the
Proprietors, Freeholders, and inhabitants of West Jersey, in America", a
monumental document in the history of civil liberty which provided among
others, for liberty of conscience.80 The Baptist followers of Williams and the
Quakers who came after Penn continued the tradition started by the leaders of
their denominations. Aside from the Baptists and the Quakers, the Presbyterians
likewise greatly contributed to the evolution of separation and freedom.81 The
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Constitutional fathers who convened in Philadelphia in 1787, and Congress and
the states that adopted the First Amendment in 1791 were very familiar with
and strongly influenced by the successful examples of Rhode Island and
Pennsylvania.82
Undeniably, John Locke and the social contract theory also contributed to the
American experiment. The social contract theory popularized by Locke was so
widely accepted as to be deemed self-evident truth in America's Declaration of
Independence. With the doctrine of natural rights and equality set forth in the
Declaration of Independence, there was no room for religious discrimination.
It was difficult to justify inequality in religious treatment by a new nation that
severed its political bonds with the English crown which violated the self-
evident truth that all men are created equal.83
The social contract theory was applied by many religious groups in arguing
against establishment, putting emphasis on religion as a natural right that is
entirely personal and not within the scope of the powers of a political body.
That Locke and the social contract theory were influential in the development
of religious freedom and separation is evident from the memorial presented by
the Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in
every one the better to preserve himself, his liberty and property. The power of
the society, or Legislature constituted by them, can never be supposed to extend
any further than the common good, but is obliged to secure every one's property.
To give laws, to receive obedience, to compel with the sword, belong to none
but the civil magistrate; and on this ground we affirm that the magistrate's
power extends not to establishing any articles of faith or forms of worship, by
force of laws; for laws are of no force without penalties. The care of souls
cannot belong to the civil magistrate, because his power consists only in
outward force; but pure and saving religion consists in the inward persuasion
of the mind, without which nothing can be acceptable to God.84 (emphasis
supplied)
The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or
Christ did not desire that government have that jurisdiction ("render unto
Caesar that which is Caesar's"; "my kingdom is not of this world") and to the
rationalist, the power to act in the realm of religion was not one of the powers
conferred on government as part of the social contract.85
Not only the social contract theory drifted to the colonies from Europe. Many
of the leaders of the Revolutionary and post-revolutionary period were also
influenced by European deism and rationalism,86 in general, and some were
apathetic if not antagonistic to formal religious worship and institutionalized
religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among
others were reckoned to be among the Unitarians or Deists. Unitarianism and
Deism contributed to the emphasis on secular interests and the relegation of
historic theology to the background.87 For these men of the enlightenment,
religion should be allowed to rise and fall on its own, and the state must be
protected from the clutches of the church whose entanglements has caused
intolerance and corruption as witnessed throughout history.88 Not only the
leaders but also the masses embraced rationalism at the end of the eighteenth
century, accounting for the popularity of Paine's Age of Reason.89
Finally, the events leading to religious freedom and separation in Virginia
contributed significantly to the American experiment of the First Amendment.
Virginia was the "first state in the history of the world to proclaim the decree
of absolute divorce between church and state."90 Many factors contributed to
this, among which were that half to two-thirds of the population were organized
dissenting sects, the Great Awakening had won many converts, the established
Anglican Church of Virginia found themselves on the losing side of the
Revolution and had alienated many influential laymen with its identification
with the Crown's tyranny, and above all, present in Virginia was a group of
political leaders who were devoted to liberty generally,91 who had accepted the
social contract as self-evident, and who had been greatly influenced by Deism
and Unitarianism. Among these leaders were Washington, Patrick Henry,
George Mason, James Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the
following provision in the Bill of Rights of the state's first constitution:
That religion, or the duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and conviction, not by force or
violence; and therefore, all men are equally entitled to the free exercise of
religion according to the dictates of conscience; and that it is the mutual duty
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of all to practice Christian forbearance, love, and charity towards each other.92
(emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition of establishment. While the
majority of the population were dissenters, a majority of the legislature were
churchmen. The legislature compromised and enacted a bill in 1776 abolishing
the more oppressive features of establishment and granting exemptions to the
dissenters, but not guaranteeing separation. It repealed the laws punishing
heresy and absence from worship and requiring the dissenters to contribute to
the support of the establishment.93 But the dissenters were not satisfied; they
not only wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the
established church would not allow that only they would pay taxes while the
rest did not, the legislature enacted in 1779 a bill making permanent the
establishment's loss of its exclusive status and its power to tax its members; but
those who voted for it did so in the hope that a general assessment bill would
be passed. Without the latter, the establishment would not survive. Thus, a bill
was introduced in 1779 requiring every person to enroll his name with the
county clerk and indicate which "society for the purpose of Religious Worship"
he wished to support. On the basis of this list, collections were to be made by
the sheriff and turned over to the clergymen and teachers designated by the
religious congregation. The assessment of any person who failed to enroll in
any society was to be divided proportionately among the societies.94 The bill
evoked strong opposition.
In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the
Christian Religion" was introduced requiring all persons "to pay a moderate tax
or contribution annually for the support of the Christian religion, or of some
Christian church, denomination or communion of Christians, or for some form
of Christian worship."95 This likewise aroused the same opposition to the 1779
bill. The most telling blow against the 1784 bill was the monumental "Memorial
and Remonstrance against Religious Assessments" written by Madison and
widely distributed before the reconvening of legislature in the fall of 1785.96 It
stressed natural rights, the government's lack of jurisdiction over the domain of
religion, and the social contract as the ideological basis of separation while also
citing practical considerations such as loss of population through migration. He
wrote, viz:
Because we hold it for a 'fundamental and undeniable truth,' that religion, or the
duty which we owe to our creator, and the manner of discharging it, can be
directed only by reason and conviction, not by force or violence. The religion,
then, of every man, must be left to the conviction and conscience of every man;
and it is the right of every man to exercise it as these may dictate. This right is,
in its nature, an unalienable right. It is unalienable, because the opinions of men,
depending only on the evidence contemplated in their own minds, cannot
follow the dictates of other men; it is unalienable, also, because what is here a
right towards men, is a duty towards the creator. It is the duty of every man to
render the creator such homage, and such only as he believes to be acceptable
to him; this duty is precedent, both in order of time and degree of obligation, to
the claims of civil society. Before any man can be considered as a member of
civil society, he must be considered as a subject of the governor of the universe;
and if a member of civil society, who enters into any subordinate association,
must always do it with a reservation of his duty to the general authority, much
more must every man who becomes a member of any particular civil society do
it with the saving his allegiance to the universal sovereign.97 (emphases
supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as
indicated by the great number of signatures appended to the Memorial. The
assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill
of Jefferson which had not been voted on, the "Bill for Establishing Religious
Freedom", and it was finally passed in January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all attempts to
influence it by temporal punishments or burdens, or by civil incapacitations,
tend not only to beget habits of hypocrisy and meanness, and are a departure
from the plan of the Holy Author of our religion, who being Lord both of body
and mind, yet chose not to propagate it by coercions on either, as was in his
Almighty power to do;
xxx xxx xxx
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Be it therefore enacted by the General Assembly. That no man shall be
compelled to frequent or support any religious worship, place or ministry
whatsoever, nor shall be enforced, restrained, molested or burdened in his body
or goods, nor shall otherwise suffer on account of his religious opinions or
beliefs, but that all men shall be free to profess, and by argument to maintain,
their opinions in matters of religion, and that the same shall in no wise diminish,
enlarge or affect their civil capacities.98 (emphases supplied)
This statute forbade any kind of taxation in support of religion and effectually
ended any thought of a general or particular establishment in Virginia.99 But
the passage of this law was obtained not only because of the influence of the
great leaders in Virginia but also because of substantial popular support coming
mainly from the two great dissenting sects, namely the Presbyterians and the
Baptists. The former were never established in Virginia and an underprivileged
minority of the population. This made them anxious to pull down the existing
state church as they realized that it was impossible for them to be elevated to
that privileged position. Apart from these expediential considerations, however,
many of the Presbyterians were sincere advocates of separation100 grounded
on rational, secular arguments and to the language of natural religion.101
Influenced by Roger Williams, the Baptists, on the other hand, assumed that
religion was essentially a matter of concern of the individual and his God, i.e.,
subjective, spiritual and supernatural, having no relation with the social
order.102 To them, the Holy Ghost was sufficient to maintain and direct the
Church without governmental assistance and state-supported religion was
contrary ti the spirit of the Gospel.103 Thus, separation was necessary.104
Jefferson's religious freedom statute was a milestone in the history of religious
freedom. The United States Supreme Court has not just once acknowledged that
the provisions of the First Amendment of the U.S. Constitution had the same
objectives and intended to afford the same protection against government
interference with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had
no power to legislate in the area of religion by restricting its free exercise or
establishing it was implicit in the Constitution of 1787. This could be deduced
from the prohibition of any religious test for federal office in Article VI of the
Constitution and the assumed lack of power of Congress to act on any subject
not expressly mentioned in the Constitution.105 However, omission of an
express guaranty of religious freedom and other natural rights nearly prevented
the ratification of the Constitution.106 In the ratifying conventions of almost
every state, some objection was expressed to the absence of a restriction on the
Federal Government as regards legislation on religion.107 Thus, in 1791, this
restriction was made explicit with the adoption of the religion clauses in the
First Amendment as they are worded to this day, with the first part usually
referred to as the Establishment Clause and the second part, the Free Exercise
Clause, viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First Amendment
religion clauses comes an equally broad disagreement as to what these clauses
specifically require, permit and forbid. No agreement has been reached by those
who have studied the religion clauses as regards its exact meaning and the
paucity of records in Congress renders it difficult to ascertain its meaning.108
Consequently, the jurisprudence in this area is volatile and fraught with
inconsistencies whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s, religion
played a primary role in social life - i.e., family responsibilities, education,
health care, poor relief, and other aspects of social life with significant moral
dimension - while government played a supportive and indirect role by
maintaining conditions in which these activities may be carried out by religious
or religiously-motivated associations. Today, government plays this primary
role and religion plays the supportive role.109 Government runs even family
planning, sex education, adoption and foster care programs.110 Stated
otherwise and with some exaggeration, "(w)hereas two centuries ago, in matters
of social life which have a significant moral dimension, government was the
handmaid of religion, today religion, in its social responsibilities, as contrasted
with personal faith and collective worship, is the handmaid of government."111
With government regulation of individual conduct having become more
pervasive, inevitably some of those regulations would reach conduct that for
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some individuals are religious. As a result, increasingly, there may be
inadvertent collisions between purely secular government actions and religion
clause values.112
Parallel to this expansion of government has been the expansion of religious
organizations in population, physical institutions, types of activities
undertaken, and sheer variety of denominations, sects and cults. Churches run
day-care centers, retirement homes, hospitals, schools at all levels, research
centers, settlement houses, halfway houses for prisoners, sports facilities, theme
parks, publishing houses and mass media programs. In these activities, religious
organizations complement and compete with commercial enterprises, thus
blurring the line between many types of activities undertaken by religious
groups and secular activities. Churches have also concerned themselves with
social and political issues as a necessary outgrowth of religious faith as
witnessed in pastoral letters on war and peace, economic justice, and human
life, or in ringing affirmations for racial equality on religious foundations.
Inevitably, these developments have brought about substantial entanglement of
religion and government. Likewise, the growth in population density, mobility
and diversity has significantly changed the environment in which religious
organizations and activities exist and the laws affecting them are made. It is no
longer easy for individuals to live solely among their own kind or to shelter
their children from exposure to competing values. The result is disagreement
over what laws should require, permit or prohibit;113 and agreement that if the
rights of believers as well as non-believers are all to be respected and given
their just due, a rigid, wooden interpretation of the religion clauses that is blind
to societal and political realities must be avoided.114
Religion cases arise from different circumstances. The more obvious ones arise
from a government action which purposely aids or inhibits religion. These cases
are easier to resolve as, in general, these actions are plainly unconstitutional.
Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or
inhibit religion.115 The more difficult religion clause cases involve
government action with a secular purpose and general applicability which
incidentally or inadvertently aids or burdens religious exercise. In Free Exercise
Clause cases, these government actions are referred to as those with
"burdensome effect" on religious exercise even if the government action is not
religiously motivated.116 Ideally, the legislature would recognize the religions
and their practices and would consider them, when practical, in enacting laws
of general application. But when the legislature fails to do so, religions that are
threatened and burdened turn to the courts for protection.117 Most of these free
exercise claims brought to the Court are for exemption, not invalidation of the
facially neutral law that has a "burdensome" effect.118
With the change in political and social context and the increasing inadvertent
collisions between law and religious exercise, the definition of religion for
purposes of interpreting the religion clauses has also been modified to suit
current realities. Defining religion is a difficult task for even theologians,
philosophers and moralists cannot agree on a comprehensive definition.
Nevertheless, courts must define religion for constitutional and other legal
purposes.119 It was in the 1890 case of Davis v. Beason120 that the United
States Supreme Court first had occasion to define religion, viz:
The term 'religion' has reference to one's views of his relations to his Creator,
and to the obligations they impose of reverence for his being and character, and
of obedience to his will. It is often confounded with the cultus or form of
worship of a particular sect, but is distinguishable from the latter. The First
Amendment to the Constitution, in declaring that Congress shall make no law
respecting the establishment of religion, or forbidding the free exercise thereof,
was intended to allow everyone under the jurisdiction of the United States to
entertain such notions respecting his relations to his Maker and the duties they
impose as may be approved by his judgment and conscience, and to exhibit his
sentiments in such form of worship as he may think proper, not injurious to the
equal rights of others, and to prohibit legislation for the support of any religious
tenets, or the modes of worship of any sect.121
The definition was clearly theistic which was reflective of the popular attitudes
in 1890.
In 1944, the Court stated in United States v. Ballard122 that the free exercise
of religion "embraces the right to maintain theories of life and of death and of
the hereafter which are rank heresy to followers of the orthodox faiths."123 By
the 1960s, American pluralism in religion had flourished to include non-theistic
creeds from Asia such as Buddhism and Taoism.124 In 1961, the Court, in
Torcaso v. Watkins,125 expanded the term "religion" to non-theistic beliefs
such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years
later, the Court faced a definitional problem in United States v. Seeger126
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which involved four men who claimed "conscientious objector" status in
refusing to serve in the Vietnam War. One of the four, Seeger, was not a
member of any organized religion opposed to war, but when specifically asked
about his belief in a Supreme Being, Seeger stated that "you could call (it) a
belief in a Supreme Being or God. These just do not happen to be the words
that I use." Forest Peter, another one of the four claimed that after considerable
meditation and reflection "on values derived from the Western religious and
philosophical tradition," he determined that it would be "a violation of his moral
code to take human life and that he considered this belief superior to any
obligation to the state." The Court avoided a constitutional question by broadly
interpreting not the Free Exercise Clause, but the statutory definition of religion
in the Universal Military Training and Service Act of 1940 which exempt from
combat anyone "who, by reason of religious training and belief, is
conscientiously opposed to participation in war in any form." Speaking for the
Court, Justice Clark ruled, viz:
Congress, in using the expression 'Supreme Being' rather than the designation
'God,' was merely clarifying the meaning of religious tradition and belief so as
to embrace all religions and to exclude essentially political, sociological, or
philosophical views (and) the test of belief 'in relation to a Supreme Being' is
whether a given belief that is sincere and meaningful occupies a place in the
life of its possessor parallel to the orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were conscientious
objectors possessed of such religious belief and training.
Federal and state courts have expanded the definition of religion in Seeger to
include even non-theistic beliefs such as Taoism or Zen Buddhism. It has been
proposed that basically, a creed must meet four criteria to qualify as religion
under the First Amendment. First, there must be belief in God or some parallel
belief that occupies a central place in the believer's life. Second, the religion
must involve a moral code transcending individual belief, i.e., it cannot be
purely subjective. Third, a demonstrable sincerity in belief is necessary, but the
court must not inquire into the truth or reasonableness of the belief.127 Fourth,
there must be some associational ties,128 although there is also a view that
religious beliefs held by a single person rather than being part of the teachings
of any kind of group or sect are entitled to the protection of the Free Exercise
Clause.129
Defining religion is only the beginning of the difficult task of deciding religion
clause cases. Having hurdled the issue of definition, the court then has to draw
lines to determine what is or is not permissible under the religion clauses. In
this task, the purpose of the clauses is the yardstick. Their purpose is singular;
they are two sides of the same coin.130 In devoting two clauses to religion, the
Founders were stating not two opposing thoughts that would cancel each other
out, but two complementary thoughts that apply in different ways in different
circumstances.131 The purpose of the religion clauses - both in the restriction
it imposes on the power of the government to interfere with the free exercise of
religion and the limitation on the power of government to establish, aid, and
support religion - is the protection and promotion of religious liberty.132 The
end, the goal, and the rationale of the religion clauses is this liberty.133 Both
clauses were adopted to prevent government imposition of religious orthodoxy;
the great evil against which they are directed is government-induced
homogeneity.134 The Free Exercise Clause directly articulates the common
objective of the two clauses and the Establishment Clause specifically
addresses a form of interference with religious liberty with which the Framers
were most familiar and for which government historically had demonstrated a
propensity.135 In other words, free exercise is the end, proscribing
establishment is a necessary means to this end to protect the rights of those who
might dissent from whatever religion is established.136 It has even been
suggested that the sense of the First Amendment is captured if it were to read
as "Congress shall make no law respecting an establishment of religion or
otherwise prohibiting the free exercise thereof" because the fundamental and
single purpose of the two religious clauses is to "avoid any infringement on the
free exercise of religions"137 Thus, the Establishment Clause mandates
separation of church and state to protect each from the other, in service of the
larger goal of preserving religious liberty. The effect of the separation is to limit
the opportunities for any religious group to capture the state apparatus to the
disadvantage of those of other faiths, or of no faith at all138 because history
has shown that religious fervor conjoined with state power is likely to tolerate
far less religious disagreement and disobedience from those who hold different
beliefs than an enlightened secular state.139 In the words of the U.S. Supreme
Court, the two clauses are interrelated, viz: "(t)he structure of our government
has, for the preservation of civil liberty, rescued the temporal institutions from
religious interference. On the other hand, it has secured religious liberty from
the invasion of the civil authority."140
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In upholding religious liberty as the end goal in religious clause cases, the line
the court draws to ensure that government does not establish and instead
remains neutral toward religion is not absolutely straight. Chief Justice Burger
explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely
straight line; rigidity could well defeat the basic purpose of these provisions,
which is to insure that no religion be sponsored or favored, none commanded
and none inhibited.141 (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably different,142
even opposing, strains of jurisprudence on the religion clauses: separation (in
the form of strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality or accommodation. A view of the
landscape of U.S. religion clause cases would be useful in understanding these
two strains, the scope of protection of each clause, and the tests used in religious
clause cases. Most of these cases are cited as authorities in Philippine religion
clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case of
Reynolds v. United States.143 This landmark case involved Reynolds, a
Mormon who proved that it was his religious duty to have several wives and
that the failure to practice polygamy by male members of his religion when
circumstances would permit would be punished with damnation in the life to
come. Reynolds' act of contracting a second marriage violated Section 5352,
Revised Statutes prohibiting and penalizing bigamy, for which he was
convicted. The Court affirmed Reynolds' conviction, using what in
jurisprudence would be called the belief-action test which allows absolute
protection to belief but not to action. It cited Jefferson's Bill Establishing
Religious Freedom which, according to the Court, declares "the true distinction
between what properly belongs to the Church and what to the State."144 The
bill, making a distinction between belief and action, states in relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field of opinion,
and to restrain the profession or propagation of principles on supposition of
their ill tendency, is a dangerous fallacy which at once destroys all religious
liberty;
that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against peace and
good order.145 (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was left
free to reach actions which were in violation of social duties or subversive of
good order. . .
Laws are made for the government of actions, and while they cannot interfere
with mere religious belief and opinions, they may with practices. Suppose one
believed that human sacrifice were a necessary part of religious worship, would
it be seriously contended that the civil government under which he lived could
not interfere to prevent a sacrifice? Or if a wife religiously believed it was her
duty to burn herself upon the funeral pile of her dead husband, would it be
beyond the power of the civil government to prevent her carrying her belief into
practice?
So here, as a law of the organization of society under the exclusive dominion
of the United States, it is provided that plural marriages shall not be allowed.
Can a man excuse his practices to the contrary because of his religious belief?
To permit this would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every citizen to become
a law unto himself. Government could exist only in name under such
circumstances.146
The construct was thus simple: the state was absolutely prohibited by the Free
Exercise Clause from regulating individual religious beliefs, but placed no
restriction on the ability of the state to regulate religiously motivated conduct.
It was logical for belief to be accorded absolute protection because any statute
designed to prohibit a particular religious belief unaccompanied by any conduct
would most certainly be motivated only by the legislature's preference of a
competing religious belief. Thus, all cases of regulation of belief would amount
to regulation of religion for religious reasons violative of the Free Exercise
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Clause. On the other hand, most state regulations of conduct are for public
welfare purposes and have nothing to do with the legislature's religious
preferences. Any burden on religion that results from state regulation of
conduct arises only when particular individuals are engaging in the generally
regulated conduct because of their particular religious beliefs. These burdens
are thus usually inadvertent and did not figure in the belief-action test. As long
as the Court found that regulation address action rather than belief, the Free
Exercise Clause did not pose any problem.147 The Free Exercise Clause thus
gave no protection against the proscription of actions even if considered central
to a religion unless the legislature formally outlawed the belief itself.148
This belief-action distinction was held by the Court for some years as shown
by cases where the Court upheld other laws which burdened the practice of the
Mormon religion by imposing various penalties on polygamy such as the Davis
case and Church of Latter Day Saints v. United States.149 However, more than
a century since Reynolds was decided, the Court has expanded the scope of
protection from belief to speech and conduct. But while the belief-action test
has been abandoned, the rulings in the earlier Free Exercise cases have gone
unchallenged. The belief-action distinction is still of some importance though
as there remains an absolute prohibition of governmental proscription of
beliefs.150
The Free Exercise Clause accords absolute protection to individual religious
convictions and beliefs151 and proscribes government from questioning a
person's beliefs or imposing penalties or disabilities based solely on those
beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in
Torcaso v. Watkins,152 a unanimous Court struck down a state law requiring
as a qualification for public office an oath declaring belief in the existence of
God. The protection also allows courts to look into the good faith of a person
in his belief, but prohibits inquiry into the truth of a person's religious beliefs.
As held in United States v. Ballard,153 "(h)eresy trials are foreign to the
Constitution. Men may believe what they cannot prove. They may not be put to
the proof of their religious doctrines or beliefs."
Next to belief which enjoys virtually absolute protection, religious speech and
expressive religious conduct are accorded the highest degree of protection.
Thus, in the 1940 case of Cantwell v. Connecticut,154 the Court struck down a
state law prohibiting door-to-door solicitation for any religious or charitable
cause without prior approval of a state agency. The law was challenged by
Cantwell, a member of the Jehovah's Witnesses which is committed to active
proselytizing. The Court invalidated the state statute as the prior approval
necessary was held to be a censorship of religion prohibited by the Free
Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp differences
arise. In both fields the tenets of one may seem the rankest error to his neighbor.
To persuade others to his point of view, the pleader, as we know, resorts to
exaggeration, to vilification of men who have been, or are, prominent in church
or state, and even to false statement. But the people of this nation have ordained
in the light of history, that, in spite of the probability of excesses and abuses,
these liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of citizens of a democracy.155
Cantwell took a step forward from the protection afforded by the Reynolds case
in that it not only affirmed protection of belief but also freedom to act for the
propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and freedom
to act. The first is absolute but, in the nature of things, the second cannot be.
Conduct remains subject to regulation for the protection of society. . . In every
case, the power to regulate must be so exercised as not, in attaining a
permissible end, unduly to infringe the protected freedom. (emphasis
supplied)156
The Court stated, however, that government had the power to regulate the times,
places, and manner of solicitation on the streets and assure the peace and safety
of the community.
Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled
that police could not prohibit members of the Jehovah's Witnesses from
peaceably and orderly proselytizing on Sundays merely because other citizens
complained. In another case likewise involving the Jehovah's Witnesses,
Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city
council's denial of a permit to the Jehovah's Witnesses to use the city park for
a public meeting. The city council's refusal was because of the "unsatisfactory"
answers of the Jehovah's Witnesses to questions about Catholicism, military
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service, and other issues. The denial of the public forum was considered blatant
censorship. While protected, religious speech in the public forum is still subject
to reasonable time, place and manner regulations similar to non-religious
speech. Religious proselytizing in congested areas, for example, may be limited
to certain areas to maintain the safe and orderly flow of pedestrians and
vehicular traffic as held in the case of Heffron v. International Society for
Krishna Consciousness.159
The least protected under the Free Exercise Clause is religious conduct, usually
in the form of unconventional religious practices. Protection in this realm
depends on the character of the action and the government rationale for
regulating the action.160 The Mormons' religious conduct of polygamy is an
example of unconventional religious practice. As discussed in the Reynolds
case above, the Court did not afford protection to the practice. Reynolds was
reiterated in the 1890 case of Davis again involving Mormons, where the Court
held, viz: "(c)rime is not the less odious because sanctioned by what any
particular sect may designate as religion."161
The belief-action test in Reynolds and Davis proved unsatisfactory. Under this
test, regulation of religiously dictated conduct would be upheld no matter how
central the conduct was to the exercise of religion and no matter how
insignificant was the government's non-religious regulatory interest so long as
the government is proscribing action and not belief. Thus, the Court abandoned
the simplistic belief-action distinction and instead recognized the deliberate-
inadvertent distinction, i.e., the distinction between deliberate state interference
of religious exercise for religious reasons which was plainly unconstitutional
and government's inadvertent interference with religion in pursuing some
secular objective.162 In the 1940 case of Minersville School District v.
Gobitis,163 the Court upheld a local school board requirement that all public
school students participate in a daily flag salute program, including the
Jehovah's Witnesses who were forced to salute the American flag in violation
of their religious training, which considered flag salute to be worship of a
"graven image." The Court recognized that the general requirement of
compulsory flag salute inadvertently burdened the Jehovah Witnesses' practice
of their religion, but justified the government regulation as an appropriate
means of attaining national unity, which was the "basis of national security."
Thus, although the Court was already aware of the deliberate-inadvertent
distinction in government interference with religion, it continued to hold that
the Free Exercise Clause presented no problem to interference with religion that
was inadvertent no matter how serious the interference, no matter how trivial
the state's non-religious objectives, and no matter how many alternative
approaches were available to the state to pursue its objectives with less impact
on religion, so long as government was acting in pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v.
Barnette164 which involved a similar set of facts and issue. The Court
recognized that saluting the flag, in connection with the pledges, was a form of
utterance and the flag salute program was a compulsion of students to declare
a belief. The Court ruled that "compulsory unification of opinions leads only to
the unanimity of the graveyard" and exempt the students who were members of
the Jehovah's Witnesses from saluting the flag. A close scrutiny of the case,
however, would show that it was decided not on the issue of religious conduct
as the Court said, "(n)or does the issue as we see it turn on one's possession of
particular religious views or the sincerity with which they are held. While
religion supplies appellees' motive for enduring the discomforts of making the
issue in this case, many citizens who do not share these religious views hold
such a compulsory rite to infringe constitutional liberty of the individual."
(emphasis supplied)165 The Court pronounced, however, that, "freedoms of
speech and of press, of assembly, and of worship . . . are susceptible only of
restriction only to prevent grave and immediate danger to interests which the
state may lawfully protect."166 The Court seemed to recognize the extent to
which its approach in Gobitis subordinated the religious liberty of political
minorities - a specially protected constitutional value - to the common everyday
economic and public welfare objectives of the majority in the legislature. This
time, even inadvertent interference with religion must pass judicial scrutiny
under the Free Exercise Clause with only grave and immediate danger sufficing
to override religious liberty. But the seeds of this heightened scrutiny would
only grow to a full flower in the 1960s.167
Nearly a century after Reynolds employed the belief-action test, the Warren
Court began the modern free exercise jurisprudence.168 A two-part balancing
test was established in Braunfeld v. Brown169 where the Court considered the
constitutionality of applying Sunday closing laws to Orthodox Jews whose
beliefs required them to observe another day as the Sabbath and abstain from
commercial activity on Saturday. Chief Justice Warren, writing for the Court,
found that the law placed a severe burden on Sabattarian retailers. He noted,
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however, that since the burden was the indirect effect of a law with a secular
purpose, it would violate the Free Exercise Clause only if there were alternative
ways of achieving the state's interest. He employed a two-part balancing test of
validity where the first step was for plaintiff to show that the regulation placed
a real burden on his religious exercise. Next, the burden would be upheld only
if the state showed that it was pursuing an overriding secular goal by the means
which imposed the least burden on religious practices.170 The Court found that
the state had an overriding secular interest in setting aside a single day for rest,
recreation and tranquility and there was no alternative means of pursuing this
interest but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963 case
of Sherbert v. Verner.171 This test was similar to the two-part balancing test in
Braunfeld,172 but this latter test stressed that the state interest was not merely
any colorable state interest, but must be paramount and compelling to override
the free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed
unemployment compensation under the law as her employment was terminated
for refusal to work on Saturdays on religious grounds. Her claim was denied.
She sought recourse in the Supreme Court. In laying down the standard for
determining whether the denial of benefits could withstand constitutional
scrutiny, the Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday work constitutes
no conduct prompted by religious principles of a kind within the reach of state
legislation. If, therefore, the decision of the South Carolina Supreme Court is
to withstand appellant's constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of her
constitutional rights of free exercise, or because any incidental burden on the
free exercise of appellant's religion may be justified by a 'compelling state
interest in the regulation of a subject within the State's constitutional power to
regulate. . .' NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct
328.173 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial infringement
to the religious right and a colorable state interest. "(I)n this highly sensitive
constitutional area, '[o]nly the gravest abuses, endangering paramount interests,
give occasion for permissible limitation.' Thomas v. Collins, 323 US 516, 530,
89 L ed 430, 440, 65 S Ct 315."174 The Court found that there was no such
compelling state interest to override Sherbert's religious liberty. It added that
even if the state could show that Sherbert's exemption would pose serious
detrimental effects to the unemployment compensation fund and scheduling of
work, it was incumbent upon the state to show that no alternative means of
regulations would address such detrimental effects without infringing religious
liberty. The state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits. The
Court reasoned that upholding the denial of Sherbert's benefits would force her
to choose between receiving benefits and following her religion. This choice
placed "the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship." This germinal case of
Sherbert firmly established the exemption doctrine,175 viz:
It is certain that not every conscience can be accommodated by all the laws of
the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some 'compelling state interest'
intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even
as early as Braunfeld), the Court moved from the doctrine that inadvertent or
incidental interferences with religion raise no problem under the Free Exercise
Clause to the doctrine that such interferences violate the Free Exercise Clause
in the absence of a compelling state interest - the highest level of constitutional
scrutiny short of a holding of a per se violation. Thus, the problem posed by the
belief-action test and the deliberate-inadvertent distinction was addressed.176
Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger
Court, the rationale in Sherbert continued to be applied. In Thomas v. Review
Board177 and Hobbie v. Unemployment Appeals Division,178 for example,
the Court reiterated the exemption doctrine and held that in the absence of a
compelling justification, a state could not withhold unemployment
compensation from an employee who resigned or was discharged due to
unwillingness to depart from religious practices and beliefs that conflicted with
job requirements. But not every governmental refusal to allow an exemption
from a regulation which burdens a sincerely held religious belief has been
invalidated, even though strict or heightened scrutiny is applied. In United
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States v. Lee,179 for instance, the Court using strict scrutiny and referring to
Thomas, upheld the federal government's refusal to exempt Amish employers
who requested for exemption from paying social security taxes on wages on the
ground of religious beliefs. The Court held that "(b)ecause the broad public
interest in maintaining a sound tax system is of such a high order, religious
belief in conflict with the payment of taxes affords no basis for resisting the
tax."180 It reasoned that unlike in Sherbert, an exemption would significantly
impair government's achievement of its objective - "the fiscal vitality of the
social security system;" mandatory participation is indispensable to attain this
objective. The Court noted that if an exemption were made, it would be hard to
justify not allowing a similar exemption from general federal taxes where the
taxpayer argues that his religious beliefs require him to reduce or eliminate his
payments so that he will not contribute to the government's war-related
activities, for example.
The strict scrutiny and compelling state interest test significantly increased the
degree of protection afforded to religiously motivated conduct. While not
affording absolute immunity to religious activity, a compelling secular
justification was necessary to uphold public policies that collided with religious
practices. Although the members of the Court often disagreed over which
governmental interests should be considered compelling, thereby producing
dissenting and separate opinions in religious conduct cases, this general test
established a strong presumption in favor of the free exercise of religion.181
Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182
where the Court upheld the religious practice of the Old Order Amish faith over
the state's compulsory high school attendance law. The Amish parents in this
case did not permit secular education of their children beyond the eighth grade.
Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice of
a legitimate religious belief, it must appear either that the State does not deny
the free exercise of religious belief by its requirement, or that there is a state
interest of sufficient magnitude to override the interest claiming protection
under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses had
specially and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion. The values underlying
these two provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly high social
importance. . .
The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded conduct
is always outside the protection of the Free Exercise Clause. It is true that
activities of individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted power to promote the
health, safety, and general welfare, or the Federal government in the exercise
of its delegated powers . . . But to agree that religiously grounded conduct must
often be subject to the broad police power of the State is not to deny that there
are areas of conduct protected by the Free Exercise Clause of the First
Amendment and thus beyond the power of the State to control, even under
regulations of general applicability. . . .This case, therefore, does not become
easier because respondents were convicted for their "actions" in refusing to
send their children to the public high school; in this context belief and action
cannot be neatly confined in logic-tight compartments. . .183
The onset of the 1990s, however, saw a major setback in the protection afforded
by the Free Exercise Clause. In Employment Division, Oregon Department of
Human Resources v. Smith,184 the sharply divided Rehnquist Court
dramatically departed from the heightened scrutiny and compelling justification
approach and imposed serious limits on the scope of protection of religious
freedom afforded by the First Amendment. In this case, the well-established
practice of the Native American Church, a sect outside the Judeo-Christian
mainstream of American religion, came in conflict with the state's interest in
prohibiting the use of illicit drugs. Oregon's controlled substances statute made
the possession of peyote a criminal offense. Two members of the church, Smith
and Black, worked as drug rehabilitation counselors for a private social service
agency in Oregon. Along with other church members, Smith and Black ingested
peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native
Americans for hundreds of years. The social service agency fired Smith and
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Black citing their use of peyote as "job-related misconduct". They applied for
unemployment compensation, but the Oregon Employment Appeals Board
denied their application as they were discharged for job-related misconduct.
Justice Scalia, writing for the majority, ruled that "if prohibiting the exercise of
religion . . . is . . . merely the incidental effect of a generally applicable and
otherwise valid law, the First Amendment has not been offended." In other
words, the Free Exercise Clause would be offended only if a particular religious
practice were singled out for proscription. The majority opinion relied heavily
on the Reynolds case and in effect, equated Oregon's drug prohibition law with
the anti-polygamy statute in Reynolds. The relevant portion of the majority
opinion held, viz:
We have never invalidated any governmental action on the basis of the Sherbert
test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require exemptions
from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in accord with
the vast majority of our precedents, is to hold the test inapplicable to such
challenges. The government's ability to enforce generally applicable
prohibitions of socially harmful conduct, like its ability to carry out other
aspects of public policy, "cannot depend on measuring the effects of a
governmental action on a religious objector's spiritual development." . . .To
make an individual's obligation to obey such a law contingent upon the law's
coincidence with his religious beliefs except where the State's interest is
"compelling" - permitting him, by virtue of his beliefs, "to become a law unto
himself," . . . - contradicts both constitutional tradition and common sense.
Justice O'Connor wrote a concurring opinion pointing out that the majority's
rejection of the compelling governmental interest test was the most
controversial part of the decision. Although she concurred in the result that the
Free Exercise Clause had not been offended, she sharply criticized the majority
opinion as a dramatic departure "from well-settled First Amendment
jurisprudence. . . and . . . (as) incompatible with our Nation's fundamental
commitment to religious liberty." This portion of her concurring opinion was
supported by Justices Brennan, Marshall and Blackmun who dissented from the
Court's decision. Justice O'Connor asserted that "(t)he compelling state interest
test effectuates the First Amendment's command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court will
not permit encroachments upon this liberty, whether direct or indirect, unless
required by clear and compelling government interest 'of the highest order'."
Justice Blackmun registered a separate dissenting opinion, joined by Justices
Brennan and Marshall. He charged the majority with "mischaracterizing"
precedents and "overturning. . . settled law concerning the Religion Clauses of
our Constitution." He pointed out that the Native American Church restricted
and supervised the sacramental use of peyote. Thus, the state had no significant
health or safety justification for regulating the sacramental drug use. He also
observed that Oregon had not attempted to prosecute Smith or Black, or any
Native Americans, for that matter, for the sacramental use of peyote. In
conclusion, he said that "Oregon's interest in enforcing its drug laws against
religious use of peyote (was) not sufficiently compelling to outweigh
respondents' right to the free exercise of their religion."
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court's
standard in Smith virtually eliminated the requirement that the government
justify with a compelling state interest the burdens on religious exercise
imposed by laws neutral toward religion. The Smith doctrine is highly
unsatisfactory in several respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.185 First, the First amendment
was intended to protect minority religions from the tyranny of the religious and
political majority. A deliberate regulatory interference with minority religious
freedom is the worst form of this tyranny. But regulatory interference with a
minority religion as a result of ignorance or sensitivity of the religious and
political majority is no less an interference with the minority's religious
freedom. If the regulation had instead restricted the majority's religious
practice, the majoritarian legislative process would in all probability have
modified or rejected the regulation. Thus, the imposition of the political
majority's non-religious objectives at the expense of the minority's religious
interests implements the majority's religious viewpoint at the expense of the
minority's. Second, government impairment of religious liberty would most
often be of the inadvertent kind as in Smith considering the political culture
where direct and deliberate regulatory imposition of religious orthodoxy is
nearly inconceivable. If the Free Exercise Clause could not afford protection to
inadvertent interference, it would be left almost meaningless. Third, the
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Reynolds-Gobitis-Smith doctrine simply defies common sense. The state
should not be allowed to interfere with the most deeply held fundamental
religious convictions of an individual in order to pursue some trivial state
economic or bureaucratic objective. This is especially true when there are
alternative approaches for the state to effectively pursue its objective without
serious inadvertent impact on religion.186
Thus, the Smith decision has been criticized not only for increasing the power
of the state over religion but as discriminating in favor of mainstream religious
groups against smaller, more peripheral groups who lack legislative clout,187
contrary to the original theory of the First Amendment.188 Undeniably, claims
for judicial exemption emanate almost invariably from relatively politically
powerless minority religions and Smith virtually wiped out their judicial
recourse for exemption.189 Thus, the Smith decision elicited much negative
public reaction especially from the religious community, and commentaries
insisted that the Court was allowing the Free Exercise Clause to disappear.190
So much was the uproar that a majority in Congress was convinced to enact the
Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited
government at all levels from substantially burdening a person's free exercise
of religion, even if such burden resulted from a generally applicable rule, unless
the government could demonstrate a compelling state interest and the rule
constituted the least restrictive means of furthering that interest.191 RFRA, in
effect, sought to overturn the substance of the Smith ruling and restore the status
quo prior to Smith. Three years after the RFRA was enacted, however, the
Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v.
Flores.192 The Court ruled that "RFRA contradicts vital principles necessary
to maintain separation of powers and the federal balance." It emphasized the
primacy of its role as interpreter of the Constitution and unequivocally rejected,
on broad institutional grounds, a direct congressional challenge of final judicial
authority on a question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah193
which was ruled consistent with the Smith doctrine. This case involved animal
sacrifice of the Santeria, a blend of Roman Catholicism and West African
religions brought to the Carribean by East African slaves. An ordinance made
it a crime to "unnecessarily kill, torment, torture, or mutilate an animal in public
or private ritual or ceremony not for the primary purpose of food consumption."
The ordinance came as a response to the local concern over the sacrificial
practices of the Santeria. Justice Kennedy, writing for the majority, carefully
pointed out that the questioned ordinance was not a generally applicable
criminal prohibition, but instead singled out practitioners of the Santeria in that
it forbade animal slaughter only insofar as it took place within the context of
religious rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause,
religious belief is absolutely protected, religious speech and proselytizing are
highly protected but subject to restraints applicable to non-religious speech, and
unconventional religious practice receives less protection; nevertheless
conduct, even if its violates a law, could be accorded protection as shown in
Wisconsin.194
B. Establishment Clause
The Court's first encounter with the Establishment Clause was in the 1947 case
of Everson v. Board of Education.195 Prior cases had made passing reference
to the Establishment Clause196 and raised establishment questions but were
decided on other grounds.197 It was in the Everson case that the U.S. Supreme
Court adopted Jefferson's metaphor of "a wall of separation between church and
state" as encapsulating the meaning of the Establishment Clause. The often and
loosely used phrase "separation of church and state" does not appear in the U.S.
Constitution. It became part of U.S. jurisprudence when the Court in the 1878
case of Reynolds v. United States198 quoted Jefferson's famous letter of 1802
to the Danbury Baptist Association in narrating the history of the religion
clauses, viz:
Believing with you that religion is a matter which lies solely between man and
his God; that he owes account to none other for his faith or his worship; that the
legislative powers of the Government reach actions only, and not opinions, I
contemplate with sovereign reverence that act of the whole American people
which declared that their Legislature should 'make no law respecting an
establishment of religion or prohibiting the free exercise thereof,' thus building
a wall of separation between Church and State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as this
does from an acknowledged leader of the advocates of the measure, it may be
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accepted almost as an authoritative declaration of the scope and effect of the
amendment thus secured."200
The interpretation of the Establishment Clause has in large part been in cases
involving education, notably state aid to private religious schools and prayer in
public schools.201 In Everson v. Board of Education, for example, the issue
was whether a New Jersey local school board could reimburse parents for
expenses incurred in transporting their children to and from Catholic schools.
The reimbursement was part of a general program under which all parents of
children in public schools and nonprofit private schools, regardless of religion,
were entitled to reimbursement for transportation costs. Justice Hugo Black,
writing for a sharply divided Court, justified the reimbursements on the child
benefit theory, i.e., that the school board was merely furthering the state's
legitimate interest in getting children "regardless of their religion, safely and
expeditiously to and from accredited schools." The Court, after narrating the
history of the First Amendment in Virginia, interpreted the Establishment
Clause, viz:
The 'establishment of religion' clause of the First Amendment means at least
this: Neither a state nor the Federal Government can set up a church. Neither
can pass laws which aid one religion, aid all religions, or prefer one religion
over another. Neither can force nor influence a person to go to or remain away
from church against his will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance. No tax in any
amount, large or small, can be levied to support any religious activities or
institutions, whatever they may be called, or whatever form they may adopt to
teach or practice religion. Neither a state nor the Federal Government can,
openly or secretly participate in the affairs of any religious organizations or
groups and vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect "a wall of separation
between Church and State."202
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state. That wall
must be kept high and impregnable. We could not approve the slightest breach.
New Jersey has not breached it here.203
By 1971, the Court integrated the different elements of the Court's
Establishment Clause jurisprudence that evolved in the 1950s and 1960s and
laid down a three-pronged test in Lemon v. Kurtzman204 in determining the
constitutionality of policies challenged under the Establishment Clause. This
case involved a Pennsylvania statutory program providing publicly funded
reimbursement for the cost of teachers' salaries, textbooks, and instructional
materials in secular subjects and a Rhode Island statute providing salary
supplements to teachers in parochial schools. The Lemon test requires a
challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause. "First, the statute must have a secular legislative
purpose; second, its primary or principal effect must be one that neither
advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243,
20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster
'an excessive entanglement with religion.' (Walz v.Tax Commission, 397 US
664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970])" (emphasis supplied)205
Using this test, the Court held that the Pennsylvania statutory program and
Rhode Island statute were unconstitutional as fostering excessive entanglement
between government and religion.
The most controversial of the education cases involving the Establishment
Clause are the school prayer decisions. "Few decisions of the modern Supreme
Court have been criticized more intensely than the school prayer decisions of
the early 1960s."206 In the 1962 case of Engel v. Vitale,207 the Court
invalidated a New York Board of Regents policy that established the voluntary
recitation of a brief generic prayer by children in the public schools at the start
of each school day. The majority opinion written by Justice Black stated that
"in this country it is no part of the business of government to compose official
prayers for any group of the American people to recite as part of a religious
program carried on by government." In fact, history shows that this very
practice of establishing governmentally composed prayers for religious services
was one of the reasons that caused many of the early colonists to leave England
and seek religious freedom in America. The Court called to mind that the first
and most immediate purpose of the Establishment Clause rested on the belief
that a union of government and religion tends to destroy government and to
degrade religion. The following year, the Engel decision was reinforced in
Abington School District v. Schempp208 and Murray v. Curlett209 where the
Court struck down the practice of Bible reading and the recitation of the Lord's
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prayer in the Pennsylvania and Maryland schools. The Court held that to
withstand the strictures of the Establishment Clause, a statute must have a
secular legislative purpose and a primary effect that neither advances nor
inhibits religion. It reiterated, viz:
The wholesome 'neutrality' of which this Court's cases speak thus stems from a
recognition of the teachings of history that powerful sects or groups might bring
about a fusion of governmental and religious functions or a concert or
dependency of one upon the other to the end that official support of the State of
Federal Government would be placed behind the tenets of one or of all
orthodoxies. This the Establishment Clause prohibits. And a further reason for
neutrality is found in the Free Exercise Clause, which recognizes the value of
religious training, teaching and observance and, more particularly, the right of
every person to freely choose his own course with reference thereto, free of any
compulsion from the state.210
The school prayer decisions drew furious reactions. Religious leaders and
conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions.211 On several occasions,
constitutional amendments have been introduced in Congress to overturn the
school prayer decisions. Still, the Court has maintained its position and has in
fact reinforced it in the 1985 case of Wallace v. Jaffree212 where the Court
struck down an Alabama law that required public school students to observe a
moment of silence "for the purpose of meditation or voluntary prayer" at the
start of each school day.
Religious instruction in public schools has also pressed the Court to interpret
the Establishment Clause. Optional religious instruction within public school
premises and instructional time were declared offensive of the Establishment
Clause in the 1948 case of McCollum v. Board of Education,213 decided just a
year after the seminal Everson case. In this case, interested members of the
Jewish, Roman Catholic and a few Protestant faiths obtained permission from
the Board of Education to offer classes in religious instruction to public school
students in grades four to nine. Religion classes were attended by pupils whose
parents signed printed cards requesting that their children be permitted to
attend. The classes were taught in three separate groups by Protestant teachers,
Catholic priests and a Jewish rabbi and were held weekly from thirty to forty
minutes during regular class hours in the regular classrooms of the school
building. The religious teachers were employed at no expense to the school
authorities but they were subject to the approval and supervision of the
superintendent of schools. Students who did not choose to take religious
instruction were required to leave their classrooms and go to some other place
in the school building for their secular studies while those who were released
from their secular study for religious instruction were required to attend the
religious classes. The Court held that the use of tax-supported property for
religious instruction and the close cooperation between the school authorities
and the religious council in promoting religious education amounted to a
prohibited use of tax-established and tax-supported public school system to aid
religious groups spread their faith. The Court rejected the claim that the
Establishment Clause only prohibited government preference of one religion
over another and not an impartial governmental assistance of all religions. In
Zorach v. Clauson,214 however, the Court upheld released time programs
allowing students in public schools to leave campus upon parental permission
to attend religious services while other students attended study hall. Justice
Douglas, the writer of the opinion, stressed that "(t)he First Amendment does
not require that in every and all respects there shall be a separation of Church
and State." The Court distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and
the force of the public school was used to promote that instruction. . . We follow
the McCollum case. But we cannot expand it to cover the present released time
program unless separation of Church and State means that public institutions
can make no adjustments of their schedules to accommodate the religious needs
of the people. We cannot read into the Bill of Rights such a philosophy of
hostility to religion.215
In the area of government displays or affirmations of belief, the Court has given
leeway to religious beliefs and practices which have acquired a secular meaning
and have become deeply entrenched in history. For instance, in McGowan v.
Maryland,216 the Court upheld laws that prohibited certain businesses from
operating on Sunday despite the obvious religious underpinnings of the
restrictions. Citing the secular purpose of the Sunday closing laws and treating
as incidental the fact that this day of rest happened to be the day of worship for
most Christians, the Court held, viz:
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It is common knowledge that the first day of the week has come to have special
significance as a rest day in this country. People of all religions and people with
no religion regard Sunday as a time for family activity, for visiting friends and
relatives, for later sleeping, for passive and active entertainments, for dining
out, and the like.217
In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate
Nebraska's policy of beginning legislative sessions with prayers offered by a
Protestant chaplain retained at the taxpayers' expense. The majority opinion did
not rely on the Lemon test and instead drew heavily from history and the need
for accommodation of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years, there
can be no doubt that the practice of opening legislative sessions with prayer has
become the fabric of our society. To invoke Divine guidance on a public body
entrusted with making the laws is not, in these circumstances, an
"establishment" of religion or a step toward establishment; it is simply a
tolerable acknowledgement of beliefs widely held among the people of this
country. As Justice Douglas observed, "(w)e are a religious people whose
institutions presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306,
313 [1952])219 (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would "inevitably
be embarrassed if it were to attempt to strike down a practice that occurs in
nearly every legislature in the United States, including the U.S. Congress."220
That Marsh was not an aberration is suggested by subsequent cases. In the 1984
case of Lynch v. Donnelly,221 the Court upheld a city-sponsored nativity scene
in Rhode Island. By a 5-4 decision, the majority opinion hardly employed the
Lemon test and again relied on history and the fact that the creche had become
a "neutral harbinger of the holiday season" for many, rather than a symbol of
Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been exempt
from local property taxes and their income exempt from federal and state
income taxes. In the 1970 case of Walz v. Tax Commission,222 the New York
City Tax Commission's grant of property tax exemptions to churches as allowed
by state law was challenged by Walz on the theory that this required him to
subsidize those churches indirectly. The Court upheld the law stressing its
neutrality, viz:
It has not singled out one particular church or religious group or even churches
as such; rather, it has granted exemptions to all houses of religious worship
within a broad class of property owned by non-profit, quasi-public corporations
. . . The State has an affirmative policy that considers these groups as beneficial
and stabilizing influences in community life and finds this classification useful,
desirable, and in the public interest.223
The Court added that the exemption was not establishing religion but "sparing
the exercise of religion from the burden of property taxation levied on private
profit institutions"224 and preventing excessive entanglement between state
and religion. At the same time, the Court acknowledged the long-standing
practice of religious tax exemption and the Court's traditional deference to
legislative bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national life,
beginning with pre-Revolutionary colonial times, than for the government to
exercise . . . this kind of benevolent neutrality toward churches and religious
exercise generally so long as none was favored over others and none suffered
interference.225 (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark decisions in
the religious clauses area, are but a small fraction of the hundreds of religion
clauses cases that the U.S. Supreme Court has passed upon. Court rulings
contrary to or making nuances of the above cases may be cited. Professor
McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister
to lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-
93[1983]), but unconstitutional for a state to set aside a moment of silence in
the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38,
56 [1985]). It is unconstitutional for a state to require employers to
accommodate their employees' work schedules to their sabbath observances
(Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but
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constitutionally mandatory for a state to require employers to pay workers
compensation when the resulting inconsistency between work and sabbath
leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is
constitutional for the government to give money to religiously-affiliated
organizations to teach adolescents about proper sexual behavior (Bowen v.
Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history
(Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the
government to provide religious school pupils with books (Board of Education
v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433
US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board
of Education, 330 US 1, 17 [1947]), but not from school to a museum on a field
trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-
mandated standardized tests (Committee for Pub. Educ. and Religious Liberty
v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related
maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80
[1973]). It is a mess.226
But the purpose of the overview is not to review the entirety of the U.S. religion
clause jurisprudence nor to extract the prevailing case law regarding particular
religious beliefs or conduct colliding with particular government regulations.
Rather, the cases discussed above suffice to show that, as legal scholars
observe, this area of jurisprudence has demonstrated two main standards used
by the Court in deciding religion clause cases: separation (in the form of strict
separation or the tamer version of strict neutrality or separation) and benevolent
neutrality or accommodation. The weight of current authority, judicial and in
terms of sheer volume, appears to lie with the separationists, strict or tame.227
But the accommodationists have also attracted a number of influential scholars
and jurists.228 The two standards producing two streams of jurisprudence
branch out respectively from the history of the First Amendment in England
and the American colonies and climaxing in Virginia as narrated in this opinion
and officially acknowledged by the Court in Everson, and from American
societal life which reveres religion and practices age-old religious traditions.
Stated otherwise, separation - strict or tame - protects the principle of church-
state separation with a rigid reading of the principle while benevolent neutrality
protects religious realities, tradition and established practice with a flexible
reading of the principle.229 The latter also appeals to history in support of its
position, viz:
The opposing school of thought argues that the First Congress intended to allow
government support of religion, at least as long as that support did not
discriminate in favor of one particular religion. . . the Supreme Court has
overlooked many important pieces of history. Madison, for example, was on
the congressional committee that appointed a chaplain, he declared several
national days of prayer and fasting during his presidency, and he sponsored
Jefferson's bill for punishing Sabbath breakers; moreover, while president,
Jefferson allowed federal support of religious missions to the Indians. . . And
so, concludes one recent book, 'there is no support in the Congressional records
that either the First Congress, which framed the First Amendment, or its
principal author and sponsor, James Madison, intended that Amendment to
create a state of complete independence between religion and government. In
fact, the evidence in the public documents goes the other way.230 (emphasis
supplied)
To succinctly and poignantly illustrate the historical basis of benevolent
neutrality that gives room for accommodation, less than twenty-four hours after
Congress adopted the First Amendment's prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God
Almighty for the many blessings enjoyed by the nation with a resolution in
favor of a presidential proclamation declaring a national day of Thanksgiving
and Prayer. Only two members of Congress opposed the resolution, one on the
ground that the move was a "mimicking of European customs, where they made
a mere mockery of thanksgivings", the other on establishment clause concerns.
Nevertheless, the salutary effect of thanksgivings throughout Western history
was acknowledged and the motion was passed without further recorded
discussion.231 Thus, accommodationists also go back to the framers to
ascertain the meaning of the First Amendment, but prefer to focus on acts rather
than words. Contrary to the claim of separationists that rationalism pervaded
America in the late 19th century and that America was less specifically
Christian during those years than at any other time before or since,232
accommodationaists claim that American citizens at the time of the
Constitution's origins were a remarkably religious people in particularly
Christian terms.233
The two streams of jurisprudence - separationist or accommodationist - are
anchored on a different reading of the "wall of separation." The strict
separtionist view holds that Jefferson meant the "wall of separation" to protect
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the state from the church. Jefferson was a man of the Enlightenment Era of the
eighteenth century, characterized by the rationalism and anticlericalism of that
philosophic bent.234 He has often been regarded as espousing Deism or the
rationalistic belief in a natural religion and natural law divorced from its
medieval connection with divine law, and instead adhering to a secular belief
in a universal harmony.235 Thus, according to this Jeffersonian view, the
Establishment Clause being meant to protect the state from the church, the
state's hostility towards religion allows no interaction between the two.236 In
fact, when Jefferson became President, he refused to proclaim fast or
thanksgiving days on the ground that these are religious exercises and the
Constitution prohibited the government from intermeddling with religion.237
This approach erects an absolute barrier to formal interdependence of religion
and state. Religious institutions could not receive aid, whether direct or indirect,
from the state. Nor could the state adjust its secular programs to alleviate
burdens the programs placed on believers.238 Only the complete separation of
religion from politics would eliminate the formal influence of religious
institutions and provide for a free choice among political views thus a strict
"wall of separation" is necessary.239 Strict separation faces difficulties,
however, as it is deeply embedded in history and contemporary practice that
enormous amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from religion.
Thus, strict separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never likely to.240
A tamer version of the strict separationist view, the strict neutrality or
separationist view is largely used by the Court, showing the Court's tendency
to press relentlessly towards a more secular society.241 It finds basis in the
Everson case where the Court declared that Jefferson's "wall of separation"
encapsulated the meaning of the First Amendment but at the same time held
that the First Amendment "requires the state to be neutral in its relations with
groups of religious believers and non-believers; it does not require the state to
be their adversary. State power is no more to be used so as to handicap religions
than it is to favor them." (emphasis supplied)242 While the strict neutrality
approach is not hostile to religion, it is strict in holding that religion may not be
used as a basis for classification for purposes of governmental action, whether
the action confers rights or privileges or imposes duties or obligations. Only
secular criteria may be the basis of government action. It does not permit, much
less require, accommodation of secular programs to religious belief.243
Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion clauses of
the first amendment is that the freedom and separation clauses should be read
as a single precept that government cannot utilize religion as a standard for
action or inaction because these clauses prohibit classification in terms of
religion either to confer a benefit or to impose a burden.244
The Court has repeatedly declared that religious freedom means government
neutrality in religious matters and the Court has also repeatedly interpreted this
policy of neutrality to prohibit government from acting except for secular
purposes and in ways that have primarily secular effects.245
Prayer in public schools is an area where the Court has applied strict neutrality
and refused to allow any form of prayer, spoken or silent, in the public schools
as in Engel and Schempp.246 The McCollum case prohibiting optional
religious instruction within public school premises during regular class hours
also demonstrates strict neutrality. In these education cases, the Court refused
to uphold the government action as they were based not on a secular but on a
religious purpose. Strict neutrality was also used in Reynolds and Smith which
both held that if government acts in pursuit of a generally applicable law with
a secular purpose that merely incidentally burdens religious exercise, the First
Amendment has not been offended. However, if the strict neutrality standard is
applied in interpreting the Establishment Clause, it could de facto void religious
expression in the Free Exercise Clause. As pointed out by Justice Goldberg in
his concurring opinion in Schempp, strict neutrality could lead to "a brooding
and pervasive devotion to the secular and a passive, or even active, hostility to
the religious" which is prohibited by the Constitution.247 Professor Laurence
Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very
idea of a free exercise clause. The Framers, whatever specific applications they
may have intended, clearly envisioned religion as something special; they
enacted that vision into law by guaranteeing the free exercise of religion but
not, say, of philosophy or science. The strict neutrality approach all but erases
this distinction. Thus it is not surprising that the Supreme Court has rejected
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strict neutrality, permitting and sometimes mandating religious
classifications.248
The separationist approach, whether strict or tame, is caught in a dilemma
because while the Jeffersonian wall of separation "captures the spirit of the
American ideal of church-state separation", in real life church and state are not
and cannot be totally separate.249 This is all the more true in contemporary
times when both the government and religion are growing and expanding their
spheres of involvement and activity, resulting in the intersection of government
and religion at many points.250
Consequently, the Court has also decided cases employing benevolent
neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the "wall of separation" associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's
classic, The Garden and the Wilderness, he asserts that to the extent the
Founders had a wall of separation in mind, it was unlike the Jeffersonian wall
that is meant to protect the state from the church; instead, the wall is meant to
protect the church from the state,251 i.e., the "garden" of the church must be
walled in for its own protection from the "wilderness" of the world252 with its
potential for corrupting those values so necessary to religious commitment.253
Howe called this the "theological" or "evangelical" rationale for church-state
separation while the wall espoused by "enlightened" statesmen such as
Jefferson and Madison, was a "political" rationale seeking to protect politics
from intrusions by the church.254 But it has been asserted that this contrast
between the Williams and Jeffersonian positions is more accurately described
as a difference in kinds or styles of religious thinking, not as a conflict between
"religious" and "secular (political)"; the religious style was biblical and
evangelical in character while the secular style was grounded in natural
religion, more generic and philosophical in its religious orientation.255
The Williams wall is, however, breached for the church is in the state and so
the remaining purpose of the wall is to safeguard religious liberty. Williams'
view would therefore allow for interaction between church and state, but is
strict with regard to state action which would threaten the integrity of religious
commitment.256 His conception of separation is not total such that it provides
basis for certain interactions between church and state dictated by apparent
necessity or practicality.257 This "theological" view of separation is found in
Williams' writings, viz:
. . . when they have opened a gap in the hedge or wall of separation between
the garden of the church and the wilderness of the world, God hath ever broke
down the wall itself, removed the candlestick, and made his garden a
wilderness, as this day. And that therefore if He will eer please to restore His
garden and paradise again, it must of necessity be walled in peculiarly unto
Himself from the world. . .258
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has been
said by the Court is this: that we will not tolerate either governmentally
established religion or governmental interference with religion. Short of those
expressly proscribed governmental acts there is room for play in the joints
productive of a benevolent neutrality which will permit religious exercise to
exist without sponsorship and without interference.259 (emphasis supplied)
The Zorach case expressed the doctrine of accommodation,260 viz:
The First Amendment, however, does not say that in every and all respects there
shall be a separation of Church and State. Rather, it studiously defines the
manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter.
Otherwise, the state and religion would be aliens to each other - hostile,
suspicious, and even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our legislative
halls; the appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me God" in our
courtroom oaths- these and all other references to the Almighty that run through
our laws, our public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: 'God save the United
States and this Honorable Court.
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xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We
guarantee the freedom to worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the
schedule of public events, it follows the best of our traditions. For it then
respects the religious nature of our people and accommodates the public service
to their spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous indifference to
religious groups. . . But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its weight
against efforts to widen their effective scope of religious influence.261
(emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that
religion serves a function essential to the survival of society itself, thus there is
no human society without one or more ways of performing the essential
function of religion. Although for some individuals there may be no felt need
for religion and thus it is optional or even dispensable, for society it is not,
which is why there is no human society without one or more ways of performing
the essential function of religion. Even in ostensibly atheistic societies, there
are vigorous underground religion(s) and surrogate religion(s) in their
ideology.262 As one sociologist wrote:
It is widely held by students of society that there are certain functional
prerequisites without which society would not continue to exist. At first glance,
this seems to be obvious - scarcely more than to say that an automobile could
not exist, as a going system, without a carburetor. . . Most writers list religion
among the functional prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no known human
society without something which modern social scientists would classify as a
religion…Religion is as much a human universal as language."264
Benevolent neutrality thus recognizes that religion plays an important role in
the public life of the United States as shown by many traditional government
practices which, to strict neutrality, pose Establishment Clause questions.
Among these are the inscription of "In God We Trust" on American currency,
the recognition of America as "one nation under God" in the official pledge of
allegiance to the flag, the Supreme Court's time-honored practice of opening
oral argument with the invocation "God save the United States and this
honorable Court," and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination to lead
representatives in prayer.265 These practices clearly show the preference for
one theological viewpoint -the existence of and potential for intervention by a
god - over the contrary theological viewpoint of atheism. Church and
government agencies also cooperate in the building of low-cost housing and in
other forms of poor relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral dimension.266
The persistence of these de facto establishments are in large part explained by
the fact that throughout history, the evangelical theory of separation, i.e.,
Williams' wall, has demanded respect for these de facto establishments.267 But
the separationists have a different explanation. To characterize these as de jure
establishments according to the principle of the Jeffersonian wall, the U.S.
Supreme Court, the many dissenting and concurring opinions explain some of
these practices as "'de minimis' instances of government endorsement or as
historic governmental practices that have largely lost their religious
significance or at least have proven not to lead the government into further
involvement with religion.268
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into
account not to promote the government's favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise
of, a person's or institution's religion. As Justice Brennan explained, the
"government [may] take religion into account…to exempt, when possible, from
generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious exercise may
flourish."269 (emphasis supplied) Accommodation is forbearance and not
alliance. it does not reflect agreement with the minority, but respect for the
conflict between the temporal and spiritual authority in which the minority finds
itself.270
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Accommodation is distinguished from strict neutrality in that the latter holds
that government should base public policy solely on secular considerations,
without regard to the religious consequences of its actions. The debate between
accommodation and strict neutrality is at base a question of means: "Is the
freedom of religion best achieved when the government is conscious of the
effects of its action on the various religious practices of its people, and seeks to
minimize interferences with those practices? Or is it best advanced through a
policy of 'religious blindness' - keeping government aloof from religious
practices and issues?" An accommodationist holds that it is good public policy,
and sometimes constitutionally required, for the state to make conscious and
deliberate efforts to avoid interference with religious freedom. On the other
hand, the strict neutrality adherent believes that it is good public policy, and
also constitutionally required, for the government to avoid religion-specific
policy even at the cost of inhibiting religious exercise.271
There are strong and compelling reasons, however, to take the
accommodationist position rather than the strict neutrality position. First, the
accommodationist interpretation is most consistent with the language of the
First Amendment. The religion clauses contain two parallel provisions, both
specifically directed at "religion." The government may not "establish" religion
and neither may government "prohibit" it. Taken together, the religion clauses
can be read most plausibly as warding off two equal and opposite threats to
religious freedom - government action that promotes the (political) majority's
favored brand of religion and government action that impedes religious
practices not favored by the majority. The substantive end in view is the
preservation of the autonomy of religious life and not just the formal process
value of ensuring that government does not act on the basis of religious bias.
On the other hand, strict neutrality interprets the religion clauses as allowing
government to do whatever it desires to or for religion, as long as it does the
same to or for comparable secular entities. Thus, for example, if government
prohibits all alcoholic consumption by minors, it can prohibit minors from
taking part in communion. Paradoxically, this view would make the religion
clauses violate the religion clauses, so to speak, since the religion clauses single
out religion by name for special protection. Second, the accommodationist
position best achieves the purposes of the First Amendment. The principle
underlying the First Amendment is that freedom to carry out one's duties to a
Supreme Being is an inalienable right, not one dependent on the grace of
legislature. Although inalienable, it is necessarily limited by the rights of others,
including the public right of peace and good order. Nevertheless it is a
substantive right and not merely a privilege against discriminatory legislation.
The accomplishment of the purpose of the First Amendment requires more than
the "religion blindness" of strict neutrality. With the pervasiveness of
government regulation, conflicts with religious practices become frequent and
intense. Laws that are suitable for secular entities are sometimes inappropriate
for religious entities, thus the government must make special provisions to
preserve a degree of independence for religious entities for them to carry out
their religious missions according to their religious beliefs. Otherwise, religion
will become just like other secular entities subject to pervasive regulation by
majoritarian institutions. Third, the accommodationist interpretation is
particularly necessary to protect adherents of minority religions from the
inevitable effects of majoritarianism, which include ignorance and indifference
and overt hostility to the minority. In a democratic republic, laws are inevitably
based on the presuppositions of the majority, thus not infrequently, they come
into conflict with the religious scruples of those holding different world views,
even in the absence of a deliberate intent to interfere with religious practice. At
times, this effect is unavoidable as a practical matter because some laws are so
necessary to the common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the advancement of
public purposes so small or incomparable that only indifference or hostility
could explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such
exemptions when the need is brought to their attention, but this may not always
be the case when the religious practice is either unknown at the time of
enactment or is for some reason unpopular. In these cases, a constitutional
interpretation that allows accommodations prevents needless injury to the
religious consciences of those who can have an influence in the legislature;
while a constitutional interpretation that requires accommodations extends this
treatment to religious faiths that are less able to protect themselves in the
political arena. Fourth, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of different
faiths in a pluralistic nation. Without accommodation, many otherwise
beneficial laws would interfere severely with religious freedom. Aside from
laws against serving alcoholic beverages to minors conflicting with celebration
of communion, regulations requiring hard hats in construction areas can
effectively exclude Amish and Sikhs from the workplace, or employment anti-
discrimination laws can conflict with the Roman Catholic male priesthood,
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among others. Exemptions from such laws are easy to craft and administer and
contribute much to promoting religious freedom at little cost to public policy.
Without exemptions, legislature would be frequently forced to choose between
violating religious conscience of a segment of the population or dispensing with
legislation it considers beneficial to society as a whole. Exemption seems
manifestly more reasonable than either of the alternative: no exemption or no
law.272
Benevolent neutrality gives room for different kinds of accommodation: those
which are constitutionally compelled, i.e., required by the Free Exercise Clause;
and those which are discretionary or legislative, i.e., and those not required by
the Free Exercise Clause but nonetheless permitted by the Establishment
Clause.273 Some Justices of the Supreme Court have also used the term
accommodation to describe government actions that acknowledge or express
prevailing religious sentiments of the community such as display of a religious
symbol on public property or the delivery of a prayer at public ceremonial
events.274 Stated otherwise, using benevolent neutrality as a standard could
result to three situations of accommodation: those where accommodation is
required, those where it is permissible, and those where it is prohibited. In the
first situation, accommodation is required to preserve free exercise protections
and not unconstitutionally infringe on religious liberty or create penalties for
religious freedom. Contrary to the Smith declaration that free exercise
exemptions are "intentional government advancement", these exemptions
merely relieve the prohibition on the free exercise thus allowing the burdened
religious adherent to be left alone. The state must create exceptions to laws of
general applicability when these laws threaten religious convictions or practices
in the absence of a compelling state interest.275 By allowing such exemptions,
the Free Exercise Clause does not give believers the right or privilege to choose
for themselves to override socially-prescribed decision; it allows them to obey
spiritual rather than temporal authority276 for those who seriously invoke the
Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is
a matter less of rights than duties; more precisely, it is a matter of rights derived
from duties. To deny a person or a community the right to act upon such a duty
can be justified only by appeal to a yet more compelling duty. Of course, those
denied will usually not find the reason for the denial compelling. "Because they
may turn out to be right about the duty in question, and because, even if they
are wrong, religion bears witness to that which transcends the political order,
such denials should be rare and painfully reluctant."277
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling their
children in high school as required by law. The Sherbert case is another example
where the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.278 In these cases of
"burdensome effect", the modern approach of the Court has been to apply strict
scrutiny, i.e., to declare the burden as permissible, the Court requires the state
to demonstrate that the regulation which burdens the religious exercise pursues
a particularly important or compelling government goal through the least
restrictive means. If the state's objective could be served as well or almost as
well by granting an exemption to those whose religious beliefs are burdened by
the regulation, such an exemption must be given.279 This approach of the Court
on "burdensome effect" was only applied since the 1960s. Prior to this time, the
Court took the separationist view that as long as the state was acting in pursuit
of non-religious ends and regulating conduct rather than pure religious beliefs,
the Free Exercise Clause did not pose a hindrance such as in Reynolds.280 In
the second situation where accommodation is permissible, the state may, but is
not required to, accommodate religious interests. The Walz case illustrates this
situation where the Court upheld the constitutionality of tax exemption given
by New York to church properties, but did not rule that the state was required
to provide tax exemptions. The Court declared that "(t)he limits of permissible
state accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause."281 The Court held that
New York could have an interest in encouraging religious values and avoiding
threats to those values through the burden of property taxes. Other examples
are the Zorach case allowing released time in public schools and Marsh
allowing payment of legislative chaplains from public funds. Finally, in the
situation where accommodation is prohibited, establishment concerns prevail
over potential accommodation interests. To say that there are valid exemptions
buttressed by the Free Exercise Clause does not mean that all claims for free
exercise exemptions are valid.282 An example where accommodation was
prohibited is McCollum where the Court ruled against optional religious
instruction in the public school premises.283 In effect, the last situation would
arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows
this basic framework:
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If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of some
important (or 'compelling') secular objective and that it is the least restrictive
means of achieving that objective. If the plaintiff meets this burden and the
government does not, the plaintiff is entitled to exemption from the law or
practice at issue. In order to be protected, the claimant's beliefs must be 'sincere',
but they need not necessarily be consistent, coherent, clearly articulated, or
congruent with those of the claimant's religious denomination. 'Only beliefs
rooted in religion are protected by the Free Exercise Clause'; secular beliefs,
however sincere and conscientious, do not suffice.284
In other words, a three-step process (also referred to as the "two-step balancing
process" supra when the second and third steps are combined) as in Sherbert is
followed in weighing the state's interest and religious freedom when these
collide. Three questions are answered in this process. First, "(h)as the statute or
government action created a burden on the free exercise of religion?" The courts
often look into the sincerity of the religious belief, but without inquiring into
the truth of the belief because the Free Exercise Clause prohibits inquiring
about its truth as held in Ballard and Cantwell. The sincerity of the claimant's
belief is ascertained to avoid the mere claim of religious beliefs to escape a
mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has
considered historical evidence as in Wisconsin where the Amish people had
held a long-standing objection to enrolling their children in ninth and tenth
grades in public high schools. In another case, Dobkin v. District of
Columbia,285 the Court denied the claim of a party who refused to appear in
court on Saturday alleging he was a Sabbatarian, but the Court noted that he
regularly conducted business on Saturday. Although it is true that the Court
might erroneously deny some claims because of a misjudgment of sincerity,
this is not as argument to reject all claims by not allowing accommodation as a
rule. There might be injury to the particular claimant or to his religious
community, but for the most part, the injustice is done only in the particular
case.286 Aside from the sincerity, the court may look into the centrality of those
beliefs, assessing them not on an objective basis but in terms of the opinion and
belief of the person seeking exemption. In Wisconsin, for example, the Court
noted that the Amish people's convictions against becoming involved in public
high schools were central to their way of life and faith. Similarly, in Sherbert,
the Court concluded that the prohibition against Saturday work was a "cardinal
principle."287 Professor Lupu puts to task the person claiming exemption, viz:
On the claimant's side, the meaning and significance of the relevant religious
practice must be demonstrated. Religious command should outweigh custom,
individual conscience should count for more than personal convenience, and
theological principle should be of greater significance than institutional ease.
Sincerity matters, (footnote omitted) and longevity of practice - both by the
individual and within the individual's religious tradition - reinforces sincerity.
Most importantly, the law of free exercise must be inclusive and expansive,
recognizing non-Christian religions - eastern, Western, aboriginal and
otherwise - as constitutionally equal to their Christian counterparts, and
accepting of the intensity and scope of fundamentalist creed.288
Second, the court asks: "(i)s there a sufficiently compelling state interest to
justify this infringement of religious liberty?" In this step, the government has
to establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted.289 The person
claiming religious freedom, on the other hand, will endeavor to show that the
interest is not legitimate or that the purpose, although legitimate, is not
compelling compared to infringement of religious liberty. This step involves
balancing, i.e., weighing the interest of the state against religious liberty to
determine which is more compelling under the particular set of facts. The
greater the state's interests, the more central the religious belief would have to
be to overcome it. In assessing the state interest, the court will have to determine
the importance of the secular interest and the extent to which that interest will
be impaired by an exemption for the religious practice. Should the court find
the interest truly compelling, there will be no requirement that the state diminish
the effectiveness of its regulation by granting the exemption.290
Third, the court asks: "(h)as the state in achieving its legitimate purposes used
the least intrusive means possible so that the free exercise is not infringed any
more than necessary to achieve the legitimate goal of the state?"291 The
analysis requires the state to show that the means in which it is achieving its
legitimate state objective is the least intrusive means, i.e., it has chosen a way
to achieve its legitimate state end that imposes as little as possible on religious
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liberties. In Cantwell, for example, the Court invalidated the license
requirement for the door-to-door solicitation as it was a forbidden burden on
religious liberty, noting that less drastic means of insuring peace and tranquility
existed. As a whole, in carrying out the compelling state interest test, the Court
should give careful attention to context, both religious and regulatory, to
achieve refined judgment.292
In sum, as shown by U.S. jurisprudence on religion clause cases, the competing
values of secular government and religious freedom create tensions that make
constitutional law on the subject of religious liberty unsettled, mirroring the
evolving views of a dynamic society.293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and Catholicism
was the state religion under the Spanish Constitution of 1876. Civil authorities
exercised religious functions and the friars exercised civil powers.294 Catholics
alone enjoyed the right of engaging in public ceremonies of worship.295
Although the Spanish Constitution itself was not extended to the Philippines,
Catholicism was also the established church in our country under the Spanish
rule. Catholicism was in fact protected by the Spanish Penal Code of 1884
which was in effect in the Philippines. Some of the offenses in chapter six of
the Penal Code entitled "Crimes against Religion and Worship" referred to
crimes against the state religion.296 The coming of the Americans to our
country, however, changed this state-church scheme for with the advent of this
regime, the unique American experiment of "separation of church and state"
was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United States
and Spain on December 10, 1898, the American guarantee of religious freedom
had been extended to the Philippines. The Treaty provided that "the inhabitants
of the territories over which Spain relinquishes or cedes her sovereignty shall
be secured in the free exercise of religion."297 Even the Filipinos themselves
guaranteed religious freedom a month later or on January 22, 1899 upon the
adoption of the Malolos Constitution of the Philippine Republic under General
Emilio Aguinaldo. It provided that "the State recognizes the liberty and equality
of all religion (de todos los cultos) in the same manner as the separation of the
Church and State." But the Malolos Constitution and government was short-
lived as the Americans took over the reigns of government.298
With the Philippines under the American regime, President McKinley issued
Instructions to the Second Philippine Commission, the body created to take
over the civil government in the Philippines in 1900. The Instructions
guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or
prohibiting the free exercise thereof, and that the free exercise and enjoyment
of religious profession and worship without discrimination or preference shall
forever be allowed ... that no form of religion and no minister of religion shall
be forced upon the community or upon any citizen of the Islands, that, on the
other hand, no minister of religion shall be interfered with or molested in
following his calling.299
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that "(t)he separation between
State and Church shall be real, entire and absolute."300
Thereafter, every organic act of the Philippines contained a provision on
freedom of religion. Similar to the religious freedom clause in the Instructions,
the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting the
free exercise thereof, and that free exercise and enjoyment of religious worship,
without discrimination or preference, shall forever be allowed.
In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused
the complete separation of church and state, and the abolition of all special
privileges and all restrictions theretofor conferred or imposed upon any
particular religious sect."302
The Jones Law of 1916 carried the same provision, but expanded it with a
restriction against using public money or property for religious purposes, viz:
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That no law shall be made respecting an establishment of religion or prohibiting
the free exercise thereof, and that the free exercise and enjoyment of religious
profession and worship without discrimination or preference, shall forever be
allowed; and no religious test shall be required for the exercise of civil or
political rights. No public money or property shall ever be appropriated,
applied, donated, or used, directly or indirectly, for the use, benefit, or support
of any sect, church, denomination, sectarian institution, or system of religion,
or for the use, benefit or support of any priest, preacher, minister, or other
religious teachers or dignitary as such.
This was followed by the Philippine Independence Law or Tydings-McDuffie
Law of 1934 which guaranteed independence to the Philippines and authorized
the drafting of a Philippine constitution. It enjoined Filipinos to include
freedom of religion in drafting their constitution preparatory to the grant of
independence. The law prescribed that "(a)bsolute toleration of religious
sentiment shall be secured and no inhabitant or religious organization shall be
molested in person or property on account of religious belief or mode of
worship."303
The Constitutional Convention then began working on the 1935 Constitution.
In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee on
Bill of Rights acknowledged that "(i)t was the Treaty of Paris of December 10,
1898, which first introduced religious toleration in our country. President
McKinley's Instructions to the Second Philippine Commission reasserted this
right which later was incorporated into the Philippine Bill of 1902 and in the
Jones Law."304 In accordance with the Tydings-McDuffie Law, the 1935
Constitution provided in the Bill of Rights, Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof, and the free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
This provision, borrowed from the Jones Law, was readily approved by the
Convention.305 In his speech as Chairman of the Committee on Bill of Rights,
Delegate Laurel said that modifications in phraseology of the Bill of Rights in
the Jones Law were avoided whenever possible because "the principles must
remain couched in a language expressive of their historical background, nature,
extent and limitations as construed and interpreted by the great statesmen and
jurists that vitalized them."306
The 1973 Constitution which superseded the 1935 Constitution contained an
almost identical provision on religious freedom in the Bill of Rights in Article
IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
This time, however, the General Provisions in Article XV added in Section 15
that "(t)he separation of church and state shall be inviolable."
Without discussion by the 1986 Constitutional Commission, the 1973 religious
clauses were reproduced in the 1987 Constitution under the Bill of Rights in
Article III, Section 5.307 Likewise, the provision on separation of church and
state was included verbatim in the 1987 Constitution, but this time as a principle
in Section 6, Article II entitled Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the
intent to adopt the historical background, nature, extent and limitations of the
First Amendment of the U.S. Constitution when it was included in the 1935 Bill
of Rights, it is not surprising that nearly all the major Philippine cases involving
the religion clauses turn to U.S. jurisprudence in explaining the nature, extent
and limitations of these clauses. However, a close scrutiny of these cases would
also reveal that while U.S. jurisprudence on religion clauses flows into two
main streams of interpretation - separation and benevolent neutrality - the well-
spring of Philippine jurisprudence on this subject is for the most part,
benevolent neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion clauses,
we begin with the definition of "religion". "Religion" is derived from the
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Middle English religioun, from Old French religion, from Latin religio, vaguely
referring to a "bond between man and the gods."308 This pre-Christian term for
the cult and rituals of pagan Rome was first Christianized in the Latin
translation of the Bible.309 While the U.S. Supreme Court has had to take up
the challenge of defining the parameters and contours of "religion" to determine
whether a non-theistic belief or act is covered by the religion clauses, this Court
has not been confronted with the same issue. In Philippine jurisprudence,
religion, for purposes of the religion clauses, has thus far been interpreted as
theistic. In 1937, the Philippine case of Aglipay v. Ruiz310 involving the
Establishment Clause, defined "religion" as a "profession of faith to an active
power that binds and elevates man to his Creator." Twenty years later, the Court
cited the Aglipay definition in American Bible Society v. City of Manila,311 a
case involving the Free Exercise clause. The latter also cited the American case
of Davis in defining religion, viz: "(i)t has reference to one's views of his
relations to His Creator and to the obligations they impose of reverence to His
being and character and obedience to His Will." The Beason definition,
however, has been expanded in U.S. jurisprudence to include non-theistic
beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or indirect, in the
practice of one's religion. The Free Exercise Clause principally guarantees
voluntarism, although the Establishment Clause also assures voluntarism by
placing the burden of the advancement of religious groups on their intrinsic
merits and not on the support of the state.312
In interpreting the Free Exercise Clause, the realm of belief poses no difficulty.
The early case of Gerona v. Secretary of Education313 is instructive on the
matter, viz:
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however
strange, bizarre and unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards. But between
the freedom of belief and the exercise of said belief, there is quite a stretch of
road to travel.314
The difficulty in interpretation sets in when belief is externalized into speech
and action.
Religious speech comes within the pale of the Free Exercise Clause as
illustrated in the American Bible Society case. In that case, plaintiff American
Bible Society was a foreign, non-stock, non-profit, religious missionary
corporation which sold bibles and gospel portions of the bible in the course of
its ministry. The defendant City of Manila required plaintiff to secure a mayor's
permit and a municipal license as ordinarily required of those engaged in the
business of general merchandise under the city's ordinances. Plaintiff argued
that this amounted to "religious censorship and restrained the free exercise and
enjoyment of religious profession, to wit: the distribution and sale of bibles and
other religious literature to the people of the Philippines."
After defining religion, the Court, citing Tanada and Fernando, made this
statement, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justified like other restraints
of freedom of expression on the grounds that there is a clear and present danger
of any substantive evil which the State has the right to prevent. (Tanada and
Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297)
(emphasis supplied)
This was the Court's maiden unequivocal affirmation of the "clear and present
danger" rule in the religious freedom area, and in Philippine jurisprudence, for
that matter.315 The case did not clearly show, however, whether the Court
proceeded to apply the test to the facts and issues of the case, i.e., it did not
identify the secular value the government regulation sought to protect, whether
the religious speech posed a clear and present danger to this or other secular
value protected by government, or whether there was danger but it could not be
characterized as clear and present. It is one thing to apply the test and find that
there is no clear and present danger, and quite another not to apply the test
altogether.
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Instead, the Court categorically held that the questioned ordinances were not
applicable to plaintiff as it was not engaged in the business or occupation of
selling said "merchandise" for profit. To add, the Court, citing Murdock v.
Pennsylvania,316 ruled that applying the ordinance requiring it to secure a
license and pay a license fee or tax would impair its free exercise of religious
profession and worship and its right of dissemination of religious beliefs "as the
power to tax the exercise of a privilege is the power to control or suppress its
enjoyment." Thus, in American Bible Society, the "clear and present danger"
rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,317 also involving
the sale of religious books, the Court distinguished the American Bible Society
case from the facts and issues in Tolentino and did not apply the American
Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the
validity of the registration provisions of the Value Added Tax (VAT) Law as a
prior restraint. The Court held, however, that the fixed amount of registration
fee was not imposed for the exercise of a privilege like a license tax which
American Bible Society ruled was violative of religious freedom. Rather, the
registration fee was merely an administrative fee to defray part of the cost of
registration which was a central feature of the VAT system. Citing Jimmy
Swaggart Ministries v. Board of Equalization,318 the Court also declared
prefatorily that "the Free Exercise of Religion Clause does not prohibit
imposing a generally applicable sales and use tax on the sale of religious
materials by a religious organization." In the Court's resolution of the motion
for reconsideration of the Tolentino decision, the Court noted that the burden
on religious freedom caused by the tax was just similar to any other economic
imposition that might make the right to disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v.
Secretary of Education,319 this time involving conduct expressive of religious
belief colliding with a rule prescribed in accordance with law. In this case,
petitioners were members of the Jehovah's Witnesses. They challenged a
Department Order issued by the Secretary of Education implementing Republic
Act No. 1265 which prescribed compulsory flag ceremonies in all public
schools. In violation of the Order, petitioner's children refused to salute the
Philippine flag, sing the national anthem, or recite the patriotic pledge, hence
they were expelled from school. Seeking protection under the Free Exercise
Clause, petitioners claimed that their refusal was on account of their religious
belief that the Philippine flag is an image and saluting the same is contrary to
their religious belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established institutions of
society and with the law, then the former must yield to the latter. The
Government steps in and either restrains said exercise or even prosecutes the
one exercising it. (emphasis supplied)320
The Court then proceeded to determine if the acts involved constituted a
religious ceremony in conflict with the beliefs of the petitioners with the
following justification:
After all, the determination of whether a certain ritual is or is not a religious
ceremony must rest with the courts. It cannot be left to a religious group or sect,
much less to a follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many interpretations and
meaning to be given to a certain ritual or ceremony as there are religious groups
or sects or followers, all depending upon the meaning which they, though in all
sincerity and good faith, may want to give to such ritual or ceremony.321
It was held that the flag was not an image, the flag salute was not a religious
ceremony, and there was nothing objectionable about the singing of the national
anthem as it speaks only of love of country, patriotism, liberty and the glory of
suffering and dying for it. The Court upheld the questioned Order and the
expulsion of petitioner's children, stressing that:
Men may differ and do differ on religious beliefs and creeds, government
policies, the wisdom and legality of laws, even the correctness of judicial
decisions and decrees; but in the field of love of country, reverence for the flag,
national unity and patriotism, they can hardly afford to differ, for these are
matters in which they are mutually and vitally interested, for to them, they mean
national existence and survival as a nation or national extinction.322
In support of its ruling, the Court cited Justice Frankfurter's dissent in the
Barnette case, viz:
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The constitutional protection of religious freedom x x x gave religious equality,
not civil immunity. Its essence is freedom from conformity to religious dogma,
not freedom from conformity to law because of religious dogma.323
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent
authority.324
Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is
incumbent upon the Court to determine whether a certain ritual is religious or
not; (2) religious freedom will not be upheld if it clashes with the established
institutions of society and with the law such that when a law of general
applicability (in this case the Department Order) incidentally burdens the
exercise of one's religion, one's right to religious freedom cannot justify
exemption from compliance with the law. The Gerona ruling was reiterated in
Balbuna, et al. v. Secretary of Education, et al.325
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope
Workers Union.[326] In this unanimously decided en banc case, Victoriano was
a member of the Iglesia ni Cristo which prohibits the affiliation of its members
with any labor organization. He worked in the Elizalde Rope Factory, Inc. and
was a member of the Elizalde Rope Workers Union which had with the
company a closed shop provision pursuant to Republic Act No. 875 allowing
closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted
exempting from the application and coverage of a closed shop agreement
employees belonging to any religious sect which prohibits affiliation of their
members with any labor organization. Victoriano resigned from the union after
Republic Act No. 3350 took effect. The union notified the company of
Victoriano's resignation, which in turn notified Victoriano that unless he could
make a satisfactory arrangement with the union, the company would be
constrained to dismiss him from the service. Victoriano sought to enjoin the
company and the union from dismissing him. The court having granted the
injunction, the union came to this Court on questions of law, among which was
whether Republic Act No. 3350 was unconstitutional for impairing the
obligation of contracts and for granting an exemption offensive of the
Establishment Clause. With respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right and
liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct.
146) and has a preferred position in the hierarchy of values. Contractual rights,
therefore, must yield to freedom of religion. It is only where unavoidably
necessary to prevent an immediate and grave danger to the security and welfare
of the community that infringement of religious freedom may be justified, and
only to the smallest extent necessary.327 (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures
the free exercise of one's chosen form of religion within limits of utmost
amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and with the
common good. (footnote omitted). Any legislation whose effect or purpose is
to impede the observance of one or all religions, or to discriminate invidiously
between the religions, is invalid, even though the burden may be characterized
as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S.
Ct. 1970) But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the state's secular
goals, the statute is valid despite its indirect burden on religious observance,
unless the state can accomplish its purpose without imposing such burden.
(Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan
v. Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis supplied)
Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded
from pursuing valid objectives secular in character even if the incidental result
would be favorable to a religion or sect." It also cited Board of Education v.
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Allen,330 which held that in order to withstand the strictures of constitutional
prohibition, a statute must have a secular legislative purpose and a primary
effect that neither advances nor inhibits religion. Using these criteria in
upholding Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of
advancing the constitutional right to the free exercise of religion, by averting
that certain persons be refused work, or be dismissed from work, or be
dispossessed of their right to work and of being impeded to pursue a modest
means of livelihood, by reason of union security agreements. . . . The primary
effects of the exemption from closed shop agreements in favor of members of
religious sects that prohibit their members from affiliating with a labor
organization, is the protection of said employees against the aggregate force of
the collective bargaining agreement, and relieving certain citizens of a burden
on their religious beliefs, and . . . eliminating to a certain extent economic
insecurity due to unemployment.331
The Court stressed that "(a)lthough the exemption may benefit those who are
members of religious sects that prohibit their members from joining labor
unions, the benefit upon the religious sects is merely incidental and
indirect."332 In enacting Republic Act No. 3350, Congress merely relieved the
exercise of religion by certain persons of a burden imposed by union security
agreements which Congress itself also imposed through the Industrial Peace
Act. The Court concluded the issue of exemption by citing Sherbert which laid
down the rule that when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interest"
intervenes. The Court then abruptly added that "(i)n the instant case, We see no
compelling state interest to withhold exemption."333
A close look at Victoriano would show that the Court mentioned several tests
in determining when religious freedom may be validly limited. First, the Court
mentioned the test of "immediate and grave danger to the security and welfare
of the community" and "infringement of religious freedom only to the smallest
extent necessary" to justify limitation of religious freedom. Second, religious
exercise may be indirectly burdened by a general law which has for its purpose
and effect the advancement of the state's secular goals, provided that there is no
other means by which the state can accomplish this purpose without imposing
such burden. Third, the Court referred to the "compelling state interest" test
which grants exemptions when general laws conflict with religious exercise,
unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for the
purpose of highlighting the importance of the protection of religious freedom
as the secular purpose of Republic Act No. 3350. Upholding religious freedom
was a secular purpose insofar as it relieved the burden on religious freedom
caused by another law, i.e, the Industrial Peace Act providing for union shop
agreements. The first two tests were only mentioned in Victoriano but were not
applied by the Court to the facts and issues of the case. The third, the
"compelling state interest" test was employed by the Court to determine
whether the exemption provided by Republic Act No. 3350 was not
unconstitutional. It upheld the exemption, stating that there was no "compelling
state interest" to strike it down. However, after careful consideration of the
Sherbert case from which Victoriano borrowed this test, the inevitable
conclusion is that the "compelling state interest" test was not appropriate and
could not find application in the Victoriano case. In Sherbert, appellant Sherbert
invoked religious freedom in seeking exemption from the provisions of the
South Carolina Unemployment Compensation Act which disqualified her from
claiming unemployment benefits. It was the appellees, members of the South
Carolina Employment Commission, a government agency, who propounded the
state interest to justify overriding Sherbert's claim of religious freedom. The
U.S. Supreme Court, considering Sherbert's and the Commission's arguments,
found that the state interest was not sufficiently compelling to prevail over
Sherbert's free exercise claim. This situation did not obtain in the Victoriano
case where it was the government itself, through Congress, which provided the
exemption in Republic Act No. 3350 to allow Victoriano's exercise of religion.
Thus, the government could not argue against the exemption on the basis of a
compelling state interest as it would be arguing against itself; while Victoriano
would not seek exemption from the questioned law to allow the free exercose
of religion as the law in fact provides such an exemption. In sum, although
Victoriano involved a religious belief and conduct, it did not involve a free
exercise issue where the Free Exercise Clause is invoked to exempt him from
the burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo,
namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros
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Trabajadores de Filipinas,334 Anucension v. National Labor Union, et al.,335
and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.336
Then came German v. Barangan in 1985 at the height of the anti-administration
rallies. Petitioners were walking to St. Jude Church within the Malacanang
security area to pray for "an end to violence" when they were barred by the
police. Invoking their constitutional freedom of religious worship and
locomotion, they came to the Court on a petition for mandamus to allow them
to enter and pray inside the St. Jude Chapel. The Court was divided on the issue.
The slim majority of six recognized their freedom of religion but noted their
absence of good faith and concluded that they were using their religious liberty
to express their opposition to the government. Citing Cantwell, the Court
distinguished between freedom to believe and freedom to act on matters of
religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe
and freedom to act. The first is absolute, but in the nature of things, the second
cannot be.337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom of
belief or choice of their religion, but only in the manner by which they had
attempted to translate the same to action. This curtailment is in accord with the
pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2),
thus:
. . . But between the freedom of belief and the exercise of said belief, there is
quite a stretch of road to travel. If the exercise of said religious belief clashes
with the established institutions of society and with the law, then the former
must yield and give way to the latter. The government steps in and either
restrains said exercise or even prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was "necessary
to maintain the smooth functioning of the executive branch of the government,
which petitioners' mass action would certainly disrupt"338 and denied the
petition. Thus, without considering the tests mentioned in Victoriano, German
went back to the Gerona rule that religious freedom will not be upheld if it
clashes with the established institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in subsequent
jurisprudence would be cited as a test in religious freedom cases. His dissent
stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in the
landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should
guide us in resolving the issues.
1. The right to freely exercise one's religion is guaranteed in Section 8 of our
Bill of Rights. (footnote omitted) Freedom of worship, alongside with freedom
of expression and speech and peaceable assembly "along with the other
intellectual freedoms, are highly ranked in our scheme of constitutional values.
It cannot be too strongly stressed that on the judiciary - even more so than on
the other departments - rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so felicitously
termed by Justice Holmes 'as the sovereign prerogative of judgment.'
Nonetheless, the presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do precedence and primacy.'
(J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior restraint
although there may be subsequent punishment of any illegal acts committed
during the exercise of such basic rights. The sole justification for a prior
restraint or limitation on the exercise of these basic rights is the existence of a
grave and present danger of a character both grave and imminent, of a serious
evil to public safety, public morals, public health or any other legitimate public
interest, that the State has a right (and duty) to prevent (Idem, at pp. 560-
561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankee's dissent was taken involved the rights to free speech and assembly,
and not the exercise of religious freedom. At issue in that case was a permit
sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition,
from the City of Manila to hold a peaceful march and rally from the Luneta to
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the gates of the U.S. Embassy. Nevertheless Bagatsing was used by Justice
Teehankee in his dissent which had overtones of petitioner German and his
companions' right to assemble and petition the government for redress of
grievances.340
In 1993, the issue on the Jehovah's Witnesses' participation in the flag ceremony
again came before the Court in Ebralinag v. The Division Superintendent of
Schools.341 A unanimous Court overturned the Gerona ruling after three
decades. Similar to Gerona, this case involved several Jehovah's Witnesses who
were expelled from school for refusing to salute the flag, sing the national
anthem and recite the patriotic pledge, in violation of the Administrative Code
of 1987. In resolving the same religious freedom issue as in Gerona, the Court
this time transported the "grave and imminent danger" test laid down in Justice
Teehankee's dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in his
dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and imminent,
of a serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent. Absent
such a threat to public safety, the expulsion of the petitioners from the schools
is not justified.342 (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah's Witnesses from saluting
the flag, singing the national anthem and reciting the patriotic pledge, this
religious group which admittedly comprises a 'small portion of the school
population' will shake up our part of the globe and suddenly produce a nation
'untaught and uninculcated in and unimbued with reverence for the flag,
patriotism, love of country and admiration for national heroes' (Gerona v.
Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only
is exemption from the flag ceremony, not exclusion from the public schools
where they may study the Constitution, the democratic way of life and form of
government, and learn not only the arts, sciences, Philippine history and culture
but also receive training for a vocation or profession and be taught the virtues
of 'patriotism, respect for human rights, appreciation of national heroes, the
rights and duties of citizenship, and moral and spiritual values' (Sec. 3[2], Art.
XIV, 1987 Constitution) as part of the curricula. Expelling or banning the
petitioners from Philippine schools will bring about the very situation that this
Court has feared in Gerona. Forcing a small religious group, through the iron
hand of the law, to participate in a ceremony that violates their religious beliefs,
will hardly be conducive to love of country or respect for duly constituted
authorities.343
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the country,
x x x- assuming that such unity and loyalty can be attained through coercion- is
not a goal that is constitutionally obtainable at the expense of religious liberty.
A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska,
262 U.S. 390, 67 L. ed. 1042, 1046).344
Towards the end of the decision, the Court also cited the Victoriano case and
its use of the "compelling state interest" test in according exemption to the
Jehovah's Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we
upheld the exemption of members of the Iglesia ni Cristo, from the coverage of
a closed shop agreement between their employer and a union because it would
violate the teaching of their church not to join any group:
'x x x It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some 'compelling state interest'
intervenes.' (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct.
1790)'
We hold that a similar exemption may be accorded to the Jehovah's Witnesses
with regard to the observance of the flag ceremony out of respect for their
religious beliefs, however 'bizarre' those beliefs may seem to others.345
The Court annulled the orders expelling petitioners from school.
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Thus, the "grave and imminent danger" test laid down in a dissenting opinion
in German which involved prior restraint of religious worship with overtones
of the right to free speech and assembly, was transported to Ebralinag which
did not involve prior restraint of religious worship, speech or assembly.
Although, it might be observed that the Court faintly implied that Ebralinag
also involved the right to free speech when in its preliminary remarks, the Court
stated that compelling petitioners to participate in the flag ceremony "is alien
to the conscience of the present generation of Filipinos who cut their teeth on
the Bill of Rights which guarantees their rights to free speech and the free
exercise of religious profession and worship;" the Court then stated in a
footnote that the "flag salute, singing the national anthem and reciting the
patriotic pledge are all forms of utterances."346
The "compelling state interest" test was not fully applied by the Court in
Ebralinag. In the Solicitor General's consolidated comment, one of the grounds
cited to defend the expulsion orders issued by the public respondents was that
"(t)he State's compelling interests being pursued by the DEC's lawful
regulations in question do not warrant exemption of the school children of the
Jehovah's Witnesses from the flag salute ceremonies on the basis of their own
self-perceived religious convictions."347 The Court, however, referred to the
test only towards the end of the decision and did not even mention what the
Solicitor General argued as the compelling state interest, much less did the
Court explain why the interest was not sufficiently compelling to override
petitioners' religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo
v. Court of Appeals, et al.348 Although there was a dissent with respect to the
applicability of the "clear and present danger" test in this case, the majority
opinion in unequivocal terms applied the "clear and present danger" test to
religious speech. This case involved the television program, "Ang Iglesia ni
Cristo," regularly aired over the television. Upon petitioner Iglesia ni Cristo's
submission of the VTR tapes of some of its episodes, respondent Board of
Review for Motion Pictures and Television classified these as "X" or not for
public viewing on the ground that they "offend and constitute an attack against
other religions which is expressly prohibited by law." Invoking religious
freedom, petitioner alleged that the Board acted without jurisdiction or with
grave abuse of discretion in requiring it to submit the VTR tapes of its television
program and x-rating them. While upholding the Board's power to review the
Iglesia television show, the Court was emphatic about the preferred status of
religious freedom. Quoting Justice Cruz' commentary on the constitution, the
Court held that freedom to believe is absolute but freedom to act on one's belief,
where it affects the public, is subject to the authority of the state. The
commentary quoted Justice Frankfurter's dissent in Barnette which was quoted
in Gerona, viz: "(t)he constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma."349 Nevertheless,
the Court was quick to add the criteria by which the state can regulate the
exercise of religious freedom, that is, when the exercise will bring about the
"clear and present danger of some substantive evil which the State is duty bound
to prevent, i.e., serious detriment to the more overriding interest of public
health, public morals, or public welfare."350
In annulling the x-rating of the shows, the Court stressed that the Constitution
is hostile to all prior restraints on speech, including religious speech and the x-
rating was a suppression of petitioner's freedom of speech as much as it was an
interference with its right to free exercise of religion. Citing Cantwell, the Court
recognized that the different religions may criticize one another and their tenets
may collide, but the Establishment Clause prohibits the state from protecting
any religion from this kind of attack.
The Court then called to mind the "clear and present danger" test first laid down
in the American Bible Society case and the test of "immediate and grave
danger" with "infringement only to the smallest extent necessary to avoid
danger" in Victoriano and pointed out that the reviewing board failed to apply
the "clear and present danger" test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify
the conclusion that the subject video tapes constitute impermissible attacks
against another religion. There is no showing whatsoever of the type of harm
the tapes will bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including religious speech, cannot
be justified by hypothetical fears but only by the showing of a substantive and
imminent evil which has taken the life of a reality already on ground.
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Replying to the challenge on the applicability of the "clear and present danger"
test to the case, the Court acknowledged the permutations that the test has
undergone, but stressed that the test is still applied to four types of speech:
"speech that advocates dangerous ideas, speech that provokes a hostile audience
reaction, out of court contempt and release of information that endangers a fair
trial"351 and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply
the clear and present danger test to the case at bar which concerns speech that
attacks other religions and could readily provoke hostile audience reaction. It
cannot be doubted that religious truths disturb and disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as holding that
religious freedom cannot be invoked to seek exemption from compliance with
a law that burdens one's religious exercise. It also reiterated the "clear and
present danger" test in American Bible Society and the "grave and imminent
danger" in Victoriano, but this time clearly justifying its applicability and
showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not invalidating
a law offensive to religious freedom, but carving out an exception or upholding
an exception to accommodate religious exercise where it is justified.353
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values sought
to be protected by the Establishment Clause, namely, voluntarism and
insulation of the political process from interfaith dissension. The first,
voluntarism, has both a personal and a social dimension. As a personal value,
it refers to the inviolability of the human conscience which, as discussed above,
is also protected by the free exercise clause. From the religious perspective,
religion requires voluntarism because compulsory faith lacks religious efficacy.
Compelled religion is a contradiction in terms.354 As a social value, it means
that the "growth of a religious sect as a social force must come from the
voluntary support of its members because of the belief that both spiritual and
secular society will benefit if religions are allowed to compete on their own
intrinsic merit without benefit of official patronage. Such voluntarism cannot
be achieved unless the political process is insulated from religion and unless
religion is insulated from politics."355 Non-establishment thus calls for
government neutrality in religious matters to uphold voluntarism and avoid
breeding interfaith dissension.356
The neutrality principle was applied in the first significant non-establishment
case under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,357 the
Philippine Independent Church challenged the issuance and sale of postage
stamps commemorating the Thirty-Third International Eucharistic Congress of
the Catholic Church on the ground that the constitutional prohibition against
the use of public money for religious purposes has been violated. It appears that
the Director of Posts issued the questioned stamps under the provisions of Act
No. 4052358 which appropriated a sum for the cost of plates and printing of
postage stamps with new designs and authorized the Director of Posts to
dispose of the sum in a manner and frequency "advantageous to the
Government." The printing and issuance of the postage stamps in question
appears to have been approved by authority of the President. Justice Laurel,
speaking for the Court, took pains explaining religious freedom and the role of
religion in society, and in conclusion, found no constitutional infirmity in the
issuance and sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that the union
of church and state is prejudicial to both, for occasions might arise when the
state will use the church, and the church the state, as a weapon in the furtherance
of their respective ends and aims . . . It is almost trite to say now that in this
country we enjoy both religious and civil freedom. All the officers of the
Government, from the highest to the lowest, in taking their oath to support and
defend the Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and
recognized implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an inhibition of
profound reverence for religion and is not a denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the
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minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government that
shall embody their ideals, conserve and develop the patrimony of the nation,
promote the general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and democracy,"
they thereby manifested their intense religious nature and placed unfaltering
reliance upon Him who guides the destinies of men and nations. The elevating
influence of religion in human society is recognized here as elsewhere. In fact,
certain general concessions are indiscriminately accorded to religious sects and
denominations. . .359
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in question may be
said to be inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim
and purpose of the Government. We are of the opinion that the Government
should not be embarrassed in its activities simply because of incidental results,
more or less religious in character, if the purpose had in view is one which could
legitimately be undertaken by appropriate legislation. The main purpose should
not be frustrated by its subordination to mere incidental results not
contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121;
44 Law. ed., 168)360 (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the
doctrine that a law or government action with a legitimate secular purpose does
not offend the Establishment Clause even if it incidentally aids a particular
religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although
the Court found that the separation of church and state was not at issue as the
controversy was over who should have custody of a saint's image, it
nevertheless made pronouncements on the separation of church and state along
the same line as the Aglipay ruling. The Court held that there was nothing
unconstitutional or illegal in holding a fiesta and having a patron saint for the
barrio. It adhered to the barrio resolutions of the barangay involved in the case
stating that the barrio fiesta is a socio-religious affair, the celebration of which
is an "ingrained tradition in rural communities" that "relieves the monotony and
drudgery of the lives of the masses." Corollarily, the Court found nothing illegal
about any activity intended to facilitate the worship of the patron saint such as
the acquisition and display of his image bought with funds obtained through
solicitation from the barrio residents. The Court pointed out that the image of
the patron saint was "purchased in connection with the celebration of the barrio
fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of
favoring any religion nor interfering with religious matters or the religious
beliefs of the barrio residents." Citing the Aglipay ruling, the Court declared,
viz:
Not every governmental activity which involves the expenditure of public funds
and which has some religious tint is violative of the constitutional provisions
regarding separation of church and state, freedom of worship and banning the
use of public money or property.
Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel
issue involving the religion clauses. In this case, Section 2175 of the Revised
Administrative Code of 1917 disqualifying ecclesiastics from appointment or
election as municipal officer was challenged. After protracted deliberation, the
Court was sharply divided on the issue. Seven members of the Court, one short
of the number necessary to declare a law unconstitutional, approached the
problem from a free exercise perspective and considered the law a religious test
offensive of the constitution. They were Justices Fernando, Teehankee, Muñoz-
Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate
Justice Fernando, the ponente, stated, viz: "The challenged Administrative
Code provision, certainly insofar as it declares ineligible ecclesiastics to any
elective or appointive office, is, on its face, inconsistent with the religious
freedom guaranteed by the Constitution." Citing Torcaso v. Watkins,363 the
ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive
weight. What was there involved was the validity of a provision in the Maryland
Constitution prescribing that 'no religious test ought ever to be required as a
disqualification for any office or profit or trust in this State, other than a
declaration of belief in the existence of God ***.' Such a constitutional
requirement was assailed as contrary to the First Amendment of the United
States Constitution by an appointee to the office of notary public in Maryland,
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who was refused a commission as he would not declare a belief in God. He
failed in the Maryland Court of Appeals but prevailed in the United States
Supreme Court, which reversed the state court decision. It could not have been
otherwise. As emphatically declared by Justice Black: 'this Maryland religious
test for public office unconstitutionally invades the appellant's freedom of belief
and religion and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in God
that was a disqualification. Here being an ecclesiastic and therefore professing
a religious faith suffices to disqualify for a public office. There is thus an
incompatibility between the Administrative Code provision relied upon by
petitioner and an express constitutional mandate.364
On the other hand, the prevailing five other members of the Court - Chief
Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached
the case from a non-establishment perspective and upheld the law as a
safeguard against the constant threat of union of church and state that has
marked Philippine history. Justice Makasiar stated: "To allow an ecclesiastic to
head the executive department of a municipality is to permit the erosion of the
principle of separation of Church and State and thus open the floodgates for the
violation of the cherished liberty of religion which the constitutional provision
seeks to enforce and protect." Consequently, the Court upheld the validity of
Section 2175 of the Revised Administrative Code and declared respondent
priest ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with
intramural religious disputes. Fonacier v. Court of Appeals365 is the leading
case. The issue therein was the right of control over certain properties of the
Philippine Independent Church, the resolution of which necessitated the
determination of who was the legitimate bishop of the church. The Court cited
American Jurisprudence,366 viz:
Where, however, a decision of an ecclesiastical court plainly violates the law it
professes to administer, or is in conflict with the law of the land, it will not be
followed by the civil courts. . . In some instances, not only have the civil courts
the right to inquire into the jurisdiction of the religious tribunals and the
regularity of their procedure, but they have subjected their decisions to the test
of fairness or to the test furnished by the constitution and the law of the church.
. .367
The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based on their
internal laws. To finally dispose of the property issue, the Court, citing Watson
v. Jones,368 declared that the rule in property controversies within religious
congregations strictly independent of any other superior ecclesiastical
association (such as the Philippine Independent Church) is that the rules for
resolving such controversies should be those of any voluntary association. If
the congregation adopts the majority rule then the majority should prevail; if it
adopts adherence to duly constituted authorities within the congregation, then
that should be followed. Applying these rules, Fonacier lost the case. While the
Court exercised jurisdiction over the case, it nevertheless refused to touch
doctrinal and disciplinary differences raised, viz:
The amendments of the constitution, restatement of articles of religion and
abandonment of faith or abjuration alleged by appellant, having to do with faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a
church and having reference to the power of excluding from the church those
allegedly unworthy of membership, are unquestionably ecclesiastical matters
which are outside the province of the civil courts.369
VIII. Free Exercise Clause vis-à-vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a tension
between the Free Exercise Clause and the Establishment Clause in their
application. There is a natural antagonism between a command not to establish
religion and a command not to inhibit its practice; this tension between the
religion clauses often leaves the courts with a choice between competing values
in religion cases.370
One set of facts, for instance, can be differently viewed from the Establishment
Clause perspective and the Free Exercise Clause point of view, and decided in
opposite directions. In Pamil, the majority gave more weight to the religious
liberty of the priest in holding that the prohibition of ecclesiastics to assume
elective or appointive government positions was violative of the Free Exercise
Clause. On the other hand, the prevailing five justices gave importance to the
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Establishment Clause in stating that the principle of separation of church and
state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise
Clause and consequently exemptions from a law of general applicability are
afforded by the Court to the person claiming religious freedom; the question
arises whether the exemption does not amount to support of the religion in
violation of the Establishment Clause. This was the case in the Free Exercise
Clause case of Sherbert where the U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the "establishment" of the
Seventh-day Adventist religion in South Carolina, for the extension of
unemployment benefits to Sabbatarians in common with Sunday worshippers
reflects nothing more than the governmental obligation of neutrality in the face
of religious differences, and does not represent that involvement of religious
with secular institutions which it is the object of the Establishment Clause to
forestall.371 (emphasis supplied)
Tension also exists when a law of general application provides exemption in
order to uphold free exercise as in the Walz case where the appellant argued
that the exemption granted to religious organizations, in effect, required him to
contribute to religious bodies in violation of the Establishment Clause. But the
Court held that the exemption was not a case of establishing religion but merely
upholding the Free Exercise Clause by "sparing the exercise of religion from
the burden of property taxation levied on private profit institutions." Justice
Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion
clauses, both of which are cast in absolute terms, and either of which, if
expanded to a logical extreme, would tend to clash with the other.372
Similarly, the Philippine Supreme Court in the Victoriano case held that the
exemption afforded by law to religious sects who prohibit their members from
joining unions did not offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted consistently
with the spirit of the constitutional provision. It acted merely to relieve the
exercise of religion, by certain persons, of a burden that is imposed by union
security agreements.373 (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the Establishment
Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan
stated: "(t)here are certain practices, conceivably violative of the Establishment
Clause, the striking down of which might seriously interfere with certain
religious liberties also protected by the First Amendment."
How the tension between the Establishment Clause and the Free Exercise
Clause will be resolved is a question for determination in the actual cases that
come to the Court. In cases involving both the Establishment Clause and the
Free Exercise Clause, the two clauses should be balanced against each other.
The courts must review all the relevant facts and determine whether there is a
sufficiently strong free exercise right that should prevail over the Establishment
Clause problem. In the United States, it has been proposed that in balancing,
the free exercise claim must be given an edge not only because of abundant
historical evidence in the colonial and early national period of the United States
that the free exercise principle long antedated any broad-based support of
disestablishment, but also because an Establishment Clause concern raised by
merely accommodating a citizen's free exercise of religion seems far less
dangerous to the republic than pure establishment cases. Each time the courts
side with the Establishment Clause in cases involving tension between the two
religion clauses, the courts convey a message of hostility to the religion that in
that case cannot be freely exercised.374 American professor of constitutional
law, Laurence Tribe, similarly suggests that the free exercise principle "should
be dominant in any conflict with the anti-establishment principle." This
dominance would be the result of commitment to religious tolerance instead of
"thwarting at all costs even the faintest appearance of establishment."375 In our
jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the
religion clauses does not suffice. Modern society is characterized by the
expanding regulatory arm of government that reaches a variety of areas of
human conduct and an expanding concept of religion. To adequately meet the
demands of this modern society, the societal values the religion clauses are
intended to protect must be considered in their interpretation and resolution of
the tension. This, in fact, has been the approach followed by the Philippine
Court.376
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IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine
and American Religion Clause History, Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained in
every organic Act of the Philippines under the American regime. When the
delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the
1935 Constitution, they purposely retained the phraseology of the religion
clauses in the First Amendment as contained in the Jones Law in order to adopt
its historical background, nature, extent and limitations. At that time, there were
not too many religion clause cases in the United States as the U.S. Supreme
Court decided an Establishment Clause issue only in the 1947 Everson case.
The Free Exercise Clause cases were also scarce then. Over the years, however,
with the expanding reach of government regulation to a whole gamut of human
actions and the growing plurality and activities of religions, the number of
religion clause cases in the U.S. exponentially increased. With this increase
came an expansion of the interpretation of the religion clauses, at times
reinforcing prevailing case law, at other times modifying it, and still at other
times creating contradictions so that two main streams of jurisprudence had
become identifiable. The first stream employs separation while the second
employs benevolent neutrality in interpreting the religious clauses. Alongside
this change in the landscape of U.S. religion clause jurisprudence, the
Philippines continued to adopt the 1935 Constitution religion clauses in the
1973 Constitution and later, the 1987 Constitution. Philippine jurisprudence
and commentaries on the religious clauses also continued to borrow authorities
from U.S. jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence. One might simply conclude that the
Philippine Constitutions and jurisprudence also inherited the disarray of U.S.
religion clause jurisprudence and the two identifiable streams; thus, when a
religion clause case comes before the Court, a separationist approach or a
benevolent neutrality approach might be adopted and each will have U.S.
authorities to support it. Or, one might conclude that as the history of the First
Amendment as narrated by the Court in Everson supports the separationist
approach, Philippine jurisprudence should also follow this approach in light of
the Philippine religion clauses' history. As a result, in a case where the party
claims religious liberty in the face of a general law that inadvertently burdens
his religious exercise, he faces an almost insurmountable wall in convincing the
Court that the wall of separation would not be breached if the Court grants him
an exemption. These conclusions, however, are not and were never warranted
by the 1987, 1973 and 1935 Constitutions as shown by other provisions on
religion in all three constitutions. It is a cardinal rule in constitutional
construction that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner that
will give to all of them full force and effect.377 From this construction, it will
be ascertained that the intent of the framers was to adopt a benevolent neutrality
approach in interpreting the religious clauses in the Philippine constitutions,
and the enforcement of this intent is the goal of construing the constitution.378
We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At
the same time that the 1935 Constitution provided for an Establishment Clause,
it also provided for tax exemption of church property in Article VI, Section 22,
par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and
all lands, buildings, and improvements used exclusively for religious,
charitable, or educational purposes shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the Administrative
Code provided for a similar exemption. To the same effect, the Tydings-
McDuffie Law contained a limitation on the taxing power of the Philippine
government during the Commonwealth period.379 The original draft of the
Constitution placed this provision in an ordinance to be appended to the
Constitution because this was among the provisions prescribed by the Tydings-
McDuffie Law. However, in order to have a constitutional guarantee for such
an exemption even beyond the Commonwealth period, the provision was
introduced in the body of the Constitution on the rationale that "if churches,
convents [rectories or parsonages] and their accessories are always necessary
for facilitating the exercise of such [religious] freedom, it would also be natural
that their existence be also guaranteed by exempting them from taxation."380
The amendment was readily approved with 83 affirmative votes against 15
negative votes.381
The Philippine constitutional provision on tax exemption is not found in the
U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this
kind of exemption to withstand Establishment Clause scrutiny by stating that
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church property was not singled out but was exempt along with property owned
by non-profit, quasi-public corporations because the state upheld the secular
policy "that considers these groups as beneficial and stabilizing influences in
community life and finds this classification useful, desirable, and in the public
interest." The Court also stated that the exemption was meant to relieve the
burden on free exercise imposed by property taxation. At the same time,
however, the Court acknowledged that the exemption was an exercise of
benevolent neutrality to accommodate a long-standing tradition of exemption.
With the inclusion of the church property tax exemption in the body of the 1935
Constitution and not merely as an ordinance appended to the Constitution, the
benevolent neutrality referred to in the Walz case was given constitutional
imprimatur under the regime of the 1935 Constitution. The provision, as stated
in the deliberations, was an acknowledgment of the necessity of the exempt
institutions to the exercise of religious liberty, thereby evincing benevolence
towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution or system of religion, for the use, benefit or
support of any priest, preacher, ministers or other religious teacher or dignitary
as such, except when such priest, preacher, minister, or dignitary is assigned to
the armed forces or to any penal institution, orphanage, or leprosarium.
(emphasis supplied)
The original draft of this provision was a reproduction of a portion of section 3
of the Jones Law which did not contain the above exception, viz:
No public money or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church
denomination, sectarian institution, or system of religion, or for the use, benefit
or support of any priest, preacher, minister, or dignitary as such…382
In the deliberations of this draft provision, an amendment was proposed to
strike down everything after "church denomination."383 The proposal intended
to imitate the silence of the U.S. Constitution on the subject of support for
priests and ministers. It was also an imitation of the silence of the Malolos
Constitution to restore the situation under the Malolos Constitution and prior to
the Jones Law, when chaplains of the revolutionary army received pay from
public funds with no doubt about its legality. It was pointed out, however, that
even with the prohibition under the Jones Law, appropriations were made to
chaplains of the national penitentiary and the Auditor General upheld its
validity on the basis of a similar United States practice. But it was also pointed
out that the U.S. Constitution did not contain a prohibition on appropriations
similar to the Jones Law.384 To settle the question on the constitutionality of
payment of salaries of religious officers in certain government institutions and
to avoid the feared situation where the enumerated government institutions
could not employ religious officials with compensation, the exception in the
1935 provision was introduced and approved. The provision garnered 74
affirmative votes against 34 negative votes.385 As pointed out in the
deliberations, the U.S. Constitution does not provide for this exemption.
However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a
benevolent neutrality approach, implicitly approved the state of Texas' payment
of prison chaplains' salaries as reasonably necessary to permit inmates to
practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld
the long-standing tradition of beginning legislative sessions with prayers
offered by legislative chaplains retained at taxpayers' expense. The
constitutional provision exempting religious officers in government institutions
affirms the departure of the Philippine Constitution from the U.S. Constitution
in its adoption of benevolent neutrality in Philippine jurisdiction. While the
provision prohibiting aid to religion protects the wall of separation between
church and state, the provision at the same time gives constitutional sanction to
a breach in the wall.
To further buttress the thesis that benevolent neutrality is contemplated in the
Philippine Establishment Clause, the 1935 Constitution provides for optional
religious instruction in public schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools as
now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church established
in the town where a public school is situated, either in person or by a designated
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teacher of religion, to teach religion for one-half hour three times a week, in the
school building, to those public-school pupils whose parents or guardians desire
it and express their desire therefor in writing filed with the principal of the
school . . .
During the debates of the Constitutional Convention, there were three positions
on the issue of religious instruction in public schools. The first held that the
teaching of religion in public schools should be prohibited as this was a
violation of the principle of separation of church and state and the prohibition
against the use of public funds for religious purposes. The second favored the
proposed optional religious instruction as authorized by the Administrative
Code and recognized that the actual practice of allowing religious instruction
in the public schools was sufficient proof that religious instruction was not and
would not be a source of religious discord in the schools.386 The third wanted
religion to be included as a course in the curriculum of the public schools but
would only be taken by pupils at the option of their parents or guardians. After
several rounds of debate, the second camp prevailed, thus raising to
constitutional stature the optional teaching of religion in public schools, despite
the opposition to the provision on the ground of separation of church and
state.387 As in the provisions on church property tax exemption and
compensation of religious officers in government institutions, the U.S.
Constitution does not provide for optional religious instruction in public
schools. In fact, in the McCollum case, the Court, using strict neutrality,
prohibited this kind of religious instruction where the religion teachers would
conduct class within the school premises. The constitutional provision on
optional religious instruction shows that Philippine jurisdiction rejects the strict
neutrality approach which does not allow such accommodation of religion.
Finally, to make certain the Constitution's benevolence to religion, the Filipino
people "implored (ing) the aid of Divine Providence (,) in order to establish a
government that shall embody their ideals, conserve and develop the patrimony
of the nation, promote the general welfare, and secure to themselves and their
posterity the blessings of independence under a regime of justice, liberty, and
democracy, (in) ordain(ing) and promulgat(ing) this Constitution." A preamble
is a "key to open the mind of the authors of the constitution as to the evil sought
to be prevented and the objects sought to be accomplished by the provisions
thereof."388 There was no debate on the inclusion of a "Divine Providence" in
the preamble. In Aglipay, Justice Laurel noted that when the Filipino people
implored the aid of Divine Providence, "(t)hey thereby manifested their intense
religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations."389 The 1935 Constitution's religion clauses,
understood alongside the other provisions on religion in the Constitution,
indubitably shows not hostility, but benevolence, to religion.390
The 1973 Constitution contained in Article VI, Section 22(3) a provision
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on
exemption of church property from taxation, with the modification that the
property should not only be used directly, but also actually and exclusively for
religious or charitable purposes. Parallel to Article VI, Section 23(3) of the
1935 Constitution, the 1973 Constitution also contained a similar provision on
salaries of religious officials employed in the enumerated government
institutions. Article XIII, Section 5 of the 1935 Constitution on optional
religious instruction was also carried to the 1973 Constitution in Article XV,
Section 8(8) with the modification that optional religious instruction shall be
conducted "as may be provided by law" and not "as now authorized by law" as
stated in the 1935 Constitution. The 1973 counterpart, however, made explicit
in the constitution that the religious instruction in public elementary and high
schools shall be done "(a)t the option expressed in writing by the parents or
guardians, and without cost to them and the government." With the adoption of
these provisions in the 1973 Constitution, the benevolent neutrality approach
continued to enjoy constitutional sanction. In Article XV, Section 15 of the
General Provisions of the 1973 Constitution this provision made its maiden
appearance: "(t)he separation of church and state shall be inviolable." The 1973
Constitution retained the portion of the preamble "imploring the aid of Divine
Providence."
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems
of the Committee on Church and State of the 1971 Constitutional Convention,
the question arose as to whether the "absolute" separation of Church and State
as enunciated in the Everson case and reiterated in Schempp - i.e., neutrality
not only as between one religion and another but even as between religion and
non-religion - is embodied in the Philippine Constitution. The sub-committee's
answer was that it did not seem so. Citing the Aglipay case where Justice Laurel
recognized the "elevating influence of religion in human society" and the
Filipinos' imploring of Divine Providence in the 1935 Constitution, the sub-
committee asserted that the state may not prefer or aid one religion over another,
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but may aid all religions equally or the cause of religion in general.391 Among
the position papers submitted to the Committee on Church on State was a
background paper for reconsideration of the religion provisions of the
constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution
is not hostile to religion and in fact recognizes the value of religion and
accommodates religious values.392 Stated otherwise, the Establishment Clause
contemplates not a strict neutrality but benevolent neutrality. While the
Committee introduced the provision on separation of church and state in the
General Provisions of the 1973 Constitution, this was nothing new as according
to it, this principle was implied in the 1935 Constitution even in the absence of
a similar provision.393
Then came the 1987 Constitution. The 1973 Constitutional provision on tax
exemption of church property was retained with minor modification in Article
VI, Section 28(3) of the 1987 Constitution. The same is true with respect to the
prohibition on the use of public money and property for religious purposes and
the salaries of religious officers serving in the enumerated government
institutions, now contained in Article VI, Section 29(2). Commissioner Bacani,
however, probed into the possibility of allowing the government to spend public
money for purposes which might have religious connections but which would
benefit the public generally. Citing the Aglipay case, Commissioner Rodrigo
explained that if a public expenditure would benefit the government directly,
such expense would be constitutional even if it results to an incidental benefit
to religion. With that explanation, Commissioner Bacani no longer pursued his
proposal.394
The provision on optional religious instruction was also adopted in the 1987
Constitution in Article XIV, Section 3(3) with the modification that it was
expressly provided that optional instruction shall be conducted "within the
regular class hours" and "without additional cost to the government". There
were protracted debates on what additional cost meant, i.e., cost over and above
what is needed for normal operations such as wear and tear, electricity,
janitorial services,395 and when during the day instruction would be
conducted.396 In deliberating on the phrase "within the regular class hours,"
Commissioner Aquino expressed her reservations to this proposal as this would
violate the time-honored principle of separation of church and state. She cited
the McCullom case where religious instruction during regular school hours was
stricken down as unconstitutional and also cited what she considered the most
liberal interpretation of separation of church and state in Surach v. Clauson
where the U.S. Supreme Court allowed only release time for religious
instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception to the
rule on non-establishment of religion, because if it were not necessary to make
this exception for purposes of allowing religious instruction, then we could just
drop the amendment. But, as a matter of fact, this is necessary because we are
trying to introduce something here which is contrary to American practices.397
(emphasis supplied)
"(W)ithin regular class hours" was approved.
he provision on the separation of church and state was retained but placed under
the Principles in the Declaration of Principles and State Policies in Article II,
Section 6. In opting to retain the wording of the provision, Fr. Bernas stated,
viz:
. . . It is true, I maintain, that as a legal statement the sentence 'The separation
of Church and State is inviolable,' is almost a useless statement; but at the same
time it is a harmless statement. Hence, I am willing to tolerate it there, because,
in the end, if we look at the jurisprudence on Church and State, arguments are
based not on the statement of separation of church and state but on the non-
establishment clause in the Bill of Rights.398
The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions
to "Almighty God." There was considerable debate on whether to use
"Almighty God" which Commissioner Bacani said was more reflective of
Filipino religiosity, but Commissioner Rodrigo recalled that a number of
atheistic delegates in the 1971 Constitutional Convention objected to reference
to a personal God.399 "God of History", "Lord of History" and "God" were also
proposed, but the phrase "Almighty God" prevailed. Similar to the 1935 and
1971 Constitutions, it is obvious that the 1987 Constitution is not hostile nor
indifferent to religion;400 its wall of separation is not a wall of hostility or
indifference.401
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of
church property, salary of religious officers in government institutions, optional
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religious instruction and the preamble all reveal without doubt that the Filipino
people, in adopting these constitutions, did not intend to erect a high and
impregnable wall of separation between the church and state.402 The strict
neutrality approach which examines only whether government action is for a
secular purpose and does not consider inadvertent burden on religious exercise
protects such a rigid barrier. By adopting the above constitutional provisions on
religion, the Filipinos manifested their adherence to the benevolent neutrality
approach in interpreting the religion clauses, an approach that looks further than
the secular purposes of government action and examines the effect of these
actions on religious exercise. Benevolent neutrality recognizes the religious
nature of the Filipino people and the elevating influence of religion in society;
at the same time, it acknowledges that government must pursue its secular
goals. In pursuing these goals, however, government might adopt laws or
actions of general applicability which inadvertently burden religious exercise.
Benevolent neutrality gives room for accommodation of these religious
exercises as required by the Free Exercise Clause. It allows these breaches in
the wall of separation to uphold religious liberty, which after all is the integral
purpose of the religion clauses. The case at bar involves this first type of
accommodation where an exemption is sought from a law of general
applicability that inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent
neutrality, benevolent neutrality does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. But it does mean
that the Court will not look with hostility or act indifferently towards religious
beliefs and practices and that it will strive to accommodate them when it can
within flexible constitutional limits; it does mean that the Court will not simply
dismiss a claim under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view for this precisely is the protection afforded
by the religion clauses of the Constitution, i.e., that in the absence of legislation
granting exemption from a law of general applicability, the Court can carve out
an exception when the religion clauses justify it. While the Court cannot adopt
a doctrinal formulation that can eliminate the difficult questions of judgment in
determining the degree of burden on religious practice or importance of the
state interest or the sufficiency of the means adopted by the state to pursue its
interest, the Court can set a doctrine on the ideal towards which religious clause
jurisprudence should be directed.403 We here lay down the doctrine that in
Philippine jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that benevolent
neutrality is the launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty "not only for a minority, however
small- not only for a majority, however large- but for each of us" to the greatest
extent possible within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also been
recognized in Philippine jurisprudence, albeit not expressly called "benevolent
neutrality" or "accommodation". In Aglipay, the Court not only stressed the
"elevating influence of religion in human society" but acknowledged the
Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious instruction
as well as the provisions of the Administrative Code making Thursday and
Friday of the Holy Week, Christmas Day and Sundays legal holidays. In
Garces, the Court not only recognized the Constitutional provisions
indiscriminately granting concessions to religious sects and denominations, but
also acknowledged that government participation in long-standing traditions
which have acquired a social character - "the barrio fiesta is a socio-religious
affair" - does not offend the Establishment Clause. In Victoriano, the Court
upheld the exemption from closed shop provisions of members of religious
sects who prohibited their members from joining unions upon the justification
that the exemption was not a violation of the Establishment Clause but was only
meant to relieve the burden on free exercise of religion. In Ebralinag, members
of the Jehovah's Witnesses were exempt from saluting the flag as required by
law, on the basis not of a statute granting exemption but of the Free Exercise
Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin,
Philippine constitutional law has departed from the U.S. jurisprudence of
employing a separationist or strict neutrality approach. The Philippine religion
clauses have taken a life of their own, breathing the air of benevolent neutrality
and accommodation. Thus, the wall of separation in Philippine jurisdiction is
not as high and impregnable as the wall created by the U.S. Supreme Court in
Everson.404 While the religion clauses are a unique American experiment
which understandably came about as a result of America's English background
and colonization, the life that these clauses have taken in this jurisdiction is the
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Philippines' own experiment, reflective of the Filipinos' own national soul,
history and tradition. After all, "the life of the law. . . has been experience."
But while history, constitutional construction, and earlier jurisprudence
unmistakably show that benevolent neutrality is the lens with which the Court
ought to view religion clause cases, it must be stressed that the interest of the
state should also be afforded utmost protection. To do this, a test must be
applied to draw the line between permissible and forbidden religious exercise.
It is quite paradoxical that in order for the members of a society to exercise their
freedoms, including their religious liberty, the law must set a limit when their
exercise offends the higher interest of the state. To do otherwise is self-
defeating for unlimited freedom would erode order in the state and foment
anarchy, eventually destroying the very state its members established to protect
their freedoms. The very purpose of the social contract by which people
establish the state is for the state to protect their liberties; for this purpose, they
give up a portion of these freedoms - including the natural right to free exercise
- to the state. It was certainly not the intention of the authors of the constitution
that free exercise could be used to countenance actions that would undo the
constitutional order that guarantees free exercise.405
The all important question then is the test that should be used in ascertaining
the limits of the exercise of religious freedom. Philippine jurisprudence
articulates several tests to determine these limits. Beginning with the first case
on the Free Exercise Clause, American Bible Society, the Court mentioned the
"clear and present danger" test but did not employ it. Nevertheless, this test
continued to be cited in subsequent cases on religious liberty. The Gerona case
then pronounced that the test of permissibility of religious freedom is whether
it violates the established institutions of society and law. The Victoriano case
mentioned the "immediate and grave danger" test as well as the doctrine that a
law of general applicability may burden religious exercise provided the law is
the least restrictive means to accomplish the goal of the law. The case also used,
albeit inappropriately, the "compelling state interest" test. After Victoriano,
German went back to the Gerona rule. Ebralinag then employed the "grave and
immediate danger" test and overruled the Gerona test. The fairly recent case of
Iglesia ni Cristo went back to the "clear and present danger" test in the maiden
case of American Bible Society. Not surprisingly, all the cases which employed
the "clear and present danger" or "grave and immediate danger" test involved,
in one form or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German cases set the
rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German
has been overruled by Ebralinag which employed the "grave and immediate
danger" test. Victoriano was the only case that employed the "compelling state
interest" test, but as explained previously, the use of the test was inappropriate
to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag
and Iglesia ni Cristo where the "clear and present danger" and "grave and
immediate danger" tests were appropriate as speech has easily discernible or
immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not
appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test
is proper where conduct is involved for the whole gamut of human conduct has
different effects on the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that would protect the
interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a fundamental
right that enjoys a preferred position in the hierarchy of rights - "the most
inalienable and sacred of all human rights", in the words of Jefferson.406 This
right is sacred for an invocation of the Free Exercise Clause is an appeal to a
higher sovereignty. The entire constitutional order of limited government is
premised upon an acknowledgment of such higher sovereignty,407 thus the
Filipinos implore the "aid of Almighty God in order to build a just and humane
society and establish a government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this fundamental right. A
mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test requires
the state to carry a heavy burden, a compelling one, for to do otherwise would
allow the state to batter religion, especially the less powerful ones until they are
destroyed.408 In determining which shall prevail between the state's interest
and religious liberty, reasonableness shall be the guide.409 The "compelling
state interest" serves the purpose of revering religious liberty while at the same
time affording protection to the paramount interests of the state. This was the
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test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays.
In the end, the "compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without which, religious
liberty will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees engaged
in illicit relations are guilty of "disgraceful and immoral conduct" for which
he/she may be held administratively liable.410 In these cases, there was not one
dissent to the majority's ruling that their conduct was immoral. The respondents
themselves did not foist the defense that their conduct was not immoral, but
instead sought to prove that they did not commit the alleged act or have abated
from committing the act. The facts of the 1975 case of De Dios v. Alejo411 and
the 1999 case of Maguad v. De Guzman,412 are similar to the case at bar - i.e.,
the complainant is a mere stranger and the legal wife has not registered any
objection to the illicit relation, there is no proof of scandal or offense to the
moral sensibilities of the community in which the respondent and the partner
live and work, and the government employee is capacitated to marry while the
partner is not capacitated but has long been separated in fact. Still, the Court
found the government employees administratively liable for "disgraceful and
immoral conduct" and only considered the foregoing circumstances to mitigate
the penalty. Respondent Escritor does not claim that there is error in the settled
jurisprudence that an illicit relation constitutes disgraceful and immoral conduct
for which a government employee is held liable. Nor is there an allegation that
the norms of morality with respect to illicit relations have shifted towards
leniency from the time these precedent cases were decided. The Court finds that
there is no such error or shift, thus we find no reason to deviate from these
rulings that such illicit relationship constitutes "disgraceful and immoral
conduct" punishable under the Civil Service Law. Respondent having admitted
the alleged immoral conduct, she, like the respondents in the above-cited cases,
could be held administratively liable. However, there is a distinguishing factor
that sets the case at bar apart from the cited precedents, i.e., as a defense,
respondent invokes religious freedom since her religion, the Jehovah's
Witnesses, has, after thorough investigation, allowed her conjugal arrangement
with Quilapio based on the church's religious beliefs and practices. This
distinguishing factor compels the Court to apply the religious clauses to the
case at bar.
Without holding that religious freedom is not in issue in the case at bar, both
the dissenting opinion of Mme. Justice Ynares-Santiago and the separate
opinion of Mr. Justice Vitug dwell more on the standards of morality than on
the religion clauses in deciding the instant case. A discussion on morality is in
order.
At base, morality refers to, in Socrates' words, "how we ought to live" and why.
Any definition of morality beyond Socrates' simple formulation is bound to
offend one or another of the many rival theories regarding what it means to live
morally.413 The answer to the question of how we ought to live necessarily
considers that man does not live in isolation, but in society. Devlin posits that
a society is held together by a community of ideas, made up not only of political
ideas but also of ideas about the manner its members should behave and govern
their lives. The latter are their morals; they constitute the public morality. Each
member of society has ideas about what is good and what is evil. If people try
to create a society wherein there is no fundamental agreement about good and
evil, they will fail; if having established the society on common agreement, the
agreement collapses, the society will disintegrate. Society is kept together by
the invisible bonds of common thought so that if the bonds are too loose, the
members would drift apart. A common morality is part of the bondage and the
bondage is part of the price of society; and mankind, which needs society, must
pay its price.414 This design is parallel with the social contract in the realm of
politics: people give up a portion of their liberties to the state to allow the state
to protect their liberties. In a constitutional order, people make a fundamental
agreement about the powers of government and their liberties and embody this
agreement in a constitution, hence referred to as the fundamental law of the
land. A complete break of this fundamental agreement such as by revolution
destroys the old order and creates a new one.415 Similarly, in the realm of
morality, the breakdown of the fundamental agreement about the manner a
society's members should behave and govern their lives would disintegrate
society. Thus, society is justified in taking steps to preserve its moral code by
law as it does to preserve its government and other essential institutions.416
From these propositions of Devlin, one cannot conclude that Devlin negates
diversity in society for he is merely saying that in the midst of this diversity,
there should nevertheless be a "fundamental agreement about good and evil"
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that will govern how people in a society ought to live. His propositions, in fact,
presuppose diversity hence the need to come to an agreement; his position also
allows for change of morality from time to time which may be brought about
by this diversity. In the same vein, a pluralistic society lays down fundamental
rights and principles in their constitution in establishing and maintaining their
society, and these fundamental values and principles are translated into
legislation that governs the order of society, laws that may be amended from
time to time. Hart's argument propounded in Mr. Justice Vitug's separate
opinion that, "Devlin's view of people living in a single society as having
common moral foundation (is) overly simplistic" because "societies have
always been diverse" fails to recognize the necessity of Devlin's proposition in
a democracy. Without fundamental agreement on political and moral ideas,
society will fall into anarchy; the agreement is necessary to the existence and
progress of society.
In a democracy, this common agreement on political and moral ideas is distilled
in the public square. Where citizens are free, every opinion, every prejudice,
every aspiration, and every moral discernment has access to the public square
where people deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious belief, and these
citizens have equal access to the public square. In this representative
democracy, the state is prohibited from determining which convictions and
moral judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and decide. Majority
rule is a necessary principle in this democratic governance.417 Thus, when
public deliberation on moral judgments is finally crystallized into law, the laws
will largely reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups.418 Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies -- including protection of
religious freedom "not only for a minority, however small- not only for a
majority, however large- but for each of us" -- the majority imposes upon itself
a self-denying ordinance. It promises not to do what it otherwise could do: to
ride roughshod over the dissenting minorities.419 In the realm of religious
exercise, benevolent neutrality that gives room for accommodation carries out
this promise, provided the compelling interests of the state are not eroded for
the preservation of the state is necessary to the preservation of religious liberty.
That is why benevolent neutrality is necessary in a pluralistic society such as
the United States and the Philippines to accommodate those minority religions
which are politically powerless. It is not surprising that Smith is much criticized
for it blocks the judicial recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice Holmes
put it, "(t)he law is the witness and deposit of our moral life."420 "In a liberal
democracy, the law reflects social morality over a period of time."421
Occasionally though, a disproportionate political influence might cause a law
to be enacted at odds with public morality or legislature might fail to repeal
laws embodying outdated traditional moral views.422 Law has also been
defined as "something men create in their best moments to protect themselves
in their worst moments."423 Even then, laws are subject to amendment or
repeal just as judicial pronouncements are subject to modification and reversal
to better reflect the public morals of a society at a given time. After all, "the life
of the law...has been experience," in the words of Justice Holmes. This is not to
say though that law is all of morality. Law deals with the minimum standards
of human conduct while morality is concerned with the maximum. A person
who regulates his conduct with the sole object of avoiding punishment under
the law does not meet the higher moral standards set by society for him to be
called a morally upright person.424 Law also serves as "a helpful starting point
for thinking about a proper or ideal public morality for a society"425 in pursuit
of moral progress.
In Magno v. Court of Appeals, et al.,426 we articulated the relationship between
law and public morality. We held that under the utilitarian theory, the
"protective theory" in criminal law, "criminal law is founded upon the moral
disapprobation x x x of actions which are immoral, i.e., which are detrimental
(or dangerous) to those conditions upon which depend the existence and
progress of human society. This disapprobation is inevitable to the extent that
morality is generally founded and built upon a certain concurrence in the moral
opinions of all. x x x That which we call punishment is only an external means
of emphasizing moral disapprobation: the method of punishment is in reality
the amount of punishment."427 Stated otherwise, there are certain standards of
behavior or moral principles which society requires to be observed and these
form the bases of criminal law. Their breach is an offense not only against the
person injured but against society as a whole.428 Thus, even if all involved in
the misdeed are consenting parties, such as in the case at bar, the injury done is
to the public morals and the public interest in the moral order.429 Mr. Justice
Vitug expresses concern on this point in his separate opinion. He observes that
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certain immoral acts which appear private and not harmful to society such as
sexual congress "between a man and a prostitute, though consensual and
private, and with no injured third party, remains illegal in this country." His
opinion asks whether these laws on private morality are justified or they
constitute impingement on one's freedom of belief. Discussion on private
morality, however, is not material to the case at bar for whether respondent's
conduct, which constitutes concubinage,430 is private in the sense that there is
no injured party or the offended spouse consents to the concubinage, the
inescapable fact is that the legislature has taken concubinage out of the sphere
of private morals. The legislature included concubinage as a crime under the
Revised Penal Code and the constitutionality of this law is not being raised in
the case at bar. In the definition of the crime of concubinage, consent of the
injured party, i.e., the legal spouse, does not alter or negate the crime unlike in
rape431 where consent of the supposed victim negates the crime. If at all, the
consent or pardon of the offended spouse in concubinage negates the
prosecution of the action,432 but does not alter the legislature's characterization
of the act as a moral disapprobation punishable by law. The separate opinion
states that, "(t)he ponencia has taken pains to distinguish between secular and
private morality, and reached the conclusion that the law, as an instrument of
the secular State should only concern itself with secular morality." The Court
does not draw this distinction in the case at bar. The distinction relevant to the
case is not, as averred and discussed by the separate opinion, "between secular
and private morality," but between public and secular morality on the one hand,
and religious morality on the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or otherwise.
We recognized this reality in Velayo, et al. v. Shell Co. of the Philippine
Islands, et al., where we explained that for those wrongs which are not
punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of
the New Civil Code, dealing with Human Relations, provide for the recognition
of the wrong and the concomitant punishment in the form of damages. Articles
19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance
of his duties, act with justice, give everyone his due and observe honesty and
good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commission's comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was
approved), would vouchsafe adequate legal remedy for that untold numbers of
moral wrongs which is impossible for human foresight to provide for
specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line
between morality and law? The answer is that, in the last analysis, every good
law draws its breath of life from morals, from those principles which are written
with words of fire in the conscience of man. If this premise is admitted, then
the proposed rule is a prudent earnest of justice in the face of the impossibility
of enumerating, one by one, all wrongs which cause damages. When it is
reflected that while codes of law and statutes have changed from age to age, the
conscience of man has remained fixed to its ancient moorings, one can not but
feel that it is safe and salutary to transmute, as far as may be, moral norms into
legal rules, thus imparting to every legal system that enduring quality which
ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social
order than that a person may with impunity cause damage to his fellow-men so
long as he does not break any law of the State, though he may be defying the
most sacred postulates of morality. What is more, the victim loses faith in the
ability of the government to afford him protection or relief.
A provision similar to the one under consideration is embodied in article 826
of the German Civil Code.433 (emphases supplied)
The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions. Religious morality proceeds from
a person's "views of his relations to His Creator and to the obligations they
impose of reverence to His being and character and obedience to His Will," in
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accordance with this Court's definition of religion in American Bible Society
citing Davis. Religion also dictates "how we ought to live" for the nature of
religion is not just to know, but often, to act in accordance with man's "views
of his relations to His Creator."434 But the Establishment Clause puts a
negative bar against establishment of this morality arising from one religion or
the other, and implies the affirmative "establishment" of a civil order for the
resolution of public moral disputes. This agreement on a secular mechanism is
the price of ending the "war of all sects against all"; the establishment of a
secular public moral order is the social contract produced by religious truce.435
Thus, when the law speaks of "immorality" in the Civil Service Law or
"immoral" in the Code of Professional Responsibility for lawyers436, or
"public morals" in the Revised Penal Code,437 or "morals" in the New Civil
Code,438 or "moral character" in the Constitution,439 the distinction between
public and secular morality on the one hand, and religious morality, on the
other, should be kept in mind.440 The morality referred to in the law is public
and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds.
"Religious teachings as expressed in public debate may influence the civil
public order but public moral disputes may be resolved only on grounds
articulable in secular terms."441 Otherwise, if government relies upon religious
beliefs in formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious belief, i.e., to a
"compelled religion," anathema to religious freedom. Likewise, if government
based its actions upon religious beliefs, it would tacitly approve or endorse that
belief and thereby also tacitly disapprove contrary religious or non-religious
views that would not support the policy. As a result, government will not
provide full religious freedom for all its citizens, or even make it appear that
those whose beliefs are disapproved are second-class citizens. Expansive
religious freedom therefore requires that government be neutral in matters of
religion; governmental reliance upon religious justification is inconsistent with
this policy of neutrality.442
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That
is, the government proscribes this conduct because it is "detrimental (or
dangerous) to those conditions upon which depend the existence and progress
of human society" and not because the conduct is proscribed by the beliefs of
one religion or the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus
have religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual institutions of
society in a uniform manner, harmonizing earth with heaven.443 Succinctly
put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest
roots, but it must have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. Otherwise, if a law has an
apparent secular purpose but upon closer examination shows a discriminatory
and prohibitory religious purpose, the law will be struck down for being
offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc.
where the U.S. Supreme Court invalidated an ordinance prohibiting animal
sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and
the elevating influence of religion in society, however, the Philippine
constitution's religion clauses prescribe not a strict but a benevolent neutrality.
Benevolent neutrality recognizes that government must pursue its secular goals
and interests but at the same time strives to uphold religious liberty to the
greatest extent possible within flexible constitutional limits. Thus, although the
morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend
compelling state interests.
Mr. Justice Vitug's separate opinion embraces the benevolent neutrality
approach when it states that in deciding the case at bar, the approach should
consider that, "(a)s a rule . . . moral laws are justified only to the extent that
they directly or indirectly serve to protect the interests of the larger society. It
is only where their rigid application would serve to obliterate the value which
society seeks to uphold, or defeat the purpose for which they are enacted would,
a departure be justified." In religion clause parlance, the separate opinion holds
that laws of general applicability governing morals should have a secular
purpose of directly or indirectly protecting the interests of the state. If the strict
application of these laws (which are the Civil Service Law and the laws on
marriage) would erode the secular purposes of the law (which the separate
opinion identifies as upholding the sanctity of marriage and the family), then in
a benevolent neutrality framework, an accommodation of the unconventional
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religious belief and practice (which the separate opinion holds should be
respected on the ground of freedom of belief) that would promote the very same
secular purpose of upholding the sanctity of marriage and family through the
Declaration Pledging Faithfulness that makes the union binding and honorable
before God and men, is required by the Free Exercise Clause. The separate
opinion then makes a preliminary discussion of the values society seeks to
protect in adhering to monogamous marriage, but concludes that these values
and the purposes of the applicable laws should be thoroughly examined and
evidence in relation thereto presented in the OCA. The accommodation
approach in the case at bar would also require a similar discussion of these
values and presentation of evidence before the OCA by the state that seeks to
protect its interest on marriage and opposes the accommodation of the
unconventional religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed - albeit not
exclusively - in the law, on the one hand, and religious morality, on the other,
is important because the jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bar
should be understood only in this realm where it has authority. More concretely,
should the Court declare respondent's conduct as immoral and hold her
administratively liable, the Court will be holding that in the realm of public
morality, her conduct is reprehensible or there are state interests overriding her
religious freedom. For as long as her conduct is being judged within this realm,
she will be accountable to the state. But in so ruling, the Court does not and
cannot say that her conduct should be made reprehensible in the realm of her
church where it is presently sanctioned and that she is answerable for her
immorality to her Jehovah God nor that other religions prohibiting her conduct
are correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique circumstances,
public morality is not offended or that upholding her religious freedom is an
interest higher than upholding public morality thus her conduct should not be
penalized. But the Court is not ruling that the tenets and practice of her religion
are correct nor that other churches which do not allow respondent's conjugal
arrangement should likewise allow such conjugal arrangement or should not
find anything immoral about it and therefore members of these churches are not
answerable for immorality to their Supreme Being. The Court cannot speak
more than what it has authority to say. In Ballard, the U.S. Supreme Court held
that courts cannot inquire about the truth of religious beliefs. Similarly, in
Fonacier, this Court declared that matters dealing with "faith, practice, doctrine,
form of worship, ecclesiastical law, custom and rule of a church…are
unquestionably ecclesiastical matters which are outside the province of the civil
courts."444 But while the state, including the Court, accords such deference to
religious belief and exercise which enjoy protection under the religious clauses,
the social contract and the constitutional order are designed in such a way that
when religious belief flows into speech and conduct that step out of the religious
sphere and overlap with the secular and public realm, the state has the power to
regulate, prohibit and penalize these expressions and embodiments of belief
insofar as they affect the interests of the state. The state's inroad on religion
exercise in excess of this constitutional design is prohibited by the religion
clauses; the Old World, European and American history narrated above bears
out the wisdom of this proscription.
Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase "disgraceful and immoral
conduct" for which a government employee may be held administratively
liable. The line is not easy to draw for it is like "a line that divides land and sea,
a coastline of irregularities and indentations."445 But the case at bar does not
require us to comprehensively delineate between those immoral acts for which
one may be held administratively liable and those to which administrative
liability does not attach. We need not concern ourselves in this case therefore
whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are
immoral acts which constitute grounds for administrative liability. Nor need we
expend too much energy grappling with the propositions that not all immoral
acts are illegal or not all illegal acts are immoral, or different jurisdictions have
different standards of morality as discussed by the dissents and separate
opinions, although these observations and propositions are true and correct. It
is certainly a fallacious argument that because there are exceptions to the
general rule that the "law is the witness and deposit of our moral life," then the
rule is not true; in fact, that there are exceptions only affirms the truth of the
rule. Likewise, the observation that morality is relative in different jurisdictions
only affirms the truth that there is morality in a particular jurisdiction; without,
however, discounting the truth that underneath the moral relativism are certain
moral absolutes such as respect for life and truth-telling, without which no
society will survive. Only one conduct is in question before this Court, i.e., the
conjugal arrangement of a government employee whose partner is legally
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married to another which Philippine law and jurisprudence consider both
immoral and illegal. Lest the Court inappropriately engage in the impossible
task of prescribing comprehensively how one ought to live, the Court must
focus its attention upon the sole conduct in question before us.
In interpreting "disgraceful and immoral conduct," the dissenting opinion of
Mme. Justice Ynares-Santiago groped for standards of morality and stated that
the "ascertainment of what is moral or immoral calls for the discovery of
contemporary community standards" but did not articulate how these standards
are to be ascertained. Instead, it held that, "(f)or those in the service of the
Government, provisions of law and court precedents . . . have to be considered."
It identified the Civil Service Law and the laws on adultery and concubinage as
laws which respondent's conduct has offended and cited a string of precedents
where a government employee was found guilty of committing a "disgraceful
and immoral conduct" for maintaining illicit relations and was thereby
penalized. As stated above, there is no dispute that under settled jurisprudence,
respondent's conduct constitutes "disgraceful and immoral conduct." However,
the cases cited by the dissent do not involve the defense of religious freedom
which respondent in the case at bar invokes. Those cited cases cannot therefore
serve as precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United
States446 in laying down the standard of morality, viz: "(w)hether an act is
immoral within the meaning of the statute is not to be determined by
respondent's concept of morality. The law provides the standard; the offense is
complete if respondent intended to perform, and did in fact perform, the act
which it condemns." The Mann Act under consideration in the Cleveland case
declares as an offense the transportation in interstate commerce of "any woman
or girl for the purpose of prostitution or debauchery, or for any other immoral
purpose."447 The resolution of that case hinged on the interpretation of the
phrase "immoral purpose." The U.S. Supreme Court held that the petitioner
Mormons' act of transporting at least one plural wife whether for the purpose
of cohabiting with her, or for the purpose of aiding another member of their
Mormon church in such a project, was covered by the phrase "immoral
purpose." In so ruling, the Court relied on Reynolds which held that the
Mormons' practice of polygamy, in spite of their defense of religious freedom,
was "odious among the northern and western nations of Europe,"448 "a return
to barbarism,"449 "contrary to the spirit of Christianity and of the civilization
which Christianity has produced in the Western world,"450 and thus punishable
by law.
The Cleveland standard, however, does not throw light to the issue in the case
at bar. The pronouncements of the U.S. Supreme Court that polygamy is
intrinsically "odious" or "barbaric" do not apply in the Philippines where
Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there
is no jurisprudence in Philippine jurisdiction holding that the defense of
religious freedom of a member of the Jehovah's Witnesses under the same
circumstances as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude therefore that
her conduct is likewise so "odious" and "barbaric" as to be immoral and
punishable by law.
While positing the view that the resolution of the case at bar lies more on
determining the applicable moral standards and less on religious freedom,
Mme. Justice Ynares-Santiago's dissent nevertheless discussed respondent's
plea of religious freedom and disposed of this defense by stating that "(a) clear
and present danger of a substantive evil, destructive to public morals, is a
ground for the reasonable regulation of the free exercise and enjoyment of
religious profession. (American Bible Society v. City of Manila, 101 Phil. 386
[1957]). In addition to the destruction of public morals, the substantive evil in
this case is the tearing down of morality, good order, and discipline in the
judiciary." However, the foregoing discussion has shown that the "clear and
present danger" test that is usually employed in cases involving freedom of
expression is not appropriate to the case at bar which involves purely religious
conduct. The dissent also cites Reynolds in supporting its conclusion that
respondent is guilty of "disgraceful and immoral conduct." The Reynolds
ruling, however, was reached with a strict neutrality approach, which is not the
approach contemplated by the Philippine constitution. As discussed above,
Philippine jurisdiction adopts benevolent neutrality in interpreting the religion
clauses.
In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality
does not reflect the constitutional intent of employing benevolent neutrality in
interpreting the Philippine religion clauses. His dissent avers that respondent
should be held administratively liable not for "disgraceful and immoral
conduct" but "conduct prejudicial to the best interest of the service" as she is a
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necessary co-accused of her partner in concubinage. The dissent stresses that
being a court employee, her open violation of the law is prejudicial to the
administration of justice. Firstly, the dissent offends due process as respondent
was not given an opportunity to defend herself against the charge of "conduct
prejudicial to the best interest of the service." In addition, there is no evidence
of the alleged prejudice to the best interest of the service. Most importantly, the
dissent concludes that respondent's plea of religious freedom cannot prevail
without so much as employing a test that would balance respondent's religious
freedom and the state's interest at stake in the case at bar. The foregoing
discussion on the doctrine of religious freedom, however, shows that with
benevolent neutrality as a framework, the Court cannot simply reject
respondent's plea of religious freedom without even subjecting it to the
"compelling state interest" test that would balance her freedom with the
paramount interests of the state. The strict neutrality employed in the cases the
dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935
Constitution which unmistakably shows adherence to benevolent neutrality - is
not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J.
Malik451 cited in Mr. Justice Carpio's dissent decisive of the immorality issue
in the case at bar. In that case, the Court dismissed the charge of immorality
against a Tausug judge for engaging in an adulterous relationship with another
woman with whom he had three children because "it (was) not 'immoral' by
Muslim standards for Judge Malik to marry a second time while his first
marriage (existed)." Putting the quoted portion in its proper context would
readily show that the Sulu Islamic case does not provide a precedent to the case
at bar. Immediately prior to the portion quoted by the dissent, the Court stressed,
viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the
crime of bigamy 'shall not apply to a person married x x x under Muslim Law,'
it is not 'immoral' by Muslim standards for Judge Malik to marry a second time
while his first marriage exists."452 It was by law, therefore, that the Muslim
conduct in question was classified as an exception to the crime of bigamy and
thus an exception to the general standards of morality. The constitutionality of
P.D. No. 1083 when measured against the Establishment Clause was not raised
as an issue in the Sulu Islamic case. Thus, the Court did not determine whether
P.D. No. 1083 suffered from a constitutional infirmity and instead relied on the
provision excepting the challenged Muslim conduct from the crime of bigamy
in holding that the challenged act is not immoral by Muslim standards. In
contradistinction, in the case at bar, there is no similar law which the Court can
apply as basis for treating respondent's conduct as an exception to the prevailing
jurisprudence on illicit relations of civil servants. Instead, the Free Exercise
Clause is being invoked to justify exemption.
B. Application of Benevolent Neutrality and the Compelling State Interest Test
to the Case at Bar
The case at bar being one of first impression, we now subject the respondent's
claim of religious freedom to the "compelling state interest" test from a
benevolent neutrality stance - i.e. entertaining the possibility that respondent's
claim to religious freedom would warrant carving out an exception from the
Civil Service Law; necessarily, her defense of religious freedom will be
unavailing should the government succeed in demonstrating a more compelling
state interest.
In applying the test, the first inquiry is whether respondent's right to religious
freedom has been burdened. There is no doubt that choosing between keeping
her employment and abandoning her religious belief and practice and family on
the one hand, and giving up her employment and keeping her religious practice
and family on the other hand, puts a burden on her free exercise of religion. In
Sherbert, the Court found that Sherbert's religious exercise was burdened as the
denial of unemployment benefits "forces her to choose between following the
precepts of her religion and forfeiting benefits, on the one hand, and abandoning
one of the precepts of her religion in order to accept work, on the other hand."
The burden on respondent in the case at bar is even greater as the price she has
to pay for her employment is not only her religious precept but also her family
which, by the Declaration Pledging Faithfulness, stands "honorable before God
and men."
The second step is to ascertain respondent's sincerity in her religious belief.
Respondent appears to be sincere in her religious belief and practice and is not
merely using the "Declaration of Pledging Faithfulness" to avoid punishment
for immorality. She did not secure the Declaration only after entering the
judiciary where the moral standards are strict and defined, much less only after
an administrative case for immorality was filed against her. The Declaration
was issued to her by her congregation after ten years of living together with her
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partner, Quilapio, and ten years before she entered the judiciary. Ministers from
her congregation testified on the authenticity of the Jehovah's Witnesses'
practice of securing a Declaration and their doctrinal or scriptural basis for such
a practice. As the ministers testified, the Declaration is not whimsically issued
to avoid legal punishment for illicit conduct but to make the "union" of their
members under respondent's circumstances "honorable before God and men."
It is also worthy of notice that the Report and Recommendation of the
investigating judge annexed letters453 of the OCA to the respondent regarding
her request to be exempt from attending the flag ceremony after Circular No.
62-2001 was issued requiring attendance in the flag ceremony. The OCA's
letters were not submitted by respondent as evidence but annexed by the
investigating judge in explaining that he was caught in a dilemma whether to
find respondent guilty of immorality because the Court Administrator and
Deputy Court Administrator had different positions regarding respondent's
request for exemption from the flag ceremony on the ground of the Jehovah's
Witnesses' contrary belief and practice. Respondent's request for exemption
from the flag ceremony shows her sincerity in practicing the Jehovah's
Witnesses' beliefs and not using them merely to escape punishment. She is a
practicing member of the Jehovah's Witnesses and the Jehovah ministers
testified that she is a member in good standing. Nevertheless, should the
government, thru the Solicitor General, want to further question the
respondent's sincerity and the centrality of her practice in her faith, it should be
given the opportunity to do so. The government has not been represented in the
case at bar from its incipience until this point.
In any event, even if the Court deems sufficient respondent's evidence on the
sincerity of her religious belief and its centrality in her faith, the case at bar
cannot still be decided using the "compelling state interest" test. The case at bar
is one of first impression, thus the parties were not aware of the burdens of
proof they should discharge in the Court's use of the "compelling state interest"
test. We note that the OCA found respondent's defense of religious freedom
unavailing in the face of the Court's ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in the conduct,
official and otherwise, of the personnel who work thereat, from the judge to the
lowest of its personnel. Court personnel have been enjoined to adhere to the
exacting standards of morality and decency in their professional and private
conduct in order to preserve the good name and integrity of the courts of justice.
It is apparent from the OCA's reliance upon this ruling that the state interest it
upholds is the preservation of the integrity of the judiciary by maintaining
among its ranks a high standard of morality and decency. However, there is
nothing in the OCA's memorandum to the Court that demonstrates how this
interest is so compelling that it should override respondent's plea of religious
freedom nor is it shown that the means employed by the government in pursuing
its interest is the least restrictive to respondent's religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present
evidence on the compelling interest of the state. The burden of evidence should
be discharged by the proper agency of the government which is the Office of
the Solicitor General. To properly settle the issue in the case at bar, the
government should be given the opportunity to demonstrate the compelling
state interest it seeks to uphold in opposing the respondent's stance that her
conjugal arrangement is not immoral and punishable as it comes within the
scope of free exercise protection. Should the Court prohibit and punish her
conduct where it is protected by the Free Exercise Clause, the Court's action
would be an unconstitutional encroachment of her right to religious
freedom.454 We cannot therefore simply take a passing look at respondent's
claim of religious freedom, but must instead apply the "compelling state
interest" test. The government must be heard on the issue as it has not been
given an opportunity to discharge its burden of demonstrating the state's
compelling interest which can override respondent's religious belief and
practice. To repeat, this is a case of first impression where we are applying the
"compelling state interest" test in a case involving purely religious conduct. The
careful application of the test is indispensable as how we will decide the case
will make a decisive difference in the life of the respondent who stands not only
before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court
Administrator. The Solicitor General is ordered to intervene in the case where
it will be given the opportunity (a) to examine the sincerity and centrality of
respondent's claimed religious belief and practice; (b) to present evidence on
the state's "compelling interest" to override respondent's religious belief and
practice; and (c) to show that the means the state adopts in pursuing its interest
is the least restrictive to respondent's religious freedom. The rehearing should
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be concluded thirty (30) days from the Office of the Court Administrator's whether the Commission on Elections (COMELEC) has the competence to
receipt of this Decision. limit expressions made by the citizens — who are not candidates — during
elections.
SO ORDERED.
Before us is a special civil action for certiorari and prohibition with application
Imbong v. Ochoa for preliminary injunction and temporary restraining order1 under Rule 65 of
the Rules of Court seeking to nullify COMELEC’s Notice to Remove
Campaign Materials2 dated February 22, 2013 and letter3 issued on February
[repeated case :-)] 27, 2013.

Diocese of Bacolod v. Comelec The facts are not disputed.

G.R. No. 205728 (January 21, 2015)
On February 21, 2013, petitioners posted two (2) tarpaulins within a private
G.R. No. 205728 January 21, 2015 compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was
approximately six feet (6') by ten feet (10') in size. They were posted on the
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. front walls of the cathedral within public view. The first tarpaulin contains the
BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS message "IBASURA RH Law" referring to the Reproductive Health Law of
PERSONAL CAPACITY, Petitioners, 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the
vs. present case.4 This tarpaulin contains the heading "Conscience Vote" and lists
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH)
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents. Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise
DECISION known as the RH Law.6 Those who voted for the passing of the law were
classified by petitioners as comprising "Team Patay," while those who voted
LEONEN, J.: against it form "Team Buhay":7

"The Philippines is a democratic and republican State. Sovereignty resides in
the people and all government authority emanates from them." – Article II,
Section 1, Constitution
All governmental authority emanates from our people. No unreasonable
restrictions of the fundamental and preferred right to expression of the
electorate during political contests no matter how seemingly benign will be
tolerated.
This case defines the extent that our people may shape the debates during
elections. It is significant and of first impression. We are asked to decide
[see next page for table]
During oral arguments, respondents conceded that the tarpaulin was neither
sponsored nor paid for by any candidate. Petitioners also conceded that the
tarpaulin contains names ofcandidates for the 2013 elections, but not of
politicians who helped in the passage of the RH Law but were not candidates
for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity
as Election Officer of Bacolod City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulin’s removal within three (3) days from
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receipt for being oversized. COMELEC Resolution No. 9615 provides for the
size requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1)
petitioner Bishop be given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion and the availment of legal
remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering
the immediate removal of the tarpaulin; otherwise, it will be constrained to file
an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter
provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards the
election propaganda material posted on the church vicinity promoting for or
against the candidates and party-list groups with the following names and
messages, particularly described as follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in violation of
Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly on
the size (even with the subsequent division of the said tarpaulin into two), as
the lawful size for election propaganda material is only two feet (2’) by three
feet (3’), please order/cause the immediate removal of said election propaganda
material, otherwise, we shall be constrained to file an election offense case
against you.
We pray that the Catholic Church will be the first institution to help the
Commission on Elections inensuring the conduct of peaceful, orderly, honest
and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their exercise of free
speech, petitioners initiated this case through this petition for certiorari and
prohibition with application for preliminary injunction and temporary
restraining order.14 They question respondents’ notice dated February 22, 2013
and letter issued on February 27, 2013. They pray that: (1) the petition be given
due course; (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents from further
proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the
questioned orders of respondents as unconstitutional and void, and permanently
restraining respondents from enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary
restraining order enjoining respondents from enforcing the assailed notice and
letter, and set oral arguments on March 19, 2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a
petition for certiorari and prohibition under Rule 65 of the Rules of Court filed
before this court is not the proper remedy to question the notice and letter of
respondents; and (2) the tarpaulin is an election propaganda subject to
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regulation by COMELEC pursuant to its mandate under Article IX-C, Section
4 of the Constitution. Hence, respondents claim that the issuances ordering its
removal for being oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file
their respective memoranda within 10 days or by April 1, 2013, taking into
consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT ARE CONSIDERED
JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC
WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65
PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF
COURTS DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING
APPEALS FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS
ARE NOT CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS
OF THE COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE
COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE
TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A
POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL
ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF
EXPRESSION, WHETHER THE COMELEC POSSESSES THE
AUTHORITY TO REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF
SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS
TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
SEPARATION OF CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice
and letter are not final orders, decisions, rulings, or judgments of the
COMELEC En Banc issued in the exercise of its adjudicatory powers,
reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
applicable especially to raise objections relating to a grave abuse of discretion
resulting in the ouster of jurisdiction.22 As a special civil action, there must
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also be a showing that there be no plain, speedy, and adequate remedy in the
ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review
by this court, whose power to review is "limited only to final decisions, rulings
and orders of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, respondents claim that the
assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to
decide all questions affecting elections.25 Respondents invoke the cases of
Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings
and judgments of the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern
Samar filed the election protest.32 At issue was the validity of the promulgation
of a COMELEC Division resolution.33 No motion for reconsideration was filed
to raise this issue before the COMELEC En Banc. This court declared that it
did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean
final orders, rulings and decisionsof the COMELEC rendered in the exercise of
its adjudicatory or quasi-judicial powers." This decision must be a final decision
or resolution of the Comelec en banc, not of a division, certainly not an
interlocutory order of a division.The Supreme Court has no power to review
viacertiorari, an interlocutory order or even a final resolution of a Division of
the Commission on Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court
provided exceptions to this general rule. Repolwas another election protest
case, involving the mayoralty elections in Pagsanghan, Samar.36 This time, the
case was brought to this court because the COMELEC First Division issued a
status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This court’s ponencia discussed the general rule enunciated
in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a
COMELEC Division.38 However, consistent with ABS-CBN Broadcasting
Corporation v. COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of
filing a motion for reconsideration] may be glossed over to prevent miscarriage
of justice, when the issue involves the principle of social justice or the
protection of labor, when the decision or resolution sought to be set aside is a
nullity, or when the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of
COMELEC — in electoral contests — despite not being reviewed by the
COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and
speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo
anteorder issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election
protest case involving candidates for the city council of Muntinlupa City.41
Petitioners in Soriano, Jr.filed before this court a petition for certiorari against
an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First
Division dismissed the main election protest case.43 Sorianoapplied the general
rule that only final orders should be questioned with this court. The ponencia
for this court, however, acknowledged the exceptions to the general rule in
ABS-CBN.44
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Blanco v. COMELEC, another case cited by respondents, was a disqualification
case of one of the mayoralty candidates of Meycauayan, Bulacan.45 The
COMELEC Second Division ruled that petitioner could not qualify for the 2007
elections due to the findings in an administrative case that he engaged in vote
buying in the 1995 elections.46 No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took cognizance of this case
applying one of the exceptions in ABS-CBN: The assailed resolution was a
nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest
case involving the mayoralty candidates of Taguig City.48 Petitioner assailed a
resolution of the COMELEC denying her motion for reconsideration to dismiss
the election protest petition for lack of form and substance.49 This court
clarified the general rule and refused to take cognizance of the review of the
COMELEC order. While recognizing the exceptions in ABS-CBN, this court
ruled that these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do
not operate as precedents to oust this court from taking jurisdiction over this
case. All these cases cited involve election protests or disqualification cases
filed by the losing candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office.
Their petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s
exercise of its adjudicatory or quasi-judicial power. This case pertains to acts
of COMELEC in the implementation of its regulatory powers. When it issued
the notice and letter, the COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent
COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the notice51 dated
February 22,2013 and letter52 dated February 27, 2013 ordering the removal
of the tarpaulin.53 It is their position that these infringe on their fundamental
right to freedom of expression and violate the principle of separation of church
and state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the
allegations in the petition. Subject matter jurisdiction is defined as the authority
"to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes
the court and defines its powers."55 Definitely, the subject matter in this case
is different from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected by the
restrictions imposed by COMELEC. Political speech is motivated by the desire
to be heard and understood, to move people to action. It is concerned with the
sovereign right to change the contours of power whether through the election
of representatives in a republican government or the revision of the basic text
of the Constitution. The zeal with which we protect this kind of speech does not
depend on our evaluation of the cogency of the message. Neither do we assess
whether we should protect speech based on the motives of COMELEC. We
evaluate restrictions on freedom of expression from their effects. We protect
both speech and medium because the quality of this freedom in practice will
define the quality of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are
capable of repetition. Under the conditions in which it was issued and in view
of the novelty of this case,it could result in a "chilling effect" that would affect
other citizens who want their voices heard on issues during the elections. Other
citizens who wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the COMELEC.
Direct resort to this court is allowed to avoid such proscribed conditions. Rule
65 is also the procedural platform for raising grave abuse of discretion.
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Both parties point to constitutional provisions on jurisdiction. For petitioners,
it referred to this court’s expanded exercise of certiorari as provided by the
Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether ornot there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56 (Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide
all questions affectingelections. Article IX-C, Section 2(3) of the Constitution,
provides:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its
exercise of jurisdiction, gravely abused it. We are confronted with the question
as to whether the COMELEC had any jurisdiction at all with its acts threatening
imminent criminal action effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELEC’s
notice and letter on free speech. This does not fall under Article IX-C, Section
2(3) of the Constitution. The use of the word "affecting" in this provision cannot
be interpreted to mean that COMELEC has the exclusive power to decide any
and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own
jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section
5(1) of the Constitution.This provision provides for this court’s original
jurisdiction over petitions for certiorari and prohibition. This should be read
alongside the expanded jurisdiction of the court in Article VIII, Section 1 of the
Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is
grave abuse of discretion. Thus, the constitutionality of the notice and letter
coming from COMELEC is within this court’s power to review.
During elections, we have the power and the duty to correct any grave abuse of
discretion or any act tainted with unconstitutionality on the part of any
government branch or instrumentality. This includes actions by the
COMELEC. Furthermore, it is this court’s constitutional mandate to protect the
people against government’s infringement of their fundamental rights. This
constitutional mandate out weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this
case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of
hierarchy of courts in directly filing their petition before this court.
Respondents contend that petitioners’ failure to file the proper suit with a lower
court of concurrent jurisdiction is sufficient ground for the dismissal of their
petition.57 They add that observation of the hierarchy of courts is compulsory,
citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents claim that
while there are exceptions to the general rule on hierarchy of courts, none of
these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s
discretionary power to take cognizance of a petition filed directly to it if
warranted by "compelling reasons, or [by] the nature and importance of the
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issues raised. . . ."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of
the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of courts,
and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court from
having to deal with causes that are also well within the competence of the lower
courts, and thus leave time to the Court to deal with the more fundamental and
more essential tasks that the Constitution has assigned to it. The Court may act
on petitions for the extraordinary writs of certiorari, prohibition and mandamus
only when absolutely necessary or when serious and important reasons exist to
justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts are allowed to
issue writs of certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the task
of dealing with causes in the first instance. Its original jurisdiction to issue the
so-called extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist therefore. Hence, that
jurisdiction should generally be exercised relative to actions or proceedings
before the Court of Appeals, or before constitutional or other tribunals, bodies
or agencies whose acts for some reason or another are not controllable by the
Court of Appeals. Where the issuance of an extraordinary writ is also within
the competence of the Court of Appeals or a Regional Trial Court, it is in either
of these courts that the specific action for the writ’s procurement must be
presented. This is and should continue to be the policy in this regard, a policy
that courts and lawyers must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by this
court to ensure that every level of the judiciary performs its designated roles in
an effective and efficient manner. Trial courts do not only determine the facts
from the evaluation of the evidence presented before them. They are likewise
competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are territorially
organized into regions and then into branches. Their writs generally reach
within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically
presented before them. In many instances, the facts occur within their territorial
jurisdiction, which properly present the ‘actual case’ that makes ripe a
determination of the constitutionality of such action. The consequences, of
course, would be national in scope. There are, however, some cases where
resort to courts at their level would not be practical considering their decisions
could still be appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews
the determination of facts and law made by the trial courts. It is collegiate in
nature. This nature ensures more standpoints in the review of the actions of the
trial court. But the Court of Appeals also has original jurisdiction over most
special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on
constitutional issues thatmay not necessarily be novel unless there are factual
questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or
further reiterating — in the light of new circumstances or in the light of some
confusions of bench or bar — existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution and act
in order to protect constitutional rights when these become exigent should not
be emasculated by the doctrine in respect of the hierarchy of courts. That has
never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court
has "full discretionary power to take cognizance and assume jurisdiction [over]
special civil actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the issues clearly and
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specifically raised in the petition."70 As correctly pointed out by petitioners,71
we have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct
resort to this court includes availing of the remedies of certiorari and prohibition
toassail the constitutionality of actions of both legislative and executive
branches of the government.72
In this case, the assailed issuances of respondents prejudice not only petitioners’
right to freedom of expression in the present case, but also of others in future
similar cases. The case before this court involves an active effort on the part of
the electorate to reform the political landscape. This has become a rare occasion
when private citizens actively engage the public in political discourse. To quote
an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It
comprehends a vision of society, a faith and a whole way of life. The theory
grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers
of reason, and his prospects of creating a rational and enlightened civilization
virtually unlimited. It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It spurns the alternative
of a society that is tyrannical, conformist, irrational and stagnant.73
In a democracy, the citizen’s right tofreely participate in the exchange of ideas
in furtherance of political decision-making is recognized. It deserves the highest
protection the courts may provide, as public participation in nation-building isa
fundamental principle in our Constitution. As such, their right to engage in free
expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental
importance.74 In these cases, the imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for prudence. The
doctrine relating to constitutional issues of transcendental importance prevents
courts from the paralysis of procedural niceties when clearly faced with the
need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of
freedom of speech and freedom of expression which warrants invocation of
relief from this court. The principles laid down in this decision will likely
influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for
one’s chosen candidate, but also the right to vocalize that choice to the public
in general, in the hope of influencing their votes. It may be said that in an
election year, the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases
of first impression, no jurisprudence yet exists that will guide the lower courts
on this matter. In Government of the United States v. Purganan,76 this court
took cognizance of the case as a matter of first impression that may guide the
lower courts:
In the interest of justice and to settle once and for all the important issue of bail
in extradition proceedings, we deem it best to take cognizance of the present
case. Such proceedings constitute a matter of first impression over which there
is, as yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does
the issue of whether the right of suffrage includes the right of freedom of
expression. This is a question which this court has yet to provide substantial
answers to, through jurisprudence. Thus, direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon
v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to
defer to the higher judgmentof this Court in the consideration of its validity,
which is better determined after a thorough deliberation by a collegiate body
and with the concurrence of the majority of those who participated in its
discussion.79 (Citation omitted)
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In this case, it is this court, with its constitutionally enshrined judicial power,
that can rule with finality on whether COMELEC committed grave abuse of
discretion or performed acts contrary to the Constitution through the assailed
issuances.
Fifth, the time element presented in this case cannot be ignored. This case was
filed during the 2013 election period. Although the elections have already been
concluded, future cases may be filed that necessitate urgency in its resolution.
Exigency in certain situations would qualify as an exception for direct resort to
this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is
a constitutional body. In Albano v. Arranz,80 cited by petitioners, this court
held that "[i]t is easy to realize the chaos that would ensue if the Court of First
Instance ofeach and every province were [to] arrogate itself the power to
disregard, suspend, or contradict any order of the Commission on Elections:
that constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through
pursuing remedies with the lower courts, any ruling on their part would not
have been binding for other citizens whom respondents may place in the same
situation. Besides, thiscourt affords great respect to the Constitution and the
powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be
guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and
adequate remedy in the ordinary course of law that could free them from the
injurious effects of respondents’ acts in violation of their right to freedom of
expression.
In this case, the repercussions of the assailed issuances on this basic right
constitute an exceptionally compelling reason to justify the direct resort to this
court. The lack of other sufficient remedies in the course of law alone is
sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and
the advancement of public policy, or demanded by the broader interest of
justice, or the orders complained of were found to be patent nullities, or the
appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the
doctrine of hierarchy of courts included citizens’ right to bear arms,83
government contracts involving modernization of voters’ registration lists,84
and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct
action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the same
time to justify a direct resort to this court. While generally, the hierarchy of
courts is respected, the present case falls under the recognized exceptions and,
as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a
political question, hence not within the ambit of this court’s power of review.
They cite Justice Vitug’s separate opinion in Osmeña v. COMELEC86 to
support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also
states that the "State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law." I see neither
Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that
adversarial or irreconcilably inconsistent with the right of free expression. In
any event, the latter, being one of general application, must yield to the specific
demands of the Constitution. The freedom of expression concededly holds, it is
true, a vantage point in hierarchy of constitutionally-enshrined rights but, like
all fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the
"powerful" and the "weak" in our society but it is to me a genuine attempt on
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the part of Congress and the Commission on Elections to ensure that all
candidates are given an equal chance to media coverage and thereby be equally
perceived as giving real life to the candidates’ right of free expression rather
than being viewed as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be best in giving
life to the Constitutional mandate, is not for the Court to question; it is a matter
that lies beyond the normal prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point
in this case.
The present petition does not involve a dispute between the rich and poor, or
the powerful and weak, on their equal opportunities for media coverage of
candidates and their right to freedom of expression. This case concerns the right
of petitioners, who are non-candidates, to post the tarpaulin in their private
property, asan exercise of their right of free expression. Despite the invocation
of the political question doctrine by respondents, this court is not proscribed
from deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the concept of what
constitutes a political question:
What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their
primary political capacity, or that it has been specifically delegated to some
other department or particular officer of the government, withdiscretionary
power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text
of the law should be. In political forums, particularly the legislature, the
creation of the textof the law is based on a general discussion of factual
circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular
and specific facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts
established on a specific case-to-case basis, where parties affected by the legal
provision seek the courts’ understanding of the law.
The complementary nature of the political and judicial branches of government
is essential in order to ensure that the rights of the general public are upheld at
all times. In order to preserve this balance, branches of government must afford
due respectand deference for the duties and functions constitutionally delegated
to the other. Courts cannot rush to invalidate a law or rule. Prudence dictates
that we are careful not to veto political acts unless we can craft doctrine
narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty.
There is no political question. It can be acted upon by this court through the
expanded jurisdiction granted to this court through Article VIII, Section 1 of
the Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or those of
the legislature. The political question doctrine is used as a defense when the
petition asks this court to nullify certain acts that are exclusively within the
domain of their respective competencies, as provided by the Constitution or the
law. In such situation, presumptively, this court should act with deference. It
will decline to void an act unless the exercise of that power was so capricious
and arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review
when the act of a constitutional organ infringes upon a fundamental individual
or collective right. Even assuming arguendo that the COMELEC did have the
discretion to choose the manner of regulation of the tarpaulin in question, it
cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination
to whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide.91
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How this court has chosen to address the political question doctrine has
undergone an evolution since the timethat it had been first invoked in Marcos
v. Manglapus. Increasingly, this court has taken the historical and social context
of the case and the relevance of pronouncements of carefully and narrowly
tailored constitutional doctrines. This trend was followed in cases such as Daza
v. Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI,
Section 18 of the 1987 Constitution involving the removal of petitioners from
the Commission on Appointments. In times past, this would have involved a
quint essentially political question as it related to the dominance of political
parties in Congress. However, in these cases, this court exercised its power of
judicial review noting that the requirement of interpreting the constitutional
provision involved the legality and not the wisdom of a manner by which a
constitutional duty or power was exercised. This approach was again reiterated
in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that
the possible existence ofa political question did not bar an examination of
whether the exercise of discretion was done with grave abuse of discretion. In
that case, this court ruled on the question of whether there was grave abuse of
discretion in the President’s use of his power to call out the armed forces to
prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a
former President resigned was not a political question even if the consequences
would be to ascertain the political legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises
may use the resolution of constitutional issues as leverage. But the expanded
jurisdiction of this court now mandates a duty for it to exercise its power of
judicial review expanding on principles that may avert catastrophe or resolve
social conflict.
This court’s understanding of the political question has not been static or
unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the
President's discretionary powers are exercised or into the wisdom for its
exercise, it is also a settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power
of judicial review. And such review does not constitute a modification or
correction of the act of the President, nor does it constitute interference with the
functions of the President.98
The concept of judicial power in relation to the concept of the political question
was discussed most extensively in Francisco v. HRET.99 In this case, the House
of Representatives arguedthat the question of the validity of the second
impeachment complaint that was filed against former Chief Justice Hilario
Davide was a political question beyond the ambit of this court. Former Chief
Justice Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of judicial
power as including "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." As well observed by retired Justice Isagani
Cruz, this expanded definition of judicial power considerably constricted the
scope of political question. He opined that the language luminously suggests
that this duty (and power) is available even against the executive and legislative
departments including the President and the Congress, in the exercise of their
discretionary powers.100 (Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the political
question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene
Cortes, held: The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which the
Court,under previous constitutions, would have normally left to the political
departments to decide. x x x
606 of 692

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla,
this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "(t)he
political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases." (Emphasis
and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court
ruled:
In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers,
in proper cases, even the political question.x x x (Emphasis and italics
supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly
political and non-justiciable question lies in the answer to the question of
whether there are constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly
acted within such limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if
there are no constitutionally imposed limits on powers or functions conferred
upon political bodies. Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to the scrutiny and review of
this court.
In this case, the Bill of Rights gives the utmost deference to the right to free
speech. Any instance that this right may be abridged demands judicial scrutiny.
It does not fall squarely into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of
administrative remedies. Respondents insist that petitioners should have first
brought the matter to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in
Rule 65 that "there is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law."103 They add that the proper venue to assail the
validity of the assailed issuances was in the course of an administrative hearing
to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should
resort to the remedies prescribed in Rule 34 of the COMELEC Rules of
Procedure.105
The argument on exhaustion of administrative remedies is not proper in this
case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that
the controversy is already ripe for adjudication. Ripeness is the "prerequisite
that something had by then been accomplished or performed by either branch
[or in this case, organ of government] before a court may come into the
picture."106
Petitioners’ exercise of their rightto speech, given the message and their
medium, had understandable relevance especially during the elections.
COMELEC’s letter threatening the filing of the election offense against
petitioners is already an actionable infringement of this right. The impending
threat of criminal litigation is enough to curtail petitioners’ speech.
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In the context of this case, exhaustion of their administrative remedies as
COMELEC suggested in their pleadings prolongs the violation of their freedom
of speech.
Political speech enjoys preferred protection within our constitutional order. In
Chavez v. Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f
everthere is a hierarchy of protected expressions, political expression would
occupy the highest rank, and among different kinds of political expression, the
subject of fair and honest elections would be at the top."108 Sovereignty resides
in the people.109 Political speech is a direct exercise of the sovereignty. The
principle of exhaustion of administrative remedies yields in order to protect this
fundamental right.
Even assuming that the principle of exhaustion of administrative remedies is
applicable, the current controversy is within the exceptions to the principle. In
Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to immediately: (a)
when there is a violation of due process; (b) when the issue involved is purely
a legal question; (c) when the administrative action is patently illegal amounting
to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when
the respondent is a department secretary whose acts as analter ego of the
President bear the implied and assumed approval of the latter; (g) when to
require exhaustion of administrative remedies would be unreasonable; (h) when
it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain,
speedy and adequate remedy; or (k) when there are circumstances indicating
the urgency of judicial intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present case.
First, petitioners allegethat the assailed issuances violated their right to freedom
of expression and the principle of separation of church and state. This is a purely
legal question. Second, the circumstances of the present case indicate the
urgency of judicial intervention considering the issue then on the RH Law as
well as the upcoming elections. Thus, to require the exhaustion of
administrative remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax or suspend
the rules or to except a case from their operation when compelling reasons so
warrant, or whenthe purpose of justice requires it, [and when] [w]hat constitutes
[as] good and sufficient cause that will merit suspension of the rules is
discretionary upon the court".112 Certainly, this case of first impression where
COMELEC has threatenedto prosecute private parties who seek to participate
in the elections by calling attention to issues they want debated by the publicin
the manner they feel would be effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their
position that they had the power to regulate the tarpaulin.113 However, all of
these provisions pertain to candidates and political parties. Petitioners are not
candidates. Neither do theybelong to any political party. COMELEC does not
have the authority to regulate the enjoyment of the preferred right to freedom
of expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which
provides:
Section 4. The Commission may,during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of communication
or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection with the
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objective of holding free, orderly, honest, peaceful, and credible elections.114
(Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC
during the plebiscite for the creation of the Cordillera Autonomous Region.116
Columnist Pablito V. Sanidad questioned the provision prohibiting journalists
from covering plebiscite issues on the day before and on plebiscite day.117
Sanidad argued that the prohibition was a violation of the "constitutional
guarantees of the freedom of expression and of the press. . . ."118 We held that
the "evil sought to be prevented by this provision is the possibility that a
franchise holder may favor or give any undue advantage to a candidate in terms
of advertising space or radio or television time."119 This court found that
"[m]edia practitioners exercising their freedom of expression during plebiscite
periods are neither the franchise holders nor the candidates[,]"120 thus, their
right to expression during this period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders
nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as
follows:122
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied) Based on the
enumeration made on actsthat may be penalized, it will be inferred that this
provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by
COMELEC. This was followed bythe assailed letter regarding the "election
propaganda material posted on the church vicinity promoting for or against the
candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only
mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize
political parties and party-list groups to erect common poster areas for their
candidates in not more than ten (10) public places such as plazas, markets,
barangay centers and the like, wherein candidates can post, display or exhibit
election propaganda: Provided, That the size ofthe poster areas shall not exceed
twelve (12) by sixteen (16) feet or its equivalent. Independent candidates with
no political parties may likewise be authorized to erect common poster areas in
not more than ten (10) public places, the size of which shall not exceed four (4)
by six (6) feet or its equivalent. Candidates may post any lawful propaganda
material in private places with the consent of the owner thereof, and in public
places or property which shall be allocated equitably and impartially among the
candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and
regulations implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may
post any lawful campaign material in:
a. Authorized common poster areasin public places subject to the requirements
and/or limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated
common poster areas and those enumerated under Section 7 (g) of these Rules
and the like is prohibited. Persons posting the same shall be liable together with
the candidates and other persons who caused the posting. It will be presumed
that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days
from notice which shall be issued by the Election Officer of the city or
municipality where the unlawful election propaganda are posted or displayed.
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Members of the PNP and other law enforcement agencies called upon by the
Election Officeror other officials of the COMELEC shall apprehend the
violators caught in the act, and file the appropriate charges against them.
(Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their issuances.
The above provisions regulating the posting of campaign materials only apply
to candidates and political parties, and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also
states that these are "allowed for all registered political parties, national,
regional, sectoral parties or organizations participating under the party-list
elections and for all bona fide candidates seeking national and local elective
positions subject to the limitation on authorized expenses of candidates and
political parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides
for a similar wording. These provisions show that election propaganda refers to
matter done by or on behalf of and in coordination with candidates and political
parties. Some level of coordination with the candidates and political parties for
whom the election propaganda are released would ensure that these candidates
and political parties maintain within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political party.125 There was
no allegation that petitioners coordinated with any of the persons named in the
tarpaulin regarding its posting. On the other hand, petitioners posted the
tarpaulin as part of their advocacy against the RH Law. Respondents also cite
National Press Club v. COMELEC126 in arguing that its regulatory power
under the Constitution, to some extent, set a limit on the right to free speech
during election period.127
National Press Club involved the prohibition on the sale and donation of space
and time for political advertisements, limiting political advertisements to
COMELEC-designated space and time. This case was brought by
representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space
and time for political advertisements is tantamount to censorship, which
necessarily infringes on the freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in
National Press Club. However, this case does not apply as most of the
petitioners were electoral candidates, unlike petitioners in the instant case.
Moreover, the subject matter of National Press Club, Section 11(b) of Republic
Act No. 6646,129 only refers to a particular kind of media such as newspapers,
radio broadcasting, or television.130 Justice Feliciano emphasized that the
provision did not infringe upon the right of reporters or broadcasters to air their
commentaries and opinions regarding the candidates, their qualifications, and
program for government. Compared to Sanidadwherein the columnists lost
their ability to give their commentary on the issues involving the plebiscite,
National Press Clubdoes not involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the
candidates for the 2013 national elections because of the COMELEC notice and
letter. It was not merelya regulation on the campaigns of candidates vying for
public office. Thus, National Press Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of
persons for the purpose of soliciting votes and/or undertaking any campaign for
or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews
for or against the election of any candidate for public office;
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(4) Publishing or distributing campaign literature or materials designed to
support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the
chances of aspirants for nomination for candidacy to a public office by a
political party, aggroupment, or coalition of parties shall not be considered as
election campaign or partisan election activity. Public expressions or opinions
or discussions of probable issues in a forthcoming electionor on attributes of or
criticisms against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as part of any
election campaign or partisan political activity contemplated under this Article.
(Emphasis supplied)
True, there is no mention whether election campaign is limited only to the
candidates and political parties themselves. The focus of the definition is that
the act must be "designed to promote the election or defeat of a particular
candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that is,
a statement of either appreciation or criticism on votes made in the passing of
the RH law. Thus, petitioners invoke their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the
tarpaulin violate their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election
propaganda subject to their regulation pursuant to their mandate under Article
IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter ordering
itsremoval for being oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the
Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the
COMELEC Law Department, this court has applied Article III, Section 4 of the
Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119
of the Revised Ordinances of 1927 of Manila for the public meeting and
assembly organized by petitioner Primicias.134 Section 1119 requires a
Mayor’s permit for the use of streets and public places for purposes such as
athletic games, sports, or celebration of national holidays.135 What was
questioned was not a law but the Mayor’s refusal to issue a permit for the
holding of petitioner’s public meeting.136 Nevertheless, this court recognized
the constitutional right to freedom of speech, to peaceful assembly and to
petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC
En Banc Resolution No. 98-1419 where the COMELEC resolved to approve
the issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this
case and, consequently, the assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The
prohibition against the abridgment of speech should not mean an absolute
prohibition against regulation. The primary and incidental burden on speech
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must be weighed against a compelling state interest clearly allowed in the
Constitution. The test depends on the relevant theory of speech implicit in the
kind of society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression,
separate and in addition to the freedom of speech and of the press provided in
the US Constitution. The word "expression" was added in the 1987 Constitution
by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On
Section 9, page 2, line 29, it says: "No law shall be passed abridging the
freedom of speech." I would like to recommend to the Committee the change
of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a
wider scope, and it would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence)
The Chair hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed
abridging the freedom of speech, expression or of the press . . . ."141 Speech
may be said to be inextricably linked to freedom itself as "[t]he right to think is
the beginning of freedom, and speech must be protected from the government
because speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected speech.143
Communication exists when "(1) a speaker, seeking to signal others, uses
conventional actions because he orshe reasonably believes that such actions
will be taken by the audience in the manner intended; and (2) the audience so
takes the actions."144 "[I]n communicative action[,] the hearer may respond to
the claims by . . . either accepting the speech act’s claims or opposing them with
criticism or requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form
of speech sometimes referred to as ‘symbolic speech[,]’"146 such that "‘when
‘speech’ and ‘nonspeech’ elements are combined in the same course of
conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to
bring into play the [right to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire continuum of
speech from utterances made to conduct enacted, and even to inaction itself as
a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students
who were members of the religious sect Jehovah’s Witnesses were to be
expelled from school for refusing to salute the flag, sing the national anthem,
and recite the patriotic pledge.149 In his concurring opinion, Justice Cruz
discussed how the salute is a symbolic manner of communication and a valid
form of expression.150 He adds that freedom of speech includes even the right
to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the
Bill of Rights that guarantees to the individual the liberty to utter what is in his
mind also guarantees to him the liberty not to utter what is not in his mind. The
salute is a symbolic manner of communication that conveys its messageas
clearly as the written or spoken word. As a valid form of expression, it cannot
be compelled any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the petitioners is to
deny them the right not to speak when their religion bids them to be silent. This
coercion of conscience has no place in the free society.
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The democratic system provides for the accommodation of diverse ideas,
including the unconventional and even the bizarre or eccentric. The will of the
majority prevails, but it cannot regiment thought by prescribing the recitation
by rote of its opinions or proscribing the assertion of unorthodox or unpopular
views as inthis case. The conscientious objections of the petitioners, no less
than the impatience of those who disagree with them, are protected by the
Constitution. The State cannot make the individual speak when the soul within
rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of
the present Constitution,this court has applied its precedent version to
expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to
the classification of the motion picture "Kapit sa Patalim" as "For Adults Only."
They contend that the classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic expression."153 This court
recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse."154 It adds
that "every writer,actor, or producer, no matter what medium of expression he
may use, should be freed from the censor."155 This court found that "[the
Board’s] perception of what constitutes obscenity appears to be unduly
restrictive."156 However, the petition was dismissed solely on the ground that
there were not enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it
forms part of the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger
fonts which make it easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians, the passengers
inside moving vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will understand its
message.
Second, the size of the tarpaulin may underscore the importance of the message
to the reader. From an ordinary person’s perspective, those who post their
messages in larger fonts care more about their message than those who carry
their messages in smaller media. The perceived importance given by the
speakers, in this case petitioners, to their cause is also part of the message. The
effectivity of communication sometimes relies on the emphasis put by the
speakers and onthe credibility of the speakers themselves. Certainly, larger
segments of the public may tend to be more convinced of the point made by
authoritative figures when they make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may
translate to more opportunities to amplify, explain, and argue points which the
speakers might want to communicate. Rather than simply placing the names
and images of political candidates and an expression of support, larger spaces
can allow for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of ideas,
catalyze reactions to advocacies, and contribute more to a more educated and
reasoned electorate. A more educated electorate will increase the possibilities
of both good governance and accountability in our government.
These points become more salient when it is the electorate, not the candidates
or the political parties, that speaks. Too often, the terms of public discussion
during elections are framed and kept hostage by brief and catchy but
meaningless sound bites extolling the character of the candidate. Worse,
elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government should in
fact encourage it. Between the candidates and the electorate, the latter have the
better incentive to demand discussion of the more important issues. Between
the candidates and the electorate, the former have better incentives to avoid
difficult political standpoints and instead focus on appearances and empty
promises.
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Large tarpaulins, therefore, are not analogous to time and place.158 They are
fundamentally part of expression protected under Article III, Section 4 of the
Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to
protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs,
including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue isa critical, and indeed defining,
feature of a good polity."159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the
cornerstone of every democracy is that sovereignty resides in the people.161
To ensure order in running the state’s affairs, sovereign powers were delegated
and individuals would be elected or nominated in key government positions to
represent the people. On this note, the theory on deliberative democracy may
evolve to the right of the people to make government accountable. Necessarily,
this includes the right of the people to criticize acts made pursuant to
governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and
political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and proposed
remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs."163 This court has, thus, adopted the principle that "debate on public
issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market place
of ideas. This theory was articulated by Justice Holmes in that "the ultimate
good desired is better reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas -
that the best test of truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to "consider,
test, and develop their own conclusions."167 A free, open, and dynamic market
place of ideas is constantly shaping new ones. This promotes both stability and
change where recurring points may crystallize and weak ones may develop. Of
course, free speech is more than the right to approve existing political beliefs
and economic arrangements as it includes, "[t]o paraphrase Justice Holmes,
[the] freedom for the thought that we hate, no less than for the thought that
agrees with us."168 In fact, free speech may "best serve its high purpose when
it induces a condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger."169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of
ideas.
Third, free speech involves self-expression that enhances human dignity. This
right is "a means of assuring individual self-fulfillment,"170 among others. In
Philippine Blooming Mills Employees Organization v. Philippine Blooming
Mills Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil
rights but also political rights essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment.Thru these freedoms the
citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is
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accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and employees.172 (Emphasis
supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary
associations perform [an] important democratic role [in providing] forums for
the development of civil skills, for deliberation, and for the formation of
identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between
individuals and the state - a free space for the development of individual
personality, distinct group identity, and dissident ideas - and a potential source
of opposition to the state."174 Free speech must be protected as the vehicle to
find those who have similar and shared values and ideals, to join together and
forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect
individuals and minorities against majoritarian abuses perpetrated through [the]
framework [of democratic governance]."175 Federalist framers led by James
Madison were concerned about two potentially vulnerable groups: "the
citizenry at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be oppressed by
"dominant factions of the electorate [that] capture [the] government for their
own selfish ends[.]"177 According to Madison, "[i]t is of great importance in a
republic not only to guard the society against the oppression of its rulers, but to
guard one part of the society against the injustice of the other part."178 We
should strive to ensure that free speech is protected especially in light of any
potential oppression against those who find themselves in the fringes on public
issues.
Lastly, free speech must be protected under the safety valve theory.179 This
provides that "nonviolent manifestations of dissent reduce the likelihood of
violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of a
menacing flood of sullen anger behind the walls of restriction’"181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to avoid
this situation and prevent people from resorting to violence, there is a need for
peaceful methods in making passionate dissent. This includes "free expression
and political participation"183 in that they can "vote for candidates who share
their views, petition their legislatures to [make or] change laws, . . . distribute
literature alerting other citizens of their concerns[,]"184 and conduct peaceful
rallies and other similar acts.185 Free speech must, thus, be protected as a
peaceful means of achieving one’s goal, considering the possibility that
repression of nonviolent dissent may spill over to violent means just to drive a
point.
II.B.5
Every citizen’s expression with political consequences enjoys a high degree of
protection. Respondents argue that the tarpaulinis election propaganda, being
petitioners’ way of endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to regulation by
COMELEC under its constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows:
SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows and radio
programs, live or taped announcements, teasers, and other forms of advertising
messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion,
that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate
their opinions, views and beliefs about issues and candidates."188 They argue
that the tarpaulin was their statement of approval and appreciation of the named
public officials’ act of voting against the RH Law, and their criticism toward
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those who voted in its favor.189 It was "part of their advocacy campaign against
the RH Law,"190 which was not paid for by any candidate or political party.191
Thus, "the questioned orders which . . . effectively restrain[ed] and curtail[ed]
[their] freedom of expression should be declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as "highly
ranked in our scheme of constitutional values."193 These rights enjoy
precedence and primacy.194 In Philippine Blooming Mills, this court discussed
the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then
the Bill of Rights is a useless attempt to limit the power of government and
ceases to be an efficacious shield against the tyranny of officials, of majorities,
ofthe influential and powerful, and of oligarchs - political, economic or
otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality
of our civil and political institutions; and such priority "gives these liberties the
sanctity and the sanction not permitting dubious intrusions."195 (Citations
omitted)
This primordial right calls for utmost respect, more so "when what may be
curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage."196 A similar idea appeared in our jurisprudence
as early as 1969, which was Justice Barredo’s concurring and dissenting
opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others
miss, that genuine democracy thrives only where the power and right of the
people toelect the men to whom they would entrust the privilege to run the
affairs of the state exist. In the language of the declaration of principles of our
Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article
II). Translating this declaration into actuality, the Philippines is a republic
because and solely because the people in it can be governed only by officials
whom they themselves have placed in office by their votes. And in it is on this
cornerstone that I hold it tobe self-evident that when the freedoms of speech,
press and peaceful assembly and redress of grievances are being exercised in
relation to suffrage or asa means to enjoy the inalienable right of the qualified
citizen to vote, they are absolute and timeless. If our democracy and
republicanism are to be worthwhile, the conduct of public affairs by our
officials must be allowed to suffer incessant and unabating scrutiny, favorable
or unfavorable, everyday and at all times. Every holder of power in our
government must be ready to undergo exposure any moment of the day or night,
from January to December every year, as it is only in this way that he can
rightfully gain the confidence of the people. I have no patience for those who
would regard public dissection of the establishment as an attribute to be
indulged by the people only at certain periods of time. I consider the freedoms
of speech, press and peaceful assembly and redress of grievances, when
exercised in the name of suffrage, as the very means by which the right itself to
vote can only be properly enjoyed.It stands to reason therefore, that suffrage
itself would be next to useless if these liberties cannot be untrammelled [sic]
whether as to degree or time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court discussed
that some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under
its pervasive police power, in order that it may not be injurious to the equal
right of others or those of the community or society. The difference in treatment
is expected because the relevant interests of one type of speech, e.g., political
speech, may vary from those of another, e.g., obscene speech. Distinctionshave
therefore been made in the treatment, analysis, and evaluation ofthe permissible
scope of restrictions on various categories of speech. We have ruled, for
example, that in our jurisdiction slander or libel, lewd and obscene speech, as
well as "fighting words" are not entitled to constitutional protection and may be
penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers
to speech "both intended and received as a contribution to public deliberation
about some issue,"200 "foster[ing] informed and civicminded deliberation."201
On the other hand, commercial speech has been defined as speech that does "no
more than propose a commercial transaction."202 The expression resulting
from the content of the tarpaulin is, however, definitely political speech. In
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Justice Brion’s dissenting opinion, he discussed that "[t]he content of the
tarpaulin, as well as the timing of its posting, makes it subject of the regulations
in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the slant that the
petitioners gave the issue converted the non-election issue into a live election
one hence, Team Buhay and Team Patay and the plea to support one and oppose
the other."204
While the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is election
propaganda. The tarpaulin was not paid for or posted "in return for
consideration" by any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or
the rules and regulations implementing Republic Act No. 9006 as an aid to
interpret the law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows and radio
programs, live or taped announcements, teasers, and other forms of advertising
messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion,
that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not included,
while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615
states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs
shall not be considered acts of election campaigning or partisan politicalactivity
unless expressed by government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional Commissions, and
members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects
and parameters should be deemed narrowly tailored only in relation to the facts
and issues in this case. It also appears that such wording in COMELEC
Resolution No. 9615 does not similarly appear in Republic Act No. 9006, the
law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need
for full discussion of public affairs. We acknowledged that free speech includes
the right to criticize the conduct of public men:
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of official dom. Men in public life may suffer under a
hostile and an unjust accusation; the wound can be assuaged with the balm of a
clear conscience. A public officer must not be too thin-skinned with reference
to comment upon his official acts. Only thus can the intelligence and dignity of
the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for
redress of grievances, allowing for criticism, save for some exceptions.207 In
the 1951 case of Espuelas v. People,208 this court noted every citizen’s
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privilege to criticize his or her government, provided it is "specific and therefore
constructive, reasoned or tempered, and not a contemptuous condemnation of
the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the
Election Law provision "penaliz[ing] the anonymous criticism of a candidate
by means of posters or circulars."211 This court explained that it is the poster’s
anonymous character that is being penalized.212 The ponente adds that he
would "dislike very muchto see this decision made the vehicle for the
suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing
individuals to vent their views. According to this court, "[i]ts value may lie in
the fact that there may be something worth hearing from the dissenter [and]
[t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against
their government contributes to every society’s goal for development. It puts
forward matters that may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also makes the government
accountable for acts that violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646,
which prohibits mass media from selling print space and air time for campaign
except to the COMELEC, to be a democracy-enhancing measure.216 This court
mentioned how "discussion of public issues and debate on the qualifications of
candidates in an election are essential to the proper functioning of the
government established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes
in the context of elections when the free exercise thereof informs the people
what the issues are, and who are supporting what issues."218 At the heart of
democracy is every advocate’s right to make known what the people need to
know,219 while the meaningful exercise of one’s right of suffrage includes the
right of every voter to know what they need to know in order to make their
choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of
debate on public issues, and the freedom of expression especially in relation to
information that ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and public
officials. Too many restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our elections will truly
be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more
for the utmost respect when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of suffrage.221
(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of expression
and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to
which all other rights and even government protection of state interest must
bow."222
The right to freedom of expression isindeed not absolute. Even some forms of
protected speech are still subjectto some restrictions. The degree of restriction
may depend on whether the regulation is content-based or content-neutral.223
Content-based regulations can either be based on the viewpoint of the speaker
or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-
neutral regulation. The order was made simply because petitioners failed to
comply with the maximum size limitation for lawful election propaganda.224
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On the other hand, petitioners argue that the present size regulation is content-
based as it applies only to political speech and not to other forms of speech such
as commercial speech.225 "[A]ssuming arguendo that the size restriction
sought to be applied . . . is a mere time, place, and manner regulation, it’s still
unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or
content-based.227 Regardless, the disposition of this case will be the same.
Generally, compared with other forms of speech, the proposed speech is
content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the
questioned order applies only to posters and tarpaulins that may affect the
elections because they deliver opinions that shape both their choices. It does
not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression
of non-candidates will be adjudged as "election paraphernalia." There are no
existing bright lines to categorize speech as election-related and those that are
not. This is especially true when citizens will want to use their resources to be
able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this case is
fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content of
the tarpaulin is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this
court has used the clear and present danger rule as measure.228 Thus, in Chavez
v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity
and is measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the
restrictions imposedare neither overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be
substantive, ‘extremely serious and the degree of imminence extremely
high.’"230 "Only when the challenged act has overcome the clear and present
danger rule will it pass constitutional muster, with the government having the
burden of overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the
regulation. There is no compelling and substantial state interest endangered by
the posting of the tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the right of non-
candidate petitioners to post the tarpaulin in their private property. The size of
the tarpaulin does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject
matter of the utterance or speech."232 In contrast, content-neutral regulation
includes controls merely on the incidents of the speech such as time, place, or
manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with the
1948 case of Primicias v. Fugoso.234 The ordinance in this case was construed
to grant the Mayor discretion only to determine the public places that may be
used for the procession ormeeting, but not the power to refuse the issuance of a
permit for such procession or meeting.235 This court explained that free speech
and peaceful assembly are "not absolute for it may be so regulated that it shall
not beinjurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic
Commission resolution that prohibited the passing of animal-drawn vehicles
along certain roads at specific hours.238 This court similarly discussed police
power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the
interest and convenience of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less
disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ."241 It is with this backdrop
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that the state is justified in imposing restrictions on incidental matters as time,
place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps
that permit applicants must follow which include informing the licensing
authority ahead of time as regards the date, public place, and time of the
assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test
is the standard used for his decision and the applicants are given the opportunity
to be heard.243 This ruling was practically codified in Batas Pambansa No.
880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid
content-neutral regulation. In the 2006 case of Bayan v. Ermita,244 this court
discussed how Batas Pambansa No. 880 does not prohibit assemblies but
simply regulates their time, place, and manner.245 In 2010, this court found in
Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by
changing the venue from Mendiola Bridge to Plaza Miranda without first
affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin
content is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing
a size limit for tarpaulins are content-neutral regulations as these "restrict the
mannerby which speech is relayed but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of
COMELEC will not pass the three requirements for evaluating such restraints
on freedom of speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial governmental interest is required
for its validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in
several cases.252 A content-neutral government regulation is sufficiently
justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers
an important or substantial governmental interest; [3] if the governmental
interest is unrelated to the suppression of free expression; and [4] if the incident
restriction on alleged [freedom of speech & expression] is no greater than is
essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the
COMELEC to regulate the tarpaulin. As discussed earlier, this is protected
speech by petitioners who are non-candidates. On the second requirement, not
only must the governmental interest be important or substantial, it must also be
compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the
State’s mandate to protect and care for them, as parens patriae,254 constitute a
substantial and compelling government interest in regulating . . . utterances in
TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for
public information campaigns among candidates in connection with the holding
of a free, orderly, honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters
are necessary to ensure equality of public information campaigns among
candidates, as allowing posters with different sizes gives candidates and their
supporters the incentive to post larger posters[,] [and] [t]his places candidates
with more money and/or with deep-pocket supporters at an undue advantage
against candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as
the right of [a private citizen] to freely express his choice and exercise his right
of free speech."258 In any case, faced with both rights to freedom of speech
and equality, a prudent course would be to "try to resolve the tension in a way
that protects the right of participation."259
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Second, the pertinent election lawsrelated to private property only require that
the private property owner’s consent be obtained when posting election
propaganda in the property.260 This is consistent with the fundamental right
against deprivation of property without due process of law.261 The present
facts do not involve such posting of election propaganda absent consent from
the property owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to recommend
effective measures to minimize election spending. Specifically, Article IX-C,
Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied) This does not
qualify as a compelling and substantial government interest to justify regulation
of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two feet
(2’) by three feet (3’) size limitation under Section 6(c) of COMELEC
Resolution No. 9615. This resolution implements the Fair Election Act that
provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount
interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance."264 In fact,
speech with political consequences, as in this case, should be encouraged and
not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the
number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent
or motive in imposing the restriction, but more so at the effects of such
restriction, if implemented. The restriction must not be narrowly tailored to
achieve the purpose. It must be demonstrable. It must allow alternative avenues
for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech.
Limiting the maximum sizeof the tarpaulin would render ineffective
petitioners’ message and violate their right to exercise freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of
dissuading expressions with political consequences. These should be
encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.
The restriction in the present case does not pass even the lower test of
intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech
by the electorate. Given the stature of petitioners and their message, there are
indicators that this will cause a "chilling effect" on robust discussion during
elections.
The form of expression is just as important as the message itself. In the words
of Marshall McLuhan, "the medium is the message."266 McLuhan’s colleague
and mentor Harold Innis has earlier asserted that "the materials on which words
were written down have often counted for more than the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private
individuals for the endorsement of their electoral campaigns.
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On the one extreme, this can take illicit forms such as when endorsement
materials in the form of tarpaulins, posters, or media advertisements are made
ostensibly by "friends" but in reality are really paid for by the candidate or
political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is
not the situation that confronts us. In such cases, it will simply be a matter for
investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship
to any political candidate should not be held hostage by the possibility of abuse
by those seeking to be elected. It is true that there can be underhanded, covert,
or illicit dealings so as to hide the candidate’s real levels of expenditures.
However, labelling all expressions of private parties that tend to have an effect
on the debate in the elections as election paraphernalia would be too broad a
remedy that can stifle genuine speech like in this case. Instead, to address this
evil, better and more effective enforcement will be the least restrictive means
to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate,
others will spend their own resources in order to lend support for the campaigns.
This may be without agreement between the speaker and the candidate or his
or her political party. In lieu of donating funds to the campaign, they will instead
use their resources directly in a way that the candidate or political party would
have doneso. This may effectively skirt the constitutional and statutory limits
of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and
political parties will carry in their election posters or media ads. The message
of petitioner, taken as a whole, is an advocacy of a social issue that it deeply
believes. Through rhetorical devices, it communicates the desire of Diocese that
the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a
social issue; only secondarily — even almost incidentally — will cause the
election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form
that employs such devices as sarcasm, irony and ridicule to deride prevailing
vices or follies,"268 and this may target any individual or group in society,
private and government alike. It seeks to effectively communicate a greater
purpose, often used for "political and social criticism"269 "because it tears
down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is
more thoroughly democratic than to have the high-and-mighty lampooned and
spoofed."270 Northrop Frye, wellknown in this literary field, claimed that satire
had two defining features: "one is wit or humor founded on fantasy or a sense
of the grotesque and absurd, the other is an object of attack."271 Thus, satire
frequently uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead
individuals nor could the Archbishop of the Diocese of Bacolod have intended
it to mean that the entire plan of the candidates in his list was to cause death
intentionally. The tarpaulin caricatures political parties and parodies the
intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed
with the list of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of petitioners to
endorse.
The messages in the tarpaulins are different from the usual messages of
candidates. Election paraphernalia from candidates and political parties are
more declarative and descriptive and contain no sophisticated literary allusion
to any social objective. Thus, they usually simply exhort the public to vote for
a person with a brief description of the attributes of the candidate. For example
"Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z],
Iba kami sa Makati."
This court’s construction of the guarantee of freedom of expression has always
been wary of censorship or subsequent punishment that entails evaluation of
the speaker’s viewpoint or the content of one’s speech. This is especially true
when the expression involved has political consequences. In this case, it hopes
to affect the type of deliberation that happens during elections. A becoming
humility on the part of any human institution no matter how endowed with the
secular ability to decide legal controversies with finality entails that we are not
the keepers of all wisdom.
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Humanity’s lack of omniscience, even acting collectively, provides space for
the weakest dissent. Tolerance has always been a libertarian virtue whose
version is embedded in our Billof Rights. There are occasional heretics of
yesterday that have become our visionaries. Heterodoxies have always given us
pause. The unforgiving but insistent nuance that the majority surely and
comfortably disregards provides us with the checks upon reality that may soon
evolve into creative solutions to grave social problems. This is the utilitarian
version. It could also be that it is just part of human necessity to evolve through
being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains
other provisions which, taken together with the guarantee of free expression,
enhances each other’s value. Among these are the provisions that acknowledge
the idea of equality. In shaping doctrine construing these constitutional values,
this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the
undesired effect of diluting freedoms as exercised in reality and, thus, render
them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free
speech that separate at the point of giving priority to equality vis-à-vis
liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over
regulation[,] but regulation promoting political equality prevails over
speech."273 This view allows the government leeway to redistribute or equalize
‘speaking power,’ such as protecting, even implicitly subsidizing, unpopular or
dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors
who, through authority, power, resources, identity, or status, have capabilities
that may drown out the messages of others. This is especially true in a
developing or emerging economy that is part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one’s
authentic self or to participate in the self determination of one’s communities is
not new only to law. It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist
Herbert Marcuse recognized how institutionalized inequality exists as a
background limitation, rendering freedoms exercised within such limitation as
merely "protect[ing] the already established machinery of discrimination."275
In his view, any improvement "in the normal course of events" within an
unequal society, without subversion, only strengthens existing interests of those
in power and control.276
In other words, abstract guarantees of fundamental rights like freedom of
expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology, but a
tautology which results from a whole series of synthetic judgments. It stipulates
the ability to determine one’s own life: to be able to determine what to do and
what not to do, what to suffer and what not. But the subject of this autonomy is
never the contingent, private individual as that which he actually is or happens
to be; it is rather the individual as a human being who is capable of being free
with the others. And the problem of making possible such a harmony between
every individual liberty and the other is not that of finding a compromise
between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but
of creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still
to be created even for the freest of the existing societies.277 (Emphasis in the
original)
Marcuse suggests that the democratic argument — with all opinions presented
to and deliberated by the people — "implies a necessary condition, namely, that
the people must be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic information, and that, on
this basis, their evaluation must be the result of autonomous thought."278 He
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submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the ‘marketplace
of ideas’ is organized and delimited by those who determine the national and
the individual interest."279 A slant toward left manifests from his belief that
"there is a ‘natural right’ of resistance for oppressed and overpowered
minorities to use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and
transcends from established hierarchies, power structures, and indoctrinations.
The tolerance of libertarian society he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for
"stringent protections of expressive liberty,"281 especially by political
egalitarians. Considerations such as "expressive, deliberative, and
informational interests,"282 costs or the price of expression, and background
facts, when taken together, produce bases for a system of stringent protections
for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties.
Justice Brandeis proposed that "public discussion is a political duty."284 Cass
Sustein placed political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent protection.285 He defined
political speech as "both intended and received as a contribution to public
deliberation about some issue."286
But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean substantive
equality and not mere formal equalitysince "favorable conditions for realizing
the expressive interest will include some assurance of the resources required for
expression and some guarantee that efforts to express views on matters of
common concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the harms of speech with
more speech."289 This view moves away from playing down the danger as
merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing]
expression as the preferred strategy for addressing them."290 However, in some
cases, the idea of more speech may not be enough. Professor Laurence Tribe
observed the need for context and "the specification of substantive values
before [equality] has full meaning."291 Professor Catherine A. MacKinnon
adds that "equality continues to be viewed in a formal rather than a substantive
sense."292 Thus, more speech can only mean more speech from the few who
are dominant rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the
validity of Section 11(b) ofthe Electoral Reforms Law of 1987.293 This section
"prohibits mass media from selling or giving free of charge print space or air
time for campaign or other political purposes, except to the Commission on
Elections."294 This court explained that this provision only regulates the time
and manner of advertising in order to ensure media equality among
candidates.295 This court grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of communication
or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.
(Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of measures
that protect and enhance the right of all the people to human dignity,
reducesocial, economic, and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common
good.
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To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law. (Emphasis
supplied)
Thus, in these cases, we have acknowledged the Constitution’s guarantee for
more substantive expressive freedoms that take equality of opportunities into
consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of
opportunity or equality inthe ability of citizens as speakers should not have a
bearing in free speech doctrine. Under this view, "members of the public are
trusted to make their own individual evaluations of speech, and government is
forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas
are best left to a freely competitive ideological market."297 This is consistent
with the libertarian suspicion on the use of viewpoint as well as content to
evaluate the constitutional validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative
rather than affirmative language. It uses ‘speech’ as its subject and not
‘speakers’.298 Consequently, the Constitution protects free speech per se,
indifferent to the types, status, or associations of its speakers.299 Pursuant to
this, "government must leave speakers and listeners in the private order to their
own devices in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this
view that freedom of speech includes "not only the right to express one’s views,
but also other cognate rights relevant to the free communication [of] ideas, not
excluding the right to be informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of elections —
qualifications of voters and candidates, education, means of transportation,
health, public discussion, private animosities, the weather, the threshold of a
voter’s resistance to pressure — the utmost ventilation of opinion of men and
issues, through assembly, association and organizations, both by the candidate
and the voter, becomes a sine qua non for elections to truly reflect the will of
the electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only to
emphasize free speech primacy such that"courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political
content,"303 thus:
the concept that the government may restrict the speech of some elements in
our society in order to enhance the relative voice of the others is wholly foreign
to the First Amendment which was designed to "secure the widest possible
dissemination of information from diverse and antagonistic sources" and "to
assure unfettered interchange of ideas for the bringing about of political and
social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the market place
of ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the
majority of the US Supreme Court in the campaign expenditures case of
Buckley v. Valeo "condemned restrictions (even if content-neutral) on
expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority
did not use the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount
which a person can speak, which takes out of his exclusive judgment the
decision of when enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning
inherently constricts the sum of public information and runs counter to our
‘profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open.’"308
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In fact, "[c]onstraining those who have funds or have been able to raise funds
does not ease the plight of those without funds in the first place . . . [and] even
if one’s main concern isslowing the increase in political costs, it may be more
effective torely on market forces toachieve that result than on active legal
intervention."309 According to Herbert Alexander, "[t]o oppose limitations is
not necessarily to argue that the sky’s the limit [because in] any campaign there
are saturation levels and a point where spending no longer pays off in votes per
dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take into consideration the
effects it will have in a deliberative democracy. Skewed distribution of
resources as well as the cultural hegemony of the majority may have the effect
of drowning out the speech and the messages of those in the minority. In a
sense, social inequality does have its effect on the exercise and effect of the
guarantee of free speech. Those who have more will have better access to media
that reaches a wider audience than those who have less. Those who espouse the
more popular ideas will have better reception than the subversive and the
dissenters of society.To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the
content of his or her expression. This view, thus, restricts laws or regulation
that allows public officials to make judgments of the value of such viewpoint
or message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made
by candidates or the members of their political parties or their political parties
may be regulated as to time, place, and manner. This is the effect of our rulings
in Osmeña v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons
who are not candidates or who do not speak as members of a political party
which are, taken as a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of
opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen
which will not amount toan election paraphernalia to be validly regulated by
law.
Regulation of election paraphernalia will still be constitutionally valid if it
reaches into speech of persons who are not candidates or who do not speak as
members of a political party if they are not candidates, only if what is regulated
is declarative speech that, taken as a whole, has for its principal object the
endorsement of a candidate only. The regulation (a) should be provided by law,
(b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and (d) demonstrably the least restrictive means
to achieve that object. The regulation must only be with respect to the time,
place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored onthe basis of its content. For this purpose, it
will notmatter whether the speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as
discussed, the principal message in the twin tarpaulins of petitioners consists of
a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the
present law — Section 3.3 of Republic Act No. 9006 and Section 6(c) of
COMELEC Resolution No. 9615 — if applied to this case, will not pass the test
of reasonability. A fixed size for election posters or tarpaulins without any
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relation to the distance from the intended average audience will be arbitrary. At
certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to
the abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise
of the right to suffrage,312 the present case also involves one’s right to
property.313
Respondents argue that it is the right of the state to prevent the circumvention
of regulations relating to election propaganda by applying such regulations to
private individuals.314 Certainly, any provision or regulation can be
circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have
also agreed, during the oral arguments, that petitioners were neither
commissioned nor paid by any candidate or political party to post the material
on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains
the private property of petitioners. Their right to use their property is likewise
protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private
property or constitutes an arbitrary or unreasonable infringement of property
rights is void, because it is repugnant to the constitutional guaranties of due
process and equal protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and
stickers should be posted is "so broad that it encompasses even the citizen’s
private property."317 Consequently, it violates Article III, Section 1 of the
Constitution which provides thatno person shall be deprived of his property
without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right
to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment,
protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that
it includes the right to acquire, use, and dispose of it. The Constitution protects
these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41
L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use,
enjoyment, and disposal of a person’s acquisitions without control or
diminution save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v.
Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when
this right is joined by a "liberty" interest, the burden of justification on the part
of the Government must be exceptionally convincing and irrefutable. The
burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits
the posting or display of election propaganda in any place, whether public or
private, except inthe common poster areas sanctioned by COMELEC. This
means that a private person cannot post his own crudely prepared personal
poster on his own front dooror on a post in his yard. While the COMELEC will
certainly never require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or regulation, may
do.319 Respondents ordered petitioners, who are private citizens, to remove the
tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its
powers.
Freedom of expression can be intimately related with the right to property.
There may be no expression when there is no place where the expression may
be made. COMELEC’s infringement upon petitioners’ property rights as in the
present case also reaches out to infringement on their fundamental right to
speech.
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Respondents have not demonstrated thatthe present state interest they seek to
promote justifies the intrusion into petitioners’ property rights. Election laws
and regulations must be reasonable. It must also acknowledge a private
individual’s right to exercise property rights. Otherwise, the due process clause
will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent
the posting of election propaganda in private property without the consent of
the owners of such private property. COMELEC has incorrectly implemented
these regulations. Consistent with our ruling in Adiong, we find that the act of
respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to
property.
V expressions of these faiths, to religious ceremonies, and then to acts of a secular
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing
the questioned notice and letter violated the right of petitioners to the free
exercise of their religion.
At the outset, the Constitution mandates the separation of church and state.320
This takes many forms. Article III, Section 5 of the Constitution, for instance
provides:
Section 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. Noreligious test shall be required for the exercise of civil
or political rights.
There are two aspects of this provision.321 The first is the none stablishment
clause.322 Second is the free exercise and enjoyment of religious profession
and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or
any other religious make such act immune from any secular regulation.324 The
religious also have a secular existence. They exist within a society that is
regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a
bishop amounts to religious expression. This notwithstanding petitioners’ claim
that "the views and position of the petitioners, the Bishop and the Diocese of
Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith,
and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that
every act can be motivated by moral, ethical, and religious considerations. In
terms of their effect on the corporeal world, these acts range from belief, to
character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive
on this court. Certainly, our powers of adjudication cannot be blinded by bare
claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court "emphatically"
held that the adherents ofa particular religion shall be the ones to determine
whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag
ceremony "out of respect for their religious beliefs, [no matter how] "bizarre"
those beliefsmay seem to others."328 This court found a balance between the
assertion of a religious practice and the compelling necessities of a secular
command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
intoaccount not to promote the government’s favored form of religion, but to
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allow individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise
of, a person’s or institution’s religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to exempt, when possible,
from generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious exercise may
flourish."330
This court also discussed the Lemon test in that case, such that a regulation is
constitutional when: (1) it has a secular legislative purpose; (2) it neither
advances nor inhibits religion; and (3) it does not foster an excessive
entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church."332 That the position of
the Catholic church appears to coincide with the message of the tarpaulin
regarding the RH Law does not, by itself, bring the expression within the ambit
of religious speech. On the contrary, the tarpaulin clearly refers to candidates
classified under "Team Patay" and "Team Buhay" according to their respective
votes on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to support
their claim that the expression onthe tarpaulin is an ecclesiastical matter. With
all due respect to the Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of the Catholic religion
in the Philippines as regards the RH Law does not suffice to qualify the posting
by one of its members of a tarpaulin as religious speech solely on such basis.
The enumeration of candidates on the face of the tarpaulin precludes any
doubtas to its nature as speech with political consequences and not religious
speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National
Labor Relations Commission333 cited by petitioners finds no application in the
present case. The posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as enumerated in the
Austriacase such as "proceedings for excommunication, ordinations of
religious ministers, administration of sacraments and other activities
withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought
was its duty in this case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities and
reduce spending among candidates and their registered political parties. It is not
to regulate or limit the speech of the electorate as it strives to participate inthe
electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those who
are running for public office.Their message may be construed generalizations
of very complex individuals and party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or
"Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the
basis of a single issue — and a complex piece of legislation at that — can easily
be interpreted as anattempt to stereo type the candidates and party-list
organizations. Not all may agree to the way their thoughts were expressed, as
in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room to consider being more
broad-minded and non-judgmental. Some may have expected that the authors
would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our
fundamental liberties. It is not a detailed code that prescribes good conduct. It
provides space for all to be guided by their conscience, not only in the act that
they do to others but also in judgment of the acts of others.
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Freedom for the thought we can disagree with can be wielded not only by those
in the minority. This can often be expressed by dominant institutions, even
religious ones. That they made their point dramatically and in a large way does
not necessarily mean that their statements are true, or that they have basis, or
that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It
is a specie of expression protected by our fundamental law. It is an expression
designed to invite attention, cause debate, and hopefully, persuade. It may be
motivated by the interpretation of petitioners of their ecclesiastical duty, but
their parishioner’s actions will have very real secular consequences. Certainly,
provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by
the electorate that tends to rouse the public to debate contemporary issues. This
is not speechby candidates or political parties to entice votes. It is a portion of
the electorate telling candidates the conditions for their election. It is the
substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all
deserve. It is protected as a fundamental and primordial right by our
Constitution. The expression in the medium chosen by petitioners deserves our
protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining
order previously issued is hereby made permanent. The act of the COMELEC
in issuing the assailed notice dated February 22, 2013 and letter dated February
27, 2013 is declared unconstitutional.
SO ORDERED.
Leus v. St. Scholastica’s College
G.R. No. 187226 (January 28, 2015)
G.R. No. 187226, January 28, 2015
CHERYLL SANTOS LEUS, Petitioner, v. ST. SCHOLASTICA’S COLLEGE
WESTGROVE AND/OR SR. EDNA QUIAMBAO, OSB, Respondents.
DECISION
REYES, J.:
Cheryll Santos Leus (petitioner) was hired by St. Scholastica’s College
Westgrove (SSCW), a Catholic educational institution, as a non-teaching
personnel, engaged in pre-marital sexual relations, got pregnant out of wedlock,
married the father of her child, and was dismissed by SSCW, in that order. The
question that has to be resolved is whether the petitioner’s conduct constitutes
a ground for her dismissal.
Before this Court is a petition for review on certiorari under Rule 45 of the
Rules of Court seeking to annul and set aside the Decision1 dated September
24, 2008 and Resolution2 dated March 2, 2009 issued by the Court of Appeals
(CA) in CA-G.R. SP No. 100188, which affirmed the Resolutions dated
February 28, 20073 and May 21, 20074 of the National Labor Relations
Commission (NLRC) in NLRC CA No. 049222-06.
The Facts
SSCW is a catholic and sectarian educational institution in Silang, Cavite. In
May 2001, SSCW hired the petitioner as an Assistant to SSCW’s Director of
the Lay Apostolate and Community Outreach Directorate.
Sometime in 2003, the petitioner and her boyfriend conceived a child out of
wedlock. When SSCW learned of the petitioner’s pregnancy, Sr. Edna
Quiambao (Sr. Quiambao), SSCW’s Directress, advised her to file a resignation
letter effective June 1, 2003. In response, the petitioner informed Sr. Quiambao
that she would not resign from her employment just because she got pregnant
without the benefit of marriage.5chanRoblesvirtualLawlibrary
On May 28, 2003, Sr. Quiambao formally directed the petitioner to explain in
writing why she should not be dismissed for engaging in pre-marital sexual
relations and getting pregnant as a result thereof, which amounts to serious
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misconduct and conduct unbecoming of an employee of a Catholic
school.6chanRoblesvirtualLawlibrary
In a letter7 dated May 31, 2003, the petitioner explained that her pregnancy out
of wedlock does not amount to serious misconduct or conduct unbecoming of
an employee. She averred that she is unaware of any school policy stating that
being pregnant out of wedlock is considered as a serious misconduct and, thus,
a ground for dismissal. Further, the petitioner requested a copy of SSCW’s
policy and guidelines so that she may better respond to the charge against her.
On June 2, 2003, Sr. Quiambao informed the petitioner that, pending the
promulgation of a “Support Staff Handbook,” SSCW follows the 1992 Manual
of Regulations for Private Schools (1992 MRPS) on the causes for termination
of employments; that Section 94(e) of the 1992 MRPS cites “disgraceful or
immoral conduct” as a ground for dismissal in addition to the just causes for
termination of employment provided under Article 282 of the Labor
Code.8chanRoblesvirtualLawlibrary
On June 4, 2003, the petitioner, through counsel, sent Sr. Quiambao a letter,9
which, in part, reads:chanroblesvirtuallawlibrary
To us, pre-marital sex between two consenting adults without legal impediment
to marry each other who later on married each other does not fall within the
contemplation of “disgraceful or immoral conduct” and “serious misconduct”
of the Manual of Regulations for Private Schools and the Labor Code of the
Philippines.
Your argument that what happened to our client would set a bad example to the
students and other employees of your school is speculative and is more
imaginary than real. To dismiss her on that sole ground constitutes grave abuse
of management prerogatives.
Considering her untarnished service for two years, dismissing her with her
present condition would also mean depriving her to be more secure in terms of
financial capacity to sustain maternal needs.10
In a letter11 dated June 6, 2003, SSCW, through counsel, maintained that pre-
marital sexual relations, even if between two consenting adults without legal
impediment to marry, is considered a disgraceful and immoral conduct or a
serious misconduct, which are grounds for the termination of employment
under the 1992 MRPS and the Labor Code. That SSCW, as a Catholic
institution of learning, has the right to uphold the teaching of the Catholic
Church and expect its employees to abide by the same. They further asserted
that the petitioner’s indiscretion is further aggravated by the fact that she is the
Assistant to the Director of the Lay Apostolate and Community Outreach
Directorate, a position of responsibility that the students look up to as role
model. The petitioner was again directed to submit a written explanation on
why she should not be dismissed.
On June 9, 2003, the petitioner informed Sr. Quiambao that she adopts her
counsel’s letter dated June 4, 2003 as her written
explanation.12chanRoblesvirtualLawlibrary
Consequently, in her letter13 dated June 11, 2003, Sr. Quiambao informed the
petitioner that her employment with SSCW is terminated on the ground of
serious misconduct. She stressed that pre-marital sexual relations between two
consenting adults with no impediment to marry, even if they subsequently
married, amounts to immoral conduct. She further pointed out that SSCW finds
unacceptable the scandal brought about by the petitioner’s pregnancy out of
wedlock as it ran counter to the moral principles that SSCW stands for and
teaches its students.
Thereupon, the petitioner filed a complaint for illegal dismissal with the
Regional Arbitration Branch of the NLRC in Quezon City against SSCW and
Sr. Quiambao (respondents). In her position paper,14 the petitioner claimed that
SSCW gravely abused its management prerogative as there was no just cause
for her dismissal. She maintained that her pregnancy out of wedlock cannot be
considered as serious misconduct since the same is a purely private affair and
not connected in any way with her duties as an employee of SSCW. Further,
the petitioner averred that she and her boyfriend eventually got married even
prior to her dismissal.
For their part, SSCW claimed that there was just cause to terminate the
petitioner’s employment with SSCW and that the same is a valid exercise of
SSCW’s management prerogative. They maintained that engaging in pre-
marital sex, and getting pregnant as a result thereof, amounts to a disgraceful
631 of 692
or immoral conduct, which is a ground for the dismissal of an employee under
the 1992 MRPS.
They pointed out that SSCW is a Catholic educational institution, which caters
exclusively to young girls; that SSCW would lose its credibility if it would
maintain employees who do not live up to the values and teachings it inculcates
to its students. SSCW further asserted that the petitioner, being an employee of
a Catholic educational institution, should have strived to maintain the honor,
dignity and reputation of SSCW as a Catholic
school.15chanRoblesvirtualLawlibrary
The Ruling of the Labor Arbiter
On February 28, 2006, the Labor Arbiter (LA) rendered a Decision,16 in NLRC
Case No. 6-17657-03-C which dismissed the complaint filed by the petitioner.
The LA found that there was a valid ground for the petitioner’s dismissal; that
her pregnancy out of wedlock is considered as a “disgraceful and immoral
conduct.” The LA pointed out that, as an employee of a Catholic educational
institution, the petitioner is expected to live up to the Catholic values taught by
SSCW to its students. Likewise, the LA opined
that:chanroblesvirtuallawlibrary
Further, a deep analysis of the facts would lead us to disagree with the
complainant that she was dismissed simply because she violate[d] a Catholic
[teaching]. It should not be taken in isolation but rather it should be analyzed in
the light of the surrounding circumstances as a whole. We must also take into
[consideration] the nature of her work and the nature of her employer-school.
For us, it is not just an ordinary violation. It was committed by the complainant
in an environment where her strict adherence to the same is called for and where
the reputation of the school is at stake. x x x.17
The LA further held that teachers and school employees, both in their official
and personal conduct, must display exemplary behavior and act in a manner
that is beyond reproach.
The petitioner appealed to the NLRC, insisting that there was no valid ground
for the termination of her employment. She maintained that her pregnancy out
of wedlock cannot be considered as “serious misconduct” under Article 282 of
the Labor Code since the same was not of such a grave and aggravated
character. She asserted that SSCW did not present any evidence to establish that
her pregnancy out of wedlock indeed eroded the moral principles that it teaches
its students.18chanRoblesvirtualLawlibrary
The Ruling of the NLRC
On February 28, 2007, the NLRC issued a Resolution,19 which affirmed the
LA Decision dated February 28, 2006. The NLRC pointed out that the
termination of the employment of the personnel of private schools is governed
by the 1992 MRPS; that Section 94(e) thereof cites “disgraceful or immoral
conduct” as a just cause for dismissal, in addition to the grounds for termination
of employment provided for under Article 282 of the Labor Code. The NLRC
held that the petitioner’s pregnancy out of wedlock is a “disgraceful or immoral
conduct” within the contemplation of Section 94(e) of the 1992 MRPS and,
thus, SSCW had a valid reason to terminate her employment.
The petitioner sought reconsideration20 of the Resolution dated February 28,
2007 but it was denied by the NLRC in its Resolution21 dated May 21, 2007.
Unperturbed, the petitioner filed a petition22 for certiorari with the CA, alleging
that the NLRC gravely abused its discretion in ruling that there was a valid
ground for her dismissal. She maintained that pregnancy out of wedlock cannot
be considered as a disgraceful or immoral conduct; that SSCW failed to prove
that its students were indeed gravely scandalized by her pregnancy out of
wedlock. She likewise asserted that the NLRC erred in applying Section 94(e)
of the 1992 MRPS.cralawred
The Ruling of the CA
On September 24, 2008, the CA rendered the herein assailed Decision,23 which
denied the petition for certiorari filed by the petitioner. The CA held that it is
the provisions of the 1992 MRPS and not the Labor Code which governs the
termination of employment of teaching and non-teaching personnel of private
schools, explaining that:chanroblesvirtuallawlibrary
It is a principle of statutory construction that where there are two statutes that
apply to a particular case, that which was specially intended for the said case
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must prevail. Petitioner was employed by respondent private Catholic
institution which undeniably follows the precepts or norms of conduct set forth
by the Catholic Church. Accordingly, the Manual of Regulations for Private
Schools followed by it must prevail over the Labor Code, a general statute. The
Manual constitutes the private schools’ Implementing Rules and Regulations
of Batas Pambansa Blg. 232 or the Education Act of 1982. x x x.24
The CA further held that the petitioner’s dismissal was a valid exercise of
SSCW’s management prerogative to discipline and impose penalties on erring
employees pursuant to its policies, rules and regulations. The CA upheld the
NLRC’s conclusion that the petitioner’s pregnancy out of wedlock is
considered as a “disgraceful and immoral conduct” and, thus, a ground for
dismissal under Section 94(e) of the 1992 MRPS. The CA likewise opined that
the petitioner’s pregnancy out of wedlock is scandalous per se given the work
environment and social milieu that she was in, viz:chanroblesvirtuallawlibrary
Under Section 94 (e) of the [MRPS], and even under Article 282 (serious
misconduct) of the Labor Code, “disgraceful and immoral conduct” is a basis
for termination of employment.
xxxx
Petitioner contends that her pre-marital sexual relations with her boyfriend and
her pregnancy prior to marriage was not disgraceful or immoral conduct
sufficient for her dismissal because she was not a member of the school’s
faculty and there is no evidence that her pregnancy scandalized the school
community.
We are not persuaded. Petitioner’s pregnancy prior to marriage is scandalous in
itself given the work environment and social milieu she was in. Respondent
school for young ladies precisely seeks to prevent its students from situations
like this, inculcating in them strict moral values and standards. Being part of
the institution, petitioner’s private and public life could not be separated. Her
admitted pre-marital sexual relations was a violation of private respondent’s
prescribed standards of conduct that views pre-marital sex as immoral because
sex between a man and a woman must only take place within the bounds of
marriage.
Finally, petitioner’s dismissal is a valid exercise of the employer-school’s
management prerogative to discipline and impose penalties on erring
employees pursuant to its policies, rules and regulations. x x x.25 (Citations
omitted)
The petitioner moved for reconsideration26 but it was denied by the CA in its
Resolution27 dated March 2, 2009.
Hence, the instant petition.
Issues
Essentially, the issues set forth by the petitioner for this Court’s decision are
the following: first, whether the CA committed reversible error in ruling that it
is the 1992 MRPS and not the Labor Code that governs the termination of
employment of teaching and non-teaching personnel of private schools; and
second, whether the petitioner’s pregnancy out of wedlock constitutes a valid
ground to terminate her employment.cralawred
The Ruling of the Court
The Court grants the petition.
First Issue: Applicability of the 1992 MRPS
The petitioner contends that the CA, in ruling that there was a valid ground to
dismiss her, erred in applying Section 94 of the 1992 MRPS. Essentially, she
claims that the 1992 MRPS was issued by the Secretary of Education as the
revised implementing rules and regulations of Batas Pambansa Bilang 232 (BP
232) or the “Education Act of 1982.” That there is no provision in BP 232,
which provides for the grounds for the termination of employment of teaching
and non-teaching personnel of private schools. Thus, Section 94 of the 1992
MRPS, which provides for the causes of terminating an employment, is invalid
as it “widened the scope and coverage” of BP 232.
The Court does not agree.
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The Court notes that the argument against the validity of the 1992 MRPS,
specifically Section 94 thereof, is raised by the petitioner for the first time in
the instant petition for review. Nowhere in the proceedings before the LA, the
NLRC or the CA did the petitioner assail the validity of the provisions of the
1992 MRPS.
“It is well established that issues raised for the first time on appeal and not
raised in the proceedings in the lower court are barred by estoppel. Points of
law, theories, issues, and arguments not brought to the attention of the trial court
ought not to be considered by a reviewing court, as these cannot be raised for
the first time on appeal. To consider the alleged facts and arguments belatedly
raised would amount to trampling on the basic principles of fair play, justice,
and due process.”28chanRoblesvirtualLawlibrary
In any case, even if the Court were to disregard the petitioner’s belated claim
of the invalidity of the 1992 MRPS, the Court still finds the same untenable.
The 1992 MRPS, the regulation in force at the time of the instant controversy,
was issued by the Secretary of Education pursuant to BP 232. Section 7029 of
BP 232 vests the Secretary of Education with the authority to issue rules and
regulations to implement the provisions of BP 232. Concomitantly, Section
5730 specifically empowers the Department of Education to promulgate rules
and regulations necessary for the administration, supervision and regulation of
the educational system in accordance with the declared policy of BP 232.
The qualifications of teaching and non-teaching personnel of private schools,
as well as the causes for the termination of their employment, are an integral
aspect of the educational system of private schools. Indubitably, ensuring that
the teaching and non-teaching personnel of private schools are not only
qualified, but competent and efficient as well goes hand in hand with the
declared objective of BP 232 – establishing and maintaining relevant quality
education.31 It is thus within the authority of the Secretary of Education to issue
a rule, which provides for the dismissal of teaching and non-teaching personnel
of private schools based on their incompetence, inefficiency, or some other
disqualification.
Moreover, Section 69 of BP 232 specifically authorizes the Secretary of
Education to “prescribe and impose such administrative sanction as he may
deem reasonable and appropriate in the implementing rules and regulations” for
the “[g]ross inefficiency of the teaching or non-teaching personnel” of private
schools.32 Accordingly, contrary to the petitioner’s claim, the Court sees no
reason to invalidate the provisions of the 1992 MRPS, specifically Section 94
thereof.cralawred
Second Issue: Validity of the Petitioner’s Dismissal
The validity of the petitioner’s dismissal hinges on the determination of whether
pregnancy out of wedlock by an employee of a catholic educational institution
is a cause for the termination of her employment.
In resolving the foregoing question, the Court will assess the matter from a
strictly neutral and secular point of view – the relationship between SSCW as
employer and the petitioner as an employee, the causes provided for by law in
the termination of such relationship, and the evidence on record. The ground
cited for the petitioner’s dismissal, i.e., pre-marital sexual relations and,
consequently, pregnancy out of wedlock, will be assessed as to whether the
same constitutes a valid ground for dismissal pursuant to Section 94(e) of the
1992 MRPS.
The standard of review in a Rule 45
petition from the CA decision in labor
cases.
In a petition for review under Rule 45 of the Rules of Court, such as the instant
petition, where the CA’s disposition in a labor case is sought to be calibrated,
the Court’s review is quite limited. In ruling for legal correctness, the Court has
to view the CA decision in the same context that the petition for certiorari it
ruled upon was presented to it; the Court has to examine the CA decision from
the prism of whether it correctly determined the presence or absence of grave
abuse of discretion in the NLRC decision before it, not on the basis of whether
the NLRC decision on the merits of the case was
correct.33chanRoblesvirtualLawlibrary
The phrase “grave abuse of discretion” is well-defined in the Court’s
jurisprudence. It exists where an act of a court or tribunal is performed with a
capricious or whimsical exercise of judgment equivalent to lack of
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jurisdiction.34 The determination of the presence or absence of grave abuse of
discretion does not include an inquiry into the correctness of the evaluation of
evidence, which was the basis of the labor agency in reaching its
conclusion.35chanRoblesvirtualLawlibrary
Nevertheless, while a certiorari proceeding does not strictly include an inquiry
as to the correctness of the evaluation of evidence (that was the basis of the
labor tribunals in determining their conclusion), the incorrectness of its
evidentiary evaluation should not result in negating the requirement of
substantial evidence. Indeed, when there is a showing that the findings or
conclusions, drawn from the same pieces of evidence, were arrived at arbitrarily
or in disregard of the evidence on record, they may be reviewed by the courts.
In particular, the CA can grant the petition for certiorari if it finds that the
NLRC, in its assailed decision or resolution, made a factual finding not
supported by substantial evidence. A decision that is not supported by
substantial evidence is definitely a decision tainted with grave abuse of
discretion.36chanRoblesvirtualLawlibrary
The labor tribunals’ respective
conclusions that the petitioner’s pregnancy
is a “disgraceful or immoral conduct”
were arrived at arbitrarily.
The CA and the labor tribunals affirmed the validity of the petitioner’s
dismissal pursuant to Section 94(e) of the 1992 MRPS, which provides
that:chanroblesvirtuallawlibrary
Sec. 94. Causes of Terminating Employment – In addition to the just causes
enumerated in the Labor Code, the employment of school personnel, including
faculty, may be terminated for any of the following
causes:ChanRoblesVirtualawlibrary
xxxx
e. Disgraceful or immoral conduct;
xxxx
The labor tribunals concluded that the petitioner’s pregnancy out of wedlock,
per se, is “disgraceful and immoral” considering that she is employed in a
Catholic educational institution. In arriving at such conclusion, the labor
tribunals merely assessed the fact of the petitioner’s pregnancy vis-à-vis the
totality of the circumstances surrounding the same.
However, the Court finds no substantial evidence to support the aforementioned
conclusion arrived at by the labor tribunals. The fact of the petitioner’s
pregnancy out of wedlock, without more, is not enough to characterize the
petitioner’s conduct as disgraceful or immoral. There must be substantial
evidence to establish that pre-marital sexual relations and, consequently,
pregnancy out of wedlock, are indeed considered disgraceful or immoral.
The totality of the circumstances
surrounding the conduct alleged to be
disgraceful or immoral must be assessed
against the prevailing norms of conduct.
In Chua-Qua v. Clave,37 the Court stressed that to constitute immorality, the
circumstances of each particular case must be holistically considered and
evaluated in light of the prevailing norms of conduct and applicable laws.38
Otherwise stated, it is not the totality of the circumstances surrounding the
conduct per se that determines whether the same is disgraceful or immoral, but
the conduct that is generally accepted by society as respectable or moral. If the
conduct does not conform to what society generally views as respectable or
moral, then the conduct is considered as disgraceful or immoral. Tersely put,
substantial evidence must be presented, which would establish that a particular
conduct, viewed in light of the prevailing norms of conduct, is considered
disgraceful or immoral.
Thus, the determination of whether a conduct is disgraceful or immoral
involves a two-step process: first, a consideration of the totality of the
circumstances surrounding the conduct; and second, an assessment of the said
circumstances vis-à-vis the prevailing norms of conduct, i.e., what the society
generally considers moral and respectable.
That the petitioner was employed by a Catholic educational institution per se
does not absolutely determine whether her pregnancy out of wedlock is
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disgraceful or immoral. There is still a necessity to determine whether the
petitioner’s pregnancy out of wedlock is considered disgraceful or immoral in
accordance with the prevailing norms of conduct.
Public and secular morality should
determine the prevailing norms of conduct,
not religious morality.
However, determining what the prevailing norms of conduct are considered
disgraceful or immoral is not an easy task. An individual’s perception of what
is moral or respectable is a confluence of a myriad of influences, such as
religion, family, social status, and a cacophony of others. In this regard, the
Court’s ratiocination in Estrada v. Escritor39 is instructive.
In Estrada, an administrative case against a court interpreter charged with
disgraceful and immoral conduct, the Court stressed that in determining
whether a particular conduct can be considered as disgraceful and immoral, the
distinction between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind.40 That the distinction between
public and secular morality and religious morality is important because the
jurisdiction of the Court extends only to public and secular morality.41 The
Court further explained that:chanroblesvirtuallawlibrary
The morality referred to in the law is public and necessarily secular, not
religious x x x. “Religious teachings as expressed in public debate may
influence the civil public order but public moral disputes may be resolved only
on grounds articulable in secular terms.” Otherwise, if government relies upon
religious beliefs in formulating public policies and morals, the resulting policies
and morals would require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious belief, i.e., to a
“compelled religion,” anathema to religious freedom. Likewise, if government
based its actions upon religious beliefs, it would tacitly approve or endorse that
belief and thereby also tacitly disapprove contrary religious or non-religious
views that would not support the policy. As a result, government will not
provide full religious freedom for all its citizens, or even make it appear that
those whose beliefs are disapproved are second-class citizens. Expansive
religious freedom therefore requires that government be neutral in matters of
religion; governmental reliance upon religious justification is inconsistent with
this policy of neutrality.
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That
is, the government proscribes this conduct because it is “detrimental (or
dangerous) to those conditions upon which depend the existence and progress
of human society” and not because the conduct is proscribed by the beliefs of
one religion or the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus
have religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual institutions of
society in a uniform manner, harmonizing earth with heaven. Succinctly put, a
law could be religious or Kantian or Aquinian or utilitarian in its deepest roots,
but it must have an articulable and discernible secular purpose and justification
to pass scrutiny of the religion clauses. x x x.42 (Citations omitted and
emphases ours)
Accordingly, when the law speaks of immoral or, necessarily, disgraceful
conduct, it pertains to public and secular morality; it refers to those conducts
which are proscribed because they are detrimental to conditions upon which
depend the existence and progress of human society. Thus, in Anonymous v.
Radam,43 an administrative case involving a court utility worker likewise
charged with disgraceful and immoral conduct, applying the doctrines laid
down in Estrada, the Court held that:chanroblesvirtuallawlibrary
For a particular conduct to constitute “disgraceful and immoral” behavior under
civil service laws, it must be regulated on account of the concerns of public and
secular morality. It cannot be judged based on personal bias, specifically those
colored by particular mores. Nor should it be grounded on “cultural” values not
convincingly demonstrated to have been recognized in the realm of public
policy expressed in the Constitution and the laws. At the same time, the
constitutionally guaranteed rights (such as the right to privacy) should be
observed to the extent that they protect behavior that may be frowned upon by
the majority.
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Under these tests, two things may be concluded from the fact that an unmarried
woman gives birth out of wedlock:
(1)
if the father of the child is himself unmarried, the woman is not ordinarily
administratively liable for disgraceful and immoral conduct. It may be a not-
so-ideal situation and may cause complications for both mother and child but it
does not give cause for administrative sanction. There is no law which penalizes
an unmarried mother under those circumstances by reason of her sexual conduct
or proscribes the consensual sexual activity between two unmarried persons.
Neither does the situation contravene any fundamental state policy as expressed
in the Constitution, a document that accommodates various belief systems
irrespective of dogmatic origins.
(2)
if the father of the child born out of wedlock is himself married to a woman
other than the mother, then there is a cause for administrative sanction against
either the father or the mother. In such a case, the “disgraceful and immoral
conduct” consists of having extramarital relations with a married person. The
sanctity of marriage is constitutionally recognized and likewise affirmed by our
statutes as a special contract of permanent union. Accordingly, judicial
employees have been sanctioned for their dalliances with married persons or
for their own betrayals of the marital vow of fidelity.
In this case, it was not disputed that, like respondent, the father of her child was
unmarried. Therefore, respondent cannot be held liable for disgraceful and
immoral conduct simply because she gave birth to the child Christian Jeon out
of wedlock.44 (Citations omitted and emphases ours)
Both Estrada and Radam are administrative cases against employees in the civil
service. The Court, however, sees no reason not to apply the doctrines
enunciated in Estrada and Radam in the instant case. Estrada and Radam also
required the Court to delineate what conducts are considered disgraceful and/or
immoral as would constitute a ground for dismissal. More importantly, as in the
said administrative cases, the instant case involves an employee’s security of
tenure; this case likewise concerns employment, which is not merely a specie
of property right, but also the means by which the employee and those who
depend on him live.45chanRoblesvirtualLawlibrary
It bears stressing that the right of an employee to security of tenure is protected
by the Constitution. Perfunctorily, a regular employee may not be dismissed
unless for cause provided under the Labor Code and other relevant laws, in this
case, the 1992 MRPS. As stated above, when the law refers to morality, it
necessarily pertains to public and secular morality and not religious morality.
Thus, the proscription against “disgraceful or immoral conduct” under Section
94(e) of the 1992 MRPS, which is made as a cause for dismissal, must
necessarily refer to public and secular morality. Accordingly, in order for a
conduct to be considered as disgraceful or immoral, it must be “‘detrimental (or
dangerous) to those conditions upon which depend the existence and progress
of human society’ and not because the conduct is proscribed by the beliefs of
one religion or the other.”
Thus, in Santos v. NLRC,46 the Court upheld the dismissal of a teacher who
had an extra-marital affair with his co-teacher, who is likewise married, on the
ground of disgraceful and immoral conduct under Section 94(e) of the 1992
MRPS. The Court pointed out that extra-marital affair is considered as a
disgraceful and immoral conduct is an afront to the sanctity of marriage, which
is a basic institution of society, viz:chanroblesvirtuallawlibrary
We cannot overemphasize that having an extra-marital affair is an afront to the
sanctity of marriage, which is a basic institution of society. Even our Family
Code provides that husband and wife must live together, observe mutual love,
respect and fidelity. This is rooted in the fact that both our Constitution and our
laws cherish the validity of marriage and unity of the family. Our laws, in
implementing this constitutional edict on marriage and the family underscore
their permanence, inviolability and solidarity.47
The petitioner’s pregnancy out of
wedlock is not a disgraceful or immoral
conduct since she and the father of her
child have no impediment to marry each
other.
In stark contrast to Santos, the Court does not find any circumstance in this case
which would lead the Court to conclude that the petitioner committed a
disgraceful or immoral conduct. It bears stressing that the petitioner and her
boyfriend, at the time they conceived a child, had no legal impediment to marry.
637 of 692
Indeed, even prior to her dismissal, the petitioner married her boyfriend, the
father of her child. As the Court held in Radam, there is no law which penalizes
an unmarried mother by reason of her sexual conduct or proscribes the
consensual sexual activity between two unmarried persons; that neither does
such situation contravene any fundamental state policy enshrined in the
Constitution.
Admittedly, the petitioner is employed in an educational institution where the
teachings and doctrines of the Catholic Church, including that on pre-marital
sexual relations, is strictly upheld and taught to the students. That her
indiscretion, which resulted in her pregnancy out of wedlock, is anathema to
the doctrines of the Catholic Church. However, viewed against the prevailing
norms of conduct, the petitioner’s conduct cannot be considered as disgraceful
or immoral; such conduct is not denounced by public and secular morality. It
may be an unusual arrangement, but it certainly is not disgraceful or immoral
within the contemplation of the law.
To stress, pre-marital sexual relations between two consenting adults who have
no impediment to marry each other, and, consequently, conceiving a child out
of wedlock, gauged from a purely public and secular view of morality, does not
amount to a disgraceful or immoral conduct under Section 94(e) of the 1992
MRPS.
Accordingly, the labor tribunals erred in upholding the validity of the
petitioner’s dismissal. The labor tribunals arbitrarily relied solely on the
circumstances surrounding the petitioner’s pregnancy and its supposed effect
on SSCW and its students without evaluating whether the petitioner’s conduct
is indeed considered disgraceful or immoral in view of the prevailing norms of
conduct. In this regard, the labor tribunals’ respective haphazard evaluation of
the evidence amounts to grave abuse of discretion, which the Court will rectify.
The labor tribunals’ finding that the petitioner’s pregnancy out of wedlock
despite the absence of substantial evidence is not only arbitrary, but a grave
abuse of discretion, which should have been set right by the CA.
There is no substantial evidence to
prove that the petitioner’s pregnancy out of
wedlock caused grave scandal to SSCW
and its students.
SSCW claimed that the petitioner was primarily dismissed because her
pregnancy out of wedlock caused grave scandal to SSCW and its students. That
the scandal brought about by the petitioner’s indiscretion prompted them to
dismiss her. The LA upheld the respondents’ claim, stating
that:chanroblesvirtuallawlibrary
In this particular case, an “objective” and “rational evaluation” of the facts and
circumstances obtaining in this case would lead us to focus our attention x x x
on the impact of the act committed by the complainant. The act of the
complainant x x x eroded the moral principles being taught and project[ed] by
the respondent [C]atholic school to their young lady students.48 (Emphasis in
the original)
On the other hand, the NLRC opined that:chanroblesvirtuallawlibrary
In the instant case, when the complainant-appellant was already conceiving a
child even before she got married, such is considered a shameful and scandalous
behavior, inimical to public welfare and policy. It eroded the moral doctrines
which the respondent Catholic school, an exclusive school for girls, is teaching
the young girls. Thus, when the respondent-appellee school terminated
complainant-appellant’s services, it was a valid exercise of its management
prerogative. Whether or not she was a teacher is of no moment. There is no
separate set of rules for non-teaching personnel. Respondents-appellees uphold
the teachings of the Catholic Church on pre-marital sex and that the
complainant-appellant as an employee of the school was expected to abide by
this basic principle and to live up with the standards of their purely Catholic
values. Her subsequent marriage did not take away the fact that she had engaged
in pre-marital sex which the respondent-appellee school denounces as the same
is opposed to the teachings and doctrines it espouses.49 (Emphasis ours)
Contrary to the labor tribunals’ declarations, the Court finds that SSCW failed
to adduce substantial evidence to prove that the petitioner’s indiscretion indeed
caused grave scandal to SSCW and its students. Other than the SSCW’s bare
allegation, the records are bereft of any evidence that would convincingly prove
that the petitioner’s conduct indeed adversely affected SSCW’s integrity in
teaching the moral doctrines, which it stands for. The petitioner is only a non-
638 of 692
teaching personnel; her interaction with SSCW’s students is very limited. It is
thus quite impossible that her pregnancy out of wedlock caused such a grave
scandal, as claimed by SSCW, as to warrant her dismissal.
Settled is the rule that in termination cases, the burden of proving that the
dismissal of the employees was for a valid and authorized cause rests on the
employer. It is incumbent upon the employer to show by substantial evidence
that the termination of the employment of the employees was validly made and
failure to discharge that duty would mean that the dismissal is not justified and
therefore illegal.50 “Substantial evidence is more than a mere scintilla of
evidence. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion, even if other minds equally reasonable
might conceivably opine otherwise.”51chanRoblesvirtualLawlibrary
Indubitably, bare allegations do not amount to substantial evidence.
Considering that the respondents failed to adduce substantial evidence to prove
their asserted cause for the petitioner’s dismissal, the labor tribunals should not
have upheld their allegations hook, line and sinker. The labor tribunals’
respective findings, which were arrived at sans any substantial evidence,
amounts to a grave abuse of discretion, which the CA should have rectified.
“Security of tenure is a right which may not be denied on mere speculation of
any unclear and nebulous basis.”52chanRoblesvirtualLawlibrary
The petitioner’s dismissal is not a
valid exercise of SSCW’s management
prerogative.
The CA belabored the management prerogative of SSCW to discipline its
employees. The CA opined that the petitioner’s dismissal is a valid exercise of
management prerogative to impose penalties on erring employees pursuant to
its policies, rules and regulations.
The Court does not agree.
The Court has held that “management is free to regulate, according to its own
discretion and judgment, all aspects of employment, including hiring, work
assignments, working methods, time, place and manner of work, processes to
be followed, supervision of workers, working regulations, transfer of
employees, work supervision, lay off of workers and discipline, dismissal and
recall of workers. The exercise of management prerogative, however, is not
absolute as it must be exercised in good faith and with due regard to the rights
of labor.” Management cannot exercise its prerogative in a cruel, repressive, or
despotic manner.53chanRoblesvirtualLawlibrary
SSCW, as employer, undeniably has the right to discipline its employees and,
if need be, dismiss them if there is a valid cause to do so. However, as already
explained, there is no cause to dismiss the petitioner. Her conduct is not
considered by law as disgraceful or immoral. Further, the respondents
themselves have admitted that SSCW, at the time of the controversy, does not
have any policy or rule against an employee who engages in pre-marital sexual
relations and conceives a child as a result thereof. There being no valid basis in
law or even in SSCW’s policy and rules, SSCW’s dismissal of the petitioner is
despotic and arbitrary and, thus, not a valid exercise of management
prerogative.
In sum, the Court finds that the petitioner was illegally dismissed as there was
no just cause for the termination of her employment. SSCW failed to adduce
substantial evidence to establish that the petitioner’s conduct, i.e., engaging in
pre-marital sexual relations and conceiving a child out of wedlock, assessed in
light of the prevailing norms of conduct, is considered disgraceful or immoral.
The labor tribunals gravely abused their discretion in upholding the validity of
the petitioner’s dismissal as the charge against the petitioner lay not on
substantial evidence, but on the bare allegations of SSCW. In turn, the CA
committed reversible error in upholding the validity of the petitioner’s
dismissal, failing to recognize that the labor tribunals gravely abused their
discretion in ruling for the respondents.
The petitioner is entitled to
separation pay, in lieu of actual
reinstatement, full backwages and
attorney’s fees, but not to moral
and exemplary damages.
Having established that the petitioner was illegally dismissed, the Court now
determines the reliefs that she is entitled to and their extent. Under the law and
prevailing jurisprudence, “an illegally dismissed employee is entitled to
639 of 692
reinstatement as a matter of right.”54 Aside from the instances provided under
Articles 28355 and 28456 of the Labor Code, separation pay is, however,
granted when reinstatement is no longer feasible because of strained relations
between the employer and the employee. In cases of illegal dismissal, the
accepted doctrine is that separation pay is available in lieu of reinstatement
when the latter recourse is no longer practical or in the best interest of the
parties.57chanRoblesvirtualLawlibrary
In Divine Word High School v. NLRC,58 the Court ordered the employer
Catholic school to pay the illegally dismissed high school teacher separation
pay in lieu of actual reinstatement since her continued presence as a teacher in
the school “may well be met with antipathy and antagonism by some sectors in
the school community.”59chanRoblesvirtualLawlibrary
In view of the particular circumstances of this case, it would be more prudent
to direct SSCW to pay the petitioner separation pay in lieu of actual
reinstatement. The continued employment of the petitioner with SSCW would
only serve to intensify the atmosphere of antipathy and antagonism between the
parties. Consequently, the Court awards separation pay to the petitioner
equivalent to one (1) month pay for every year of service, with a fraction of at
least six (6) months considered as one (1) whole year, from the time of her
illegal dismissal up to the finality of this judgment, as an alternative to
reinstatement.
Also, “employees who are illegally dismissed are entitled to full backwages,
inclusive of allowances and other benefits or their monetary equivalent,
computed from the time their actual compensation was withheld from them up
to the time of their actual reinstatement but if reinstatement is no longer
possible, the backwages shall be computed from the time of their illegal
termination up to the finality of the decision.”60 Accordingly, the petitioner is
entitled to an award of full backwages from the time she was illegally dismissed
up to the finality of this decision.
Nevertheless, the petitioner is not entitled to moral and exemplary damages. “A
dismissed employee is entitled to moral damages when the dismissal is attended
by bad faith or fraud or constitutes an act oppressive to labor, or is done in a
manner contrary to good morals, good customs or public policy. Exemplary
damages may be awarded if the dismissal is effected in a wanton, oppressive or
malevolent manner.”61chanRoblesvirtualLawlibrary
“Bad faith, under the law, does not simply connote bad judgment or negligence.
It imports a dishonest purpose or some moral obliquity and conscious doing of
a wrong, or a breach of a known duty through some motive or interest or ill will
that partakes of the nature of fraud.”62chanRoblesvirtualLawlibrary
“It must be noted that the burden of proving bad faith rests on the one alleging
it”63 since basic is the principle that good faith is presumed and he who alleges
bad faith has the duty to prove the same.64 “Allegations of bad faith and fraud
must be proved by clear and convincing
evidence.”65chanRoblesvirtualLawlibrary
The records of this case are bereft of any clear and convincing evidence
showing that the respondents acted in bad faith or in a wanton or fraudulent
manner in dismissing the petitioner. That the petitioner was illegally dismissed
is insufficient to prove bad faith. A dismissal may be contrary to law but by
itself alone, it does not establish bad faith to entitle the dismissed employee to
moral damages. The award of moral and exemplary damages cannot be justified
solely upon the premise that the employer dismissed his employee without
cause.66chanRoblesvirtualLawlibrary
However, the petitioner is entitled to attorney’s fees in the amount of 10% of
the total monetary award pursuant to Article 11167 of the Labor Code. “It is
settled that where an employee was forced to litigate and, thus, incur expenses
to protect his rights and interest, the award of attorney’s fees is legally and
morally justifiable.”68chanRoblesvirtualLawlibrary
Finally, legal interest shall be imposed on the monetary awards herein granted
at the rate of six percent (6%) per annum from the finality of this judgment until
fully paid.69chanRoblesvirtualLawlibrarychanrobleslaw
WHEREFORE, in consideration of the foregoing disquisitions, the petition is
GRANTED. The Decision dated September 24, 2008 and Resolution dated
March 2, 2009 of the Court of Appeals in CA-G.R. SP No. 100188 are hereby
REVERSED and SET ASIDE.
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The respondent, St. Scholastica’s College Westgrove, is hereby declared guilty
of illegal dismissal and is hereby ORDERED to pay the petitioner, Cheryll
Santos Leus, the following: (a) separation pay in lieu of actual reinstatement
equivalent to one (1) month pay for every year of service, with a fraction of at
least six (6) months considered as one (1) whole year from the time of her
dismissal up to the finality of this Decision; (b) full backwages from the time
of her illegal dismissal up to the finality of this Decision; and (c) attorney’s fees
equivalent to ten percent (10%) of the total monetary award. The monetary
awards herein granted shall earn legal interest at the rate of six percent (6%) per
annum from the date of the finality of this Decision until fully paid. The case is
REMANDED to the Labor Arbiter for the computation of petitioner’s monetary
awards.
SO ORDERED.
Bayan v. Exec. Sec.
G.R. No. 138570 (Oct. 10, 2000)
[G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT,
BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP
ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO
LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS,
KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC
INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY
RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO
SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN.
ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN,
SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR
RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA),
EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO,
AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B.
ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as
Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as
Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA
III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA,
DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B.
FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National
President, Jose Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO
ESTRADA, in his capacity as President, Republic of the Philippines, and HON.
DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs,
respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-
AVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO,
FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE
SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT
MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR
RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR
CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN
RELATION TO THE VISITING FORCES AGREEMENT (VFA),
respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for
certiorari and prohibition are issues relating to, and borne by, an agreement
forged in the turn of the last century between the Republic of the Philippines
and the United States of America -the Visiting Forces Agreement.
641 of 692

The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of
installations in the Philippine territory by United States military personnel. To
further strengthen their defense and security relationship, the Philippines and
the United States entered into a Mutual Defense Treaty on August 30, 1951.
Under the treaty, the parties agreed to respond to any external armed attack on
their territory, armed forces, public vessels, and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement
in 1991, the Philippines and the United States negotiated for a possible
extension of the military bases agreement. On September 16, 1991, the
Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence
of US military bases in the Philippines.[2] With the expiration of the RP-US
Military Bases Agreement, the periodic military exercises conducted between
the two countries were held in abeyance. Notwithstanding, the defense and
security relationship between the Philippines and the United States of America
continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy
Assistant Secretary for Asia Pacific Kurt Campbell, met with the Philippine
panel, headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to
exchange notes on the complementing strategic interests of the United States
and the Philippines in the Asia-Pacific region. Both sides discussed, among
other things, the possible elements of the Visiting Forces Agreement (VFA for
brevity). Negotiations by both panels on the VFA led to a consolidated draft
text, which in turn resulted to a final series of conferences and negotiations[3]
that culminated in Manila on January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA, which was respectively signed
by public respondent Secretary Siazon and Unites States Ambassador Thomas
Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary
of Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive
Secretary Ronaldo Zamora, officially transmitted to the Senate of the
Philippines,[5] the Instrument of Ratification, the letter of the President[6] and
the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign
Relations, chaired by Senator Blas F. Ople, and its Committee on National
Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public hearings were held
by the two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443[8] recommending the concurrence of the Senate to the VFA and the
creation of a Legislative Oversight Committee to oversee its implementation.
Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the
Senate, by a two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443
was then re-numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of
Notes between respondent Secretary Siazon and United States Ambassador
Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the
mechanism for regulating the circumstances and conditions under which US
Armed Forces and defense personnel may be present in the Philippines, and is
quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United States
military and civilian personnel temporarily in the Philippines in connection
with activities approved by the Philippine Government.
Within this definition:
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1. The term military personnel refers to military members of the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals
of, nor ordinary residents in the Philippines and who are employed by the
United States armed forces or who are accompanying the United States armed
forces, such as employees of the American Red Cross and the United Services
Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the Republic
of the Philippines and to abstain from any activity inconsistent with the spirit
of this agreement, and, in particular, from any political activity in the
Philippines. The Government of the United States shall take all measures within
its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in connection with
activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall
be required in respect of United States military personnel who enter the
Philippines:
(a) personal identity card issued by the appropriate United States authority
showing full name, date of birth, rank or grade and service number (if any),
branch of service and photograph;
(b) individual or collective document issued by the appropriate United States
authority, authorizing the travel or visit and identifying the individual or group
as United States military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a
declaration of health, and when required by the cognizant representative of the
Government of the Philippines, shall conduct a quarantine inspection and will
certify that the aircraft or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or United States vessels or
cargoes thereon shall be conducted by the United States commanding officer in
accordance with the international health regulations as promulgated by the
World Health Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but
shall present, upon demand, valid passports upon entry and departure of the
Philippines.
5. If the Government of the Philippines has requested the removal of any United
States personnel from its territory, the United States authorities shall be
responsible for receiving the person concerned within its own territory or
otherwise disposing of said person outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving
permit or license issued by the appropriate United States authority to United
States personnel for the operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be
registered, but shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
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(a) Philippine authorities shall have jurisdiction over United States personnel
with respect to offenses committed within the Philippines and punishable under
the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the
military law of the United States over United States personnel in the
Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security of
the Philippines, punishable under the laws of the Philippines, but not under the
laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security of
the United States, punishable under the laws of the United States, but not under
the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense
relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following
rules shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction
over all offenses committed by United States personnel, except in cases
provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the
United States in relation to.
(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official
duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular
case.
(d) Recognizing the responsibility of the United States military authorities to
maintain good order and discipline among their forces, Philippine authorities
will, upon request by the United States, waive their primary right to exercise
jurisdiction except in cases of particular importance to the Philippines. If the
Government of the Philippines determines that the case is of particular
importance, it shall communicate such determination to the United States
authorities within twenty (20) days after the Philippine authorities receive the
United States request.
(e) When the United States military commander determines that an offense
charged by authorities of the Philippines against United states personnel arises
out of an act or omission done in the performance of official duty, the
commander will issue a certificate setting forth such determination. This
certificate will be transmitted to the appropriate authorities of the Philippines
and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the case require a
review of the duty certificate, United States military authorities and Philippine
authorities shall consult immediately. Philippine authorities at the highest levels
may also present any information bearing on its validity. United States military
authorities shall take full account of the Philippine position. Where appropriate,
United States military authorities will take disciplinary or other action against
offenders in official duty cases, and notify the Government of the Philippines
of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it
shall notify the authorities of the other government as soon as possible.
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(g) The authorities of the Philippines and the United States shall notify each
other of the disposition of all cases in which both the authorities of the
Philippines and the United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines
and United States shall assist each other in the arrest of United States personnel
in the Philippines and in handling them over to authorities who are to exercise
jurisdiction in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities
of the arrest or detention of United States personnel who are subject of
Philippine primary or exclusive jurisdiction. Philippine authorities shall
promptly notify United States military authorities of the arrest or detention of
any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until
completion of all judicial proceedings. United States military authorities shall,
upon formal notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been
charged in extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the United
States Government shall take into full account. In the event Philippine judicial
proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one-year period will not
include the time necessary to appeal. Also, the one-year period will not include
any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange
for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine
authorities shall assist each other in the carrying out of all necessary
investigation into offenses and shall cooperate in providing for the attendance
of witnesses and in the collection and production of evidence, including seizure
and, in proper cases, the delivery of objects connected with an offense.
8. When United States personnel have been tried in accordance with the
provisions of this Article and have been acquitted or have been convicted and
are serving, or have served their sentence, or have had their sentence remitted
or suspended, or have been pardoned, they may not be tried again for the same
offense in the Philippines. Nothing in this paragraph, however, shall prevent
United States military authorities from trying United States personnel for any
violation of rules of discipline arising from the act or omission which
constituted an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted
by Philippine authorities, they shall be accorded all procedural safeguards
established by the law of the Philippines. At the minimum, United States
personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made
against them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such
witnesses;
(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the
same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States
authorities, and to have such authorities present at all judicial proceedings.
These proceedings shall be public unless the court, in accordance with
Philippine laws, excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States
personnel shall be carried out in facilities agreed on by appropriate Philippine
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and United States authorities. United States Personnel serving sentences in the
Philippines shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of
ordinary jurisdiction, and shall not be subject to the jurisdiction of Philippine
military or religious courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign military
sales letters of offer and acceptance and leases of military equipment, both
governments waive any and all claims against each other for damage, loss or
destruction to property of each others armed forces or for death or injury to their
military and civilian personnel arising from activities to which this agreement
applies.
2. For claims against the United States, other than contractual claims and those
to which paragraph 1 applies, the United States Government, in accordance
with United States law regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage, loss, personal
injury or death, caused by acts or omissions of United States personnel, or
otherwise incident to the non-combat activities of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall
be free of all Philippine duties, taxes and other similar charges. Title to such
property shall remain with the United States, which may remove such property
from the Philippines at any time, free from export duties, taxes, and other
similar charges. The exemptions provided in this paragraph shall also extend to
any duty, tax, or other similar charges which would otherwise be assessed upon
such property after importation into, or acquisition within, the Philippines. Such
property may be removed from the Philippines, or disposed of therein, provided
that disposition of such property in the Philippines to persons or entities not
entitled to exemption from applicable taxes and duties shall be subject to
payment of such taxes, and duties and prior approval of the Philippine
Government.
2. Reasonable quantities of personal baggage, personal effects, and other
property for the personal use of United States personnel may be imported into
and used in the Philippines free of all duties, taxes and other similar charges
during the period of their temporary stay in the Philippines. Transfers to persons
or entities in the Philippines not entitled to import privileges may only be made
upon prior approval of the appropriate Philippine authorities including payment
by the recipient of applicable duties and taxes imposed in accordance with the
laws of the Philippines. The exportation of such property and of property
acquired in the Philippines by United States personnel shall be free of all
Philippine duties, taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in accordance
with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The
movement of vessels shall be in accordance with international custom and
practice governing such vessels, and such agreed implementing arrangements
as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed
forces shall not be subject to the payment of landing or port fees, navigation or
over flight charges, or tolls or other use charges, including light and harbor
dues, while in the Philippines. Aircraft operated by or for the United States
armed forces shall observe local air traffic control regulations while in the
Philippines. Vessels owned or operated by the United States solely on United
States Government non-commercial service shall not be subject to compulsory
pilotage at Philippine ports.
Article IX
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Duration and Termination
This agreement shall enter into force on the date on which the parties have
notified each other in writing through the diplomatic channel that they have
completed their constitutional requirements for entry into force. This agreement
shall remain in force until the expiration of 180 days from the date on which
either party gives the other party notice in writing that it desires to terminate
the agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners -
as legislators, non-governmental organizations, citizens and taxpayers - assail
the constitutionality of the VFA and impute to herein respondents grave abuse
of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I of the operation of the VFA.[12] Petitioners, on the other hand, counter that the
Do petitioners have legal standing as concerned citizens, taxpayers, or
legislators to question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section
25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses
committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from
taxes and duties for the equipment, materials supplies and other properties
imported into or acquired in the Philippines by, or on behalf, of the US Armed
Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground
that the latter have not shown any interest in the case, and that petitioners failed
to substantiate that they have sustained, or will sustain direct injury as a result
validity or invalidity of the VFA is a matter of transcendental importance which
justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute
must show not only that the law is invalid, but also that he has sustained or in
is in immediate, or imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. He must show that he has been, or is about to be, denied some right or
privilege to which he is lawfully entitled, or that he is about to be subjected to
some burdens or penalties by reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court,
that they have sustained, or are in danger of sustaining any direct injury as a
result of the enforcement of the VFA. As taxpayers, petitioners have not
established that the VFA involves the exercise by Congress of its taxing or
spending powers.[15] On this point, it bears stressing that a taxpayers suit refers
to a case where the act complained of directly involves the illegal disbursement
of public funds derived from taxation.[16] Thus, in Bugnay Const. &
Development Corp. vs. Laron[17], we held:
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x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be
benefited or injured by the judgment or entitled to the avails of the suit as a real
party in interest. Before he can invoke the power of judicial review, he must
specifically prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he will sustain a direct injury
as a result of the enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all members of the
public.
Clearly, inasmuch as no public funds raised by taxation are involved in this
case, and in the absence of any allegation by petitioners that public funds are
being misspent or illegally expended, petitioners, as taxpayers, have no legal
standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo,
as petitioners-legislators, do not possess the requisite locus standi to maintain
the present suit. While this Court, in Phil. Constitution Association vs. Hon.
Salvador Enriquez,[18] sustained the legal standing of a member of the Senate
and the House of Representatives to question the validity of a presidential veto
or a condition imposed on an item in an appropriation bull, we cannot, at this
instance, similarly uphold petitioners standing as members of Congress, in the
absence of a clear showing of any direct injury to their person or to the
institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the
delegation of the power of Congress to grant tax exemptions, are more apparent
than real. While it may be true that petitioners pointed to provisions of the VFA
which allegedly impair their legislative powers, petitioners failed however to
sufficiently show that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped
of standing in these cases. As aptly observed by the Solicitor General, the IBP
lacks the legal capacity to bring this suit in the absence of a board resolution
from its Board of Governors authorizing its National President to commence
the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of
its sound discretion, brushes aside the procedural barrier and takes cognizance
of the petitions, as we have done in the early Emergency Powers Cases,[20]
where we had occasion to rule:
x x x 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 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). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs.
COMELEC,[21] Daza vs. Singson,[22] and Basco vs. Phil. Amusement and
Gaming Corporation,[23] where we emphatically held:
Considering however the importance to the public of the case at bar, and in
keeping with the Courts duty, under the 1987 Constitution, to determine
whether or not the other branches of the government have kept themselves
within the limits of the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt
ruled that in cases of transcendental importance, the Court may relax the
standing requirements and allow a suit to prosper even where there is no direct
injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question
based on the doctrine of separation of powers, which enjoins upon the
departments of the government a becoming respect for each others acts,[25] this
Court nevertheless resolves to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
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One focal point of inquiry in this controversy is the determination of which
provision of the Constitution applies, with regard to the exercise by the senate
of its constitutional power to concur with the VFA. Petitioners argue that
Section 25, Article XVIII is applicable considering that the VFA has for its
subject the presence of foreign military troops in the Philippines. Respondents,
on the contrary, maintain that Section 21, Article VII should apply inasmuch as
the VFA is not a basing arrangement but an agreement which involves merely
the temporary visits of United States personnel engaged in joint military
exercises.
The 1987 Philippine Constitution contains two provisions requiring the
concurrence of the Senate on treaties or international agreements. Section 21,
Article VII, which herein respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the
other contracting State.
Section 21, Article VII deals with treatise or international agreements in
general, in which case, the concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the subject treaty, or international
agreement, valid and binding on the part of the Philippines. This provision lays
down the general rule on treatise or international agreements and applies to any
form of treaty with a wide variety of subject matter, such as, but not limited to,
extradition or tax treatise or those economic in nature. All treaties or
international agreements entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to
treaties which involve the presence of foreign military bases, troops or facilities
in the Philippines. Under this provision, the concurrence of the Senate is only
one of the requisites to render compliance with the constitutional requirements
and to consider the agreement binding on the Philippines. Section 25, Article
XVIII further requires that foreign military bases, troops, or facilities may be
allowed in the Philippines only by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in a national referendum held for
that purpose if so required by Congress, and recognized as such by the other
contracting state.
It is our considered view that both constitutional provisions, far from
contradicting each other, actually share some common ground. These
constitutional provisions both embody phrases in the negative and thus, are
deemed prohibitory in mandate and character. In particular, Section 21 opens
with the clause No treaty x x x, and Section 25 contains the phrase shall not be
allowed. Additionally, in both instances, the concurrence of the Senate is
indispensable to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under
Section 21, Article VII, and that the Senate extended its concurrence under the
same provision, is immaterial. For in either case, whether under Section 21,
Article VII or Section 25, Article XVIII, the fundamental law is crystalline that
the concurrence of the Senate is mandatory to comply with the strict
constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines. It provides for the
guidelines to govern such visits of military personnel, and further defines the
rights of the United States and the Philippine government in the matter of
criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops, or facilities, should apply in the instant
case. To a certain extent and in a limited sense, however, the provisions of
section 21, Article VII will find applicability with regard to the issue and for
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the sole purpose of determining the number of votes required to obtain the valid
concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special
provision or law prevails over a general one. Lex specialis derogat generali.
Thus, where there is in the same statute a particular enactment and also a
general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the
general enactment must be taken to affect only such cases within its general
language which are not within the provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general
legislation must give way to a special legislation on the same subject, and
generally be so interpreted as to embrace only cases in which the special
provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139),
that a specific statute prevails over a general statute (De Jesus vs. People, 120
SCRA 760) and that where two statutes are of equal theoretical application to a
particular case, the one designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable
to mere transient agreements for the reason that there is no permanent placing
of structure for the establishment of a military base. On this score, the
Constitution makes no distinction between transient and permanent. Certainly,
we find nothing in Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law,
the Court should not distinguish- Ubi lex non distinguit nec nos distinguire
debemos.
In like manner, we do not subscribe to the argument that Section 25, Article
XVIII is not controlling since no foreign military bases, but merely foreign
troops and facilities, are involved in the VFA. Notably, a perusal of said
constitutional provision reveals that the proscription covers foreign military
bases, troops, or facilities. Stated differently, this prohibition is not limited to
the entry of troops and facilities without any foreign bases being established.
The clause does not refer to foreign military bases, troops, or facilities
collectively but treats them as separate and independent subjects. The use of
comma and the disjunctive word or clearly signifies disassociation and
independence of one thing from the others included in the enumeration,[28]
such that, the provision contemplates three different situations - a military treaty
the subject of which could be either (a) foreign bases, (b) foreign troops, or (c)
foreign facilities - any of the three standing alone places it under the coverage
of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during
the deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner
Bernas.
This formulation speaks of three things: foreign military bases, troops or
facilities. My first question is: If the country does enter into such kind of a
treaty, must it cover the three-bases, troops or facilities-or could the treaty
entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or
it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into
a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter
into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit
more, we will find some. We just want to cover everything.[29] (Underscoring
Supplied)
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Moreover, military bases established within the territory of another state is no
longer viable because of the alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as well as huge sea vessels
that can stay afloat in the sea even for months and years without returning to
their home country. These military warships are actually used as substitutes for
a land-home base not only of military aircraft but also of military personnel and
facilities. Besides, vessels are mobile as compared to a land-based military
headquarters.
At this juncture, we shall then resolve the issue of whether or not the
requirements of Section 25 were complied with when the Senate gave its
concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities
in the country, unless the following conditions are sufficiently met, viz: (a) it
must be under a treaty; (b) the treaty must be duly concurred in by the Senate
and, when so required by congress, ratified by a majority of the votes cast by
the people in a national referendum; and (c) recognized as a treaty by the other
contracting state.
There is no dispute as to the presence of the first two requisites in the case of
the VFA. The concurrence handed by the Senate through Resolution No. 18 is
in accordance with the provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in
Section 25, Article XVIII, the provision in the latter article requiring ratification
by a majority of the votes cast in a national referendum being unnecessary since
Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a
treaty or international agreement, to be valid and effective, must be concurred
in by at least two-thirds of all the members of the Senate. On the other hand,
Section 25, Article XVIII simply provides that the treaty be duly concurred in
by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the
members of the Senate is clearly required so that the concurrence contemplated
by law may be validly obtained and deemed present. While it is true that Section
25, Article XVIII requires, among other things, that the treaty-the VFA, in the
instant case-be duly concurred in by the Senate, it is very true however that said
provision must be related and viewed in light of the clear mandate embodied in
Section 21, Article VII, which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be made by a two -thirds
vote of all the members of the Senate. Indeed, Section 25, Article XVIII must
not be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must
be construed in relation to the provisions of Section 21, Article VII. In a more
particular language, the concurrence of the Senate contemplated under Section
25, Article XVIII means that at least two-thirds of all the members of the Senate
favorably vote to concur with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be
composed of twenty-four (24) Senators.[30] Without a tinge of doubt, two-
thirds (2/3) of this figure, or not less than sixteen (16) members, favorably
acting on the proposal is an unquestionable compliance with the requisite
number of votes mentioned in Section 21 of Article VII. The fact that there
were actually twenty-three (23) incumbent Senators at the time the voting was
made,[31] will not alter in any significant way the circumstance that more than
two-thirds of the members of the Senate concurred with the proposed VFA,
even if the two-thirds vote requirement is based on this figure of actual
members (23). In this regard, the fundamental law is clear that two-thirds of the
24 Senators, or at least 16 favorable votes, suffice so as to render compliance
with the strict constitutional mandate of giving concurrence to the subject
treaty.
Having resolved that the first two requisites prescribed in Section 25, Article
XVIII are present, we shall now pass upon and delve on the requirement that
the VFA should be recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section
25, Article XVIII, means that the VFA should have the advice and consent of
the United States Senate pursuant to its own constitutional process, and that it
should not be considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador
Hubbard stating that the VFA is binding on the United States Government is
651 of 692
conclusive, on the point that the VFA is recognized as a treaty by the United
States of America. According to respondents, the VFA, to be binding, must only
be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that
the other contracting party accepts or acknowledges the agreement as a
treaty.[32] To require the other contracting state, the United States of America
in this case, to submit the VFA to the United States Senate for concurrence
pursuant to its Constitution,[33] is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to
be given their ordinary meaning except where technical terms are employed, in
which case the significance thus attached to them prevails. Its language should
be understood in the sense they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only
as an executive agreement because, under international law, an executive
agreement is as binding as a treaty.[35] To be sure, as long as the VFA
possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and
governed by international law, whether embodied in a single instrument or in
two or more related instruments, and whatever its particular designation.[36]
There are many other terms used for a treaty or international agreement, some
of which are: act, protocol, agreement, compromis d arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter and modus
vivendi. All writers, from Hugo Grotius onward, have pointed out that the
names or titles of international agreements included under the general term
treaty have little or no legal significance. Certain terms are useful, but they
furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph
1 regarding the use of terms in the present Convention are without prejudice to
the use of those terms, or to the meanings which may be given to them in the
internal law of the State.
Thus, in international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the
negotiating functionaries have remained within their powers.[38] International
law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive
agreements even without the concurrence of the Senate or Congress. In
Commissioner of Customs vs. Eastern Sea Trading,[40] we had occasion to
pronounce:
x x x the right of the Executive to enter into binding agreements without the
necessity of subsequent congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and the settlement of claims. The validity of these
has never been seriously questioned by our courts.
xxxxxxxxx
Furthermore, the United States Supreme Court has expressly recognized the
validity and constitutionality of executive agreements entered into without
Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs.
Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs.
Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed.
796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906;
California Law Review, Vol. 25, pp. 670-675; Hyde on International Law
[revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S.
Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law
Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp.
390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987
Constitution is enlightening and highly-instructive:
652 of 692
MR. MAAMBONG. Of course it goes without saying that as far as ratification
of the other state is concerned, that is entirely their concern under their own
laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we
have done everything to make it a treaty, then as far as we are concerned, we
will accept it as a treaty.[41]
The records reveal that the United States Government, through Ambassador
Thomas C. Hubbard, has stated that the United States government has fully
committed to living up to the terms of the VFA.[42] For as long as the united
States of America accepts or acknowledges the VFA as a treaty, and binds itself
further to comply with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and
the concurrence of the Senate should be taken as a clear an unequivocal
expression of our nations consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and responsibilities embodied
thereunder.
Ratification is generally held to be an executive act, undertaken by the head of
the state or of the government, as the case may be, through which the formal
acceptance of the treaty is proclaimed.[43] A State may provide in its domestic
legislation the process of ratification of a treaty. The consent of the State to be
bound by a treaty is expressed by ratification when: (a) the treaty provides for
such ratification, (b) it is otherwise established that the negotiating States
agreed that ratification should be required, (c) the representative of the State
has signed the treaty subject to ratification, or (d) the intention of the State to
sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and
with the exchange of notes between the Philippines and the United States of
America, it now becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of the agreement. Thus,
no less than Section 2, Article II of the Constitution,[46] declares that the
Philippines adopts the generally accepted principles of international law as part
of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by
generally accepted rules for the conduct of its international relations. While the
international obligation devolves upon the state and not upon any particular
branch, institution, or individual member of its government, the Philippines is
nonetheless responsible for violations committed by any branch or subdivision
of its government or any official thereof. As an integral part of the community
of nations, we are responsible to assure that our government, Constitution and
laws will carry out our international obligation.[47] Hence, we cannot readily
plead the Constitution as a convenient excuse for non-compliance with our
obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States
adopted by the International Law Commission in 1949 provides: Every State
has the duty to carry out in good faith its obligations arising from treaties and
other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every
treaty in force is binding upon the parties to it and must be performed by them
in good faith. This is known as the principle of pacta sunt servanda which
preserves the sanctity of treaties and have been one of the most fundamental
principles of positive international law, supported by the jurisprudence of
international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for
exercising a power and performing a task conferred upon him by the
Constitution-the power to enter into and ratify treaties. Through the expediency
of Rule 65 of the Rules of Court, petitioners in these consolidated cases impute
grave abuse of discretion on the part of the chief Executive in ratifying the VFA,
653 of 692
and referring the same to the Senate pursuant to the provisions of Section 21,
Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when
the power is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, and it must be so patent and gross as to amount to an
evasion of positive duty enjoined or to act at all in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as
head of State, is the sole organ and authority in the external affairs of the
country. In many ways, the President is the chief architect of the nations foreign
policy; his dominance in the field of foreign relations is (then) conceded.[51]
Wielding vast powers an influence, his conduct in the external affairs of the
nation, as Jefferson describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence of
at least two-thirds vote of all the members of the Senate. In this light, the
negotiation of the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful exercise of
his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude,
and Congress itself is powerless to invade it.[53] Consequently, the acts or
judgment calls of the President involving the VFA-specifically the acts of
ratification and entering into a treaty and those necessary or incidental to the
exercise of such principal acts - squarely fall within the sphere of his
constitutional powers and thus, may not be validly struck down, much less
calibrated by this Court, in the absence of clear showing of grave abuse of
power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in
submitting the same to the Senate for concurrence, acted within the confines
and limits of the powers vested in him by the Constitution. It is of no moment
that the President, in the exercise of his wide latitude of discretion and in the
honest belief that the VFA falls within the ambit of Section 21, Article VII of
the Constitution, referred the VFA to the Senate for concurrence under the
aforementioned provision. Certainly, no abuse of discretion, much less a grave,
patent and whimsical abuse of judgment, may be imputed to the President in
his act of ratifying the VFA and referring the same to the Senate for the purpose
of complying with the concurrence requirement embodied in the fundamental
law. In doing so, the President merely performed a constitutional task and
exercised a prerogative that chiefly pertains to the functions of his office. Even
if he erred in submitting the VFA to the Senate for concurrence under the
provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII
of the Constitution, still, the President may not be faulted or scarred, much less
be adjudged guilty of committing an abuse of discretion in some patent, gross,
and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has
broadened the scope of judicial inquiry into areas normally left to the political
departments to decide, such as those relating to national security, it has not
altogether done away with political questions such as those which arise in the
field of foreign relations.[54] The High Tribunals function, as sanctioned by
Article VIII, Section 1, is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its jurisdiction,
not that it erred or has a different view. In the absence of a showing (of) grave
abuse of discretion amounting to lack of jurisdiction, there is no occasion for
the Court to exercise its corrective powerIt has no power to look into what it
thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with
the Senate alone. Thus, once the Senate[56] performs that power, or exercises
its prerogative within the boundaries prescribed by the Constitution, the
concurrence cannot, in like manner, be viewed to constitute an abuse of power,
much less grave abuse thereof. Corollarily, the Senate, in the exercise of its
discretion and acting within the limits of such power, may not be similarly
faulted for having simply performed a task conferred and sanctioned by no less
than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in
character;[57] the Senate, as an independent body possessed of its own erudite
mind, has the prerogative to either accept or reject the proposed agreement, and
whatever action it takes in the exercise of its wide latitude of discretion, pertains
to the wisdom rather than the legality of the act. In this sense, the Senate
partakes a principal, yet delicate, role in keeping the principles of separation of
654 of 692
powers and of checks and balances alive and vigilantly ensures that these
cherished rudiments remain true to their form in a democratic government such
as ours. The Constitution thus animates, through this treaty-concurring power
of the Senate, a healthy system of checks and balances indispensable toward
our nations pursuit of political maturity and growth. True enough, rudimentary
is the principle that matters pertaining to the wisdom of a legislative act are
beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of
respondents, this Court- as the final arbiter of legal controversies and staunch
sentinel of the rights of the people - is then without power to conduct an
incursion and meddle with such affairs purely executive and legislative in
character and nature. For the Constitution no less, maps out the distinct
boundaries and limits the metes and bounds within which each of the three
political branches of government may exercise the powers exclusively and
essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are
hereby DISMISSED.
SO ORDERED.
Lim v. Exec. Sec.
G.R. No. 151445 (April 11, 2002)
G.R. No. 151445 April 11, 2002
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER
EXCELLENCEY GLORIA MACAPAGAL-ARROYO, and HONORABLE
ANGELO REYES in his capacity as Secretary of National Defense,
respondents.
----------------------------------------
SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,
vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO
REYES, respondents.
DISSENTING OPINION
SEPARATE OPINION
DE LEON, JR., J.:
This case involves a petition for certiorari and prohibition as well as a petition-
in-intervention, praying that respondents be restrained from proceeding with
the so-called "Balikatan 02-1" and that after due notice and hearing, that
judgment be rendered issuing a permanent writ of injunction and/or prohibition
against the deployment of U.S. troops in Basilan and Mindanao for being illegal
and in violation of the Constitution.
The facts are as follows:
Beginning January of this year 2002, personnel from the armed forces of the
United States of America started arriving in Mindanao to take part, in
conjunction with the Philippine military, in "Balikatan 02-1." These so-called
"Balikatan" exercises are the largest combined training operations involving
Filipino and American troops. In theory, they are a simulation of joint military
maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense
agreement entered into by the Philippines and the United States in 1951.
Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to
the paucity of any formal agreement relative to the treatment of United States
personnel visiting the Philippines. In the meantime, the respective governments
of the two countries agreed to hold joint exercises on a reduced scale. The lack
of consensus was eventually cured when the two nations concluded the Visiting
Forces Agreement (V FA) in 1999.
The entry of American troops into Philippine soil is proximately rooted in the
international anti-terrorism campaign declared by President George W. Bush in
reaction to the tragic events that occurred on September 11, 2001. On that day,
655 of 692
three (3) commercial aircrafts were hijacked, flown and smashed into the twin
towers of the World Trade Center in New York City and the Pentagon building
in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the
Base"), a Muslim extremist organization headed by the infamous Osama bin
Laden. Of no comparable historical parallels, these acts caused billions of
dollars worth of destruction of property and incalculable loss of hundreds of
lives.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed
this petition for certiorari and prohibition, attacking the constitutionality of the
joint exercise.2 They were joined subsequently by SANLAKAS and PARTIDO
NG MANGGAGAWA, both party-Iist organizations, who filed a petition-in-
intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers.
SANLAKAS and PARTIDO, on the other hand, aver that certain members of
their organization are residents of Zamboanga and Sulu, and hence will be
directly affected by the operations being conducted in Mindanao. They likewise
pray for a relaxation on the rules relative to locus standi citing the
unprecedented importance of the issue involved.
On February 71 2002 the Senate conducted a hearing on the "Balikatan"
exercise wherein Vice-President Teofisto T. Guingona, Jr., who is concurrently
Secretary of Foreign. Affairs, presented the Draft Terms of Reference (TOR).3
Five days later, he approved the TOR, which we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be consistent with the Philippine Constitution and all its
activities shall be in consonance with the laws of the land and the provisions of
the RP-US Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United
Nations resolutions against global terrorism as understood by the respective
parties.
3. No permanent US basing and support facilities shall be established.
Temporary structures such as those for troop billeting, classroom instruction
and messing may be set up for use by RP and US Forces during the Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-
Directors under the authority of the Chief of Staff, AFP. In no instance will US
Forces operate independently during field training exercises (FTX). AFP and
US Unit Commanders will retain command over their respective forces under
the overall authority of the Exercise Co-Directors. RP and US participants shall
comply with operational instructions of the AFP during the FTX.
5. The exercise shall be conducted and completed within a period of not more
than six months, with the projected participation of 660 US personnel and 3,800
RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to
wind up and terminate the Exercise and other activities within the six month
Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted
on the Island of Basilan. Further advising, assisting and training exercises shall
be conducted in Malagutay and the Zamboanga area. Related activities in Cebu
will be for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be
deployed with AFP field, commanders. The US teams shall remain at the
Battalion Headquarters and, when approved, Company Tactical headquarters
where they can observe and assess the performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to
their right of self-defense.
9. These terms of Reference are for purposes of this Exercise only and do not
create additional legal obligations between the US Government and the
Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
656 of 692

a. The Exercise shall involve the conduct of mutual military assisting, advising
and training of RP and US Forces with the primary objective of enhancing the
operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local
air traffic regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the start
of the Exercise. This briefing shall acquaint US Forces on the culture and
sensitivities of the Filipinos and the provisions of the VF A. The briefing shall
also promote the full cooperation on the part of the RP and US participants for
the successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources, equipment and
other assets. They will use their respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and
US assets and resources.
d. Legal liaison officers from each respective party shall be appointed by the
Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the Exercise
Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon
City.
b. Local media relations will be the concern of the AFP and all public affairs
guidelines shall be jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly
by RP and US Forces in accordance with their respective laws and regulations,
and in consultation with community and local government officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A.
Falcon and United States Charge d' Affaires Robert Fitts signed the Agreed
Minutes of the discussion between the Vice-President and Assistant Secretary
Kelly.4
Petitioners Lim and Ersando present the following arguments:
I
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL
DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY
ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL
PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED
ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD
COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE
ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL
ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN
ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY
ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS
TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY,
NOT EVEN TO FIRE BACK "IF FIRED UPON".
Substantially the same points are advanced by petitioners SANLAKAS and
PARTIDO.
In his Comment, the Solicitor General points to infirmities in the petitions
regarding, inter alia, Lim and Ersando's standing to file suit, the prematurity of
the action, as well as the impropriety of availing of certiorari to ascertain a
657 of 692
question of fact. Anent their locus standi, the Solicitor General argues that first,
they may not file suit in their capacities as, taxpayers inasmuch as it has not
been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or
spending powers. Second, their being lawyers does not invest them with
sufficient personality to initiate the case, citing our ruling in Integrated Bar of
the Philippines v. Zamora.5 Third, Lim and Ersando have failed to demonstrate
the requisite showing of direct personal injury. We agree.
It is also contended that the petitioners are indulging in speculation. The
Solicitor General is of the view that since the Terms of Reference are clear as
to the extent and duration of "Balikatan 02-1," the issues raised by petitioners
are premature, as they are based only on a fear of future violation of the Terms
of Reference. Even petitioners' resort to a special civil action for certiorari is
assailed on the ground that the writ may only issue on the basis of established
facts.
Apart from these threshold issues, the Solicitor General claims that there is
actually no question of constitutionality involved. The true object of the instant
suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General
asks that we accord due deference to the executive determination that
"Balikatan 02-1" is covered by the VFA, considering the President's monopoly
in the field of foreign relations and her role as commander-in-chief of the
Philippine armed forces.
Given the primordial importance of the issue involved, it will suffice to reiterate
our view on this point in a related case:
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of
its sound discretion, brushes aside the procedural barrier and takes cognizance
of the petitions, as we have done in the early Emergency Powers Cases, where
we had occasion to rule:
'x x x ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino
although they were involving only an indirect and general interest shared in
common with the public. The Court dismissed the objection that they were not
proper parties and ruled that 'transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if
we must, technicalities of procedure.' We have since then applied the exception
in many other cases. [citation omitted]
This principle was reiterated in the subsequent cases of Gonzales vs.
COMELEC, Daza vs. Singson, and Basco vs. Phil, Amusement and Gaming
Corporation, where we emphatically held:
Considering however the importance to the public of the case at bar, and in
keeping with the Court's duty, under the 1987 Constitution, to determine
whether or not the other branches of the government have kept themselves
within the limits of the Constitution and the laws 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. xxx'
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled
that in cases of transcendental importance, the Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to
the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question
based on the doctrine of separation of powers, which enjoins upon the
department of the government a becoming respect for each other's act, this
Court nevertheless resolves to take cognizance of the instant petition.6
Hence, we treat with similar dispatch the general objection to the supposed
prematurity of the action. At any rate, petitioners' concerns on the lack of any
specific regulation on the latitude of activity US personnel may undertake and
the duration of their stay has been addressed in the Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the framework of the treaty
antecedents to which the Philippines bound itself. The first of these is the
Mutual Defense Treaty (MDT, for brevity). The MDT has been described as
the "core" of the defense relationship between the Philippines and its traditional
ally, the United States. Its aim is to enhance the strategic and technological
capabilities of our armed forces through joint training with its American
counterparts; the "Balikatan" is the largest such training exercise directly
658 of 692
supporting the MDT's objectives. It is this treaty to which the V FA adverts and
the obligations thereunder which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision not
to renew it created a vacuum in US-Philippine defense relations, that is, until it
was replaced by the Visiting Forces Agreement. It should be recalled that on
October 10, 2000, by a vote of eleven to three, this Court upheld the validity of
the VFA.7 The V FA provides the "regulatory mechanism" by which "United
States military and civilian personnel [may visit] temporarily in the Philippines
in connection with activities approved by the Philippine Government." It
contains provisions relative to entry and departure of American personnel,
driving and vehicle registration, criminal jurisdiction, claims, importation and
exportation, movement of vessels and aircraft, as well as the duration of the
agreement and its termination. It is the VFA which gives continued relevance
to the MDT despite the passage of years. Its primary goal is to facilitate the
promotion of optimal cooperation between American and Philippine military
forces in the event of an attack by a common foe.
The first question that should be addressed is whether "Balikatan 02-1" is
covered by the Visiting Forces Agreement. To resolve this, it is necessary to
refer to the V FA itself: Not much help can be had therefrom, unfortunately,
since the terminology employed is itself the source of the problem. The VFA
permits United States personnel to engage, on an impermanent basis, in
"activities," the exact meaning of which was left undefined. The expression is
ambiguous, permitting a wide scope of undertakings subject only to the
approval of the Philippine government.8 The sole encumbrance placed on its
definition is couched in the negative, in that United States personnel must
"abstain from any activity inconsistent with the spirit of this agreement, and in
particular, from any political activity."9 All other activities, in other words, are
fair game.
We are not left completely unaided, however. The Vienna Convention on the
Law of Treaties, which contains provisos governing interpretations of
international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary
meaning to be given to the tenus of the treaty in their context and in the light of
its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise,
in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties
in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with
the conclusion of the treaty and accepted by the other parties as an instrument
related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation
of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between
the parties.
4. A special meaning shall be given to a term if it is established that the parties
so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order
659 of 692
to confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must involve
an examination of the text, which is presumed to verbalize the parties'
intentions. The Convention likewise dictates what may be used as aids to
deduce the meaning of terms, which it refers to as the context of the treaty, as
well as other elements may be taken into account alongside the aforesaid
context. As explained by a writer on the Convention ,
[t]he Commission's proposals (which were adopted virtually without change by
the conference and are now reflected in Articles 31 and 32 of the Convention)
were clearly based on the view that the text of a treaty must be presumed to be
the authentic expression of the intentions of the parties; the Commission
accordingly came down firmly in favour of the view that 'the starting point of
interpretation is the elucidation of the meaning of the text, not an investigation
ab initio into the intentions of the parties'. This is not to say that the
travauxpreparatoires of a treaty , or the circumstances of its conclusion, are
relegated to a subordinate, and wholly ineffective, role. As Professor Briggs
points out, no rigid temporal prohibition on resort to travaux preparatoires of a
treaty was intended by the use of the phrase 'supplementary means of
interpretation' in what is now Article 32 of the Vienna Convention. The
distinction between the general rule of interpretation and the supplementary
means of interpretation is intended rather to ensure that the supplementary
means do not constitute an alternative, autonomous method of interpretation
divorced from the general rule.10
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding
the meaning of the word .'activities" arose from accident. In our view, it was
deliberately made that way to give both parties a certain leeway in negotiation.
In this manner, visiting US forces may sojourn in Philippine territory for
purposes other than military. As conceived, the joint exercises may include
training on new techniques of patrol and surveillance to protect the nation's
marine resources, sea search-and-rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that .'Balikatan 02-1," a "mutual anti-
terrorism advising, assisting and training exercise," falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the V FA support the
conclusion that combat-related activities -as opposed to combat itself -such as
the one subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is
permitted under the terms of the VFA, what may US forces legitimately do in
furtherance of their aim to provide advice, assistance and training in the global
effort against terrorism? Differently phrased, may American troops actually
engage in combat in Philippine territory? The Terms of Reference are explicit
enough. Paragraph 8 of section I stipulates that US exercise participants may
not engage in combat "except in self-defense." We wryly note that this
sentiment is admirable in the abstract but difficult in implementation. The target
of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly
while the battle is brought to their very doorstep. They cannot be expected to
pick and choose their targets for they will not have the luxury of doing so. We
state this point if only to signify our awareness that the parties straddle a fine
line, observing the honored legal maxim "Nemo potest facere per alium quod
non potest facere per directum."11 The indirect violation is actually petitioners'
worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted
by the United States government, and that the provision on self-defense serves
only as camouflage to conceal the true nature of the exercise. A clear
pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops
to engage in an offensive war on Philippine territory. We bear in mind the
salutary proscription stated in the Charter of the United Nations, to wit:
Article 2
660 of 692
The Organization and its Members, in pursuit of the Purposes stated in Article
1, shall act in accordance with the following Principles.
xxx xxx xxx xxx
4. All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations.
xxx xxx xxx xxx
In the same manner, both the Mutual Defense Treaty and the Visiting Forces
Agreement, as in all other treaties and international agreements to which the
Philippines is a party, must be read in the context of the 1987 Constitution. In
particular, the Mutual Defense Treaty was concluded way before the present
Charter, though it nevertheless remains in effect as a valid source of
international obligation. The present Constitution contains key provisions
useful in determining the extent to which foreign military troops are allowed in
Philippine territory. Thus, in the Declaration of Principles and State Policies, it
is provided that:
xxx xxx xxx xxx
SEC. 2. The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law
of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
xxx xxx xxx xxx
SEC. 7. The State shall pursue an independent foreign policy. In its relations
with other states the paramount consideration shall be national sovereignty,
territorial integrity, national interest, and the right to self- determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and
pursues a policy of freedom from nuclear weapons in the country.
xxx xxx xxx xxx
The Constitution also regulates the foreign relations powers of the Chief
Executive when it provides that "[n]o treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the members
of the Senate."12 Even more pointedly, the Transitory Provisions state:
Sec. 25. After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases,
foreign military bases, troops or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other
contracting state.
The aforequoted provisions betray a marked antipathy towards foreign military
presence in the country, or of foreign influence in general. Hence, foreign
troops are allowed entry into the Philippines only by way of direct exception.
Conflict arises then between the fundamental law and our obligations arising
from international agreements.
A rather recent formulation of the relation of international law vis-a-vis
municipal law was expressed in Philip Morris, Inc. v. Court of Appeals,13 to
wit:
xxx Withal, the fact that international law has been made part of the law of the
land does not by any means imply the primacy of international law over national
law in the municipal sphere. Under the doctrine of incorporation as applied in
most countries, rules of international law are given a standing equal, not
superior, to national legislation.
This is not exactly helpful in solving the problem at hand since in trying to find
a middle ground, it favors neither one law nor the other, which only leaves the
hapless seeker with an unsolved dilemma. Other more traditional approaches
may offer valuable insights.
From the perspective of public international law, a treaty is favored over
municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very
661 of 692
treaty in force is binding upon the parties to it and must be performed by them
in good faith."14 Further, a party to a treaty is not allowed to "invoke the
provisions of its internal law as justification for its failure to perform a
treaty."15
Our Constitution espouses the opposing view. Witness our jurisdiction as I
stated in section 5 of Article VIII:
The Supreme Court shall have the following powers:
xxx xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law
or the Rules of Court may provide, final judgments and order of lower courts
in:
(A) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question.
xxx xxx xxx xxx
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always
subject to qualification or amendment by a subsequent law, or that it is subject
to the police power of the State. In Gonzales v. Hechanova,17
xxx As regards the question whether an international agreement may be
invalidated by our courts, suffice it to say that the Constitution of the
Philippines has clearly settled it in the affirmative, by providing, in Section 2
of Article VIII thereof, that the Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari,
or writ of error as the law or the rules of court may provide, final judgments
and decrees of inferior courts in -( I) All cases in which the constitutionality or
validity of any treaty, law, ordinance, or executive order or regulation is in
question." In other words, our Constitution authorizes the nullification of a
treaty, not only when it conflicts with the fundamental law, but, also, when it
runs counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited / from
engaging in an offensive war on Philippine territory.
Yet a nagging question remains: are American troops actively engaged in
combat alongside Filipino soldiers under the guise of an alleged training and
assistance exercise? Contrary to what petitioners would have us do, we cannot
take judicial notice of the events transpiring down south,18 as reported from
the saturation coverage of the media. As a rule, we do not take cognizance of
newspaper or electronic reports per se, not because of any issue as to their truth,
accuracy, or impartiality, but for the simple reason that facts must be
established in accordance with the rules of evidence. As a result, we cannot
accept, in the absence of concrete proof, petitioners' allegation that the Arroyo
government is engaged in "doublespeak" in trying to pass off as a mere training
exercise an offensive effort by foreign troops on native soil. The petitions invite
us to speculate on what is really happening in Mindanao, to issue I make factual
findings on matters well beyond our immediate perception, and this we are
understandably loath to do.
It is all too apparent that the determination thereof involves basically a question
of fact. On this point, we must concur with the Solicitor General that the present
subject matter is not a fit topic for a special civil action for certiorari. We have
held in too many instances that questions of fact are not entertained in such a
remedy. The sole object of the writ is to correct errors of jurisdiction or grave
abuse of discretion: The phrase "grave abuse of discretion" has a precise
meaning in law, denoting abuse of discretion "too patent and gross as to amount
to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined
or act in contemplation of law, or where the power is exercised in an arbitrary
and despotic manner by reason of passion and personal hostility."19
In this connection, it will not be amiss to add that the Supreme Court is not a
trier of facts.20
Under the expanded concept of judicial power under the Constitution, courts
are charged with the duty "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government."21 From the facts obtaining,
we find that the holding of "Balikatan 02-1" joint military exercise has not
intruded into that penumbra of error that would otherwise call for correction on
662 of 692
our part. In other words, respondents in the case at bar have not committed
grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are hereby
DISMISSED without prejudice to the filing of a new petition sufficient in form
and substance in the proper Regional Trial Court.
SO ORDERED.
Calalang v. Williams
70 Phil 726
FIRST DIVISION
[G.R. No. 47800. December 2, 1940.]
MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL.,
Respondents.
Maximo Calalang in his own behalf.
Solicitor General Ozaeta and Assistant Solicitor General Amparo for
respondents Williams, Fragante and Bayan
City Fiscal Mabanag for the other respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF
COMMONWEALTH ACT No. 648; DELEGATION OF LEGISLATIVE
POWER; AUTHORITY OF DIRECTOR OF PUBLIC WORKS AND
SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS TO
PROMULGATE RULES AND REGULATIONS. — The provisions of section
1 of Commonwealth Act No. 648 do not confer legislative power upon the
Director of Public Works and the Secretary of Public Works and
Communications. The authority therein conferred upon them and under which
they promulgated the rules and regulations now complained of is not to
determine what public policy demands but merely to carry out the legislative
policy laid down by the National Assembly in said Act, to wit, "to promote safe
transit upon, and avoid obstructions on, roads and streets designated as national
roads by acts of the National Assembly or by executive orders of the President
of the Philippines" and to close them temporarily to any or all classes of traffic
"whenever the condition of the road or the traffic thereon makes such action
necessary or advisable in the public convenience and interest." The delegated
power, if at all, therefore, is not the determination of what the law shall be, but
merely the ascertainment of the facts and circumstances upon which the
application of said law is to be predicated. To promulgate rules and regulations
on the use of national roads and to determine when and how long a national
road should be closed to traffic, in view of the condition of the road or the traffic
thereon and the requirements of public convenience and interest, is an
administrative function which cannot be directly discharged by the National
Assembly. It must depend on the discretion of some other government official
to whom is confided the duty of determining whether the proper occasion exists
for executing the law. But it cannot be said that the exercise of such discretion
is the making of the law.
2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL
AUTHORITY. — Commonwealth Act No. 548 was passed by the National
Assembly in the exercise of the paramount police power of the state. Said Act,
by virtue of which the rules and regulations complained of were promulgated,
aims to promote safe transit upon and avoid obstructions on national roads, in
the interest and convenience of the public. In enacting said law, therefore, the
National Assembly was prompted by considerations of public convenience and
welfare. It was inspired by a desire to relieve congestion of traffic, which is, to
say the least, a menace to public safety. Public welfare, then, lies at the bottom
of the enactment of said law, and the state in order to promote the general
welfare may interfere with personal liberty, with property, and with business
and occupations. Persons and property may be subjected to all kinds of
restraints and burdens, in order to secure the general comfort, health, and
prosperity of the state (U.S. v. Gomer Jesus, 31 Phil., 218). To this fundamental
aim of our Government the rights of the individual are subordinated. Liberty is
a blessing without which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into anarchy. Neither
should authority be made to prevail over liberty because then the individual will
fall into slavery. The citizen should achieve the required balance of liberty and
663 of 692
authority in his mind through education and, personal discipline, so that there
may be established the resultant equilibrium, which means peace and order and
happiness for all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum of liberty which
resides in the people. The paradox lies in the fact that the apparent curtailment
of liberty is precisely the very means of insuring its preservation.
3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor
despotism, nor atomism, nor anarchy," but the humanization of laws and the
equalization of social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be approximated.
Social justice means the promotion of the welfare of all the people, the adoption
by the Government of measures calculated to insure economic stability of all
the competent elements of society, through the maintenance of a proper
economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of powers underlying
the existence of all governments on the time-honored principle of salus populi
est suprema lex. Social justice, therefore, must be founded on the recognition
of the necessity of interdependence among divers and diverse units of a society
and of the protection that should be equally and evenly extended to all groups
as a combined force in our social and economic life, consistent with the
fundamental and paramount objective of the state of promoting the health,
comfort, and quiet of all persons, and of bringing about "the greatest good to
the greatest number."
DECISION
LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and as a taxpayer of
Manila, brought before this court this petition for a writ of prohibition against
the respondents, A. D. Williams, as Chairman of the National Traffic
Commission; Vicente Fragante, as Director of Public Works; Sergio Bayan, as
Acting Secretary of Public Works and Communications; Eulogio Rodriguez, as
Mayor of the City of Manila; and Juan Dominguez, as Acting Chief of Police
of Manila.
It is alleged in the petition that the National Traffic Commission, in its
resolution of July 17, 1940, resolved to recommend to the Director of Public
Works and to the Secretary of Public Works and Communications that animal-
drawn vehicles be prohibited from passing along Rosario Street extending from
Plaza Calderon de la Barca to Dasmariñas Street, from 7:30 a.m. to 12:30 p.m.
and from 1:30 p.m. to 5:30 p.m.; and along Rizal Avenue extending from the
railroad crossing at Antipolo Street to Echague Street, from 7 a.m. to 11 p.m.,
from a period of one year from the date of the opening of the Colgante Bridge
to traffic; that the Chairman of the National Traffic Commission, on July 18,
1940 recommended to the Director of Public Works the adoption of the measure
proposed in the resolution aforementioned, in pursuance of the provisions of
Commonwealth Act No. 548 which authorizes said Director of Public Works,
with the approval of the Secretary of Public Works and Communications, to
promulgate rules and regulations to regulate and control the use of and traffic
on national roads; that on August 2, 1940, the Director of Public Works, in his
first indorsement to the Secretary of Public Works and Communications,
recommended to the latter the approval of the recommendation made by the
Chairman of the National Traffic Commission as aforesaid, with the
modification that the closing of Rizal Avenue to traffic to animal-drawn
vehicles be limited to the portion thereof extending from the railroad crossing
at Antipolo Street to Azcarraga Street; that on August 10, 1940, the Secretary
of Public Works and Communications, in his second indorsement addressed to
the Director of Public Works, approved the recommendation of the latter that
Rosario Street and Rizal Avenue be closed to traffic of animal-drawn vehicles,
between the points and during the hours as above indicated, for a period of one
year from the date of the opening of the Colgante Bridge to traffic; that the
Mayor of Manila and the Acting Chief of Police of Manila have enforced and
caused to be enforced the rules and regulations thus adopted; that as a
consequence of such enforcement, all animal-drawn vehicles are not allowed to
pass and pick up passengers in the places above-mentioned to the detriment not
only of their owners but of the riding public as well.
It is contended by the petitioner that Commonwealth Act No. 548 by which the
Director of Public Works, with the approval of the Secretary of Public Works
and Communications, is authorized to promulgate rules and regulations for the
664 of 692
regulation and control of the use of and traffic on national roads and streets is
unconstitutional because it constitutes an undue delegation of legislative power.
This contention is untenable. As was observed by this court in Rubi v.
Provincial Board of Mindoro (39 Phil, 660, 700), "The rule has nowhere been
better stated than in the early Ohio case decided by Judge Ranney, and since
followed in a multitude of cases, namely: ’The true distinction therefore is
between the delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring an authority or discretion as to
its execution, to be exercised under and in pursuance of the law. The first cannot
be done; to the latter no valid objection can be made.’ (Cincinnati, W. & Z. R.
Co. v. Comm’rs. Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief
Justice Marshall in Wayman v. Southard (10 Wheat., 1) may be committed by
the Legislature to an executive department or official. The Legislature may
make decisions of executive departments or subordinate officials thereof, to
whom it has committed the execution of certain acts, final on questions of fact.
(U.S. v. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to
give prominence to the ’necessity’ of the case."cralaw virtua1aw library
Section 1 of Commonwealth Act No. 548 reads as
follows:jgc:chanrobles.com.ph
"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads
and streets designated as national roads by acts of the National Assembly or by
executive orders of the President of the Philippines, the Director of Public
Works, with the approval of the Secretary of Public Works and
Communications, shall promulgate the necessary rules and regulations to
regulate and control the use of and traffic on such roads and streets. Such rules
and regulations, with the approval of the President, may contain provisions
controlling or regulating the construction of buildings or other structures within
a reasonable distance from along the national roads. Such roads may be
temporarily closed to any or all classes of traffic by the Director of Public
Works and his duly authorized representatives whenever the condition of the
road or the traffic thereon makes such action necessary or advisable in the
public convenience and interest, or for a specified period, with the approval of
the Secretary of Public Works and Communications."cralaw virtua1aw library
The above provisions of law do not confer legislative power upon the Director
of Public Works and the Secretary of Public Works and Communications. The
authority therein conferred upon them and under which they promulgated the
rules and regulations now complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid down by the National
Assembly in said Act, to wit, "to promote safe transit upon and avoid
obstructions on, roads and streets designated as national roads by acts of the
National Assembly or by executive orders of the President of the Philippines"
and to close them temporarily to any or all classes of traffic "whenever the
condition of the road or the traffic makes such action necessary or advisable in
the public convenience and interest." The delegated power, if at all, therefore,
is not the determination of what the law shall be, but merely the ascertainment
of the facts and circumstances upon which the application of said law is to be
predicated. To promulgate rules and regulations on the use of national roads
and to determine when and how long a national road should be closed to traffic,
in view of the condition of the road or the traffic thereon and the requirements
of public convenience and interest, is an administrative function which cannot
be directly discharged by the National Assembly. It must depend on the
discretion of some other government official to whom is confided the duty of
determining whether the proper occasion exists for executing the law. But it
cannot be said that the exercise of such discretion is the making of the law. As
was said in Locke’s Appeal (72 Pa. 491): "To assert that a law is less than a
law, because it is made to depend on a future event or act, is to rob the
Legislature of the power to act wisely for the public welfare whenever a law is
passed relating to a state of affairs not yet developed, or to things future and
impossible to fully know." The proper distinction the court said was this: "The
Legislature cannot delegate its power to make the law; but it can make a law to
delegate a power to determine some fact or state of things upon which the law
makes, or intends to make, its own action depend. To deny this would be to stop
the wheels of government. There are many things upon which wise and useful
legislation must depend which cannot be known to the law-making power, and,
must, therefore, be a subject of inquiry and determination outside of the halls
of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)
In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077,
promulgated June 12, 1939, and in Pangasinan Transportation v. The Public
Service Commission, G.R. No. 47065, promulgated June 26, 1940, this Court
had occasion to observe that the principle of separation of powers has been
made to adapt itself to the complexities of modern governments, giving rise to
the adoption, within certain limits, of the principle of "subordinate legislation,"
665 of 692
not only in the United States and England but in practically all modern
governments. Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulations, and the increased
difficulty of administering the laws, the rigidity of the theory of separation of
governmental powers has, to a large extent, been relaxed by permitting the
delegation of greater powers by the legislative and vesting a larger amount of
discretion in administrative and executive officials, not only in the execution of
the laws, but also in the promulgation of certain rules and regulations calculated
to promote public interest.
The petitioner further contends that the rules and regulations promulgated by
the respondents pursuant to the provisions of Commonwealth Act No. 548
constitute an unlawful interference with legitimate business or trade and
abridge the right to personal liberty and freedom of locomotion.
Commonwealth Act No. 548 was passed by the National Assembly in the
exercise of the paramount police power of the state.
Said Act, by virtue of which the rules and regulations complained of were
promulgated, aims to promote safe transit upon and avoid obstructions on
national roads, in the interest and convenience of the public. In enacting said
law, therefore, the National Assembly was prompted by considerations of
public convenience and welfare. It was inspired by a desire to relieve
congestion of traffic. which is, to say the least, a menace to public safety. Public
welfare, then, lies at the bottom of the enactment of said law, and the state in
order to promote the general welfare may interfere with personal liberty, with
property, and with business and occupations. Persons and property may be
subjected to all kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the state (U.S. v. Gomez Jesus, 31 Phil., 218).
To this fundamental aim of our Government the rights of the individual are
subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into
anarchy. Neither should authority be made to prevail over liberty because then
the individual will fall into slavery. The citizen should achieve the required
balance of liberty and authority in his mind through education and personal
discipline, so that there may be established the resultant equilibrium, which
means peace and order and happiness for all. The moment greater authority is
conferred upon the government, logically so much is withdrawn from the
residuum of liberty which resides in the people. The paradox lies in the fact that
the apparent curtailment of liberty is precisely the very means of insuring its
preservation.
The scope of police power keeps expanding as civilization advances. As was
said in the case of Dobbins v. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169),
"the right to exercise the police power is a continuing one, and a business lawful
today may in the future, because of the changed situation, the growth of
population or other causes, become a menace to the public health and welfare,
and be required to yield to the public good." And in People v. Pomar (46 Phil.,
440), it was observed that "advancing civilization is bringing within the police
power of the state today things which were not thought of as being within such
power yesterday. The development of civilization, the rapidly increasing
population, the growth of public opinion, with an increasing desire on the part
of the masses and of the government to look after and care for the interests of
the individuals of the state, have brought within the police power many
questions for regulation which formerly were not so considered."cralaw
virtua1aw library
The petitioner finally avers that the rules and regulations complained of infringe
upon the constitutional precept regarding the promotion of social justice to
insure the well-being and economic security of all the people. The promotion
of social justice, however, is to be achieved not through a mistaken sympathy
towards any given group. Social justice is "neither communism, nor despotism,
nor atomism, nor anarchy," but the humanization of laws and the equalization
of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated. Social justice
means the promotion of the welfare of all the people, the adoption by the
Government of measures calculated to insure economic stability of all the
competent elements of society, through the maintenance of a proper economic
and social equilibrium in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers underlying the existence of all
governments on the time-honored principle of salus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of
interdependence among divers and diverse units of a society and of the
protection that should be equally and evenly extended to all groups as a
combined force in our social and economic life, consistent with the fundamental
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and paramount objective of the state of promoting the health, comfort, and quiet
of all persons, and of bringing about "the greatest good to the greatest
number."cralaw virtua1aw library
In view of the foregoing, the writ of prohibition prayed for is hereby denied,
with costs against the petitioner. So ordered.
Pamatong v. Comelec
G.R. No. 161872 (April 13, 2004)
G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for
President on December 17, 2003. Respondent Commission on Elections
(COMELEC) refused to give due course to petitioner’s Certificate of
Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision,
however, was not unanimous since Commissioners Luzviminda G. Tancangco
and Mehol K. Sadain voted to include petitioner as they believed he had parties
or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No.
6558. Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No.
04-001. The COMELEC, acting on petitioner’s Motion for Reconsideration and
on similar motions filed by other aspirants for national elective positions,
denied the same under the aegis of Omnibus Resolution No. 6604 dated
February 11, 2004. The COMELEC declared petitioner and thirty-five (35)
others nuisance candidates who could not wage a nationwide campaign and/or
are not nominated by a political party or are not supported by a registered
political party with a national constituency. Commissioner Sadain maintained
his vote for petitioner. By then, Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions
which were allegedly rendered in violation of his right to "equal access to
opportunities for public service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who
can afford to wage a nationwide campaign and/or are nominated by political
parties. In so doing, petitioner argues that the COMELEC indirectly amended
the constitutional provisions on the electoral process and limited the power of
the sovereign people to choose their leaders. The COMELEC supposedly erred
in disqualifying him since he is the most qualified among all the presidential
candidates, i.e., he possesses all the constitutional and legal qualifications for
the office of the president, he is capable of waging a national campaign since
he has numerous national organizations under his leadership, he also has the
capacity to wage an international campaign since he has practiced law in other
countries, and he has a platform of government. Petitioner likewise attacks the
validity of the form for the Certificate of Candidacy prepared by the
COMELEC. Petitioner claims that the form does not provide clear and
reasonable guidelines for determining the qualifications of candidates since it
does not ask for the candidate’s bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the constitutional provision ensuring
"equal access to opportunities for public office" is the claim that there is a
constitutional right to run for or hold public office and, particularly in his case,
to seek the presidency. There is none. What is recognized is merely a privilege
subject to limitations imposed by law. Section 26, Article II of the Constitution
neither bestows such a right nor elevates the privilege to the level of an
enforceable right. There is nothing in the plain language of the provision which
suggests such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the
Constitution, entitled "Declaration of Principles and State Policies." The
provisions under the Article are generally considered not self-executing,2 and
there is no plausible reason for according a different treatment to the "equal
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access" provision. Like the rest of the policies enumerated in Article II, the
provision does not contain any judicially enforceable constitutional right but
merely specifies a guideline for legislative or executive action.3 The disregard
of the provision does not give rise to any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same determination that
the provision is not self-executory. The original wording of the present Section
26, Article II had read, "The State shall broaden opportunities to public office
and prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario
Davide, Jr. successfully brought forth an amendment that changed the word
"broaden" to the phrase "ensure equal access," and the substitution of the word
"office" to "service." He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because
what is important would be equal access to the opportunity. If you broaden, it
would necessarily mean that the government would be mandated to create as
many offices as are possible to accommodate as many people as are also
possible. That is the meaning of broadening opportunities to public service. So,
in order that we should not mandate the State to make the government the
number one employer and to limit offices only to what may be necessary and
expedient yet offering equal opportunities to access to it, I change the word
"broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive
measures that would accommodate as many people as possible into public
office. The approval of the "Davide amendment" indicates the design of the
framers to cast the provision as simply enunciatory of a desired policy objective
and not reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be
regarded as the source of positive rights. It is difficult to interpret the clause as
operative in the absence of legislation since its effective means and reach are
not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-ended.8 Words and
phrases such as "equal access," "opportunities," and "public service" are
susceptible to countless interpretations owing to their inherent impreciseness.
Certainly, it was not the intention of the framers to inflict on the people an
operative but amorphous foundation from which innately unenforceable rights
may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office
may be subjected to limitations. Some valid limitations specifically on the
privilege to seek elective office are found in the provisions9 of the Omnibus
Election Code on "Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances wherein the
COMELEC may motu proprio refuse to give due course to or cancel a
Certificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination,
however, the equal access clause is not violated. Equality is not sacrificed as
long as the burdens engendered by the limitations are meant to be borne by any
one who is minded to file a certificate of candidacy. In the case at bar, there is
no showing that any person is exempt from the limitations or the burdens which
they create.
Significantly, petitioner does not challenge the constitutionality or validity of
Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452
dated 10 December 2003. Thus, their presumed validity stands and has to be
accorded due weight.
Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26,
Article II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the
disqualification of candidates who have not evinced a bona fide intention to run
for office is easy to divine. The State has a compelling interest to ensure that its
electoral exercises are rational, objective, and orderly. Towards this end, the
State takes into account the practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the greater the opportunities
for logistical confusion, not to mention the increased allocation of time and
resources in preparation for the election. These practical difficulties should, of
course, never exempt the State from the conduct of a mandated electoral
exercise. At the same time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and proper. Ultimately, a
disorderly election is not merely a textbook example of inefficiency, but a rot
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that erodes faith in our democratic institutions. As the United States Supreme
Court held:
[T]here is surely an important state interest in requiring some preliminary
showing of a significant modicum of support before printing the name of a
political organization and its candidates on the ballot – the interest, if no other,
in avoiding confusion, deception and even frustration of the democratic
[process].11
The COMELEC itself recognized these practical considerations when it
promulgated Resolution No. 6558 on 17 January 2004, adopting the study
Memorandum of its Law Department dated 11 January 2004. As observed in
the COMELEC’s Comment:
There is a need to limit the number of candidates especially in the case of
candidates for national positions because the election process becomes a
mockery even if those who cannot clearly wage a national campaign are
allowed to run. Their names would have to be printed in the Certified List of
Candidates, Voters Information Sheet and the Official Ballots. These would
entail additional costs to the government. For the official ballots in automated
counting and canvassing of votes, an additional page would amount to more or
less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they
cannot wage a decent campaign enough to project the prospect of winning, no
matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance
of "nuisance candidates" to run in the elections. Our election laws provide
various entitlements for candidates for public office, such as watchers in every
polling place,13 watchers in the board of canvassers,14 or even the receipt of
electoral contributions.15 Moreover, there are election rules and regulations the
formulations of which are dependent on the number of candidates in a given
election.
Given these considerations, the ignominious nature of a nuisance candidacy
becomes even more galling. The organization of an election with bona fide
candidates standing is onerous enough. To add into the mix candidates with no
serious intentions or capabilities to run a viable campaign would actually impair
the electoral process. This is not to mention the candidacies which are palpably
ridiculous so as to constitute a one-note joke. The poll body would be bogged
by irrelevant minutiae covering every step of the electoral process, most
probably posed at the instance of these nuisance candidates. It would be a
senseless sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the
State could exclude nuisance candidates and need not indulge in, as the song
goes, "their trips to the moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are
cognizant of the compelling State interest to ensure orderly and credible
elections by excising impediments thereto, such as nuisance candidacies that
distract and detract from the larger purpose. The COMELEC is mandated by
the Constitution with the administration of elections16 and endowed with
considerable latitude in adopting means and methods that will ensure the
promotion of free, orderly and honest elections.17 Moreover, the Constitution
guarantees that only bona fide candidates for public office shall be free from
any form of harassment and discrimination.18 The determination of bona fide
candidates is governed by the statutes, and the concept, to our mind is,
satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper
application in the case of the petitioner cannot be tested and reviewed by this
Court on the basis of what is now before it. The assailed resolutions of the
COMELEC do not direct the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate. This precludes the Court
from reviewing at this instance whether the COMELEC committed grave abuse
of discretion in disqualifying petitioner, since such a review would necessarily
take into account the matters which the COMELEC considered in arriving at its
decisions.
Petitioner has submitted to this Court mere photocopies of various documents
purportedly evincing his credentials as an eligible candidate for the presidency.
Yet this Court, not being a trier of facts, can not properly pass upon the
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reproductions as evidence at this level. Neither the COMELEC nor the Solicitor
General appended any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal
and factual. The basis of the factual determination is not before this Court. Thus,
the remand of this case for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioner’s aspiration and
offer to serve in the government. It deserves not a cursory treatment but a
hearing which conforms to the requirements of due process.
As to petitioner’s attacks on the validity of the form for the certificate of
candidacy, suffice it to say that the form strictly complies with Section 74 of
the Omnibus Election Code. This provision specifically enumerates what a
certificate of candidacy should contain, with the required information tending
to show that the candidate possesses the minimum qualifications for the
position aspired for as established by the Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001
is hereby remanded to the COMELEC for the reception of further evidence, to
determine the question on whether petitioner Elly Velez Lao Pamatong is a
nuisance candidate as contemplated in Section 69 of the Omnibus Election
Code.
The COMELEC is directed to hold and complete the reception of evidence and
report its findings to this Court with deliberate dispatch.
SO ORDERED.
Simon v. CHR
G.R. No. 100150 (January 5, 1994)
G.R. No. 100150 January 5, 1994
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO,
AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS
JOHN DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the Commission on Human Rights
("CHR") is again placed into focus in this petition for prohibition, with prayer
for a restraining order and preliminary injunction. The petitioners ask us to
prohibit public respondent CHR from further hearing and investigating CHR
Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by
Carlos Quimpo (one of the petitioners) in his capacity as an Executive Officer
of the Quezon City Integrated Hawkers Management Council under the Office
of the City Mayor, was sent to, and received by, the private respondents (being
the officers and members of the North EDSA Vendors Association,
Incorporated). In said notice, the respondents were given a grace-period of three
(3) days (up to 12 July 1990) within which to vacate the questioned premises
of North EDSA. 1 Prior to their receipt of the demolition notice, the private
respondents were informed by petitioner Quimpo that their stalls should be
removed to give way to the "People's Park". 2 On 12 July 1990, the group, led
by their President Roque Fermo, filed a letter-complaint (Pinag-samang
Sinumpaang Salaysay) with the CHR against the petitioners, asking the late
CHR Chairman Mary Concepcion Bautista for a letter to be addressed to then
Mayor Brigido Simon, Jr., of Quezon City to stop the demolition of the private
respondents' stalls, sari-sari stores, and carinderia along North EDSA. The
complaint was docketed as CHR Case No. 90-1580. 3 On 23 July 1990, the
CHR issued an Order, directing the petitioners "to desist from demolishing the
stalls and shanties at North EDSA pending resolution of the vendors/squatters'
complaint before the Commission" and ordering said petitioners to appear
before the CHR. 4
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On the basis of the sworn statements submitted by the private respondents on
31 July 1990, as well as CHR's own ocular inspection, and convinced that on
28 July 1990 the petitioners carried out the demolition of private respondents'
stalls, sari-sari stores and carinderia, 5 the CHR, in its resolution of 1 August
1990, ordered the disbursement of financial assistance of not more than
P200,000.00 in favor of the private respondents to purchase light housing
materials and food under the Commission's supervision and again directed the
petitioners to "desist from further demolition, with the warning that violation
of said order would lead to a citation for contempt and arrest." 6
A motion to dismiss, 7 dated 10 September 1990, questioned CHR's
jurisdiction. The motion also averred, among other things, that:
1. this case came about due to the alleged violation by the (petitioners) of
the Inter-Agency Memorandum of Agreement whereby Metro-Manila Mayors
agreed on a moratorium in the demolition of the dwellings of poor dwellers in
Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement (revealed) that the moratorium
referred to therein refers to moratorium in the demolition of the structures of
poor dwellers;
4. that the complainants in this case (were) not poor dwellers but
independent business entrepreneurs even this Honorable Office admitted in its
resolution of 1 August 1990 that the complainants are indeed, vendors;
5. that the complainants (were) occupying government land, particularly
the sidewalk of EDSA corner North Avenue, Quezon City; . . . and
6. that the City Mayor of Quezon City (had) the sole and exclusive
discretion and authority whether or not a certain business establishment
(should) be allowed to operate within the jurisdiction of Quezon City, to revoke
or cancel a permit, if already issued, upon grounds clearly specified by law and
ordinance. 8
During the 12 September 1990 hearing, the petitioners moved for
postponement, arguing that the motion to dismiss set for 21 September 1990
had yet to be resolved. The petitioners likewise manifested that they would
bring the case to the courts.
On 18 September 1990 a supplemental motion to dismiss was filed by the
petitioners, stating that the Commission's authority should be understood as
being confined only to the investigation of violations of civil and political
rights, and that "the rights allegedly violated in this case (were) not civil and
political rights, (but) their privilege to engage in business." 9
On 21 September 1990, the motion to dismiss was heard and submitted for
resolution, along with the contempt charge that had meantime been filed by the
private respondents, albeit vigorously objected to by petitioners (on the ground
that the motion to dismiss was still then unresolved). 10
In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in
contempt for carrying out the demolition of the stalls, sari-sari stores and
carinderia despite the "order to desist", and it imposed a fine of P500.00 on each
of them.
On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to
dismiss and supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained
of the gross violations of their human and constitutional rights. The motion to
dismiss should be and is hereby DENIED for lack of merit. 13
The CHR opined that "it was not the intention of the (Constitutional)
Commission to create only a paper tiger limited only to investigating civil and
political rights, but it (should) be (considered) a quasi-judicial body with the
power to provide appropriate legal measures for the protection of human rights
of all persons within the Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to development, to
life and to dignity. All these brazenly and violently ignored and trampled upon
by respondents with little regard at the same time for the basic rights of women
671 of 692
and children, and their health, safety and welfare. Their actions have
psychologically scarred and traumatized the children, who were witness and
exposed to such a violent demonstration of Man's inhumanity to man.
In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was
denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25 June 1991; it was
subsequently reinstated, however, in our resolution 16 of 18 June 1991, in
which we also issued a temporary restraining order, directing the CHR to
"CEASE and DESIST from further hearing CHR No. 90-1580." 17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of the
private respondents whose stalls were demolished by the petitioners at the
instance and authority given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors
affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was excused
from filing his comment for public respondent CHR. The latter thus filed its
own comment, 18 through Hon. Samuel Soriano, one of its Commissioners.
The Court also resolved to dispense with the comment of private respondent
Roque Fermo, who had since failed to comply with the resolution, dated 18 July
1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution. 19 It was formally constituted by then President Corazon Aquino
via Executive Order No. 163, 20 issued on 5 May 1987, in the exercise of her
legislative power at the time. It succeeded, but so superseded as well, the
Presidential Committee on Human Rights. 21
The powers and functions 22 of the Commission are defined by the 1987
Constitution, thus: to —
(1) Investigate, on its own or on complaint by any party, all forms of
human rights violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights
of all persons within the Philippines, as well as Filipinos residing abroad, and
provide for preventive measures and legal aid services to the underprivileged
whose human rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and information
to enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote human
rights and to provide for compensation to victims of violations of human rights,
or their families;
(7) Monitor the Philippine Government's compliance with international
treaty obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or
whose possession of documents or other evidence is necessary or convenient to
determine the truth in any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in
the performance of its functions;
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(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR
theorizes that the intention of the members of the Constitutional Commission
is to make CHR a quasi-judicial body. 23 This view, however, has not
heretofore been shared by this Court. In Cariño v. Commission on Human
Rights, 24 the Court, through then Associate Justice, now Chief Justice Andres
Narvasa, has observed that it is "only the first of the enumerated powers and
functions that bears any resemblance to adjudication or adjudgment," but that
resemblance can in no way be synonymous to the adjudicatory power itself.
The Court explained:
. . . (T)he Commission on Human Rights . . . was not meant by the fundamental
law to be another court or quasi-judicial agency in this country, or duplicate
much less take over the functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative
power is that it may investigate, i.e., receive evidence and make findings of fact
as regards claimed human rights violations involving civil and political rights.
But fact finding is not adjudication, and cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or official. The
function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function, properly speaking. To be considered such,
the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be decided or
determined authoritatively, finally and definitively, subject to such appeals or
modes of review as may be provided by law. This function, to repeat, the
Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the other
kernel of this controversy and, its is, to determine the extent of CHR's
investigative power.
It can hardly be disputed that the phrase "human rights" is so generic a term that
any attempt to define it, albeit not a few have tried, could at best be described
as inconclusive. Let us observe. In a symposium on human rights in the
Philippines, sponsored by the University of the Philippines in 1977, one of the
questions that has been propounded is "(w)hat do you understand by "human
rights?" The participants, representing different sectors of the society, have
given the following varied answers:
Human rights are the basic rights which inhere in man by virtue of his humanity.
They are the same in all parts of the world, whether the Philippines or England,
Kenya or the Soviet Union, the United States or Japan, Kenya or Indonesia . . .
.
Human rights include civil rights, such as the right to life, liberty, and property;
freedom of speech, of the press, of religion, academic freedom, and the rights
of the accused to due process of law; political rights, such as the right to elect
public officials, to be elected to public office, and to form political associations
and engage in politics; and social rights, such as the right to an education,
employment, and social services. 25
Human rights are the entitlement that inhere in the individual person from the
sheer fact of his humanity. . . . Because they are inherent, human rights are not
granted by the State but can only be recognized and protected by it. 26
(Human rights include all) the civil, political, economic, social, and cultural
rights defined in the Universal Declaration of Human Rights. 27
Human rights are rights that pertain to man simply because he is human. They
are part of his natural birth, right, innate and inalienable. 28
The Universal Declaration of Human Rights, as well as, or more specifically,
the International Covenant on Economic, Social and Cultural Rights and
International Covenant on Civil and Political Rights, suggests that the scope of
human rights can be understood to include those that relate to an individual's
social, economic, cultural, political and civil relations. It thus seems to closely
identify the term to the universally accepted traits and attributes of an
individual, along with what is generally considered to be his inherent and
inalienable rights, encompassing almost all aspects of life.
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Have these broad concepts been equally contemplated by the framers of our
1986 Constitutional Commission in adopting the specific provisions on human
rights and in creating an independent commission to safeguard these rights? It
may of value to look back at the country's experience under the martial law
regime which may have, in fact, impelled the inclusions of those provisions in
our fundamental law. Many voices have been heard. Among those voices, aptly
represented perhaps of the sentiments expressed by others, comes from Mr.
Justice J.B.L. Reyes, a respected jurist and an advocate of civil liberties, who,
in his paper, entitled "Present State of Human Rights in the Philippines," 29
observes:
But while the Constitution of 1935 and that of 1973 enshrined in their Bill of
Rights most of the human rights expressed in the International Covenant, these
rights became unavailable upon the proclamation of Martial Law on 21
September 1972. Arbitrary action then became the rule. Individuals by the
thousands became subject to arrest upon suspicion, and were detained and held
for indefinite periods, sometimes for years, without charges, until ordered
released by the Commander-in-Chief or this representative. The right to petition
for the redress of grievances became useless, since group actions were
forbidden. So were strikes. Press and other mass media were subjected to
censorship and short term licensing. Martial law brought with it the suspension
of the writ of habeas corpus, and judges lost independence and security of
tenure, except members of the Supreme Court. They were required to submit
letters of resignation and were dismissed upon the acceptance thereof. Torture
to extort confessions were practiced as declared by international bodies like
Amnesty International and the International Commission of Jurists.
Converging our attention to the records of the Constitutional Commission, we
can see the following discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view
of the importance of human rights and also because civil and political rights
have been determined by many international covenants and human rights
legislations in the Philippines, as well as the Constitution, specifically the Bill
of Rights and subsequent legislation. Otherwise, if we cover such a wide
territory in area, we might diffuse its impact and the precise nature of its task,
hence, its effectivity would also be curtailed.
So, it is important to delienate the parameters of its tasks so that the commission
can be most effective.
MR. BENGZON. That is precisely my difficulty because civil and
political rights are very broad. The Article on the Bill of Rights covers civil and
political rights. Every single right of an individual involves his civil right or his
political right. So, where do we draw the line?
MR. GARCIA. Actually, these civil and political rights have been made clear
in the language of human rights advocates, as well as in the Universal
Declaration of Human Rights which addresses a number of articles on the right
to life, the right against torture, the right to fair and public hearing, and so on.
These are very specific rights that are considered enshrined in many
international documents and legal instruments as constituting civil and political
rights, and these are precisely what we want to defend here.
MR. BENGZON. So, would the commissioner say civil and political rights as
defined in the Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the International Covenant of
Civil and Political Rights distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the other rights that we have?
MR. GARCIA. Yes, because the other rights will encompass social and
economic rights, and there are other violations of rights of citizens which can
be addressed to the proper courts and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to define its functions,
and, therefore, in doing that the commission will be authorized to take under its
wings cases which perhaps heretofore or at this moment are under the
jurisdiction of the ordinary investigative and prosecutorial agencies of the
government. Am I correct?
MR. GARCIA. No. We have already mentioned earlier that we would like to
define the specific parameters which cover civil and political rights as covered
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by the international standards governing the behavior of governments regarding
the particular political and civil rights of citizens, especially of political
detainees or prisoners. This particular aspect we have experienced during
martial law which we would now like to safeguard.
MR. BENGZON. Then, I go back to that question that I had. Therefore, what
we are really trying to say is, perhaps, at the proper time we could specify all
those rights stated in the Universal Declaration of Human Rights and defined
as human rights. Those are the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the rights under
the Bill of Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope of human rights, I
would like to state that in the past regime, everytime we invoke the violation of
human rights, the Marcos regime came out with the defense that, as a matter of
fact, they had defended the rights of people to decent living, food, decent
housing and a life consistent with human dignity.
So, I think we should really limit the definition of human rights to political
rights. Is that the sense of the committee, so as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to repeated points
raised by the previous speaker.
There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of
prisoners and the prevention of tortures; 3) fair and public trials; 4) cases of
disappearances; 5) salvagings and hamletting; and 6) other crimes committed
against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner Garcia that we
should, in order to make the proposed Commission more effective, delimit as
much as possible, without prejudice to future expansion. The coverage of the
concept and jurisdictional area of the term "human rights". I was actually
disturbed this morning when the reference was made without qualification to
the rights embodied in the universal Declaration of Human Rights, although
later on, this was qualified to refer to civil and political rights contained therein.
If I remember correctly, Madam President, Commissioner Garcia, after
mentioning the Universal Declaration of Human Rights of 1948, mentioned or
linked the concept of human right with other human rights specified in other
convention which I do not remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration of
Torture of 1985?
MR. GUINGONA. I do not know, but the commissioner mentioned another.
MR. GARCIA. Madam President, the other one is the International Convention
on Civil and Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I have a copy of
the Universal Declaration of Human Rights here, I do not have a copy of the
other covenant mentioned. It is quite possible that there are rights specified in
that other convention which may not be specified here. I was wondering
whether it would be wise to link our concept of human rights to general terms
like "convention," rather than specify the rights contained in the convention.
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As far as the Universal Declaration of Human Rights is concerned, the
Committee, before the period of amendments, could specify to us which of
these articles in the Declaration will fall within the concept of civil and political
rights, not for the purpose of including these in the proposed constitutional
article, but to give the sense of the Commission as to what human rights would
be included, without prejudice to expansion later on, if the need arises. For
example, there was no definite reply to the question of Commissioner Regalado
as to whether the right to marry would be considered a civil or a social right. It
is not a civil right?
MR. GARCIA. Madam President, I have to repeat the various specific civil and
political rights that we felt must be envisioned initially by this provision —
freedom from political detention and arrest prevention of torture, right to fair
and public trials, as well as crimes involving disappearance, salvagings,
hamlettings and collective violations. So, it is limited to politically related
crimes precisely to protect the civil and political rights of a specific group of
individuals, and therefore, we are not opening it up to all of the definite areas.
MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no
longer linking his concept or the concept of the Committee on Human Rights
with the so-called civil or political rights as contained in the Universal
Declaration of Human Rights.
MR. GARCIA. When I mentioned earlier the Universal Declaration of Human
Rights, I was referring to an international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will refer to each and every
specific article therein, but only to those that pertain to the civil and politically
related, as we understand it in this Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to the distinction
between civil and social rights.
MR. GARCIA. There are two international covenants: the International
Covenant and Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. The second covenant contains all the
different rights-the rights of labor to organize, the right to education, housing,
shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the sense of the
committee to those that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the victims of human
rights, I cannot stress more on how much we need a Commission on Human
Rights. . . .
. . . human rights victims are usually penniless. They cannot pay and very few
lawyers will accept clients who do not pay. And so, they are the ones more
abused and oppressed. Another reason is, the cases involved are very delicate
— torture, salvaging, picking up without any warrant of arrest, massacre — and
the persons who are allegedly guilty are people in power like politicians, men
in the military and big shots. Therefore, this Human Rights Commission must
be independent.
I would like very much to emphasize how much we need this commission,
especially for the little Filipino, the little individual who needs this kind of help
and cannot get it. And I think we should concentrate only on civil and political
violations because if we open this to land, housing and health, we will have no
place to go again and we will not receive any response. . . . 30 (emphasis
supplied)
The final outcome, now written as Section 18, Article XIII, of the 1987
Constitution, is a provision empowering the Commission on Human Rights to
"investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights" (Sec. 1).
The term "civil rights," 31 has been defined as referring —
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(t)o those (rights) that belong to every citizen of the state or country, or, in wider
sense, to all its inhabitants, and are not connected with the organization or
administration of the government. They include the rights of property,
marriage, equal protection of the laws, freedom of contract, etc. Or, as
otherwise defined civil rights are rights appertaining to a person by virtue of his
citizenship in a state or community. Such term may also refer, in its general
sense, to rights capable of being enforced or redressed in a civil action.
Also quite often mentioned are the guarantees against involuntary servitude,
religious persecution, unreasonable searches and seizures, and imprisonment
for debt. 32
Political rights, 33 on the other hand, are said to refer to the right to participate,
directly or indirectly, in the establishment or administration of government, the
right of suffrage, the right to hold public office, the right of petition and, in
general, the rights appurtenant to citizenship vis-a-vis the management of
government. 34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is
readily apparent that the delegates envisioned a Commission on Human Rights
that would focus its attention to the more severe cases of human rights
violations. Delegate Garcia, for instance, mentioned such areas as the "(1)
protection of rights of political detainees, (2) treatment of prisoners and the
prevention of tortures, (3) fair and public trials, (4) cases of disappearances, (5)
salvagings and hamletting, and (6) other crimes committed against the
religious." While the enumeration has not likely been meant to have any
preclusive effect, more than just expressing a statement of priority, it is,
nonetheless, significant for the tone it has set. In any event, the delegates did
not apparently take comfort in peremptorily making a conclusive delineation of
the CHR's scope of investigatorial jurisdiction. They have thus seen it fit to
resolve, instead, that "Congress may provide for other cases of violations of
human rights that should fall within the authority of the Commission, taking
into account its recommendation." 35
In the particular case at hand, there is no cavil that what are sought to be
demolished are the stalls, sari-sari stores and carinderia, as well as temporary
shanties, erected by private respondents on a land which is planned to be
developed into a "People's Park". More than that, the land adjoins the North
EDSA of Quezon City which, this Court can take judicial notice of, is a busy
national highway. The consequent danger to life and limb is not thus to be
likewise simply ignored. It is indeed paradoxical that a right which is claimed
to have been violated is one that cannot, in the first place, even be invoked, if it
is, in fact, extant. Be that as it may, looking at the standards hereinabove
discoursed vis-a-vis the circumstances obtaining in this instance, we are not
prepared to conclude that the order for the demolition of the stalls, sari-sari
stores and carinderia of the private respondents can fall within the compartment
of "human rights violations involving civil and political rights" intended by the
Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its
operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court." Accordingly, the
CHR acted within its authority in providing in its revised rules, its power "to
cite or hold any person in direct or indirect contempt, and to impose the
appropriate penalties in accordance with the procedure and sanctions provided
for in the Rules of Court." That power to cite for contempt, however, should be
understood to apply only to violations of its adopted operational guidelines and
rules of procedure essential to carry out its investigatorial powers. To
exemplify, the power to cite for contempt could be exercised against persons
who refuse to cooperate with the said body, or who unduly withhold relevant
information, or who decline to honor summons, and the like, in pursuing its
investigative work. The "order to desist" (a semantic interplay for a restraining
order) in the instance before us, however, is not investigatorial in character but
prescinds from an adjudicative power that it does not possess. In Export
Processing Zone Authority vs. Commission on Human Rights, 36 the Court,
speaking through Madame Justice Carolina Griño-Aquino, explained:
The constitutional provision directing the CHR to "provide for preventive
measures and legal aid services to the underprivileged whose human rights have
been violated or need protection" may not be construed to confer jurisdiction
on the Commission to issue a restraining order or writ of injunction for, it that
were the intention, the Constitution would have expressly said so. "Jurisdiction
is conferred only by the Constitution or by law". It is never derived by
implication.
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Evidently, the "preventive measures and legal aid services" mentioned in the
Constitution refer to extrajudicial and judicial remedies (including a writ of
preliminary injunction) which the CHR may seek from proper courts on behalf
of the victims of human rights violations. Not being a court of justice, the CHR
itself has no jurisdiction to issue the writ, for a writ of preliminary injunction
may only be issued "by the judge of any court in which the action is pending
[within his district], or by a Justice of the Court of Appeals, or of the Supreme
Court. . . . A writ of preliminary injunction is an ancillary remedy. It is available
only in a pending principal action, for the preservation or protection of the rights
and interests of a party thereto, and for no other purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for appropriate action, its
findings and recommendations to any appropriate agency of government. 37
The challenge on the CHR's disbursement of the amount of P200,000.00 by
way of financial aid to the vendors affected by the demolition is not an
appropriate issue in the instant petition. Not only is there lack of locus standi
on the part of the petitioners to question the disbursement but, more
importantly, the matter lies with the appropriate administrative agencies
concerned to initially consider.
The public respondent explains that this petition for prohibition filed by the
petitioners has become moot and academic since the case before it (CHR Case
No. 90-1580) has already been fully heard, and that the matter is merely
awaiting final resolution. It is true that prohibition is a preventive remedy to
restrain the doing of an act about to be done, and not intended to provide a
remedy for an act already accomplished. 38 Here, however, said Commission
admittedly has yet to promulgate its resolution in CHR Case No. 90-1580. The
instant petition has been intended, among other things, to also prevent CHR
from precisely doing that. 39
WHEREFORE, the writ prayed for in this petition is GRANTED. The
Commission on Human Rights is hereby prohibited from further proceeding
with CHR Case No. 90-1580 and from implementing the P500.00 fine for
contempt. The temporary restraining order heretofore issued by this Court is
made permanent. No costs.
SO ORDERED.
Pasei v. Drilon
163 SCRA 386 (1988)
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and
TOMAS D. ACHACOSO, as Administrator of the Philippine Overseas
Employment Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for
short), a firm "engaged principally in the recruitment of Filipino workers, male
and female, for overseas placement," 1 challenges the Constitutional validity of
Department Order No. 1, Series of 1988, of the Department of Labor and
Employment, in the character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO
DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari
and prohibition. Specifically, the measure is assailed for "discrimination against
males or females;" 2 that it "does not apply to all Filipino workers but only to
domestic helpers and females with similar skills;" 3 and that it is violative of
the right to travel. It is held likewise to be an invalid exercise of the lawmaking
power, police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of
the Constitution, providing for worker participation "in policy and decision-
making processes affecting their rights and benefits as may be provided by
law." 4 Department Order No. 1, it is contended, was passed in the absence of
prior consultations. It is claimed, finally, to be in violation of the Charter's non-
678 of 692
impairment clause, in addition to the "great and irreparable injury" that PASEI
members face should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary
of Labor and Administrator of the Philippine Overseas Employment
Administration, filed a Comment informing the Court that on March 8, 1988,
the respondent Labor Secretary lifted the deployment ban in the states of Iraq,
Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and
Switzerland. * In submitting the validity of the challenged "guidelines," the
Solicitor General invokes the police power of the Philippine State.
It is admitted that Department Order No. 1 is in the nature of a police power
measure. The only question is whether or not it is valid under the Constitution.
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." 5 As
defined, it consists of (1) an imposition of 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.
"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 assuring
the greatest benefits." 6
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, 7 refers to it
succinctly as the plenary power of the State "to govern its citizens." 8
"The police power of the State ... is a power coextensive with self- protection,
and it is not inaptly termed the "law of overwhelming necessity." It may be said
to be that inherent and plenary power in the State which enables it to prohibit
all things hurtful to the comfort, safety, and welfare of society." 9
It constitutes an implied limitation on the Bill of Rights. According to
Fernando, it is "rooted in the conception that men in organizing the state and
imposing upon its government limitations to safeguard constitutional rights did
not intend thereby to enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such salutary measures calculated to
ensure communal peace, safety, good order, and welfare." 10 Significantly, the
Bill of Rights itself does not purport to be an absolute guaranty of individual
rights and liberties "Even liberty itself, the greatest of all rights, is not
unrestricted license to act according to one's will." 11 It is subject to the far
more overriding demands and requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its own
limitations. For all its awesome consequences, it may not be exercised
arbitrarily or unreasonably. Otherwise, and in that event, it defeats the purpose
for which it is exercised, that is, to advance the public good. Thus, when the
power is used to further private interests at the expense of the citizenry, there is
a clear misuse of the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of
clear and convincing evidence to the contrary, the presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure
should be nullified. There is no question that Department Order No. 1 applies
only to "female contract workers," 14 but it does not thereby make an undue
discrimination between the sexes. It is well-settled that "equality before the
law" under the Constitution 15 does not import a perfect Identity of rights
among all men and women. It admits of classifications, provided that (1) such
classifications rest on substantial distinctions; (2) they are germane to the
purposes of the law; (3) they are not confined to existing conditions; and (4)
they apply equally to all members of the same class. 16
The Court is satisfied that the classification made-the preference for female
workers — rests on substantial distinctions.
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As a matter of judicial notice, the Court is well aware of the unhappy plight that
has befallen our female labor force abroad, especially domestic servants, amid
exploitative working conditions marked by, in not a few cases, physical and
personal abuse. The sordid tales of maltreatment suffered by migrant Filipina
workers, even rape and various forms of torture, confirmed by testimonies of
returning workers, are compelling motives for urgent Government action. As
precisely the caretaker of Constitutional rights, the Court is called upon to
protect victims of exploitation. In fulfilling that duty, the Court sustains the
Government's efforts.
The same, however, cannot be said of our male workers. In the first place, there
is no evidence that, except perhaps for isolated instances, our men abroad have
been afflicted with an Identical predicament. The petitioner has proffered no
argument that the Government should act similarly with respect to male
workers. The Court, of course, is not impressing some male chauvinistic notion
that men are superior to women. What the Court is saying is that it was largely
a matter of evidence (that women domestic workers are being ill-treated abroad
in massive instances) and not upon some fanciful or arbitrary yardstick that the
Government acted in this case. It is evidence capable indeed of unquestionable
demonstration and evidence this Court accepts. The Court cannot, however, say
the same thing as far as men are concerned. There is simply no evidence to
justify such an inference. Suffice it to state, then, that insofar as classifications
are concerned, this Court is content that distinctions are borne by the evidence.
Discrimination in this case is justified.
As we have furthermore indicated, executive determinations are generally final
on the Court. Under a republican regime, it is the executive branch that enforces
policy. For their part, the courts decide, in the proper cases, whether that policy,
or the manner by which it is implemented, agrees with the Constitution or the
laws, but it is not for them to question its wisdom. As a co-equal body, the
judiciary has great respect for determinations of the Chief Executive or his
subalterns, especially when the legislature itself has specifically given them
enough room on how the law should be effectively enforced. In the case at bar,
there is no gainsaying the fact, and the Court will deal with this at greater length
shortly, that Department Order No. 1 implements the rule-making powers
granted by the Labor Code. But what should be noted is the fact that in spite of
such a fiction of finality, the Court is on its own persuaded that prevailing
conditions indeed call for a deployment ban.
There is likewise no doubt that such a classification is germane to the purpose
behind the measure. Unquestionably, it is the avowed objective of Department
Order No. 1 to "enhance the protection for Filipino female overseas workers"
17 this Court has no quarrel that in the midst of the terrible mistreatment
Filipina workers have suffered abroad, a ban on deployment will be for their
own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended
to apply indefinitely so long as those conditions exist. This is clear from the
Order itself ("Pending review of the administrative and legal measures, in the
Philippines and in the host countries . . ." 18), meaning to say that should the
authorities arrive at a means impressed with a greater degree of permanency,
the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary
malleability, depending on the circumstances of each case. Accordingly, it
provides:
9. LIFTING OF SUSPENSION. — The Secretary of Labor and Employment
(DOLE) may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the
welfare and protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to all female
domestic overseas workers. That it does not apply to "all Filipina workers" 20
is not an argument for unconstitutionality. Had the ban been given universal
applicability, then it would have been unreasonable and arbitrary. For obvious
reasons, not all of them are similarly circumstanced. What the Constitution
prohibits is the singling out of a select person or group of persons within an
existing class, to the prejudice of such a person or group or resulting in an unfair
advantage to another person or group of persons. To apply the ban, say
exclusively to workers deployed by A, but not to those recruited by B, would
obviously clash with the equal protection clause of the Charter. It would be a
classic case of what Chase refers to as a law that "takes property from A and
gives it to B." 21 It would be an unlawful invasion of property rights and
680 of 692
freedom of contract and needless to state, an invalid act. 22 (Fernando says:
"Where the classification is based on such distinctions that make a real
difference as infancy, sex, and stage of civilization of minority groups, the
better rule, it would seem, is to recognize its validity only if the young, the
women, and the cultural minorities are singled out for favorable treatment.
There would be an element of unreasonableness if on the contrary their status
that calls for the law ministering to their needs is made the basis of
discriminatory legislation against them. If such be the case, it would be difficult
to refute the assertion of denial of equal protection." 23 In the case at bar, the
assailed Order clearly accords protection to certain women workers, and not the
contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on
overseas deployment. From scattered provisions of the Order, it is evident that
such a total ban has hot been contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and
workers of similar skills defined herein to the following [sic] are authorized
under these guidelines and are exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads of State and
Government;
5.2 Hirings by Minister, Deputy Minister and the other senior government
officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly accredited
international organizations.
5.4 Hirings by employers in countries with whom the Philippines have [sic]
bilateral labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR
SKILLS--Vacationing domestic helpers and/or workers of similar skills shall
be allowed to process with the POEA and leave for worksite only if they are
returning to the same employer to finish an existing or partially served
employment contract. Those workers returning to worksite to serve a new
employer shall be covered by the suspension and the provision of these
guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment
(DOLE) may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the
welfare and protection of Filipino workers. 24
xxx xxx xxx
The consequence the deployment ban has on the right to travel does not impair
the right. The right to travel is subject, among other things, to the requirements
of "public safety," "as may be provided by law." 25 Department Order No. 1 is
a valid implementation of the Labor Code, in particular, its basic policy to
"afford protection to labor," 26 pursuant to the respondent Department of
Labor's rule-making authority vested in it by the Labor Code. 27 The petitioner
assumes that it is unreasonable simply because of its impact on the right to
travel, but as we have stated, the right itself is not absolute. The disputed Order
is a valid qualification thereto.
Neither is there merit in the contention that Department Order No. 1 constitutes
an invalid exercise of legislative power. It is true that police power is the
domain of the legislature, but it does not mean that such an authority may not
be lawfully delegated. As we have mentioned, the Labor Code itself vests the
Department of Labor and Employment with rulemaking powers in the
enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker participation
"in policy and decision-making processes affecting their rights and benefits" 29
is not well-taken. The right granted by this provision, again, must submit to the
demands and necessities of the State's power of regulation.
681 of 692

The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all. 30
"Protection to labor" does not signify the promotion of employment alone.
What concerns the Constitution more paramountly is that such an employment
be above all, decent, just, and humane. It is bad enough that the country has to
send its sons and daughters to strange lands because it cannot satisfy their
employment needs at home. Under these circumstances, the Government is
duty-bound to insure that our toiling expatriates have adequate protection,
personally and economically, while away from home. In this case, the
Government has evidence, an evidence the petitioner cannot seriously dispute,
of the lack or inadequacy of such protection, and as part of its duty, it has
precisely ordered an indefinite ban on deployment.
The Court finds furthermore that the Government has not indiscriminately
made use of its authority. It is not contested that it has in fact removed the
prohibition with respect to certain countries as manifested by the Solicitor
General.
The non-impairment clause of the Constitution, invoked by the petitioner, must
yield to the loftier purposes targetted by the Government. 31 Freedom of
contract and enterprise, like all other freedoms, is not free from restrictions,
more so in this jurisdiction, where laissez faire has never been fully accepted as
a controlling economic way of life.
This Court understands the grave implications the questioned Order has on the
business of recruitment. The concern of the Government, however, is not
necessarily to maintain profits of business firms. In the ordinary sequence of
events, it is profits that suffer as a result of Government regulation. The interest
of the State is to provide a decent living to its citizens. The Government has
convinced the Court in this case that this is its intent. We do not find the
impugned Order to be tainted with a grave abuse of discretion to warrant the
extraordinary relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Oposa v. Factoran
G.R. No. 101083 (July 30, 1993)
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed
OPOSA, minors, and represented by their parents ANTONIO and RIZALINA
OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents
CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and represented by their parents
ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II
and MA. CONCEPCION, all surnamed MISA, minors and represented by their
parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE
MARIE ALFARO, minor, represented by her parents JOSE and MARIA
VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO,
CARLO JOAQUIN T. NARVASA, minor, represented by his parents
GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed
SAENZ, minors, represented by their parents ROBERTO and AURORA
SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID
IAN, all surnamed KING, minors, represented by their parents MARIO and
HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all
surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA,
minors, represented by their parents ANTONIO and MARICA ABAYA,
MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors,
represented by their parents MARIO and LINA CARDAMA, CLARISSA,
ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
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represented by their parents RICARDO and MARISSA OPOSA, PHILIP
JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT,
minors, represented by their parents JOSE MAX and VILMI QUIPIT,
BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and
MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK,
INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the
Secretary of the Department of Environment and Natural Resources, and THE
HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC,
Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced
and healthful ecology which the petitioners dramatically associate with the twin
concepts of "inter-generational responsibility" and "inter-generational justice."
Specifically, it touches on the issue of whether the said petitioners have a cause
of action to "prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before
Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National
Capital Judicial Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by their respective
parents. Impleaded as an additional plaintiff is the Philippine Ecological
Network, Inc. (PENI), a domestic, non-stock and non-profit corporation
organized for the purpose of, inter alia, engaging in concerted action geared for
the protection of our environment and natural resources. The original defendant
was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department
of Environment and Natural Resources (DENR). His substitution in this petition
by the new Secretary, the Honorable Angel C. Alcala, was subsequently
ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted
as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the
Republic of the Philippines, taxpayers, and entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the country's virgin tropical
forests." The same was filed for themselves and others who are equally
concerned about the preservation of said resource but are "so numerous that it
is impracticable to bring them all before the Court." The minors further
asseverate that they "represent their generation as well as generations yet
unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in
his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
hectares and is endowed with rich, lush and verdant rainforests in which varied,
rare and unique species of flora and fauna may be found; these rainforests
contain a genetic, biological and chemical pool which is irreplaceable; they are
also the habitat of indigenous Philippine cultures which have existed, endured
and flourished since time immemorial; scientific evidence reveals that in order
to maintain a balanced and healthful ecology, the country's land area should be
utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and
forty-six per cent (46%) for agricultural, residential, industrial, commercial and
other uses; the distortion and disturbance of this balance as a consequence of
deforestation have resulted in a host of environmental tragedies, such as (a)
water shortages resulting from drying up of the water table, otherwise known
as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the
water table as a result of the intrusion therein of salt water, incontrovertible
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examples of which may be found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility
and agricultural productivity, with the volume of soil eroded estimated at one
billion (1,000,000,000) cubic meters per annum — approximately the size of
the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is
presently experienced by the entire country, (h) increasing velocity of typhoon
winds which result from the absence of windbreakers, (i) the floodings of
lowlands and agricultural plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of the lifespan of multi-
billion peso dams constructed and operated for the purpose of supplying water
for domestic uses, irrigation and the generation of electric power, and (k) the
reduction of the earth's capacity to process carbon dioxide gases which has led
to perplexing and catastrophic climatic changes such as the phenomenon of
global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable demonstration
that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses as
well as documentary, photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16)
million hectares of rainforests constituting roughly 53% of the country's land
mass.
9. Satellite images taken in 1987 reveal that there remained no more than
1.2 million hectares of said rainforests or four per cent (4.0%) of the country's
land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-
growth rainforests are left, barely 2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature and uneconomical
secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted
timber license agreements ('TLA's') to various corporations to cut the aggregate
area of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto
attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per
annum or 25 hectares per hour — nighttime, Saturdays, Sundays and holidays
included — the Philippines will be bereft of forest resources after the end of
this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and
irreparable damage of this continued trend of deforestation to the plaintiff
minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and suffered by the
generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and
deforest the remaining forest stands will work great damage and irreparable
injury to plaintiffs — especially plaintiff minors and their successors — who
may never see, use, benefit from and enjoy this rare and unique natural resource
treasure.
This act of defendant constitutes a misappropriation and/or impairment of the
natural resource property he holds in trust for the benefit of plaintiff minors and
succeeding generations.
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15. Plaintiffs have a clear and constitutional right to a balanced and
healthful ecology and are entitled to protection by the State in its capacity as
the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the
defendant's office. On March 2, 1990, plaintiffs served upon defendant a final
demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex
"B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to
the continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is
an act violative of the rights of plaintiffs, especially plaintiff minors who may
be left with a country that is desertified (sic), bare, barren and devoid of the
wonderful flora, fauna and indigenous cultures which the Philippines had been
abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly
contrary to the public policy enunciated in the Philippine Environmental Policy
which, in pertinent part, states that it is the policy of the State —
(a) to create, develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and
future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive
to a life of dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional policy of the State
to —
a. effect "a more equitable distribution of opportunities, income and
wealth" and "make full and efficient use of natural resources (sic)." (Section 1,
Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources
(sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16, Article
II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind —
the natural law — and violative of plaintiffs' right to self-preservation and
perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than
the instant action to arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion
to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs
have no cause of action against him and (2) the issue raised by the plaintiffs is
a political question which properly pertains to the legislative or executive
branches of Government. In their 12 July 1990 Opposition to the Motion, the
petitioners maintain that (1) the complaint shows a clear and unmistakable
cause of action, (2) the motion is dilatory and (3) the action presents a
justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned
motion to dismiss. 7 In the said order, not only was the defendant's claim —
that the complaint states no cause of action against him and that it raises a
political question — sustained, the respondent Judge further ruled that the
granting of the relief prayed for would result in the impairment of contracts
which is prohibited by the fundamental law of the land.
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Plaintiffs thus filed the instant special civil action for certiorari under Rule 65
of the Revised Rules of Court and ask this Court to rescind and set aside the
dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors
not only represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required
the parties to submit their respective Memoranda after the Office of the
Solicitor General (OSG) filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause
of action as it contains sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR,
Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the right of
the people to a balanced and healthful ecology, the concept of generational
genocide in Criminal Law and the concept of man's inalienable right to self-
preservation and self-perpetuation embodied in natural law. Petitioners
likewise rely on the respondent's correlative obligation per Section 4 of E.O.
No. 192, to safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave
abuse of discretion in granting Timber License Agreements (TLAs) to cover
more areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-
impairment clause, petitioners maintain that the same does not apply in this case
because TLAs are not contracts. They likewise submit that even if TLAs may
be considered protected by the said clause, it is well settled that they may still
be revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in
their complaint a specific legal right violated by the respondent Secretary for
which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity
as parens patriae." Such allegations, according to them, do not reveal a valid
cause of action. They then reiterate the theory that the question of whether
logging should be permitted in the country is a political question which should
be properly addressed to the executive or legislative branches of Government.
They therefore assert that the petitioners' resources is not to file an action to
court, but to lobby before Congress for the passage of a bill that would ban
logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the
same cannot be done by the State without due process of law. Once issued, a
TLA remains effective for a certain period of time — usually for twenty-five
(25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated
the terms of the agreement or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately cancelled without the
requisite hearing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original
defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit. The
subject matter of the complaint is of common and general interest not just to
several, but to all citizens of the Philippines. Consequently, since the parties are
so numerous, it, becomes impracticable, if not totally impossible, to bring all of
them before the court. We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class suit
under Section 12, Rule 3 of the Revised Rules of Court are present both in the
said civil case and in the instant petition, the latter being but an incident to the
former.
This case, however, has a special and novel element. Petitioners minors assert
that they represent their generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality
to sue in behalf of the succeeding generations can only be based on the concept
of intergenerational responsibility insofar as the right to a balanced and
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healthful ecology is concerned. Such a right, as hereinafter expounded,
considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety. 9 Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration, development and
utilization be equitably accessible to the present as well as future generations.
10 Needless to say, every generation has a responsibility to the next to preserve
that rhythm and harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their obligation
to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now
proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments adduced by the
parties, We do not hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been issued with grave abuse
of discretion amounting to lack of jurisdiction. The pertinent portions of the
said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot
help but agree with the defendant. For although we believe that plaintiffs have
but the noblest of all intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being
impressed with political color and involving a matter of public policy, may not
be taken cognizance of by this Court without doing violence to the sacred
principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to
allege with sufficient definiteness a specific legal right involved or a specific
legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right to a
balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law. Section
16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding
section of the same article:
Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-
perpetuation — aptly and fittingly stressed by the petitioners — the
advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written in
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the Constitution for they are assumed to exist from the inception of humankind.
If they are now explicitly mentioned in the fundamental charter, it is because of
the well-founded fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty
to refrain from impairing the environment. During the debates on this right in
one of the plenary sessions of the 1986 Constitutional Commission, the
following exchange transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution — air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily
carries with it the correlative duty of not impairing the same and, therefore,
sanctions may be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management
and conservation of the country's forests.
Without such forests, the ecological or environmental balance would be
irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and
the right to health, as well as the other related provisions of the Constitution
concerning the conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the
Department of Environment and Natural Resources "shall be the primary
government agency responsible for the conservation, management,
development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in
reservation and watershed areas, and lands of the public domain, as well as the
licensing and regulation of all natural resources as may be provided for by law
in order to ensure equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos." Section 3 thereof
makes the following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to
ensure the sustainable use, development, management, renewal, and
conservation of the country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement of the quality of
the environment, and equitable access of the different segments of the
population to the development and the use of the country's natural resources,
not only for the present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value system including
social and environmental cost implications relative to their utilization,
development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, 15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of
the Filipino people, the full exploration and development as well as the
judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources, consistent with the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the environment
and the objective of making the exploration, development and utilization of
such natural resources equitably accessible to the different segments of the
present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that
takes into account social and environmental cost implications relative to the
utilization, development and conservation of our natural resources.
688 of 692

The above provision stresses "the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment." Section
2 of the same Title, on the other hand, specifically speaks of the mandate of the
DENR; however, it makes particular reference to the fact of the agency's being
subject to law and higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources
shall be primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying
out the State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives
which will serve as the bases for policy formulation, and have defined the
powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June 1977,
P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a continuing
policy of the State (a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive and enjoyable harmony
with each other, (b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos, and (c) to insure the attainment of
an environmental quality that is conducive to a life of dignity and well-being."
16 As its goal, it speaks of the "responsibilities of each generation as trustee
and guardian of the environment for succeeding generations." 17 The latter
statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty — under its mandate and by
virtue of its powers and functions under E.O. No. 192 and the Administrative
Code of 1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action.
Petitioners maintain that the granting of the TLAs, which they claim was done
with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should
be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of
said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground
that the complaint fails to state a cause of action, 19 the question submitted to
the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth
of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a case
is: admitting such alleged facts to be true, may the court render a valid judgment
in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano,
21 this Court laid down the rule that the judiciary should "exercise the utmost
care and circumspection in passing upon a motion to dismiss on the ground of
the absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the
law grants or recognizes is effectively nullified. If that happens, there is a blot
on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements
under the introductory affirmative allegations, as well as the specific averments
under the sub-heading CAUSE OF ACTION, to be adequate enough to show,
prima facie, the claimed violation of their rights. On the basis thereof, they may
thus be granted, wholly or partly, the reliefs prayed for. It bears stressing,
however, that insofar as the cancellation of the TLAs is concerned, there is the
need to implead, as party defendants, the grantees thereof for they are
indispensable parties.
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The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated and
expressed in legislation. It must, nonetheless, be emphasized that the political
question doctrine is no longer, the insurmountable obstacle to the exercise of
judicial power or the impenetrable shield that protects executive and legislative
actions from judicial inquiry or review. The second paragraph of section 1,
Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr.
Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial
power, involving the settlement of conflicting rights as conferred as law. The
second part of the authority represents a broadening of judicial power to enable
the courts of justice to review what was before forbidden territory, to wit, the
discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even the wisdom of the decisions of the
executive and the legislature and to declare their acts invalid for lack or excess
of jurisdiction because tainted with grave abuse of discretion. The catch, of
course, is the meaning of "grave abuse of discretion," which is a very elastic
phrase that can expand or contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon us that now covers,
in proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the
non-impairment of contracts clause found in the Constitution. The court a quo
declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by
such a sweeping pronouncement. In the first place, the respondent Secretary did
not, for obvious reasons, even invoke in his motion to dismiss the non-
impairment clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound
the Government to strictly respect the said licenses according to their terms and
conditions regardless of changes in policy and the demands of public interest
and welfare. He was aware that as correctly pointed out by the petitioners, into
every timber license must be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses or
any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive
action. It is not a contract, property or a property right protested by the due
process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court
held:
. . . A timber license is an instrument by which the State regulates the utilization
and disposition of forest resources to the end that public welfare is promoted.
A timber license is not a contract within the purview of the due process clause;
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it is only a license or privilege, which can be validly withdrawn whenever
dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be
unlawful, and is not a contract between the authority, federal, state, or
municipal, granting it and the person to whom it is granted; neither is it property
or a property right, nor does it create a vested right; nor is it taxation (37 C.J.
168). Thus, this Court held that the granting of license does not create
irrevocable rights, neither is it property or property rights (People vs. Ong Tin,
54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy
Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal
instruments by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the
particular concession area and the forest products therein. They may be validly
amended, modified, replaced or rescinded by the Chief Executive when
national interests so require. Thus, they are not deemed contracts within the
purview of the due process of law clause [See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-
24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which
reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the
instant case does not involve a law or even an executive issuance declaring the
cancellation or modification of existing timber licenses. Hence, the non-
impairment clause cannot as yet be invoked. Nevertheless, granting further that
a law has actually been passed mandating cancellations or modifications, the
same cannot still be stigmatized as a violation of the non-impairment clause.
This is because by its very nature and purpose, such as law could have only
been passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In Abe vs. Foster
Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be
absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and welfare.
In other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the interest
of public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making of contracts
are normally matters of private and not of public concern. The general rule is
that both shall be free of governmental interference. But neither property rights
nor contract rights are absolute; for government cannot exist if the citizen may
at will use his property to the detriment of his fellows, or exercise his freedom
of contract to work them harm. Equally fundamental with the private right is
that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state.
31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent Secretary
from receiving, accepting, processing, renewing or approving new timber
licenses for, save in cases of renewal, no contract would have as of yet existed
in the other instances. Moreover, with respect to renewal, the holder is not
entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
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dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Obergefell v. Hodges

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