Public Corporation Cases

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

MELENCIO-HERRERA, J .:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents
from replacing them from their respective positions as Barangay Captain and Barangay
Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and
petitioner's their Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was
elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta.
Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay
Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222,
otherwise known as the Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated
December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on
February 8, 1987 designating respondent Florentino G. Magno as Barangay Captain of
Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by
authority of the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated
December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta
Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the
Barangay Council of the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of respondent
OIC Governor, the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on
March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the
performance of my duties thereof, I among others, have signed as I did
sign the unnumbered memorandum ordering the replacement of all the
barangay officials of all the barangay(s) in the Municipality of Taytay,
Rizal;
That the above cited memorandum dated December 1, 1986 was signed
by me personally on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the
following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be
declared null and void and that respondents be prohibited from taking over their
positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners
maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222),
their terms of office "shall be six (6) years which shall commence on June 7, 1982 and
shall continue until their successors shall have elected and shall have qualified," or up
to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution,
respondent OIC Governor no longer has the authority to replace them and to designate
their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional
Constitution, promulgated on March 25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under the
1973 Constitution shall continue in office until otherwise provided by
proclamation or executive order or upon the designation or appointment
and qualification of their successors, if such appointment is made within a
period of one year from February 25,1986.
By reason of the foregoing provision, respondents contend that the terms of office of
elective and appointive officials were abolished and that petitioners continued in office
by virtue of the aforequoted provision and not because their term of six years had not
yet expired; and that the provision in the Barangay Election Act fixing the term of office
of Barangay officials to six (6) years must be deemed to have been repealed for being
inconsistent with the aforequoted provision of the Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as elective
officials under the 1973 Constitution, may continue in office but should vacate their
positions upon the occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no proclamation
or executive order terminating the term of elective Barangay officials. Thus, the issue for
resolution is whether or not the designation of respondents to replace petitioners was
validly made during the one-year period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8,
1977, should be considered as the effective date of replacement and not December
1,1986 to which it was ante dated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the
aforequoted provision in the Provisional Constitution must be deemed to have been
overtaken by Section 27, Article XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date,
therefore, the Provisional Constitution must be deemed to have been superseded.
Having become inoperative, respondent OIC Governor could no longer rely on Section
2, Article III, thereof to designate respondents to the elective positions occupied by
petitioners.
Petitioners must now be held to have acquired security of tenure specially considering
that the Barangay Election Act of 1982 declares it "a policy of the State to guarantee
and promote the autonomy of the barangays to ensure their fullest development as self-
reliant communities.
2
Similarly, the 1987 Constitution ensures the autonomy of local
governments and of political subdivisions of which the barangays form a part,
3
and
limits the President's power to "general supervision" over local
governments.
4
Relevantly, Section 8, Article X of the same 1987 Constitution further
provides in part:
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years ...
Until the term of office of barangay officials has been determined by law, therefore, the
term of office of six (6) years provided for in the Barangay Election Act of 1982
5
should
still govern.
Contrary to the stand of respondents, we find nothing inconsistent between the term of
six (6) years for elective Barangay officials and the 1987 Constitution, and the same
should, therefore, be considered as still operative, pursuant to Section 3, Article XVIII of
the 1987 Constitution, reading:
Sec. 3. All existing laws, decrees, executive orders, proclamations letters
of instructions, and other executive issuances not inconsistent, with this
Constitution shall remain operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8,
1987 designating respondents as the Barangay Captain and Barangay Councilmen,
respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal
force and effect; and (2) the Writ of Prohibition is granted enjoining respondents
perpetually from proceeding with the ouster/take-over of petitioners' positions subject of
this Petition. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and
Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, CJ ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution took
effect on February 2, 1987, the date that the plebiscite for its ratification was held or
whether it took effect on February 11, 1987, the date its ratification was proclaimed per
Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue
of the provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take
effect immediately upon its ratification by a majority of the votes cast in a plebiscite held
for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its
ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the
date its ratification shall have been ascertained and not at the time the people cast their
votes to approve or reject it." This view was actually proposed at the Constitutional
Commission deliberations, but was withdrawn by its proponent in the face of the
"overwhelming" contrary view that the Constitution "will be effective on the very day of
the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully
supports the Court's judgment. It shows that the clear, unequivocal and express intent
of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor
and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987
Constitution was that "the act of ratification is the act of voting by the people. So that is
the date of the ratification" and that "the canvass thereafter [of the votes] is merely the
mathematical confirmation of what was done during the date of the plebiscite and the
proclamation of the President is merely the official confirmatory declaration of an act
which was actually done by the Filipino people in adopting the Constitution when they
cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the
original formulation of the committee as indicated in Section 12, unless
there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the
following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And on the last line, after "constitutions," add the
following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner
Davide is going to propose an additional sentence, the committee would
suggest that we take up first his amendment to the first sentence as
originally formulated. We are now ready to comment on that proposed
amendment.
The proposed amendment would be to delete the words "its ratification
and in lieu thereof insert the words "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And the second
amendment would be: After the word "constitutions," add the words" AND
THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we
regret that we cannot accept the second proposed amendment after the
word "constitutions" because the committee feels that when we talk of all
previous Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But,
Madam President, may I request that I be allowed to read the second
amendment so the Commission would be able to appreciate the change in
the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION
SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION
OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE
RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman,
the committee feels that the second proposed amendment in the form of a
new sentence would not be exactly necessary and the committee feels
that it would be too much for us to impose a time frame on the President
to make the proclamation. As we would recall, Madam President, in the
approved Article on the Executive, there is a provision which says that the
President shall make certain that all laws shall be faithfully complied.
When we approve this first sentence, and it says that there will be a
proclamation by the President that the Constitution has been ratified, the
President will naturally comply with the law in accordance with the
provisions in the Article on the Executive which we have cited. It would be
too much to impose on the President a time frame within which she will
make that declaration. It would be assumed that the President would
immediately do that after the results shall have been canvassed by the
COMELEC.
Therefore, the committee regrets that it cannot accept the second
sentence which the Gentleman is proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that
there will be an immediate proclamation of the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of
the amendment which makes the effectivity of the new Constitution
dependent upon the proclamation of the President. The effectivity of the
Constitution should commence on the date of the ratification, not on the
date of the proclamation of the President. What is confusing, I think,
is what happened in 1976 when the amendments of 1976 were ratified. In
that particular case, the reason the amendments of 1976 were effective
upon the proclamation of the President was that the draft presented to the
people said that the amendment will be effective upon the proclamation
made by the President. I have a suspicion that was put in there precisely
to give the President some kind of leeway on whether to announce the
ratification or not. Therefore, we should not make this dependent on the
action of the President since this will be a manifestation of the act of the
people to be done under the supervision of the COMELECand it should be
the COMELEC who should make the announcement that, in fact, the
votes show that the Constitution was ratified and there should be no need
to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory
questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed
as to exactly when the Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the
date the votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam
President. We present the Constitution to a plebiscite, the people exercise
their right to vote, then the votes are canvassed by the Commission on
Elections. If we delete the suggested amendment which says: "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED,"
what would be, in clear terms, the date when the Constitution is supposed
to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the
President were to say that the plebiscite would be held, for instance, on
January 19, 1987, then the date for the effectivity of the new Constitution
would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual
issuance of the results by the Commission on Elections which will be
doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the
act of saying "yes" is done when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam
President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we
would like to know from the proponent, Commissioner Davide, if he is
insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment
because I cannot subscribe to the view of Commissioner Bernas, that the
date of the ratification is reckoned from the date of the casting of the
ballots. That cannot be the date of reckoning because it is a plebiscite all
over the country. We do not split the moment of casting by each of the
voters. Actually and technically speaking, it would be all right if it would be
upon the announcement of the results of the canvass conducted by the
COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement
of the results of the plebiscite. So it is either the President or the
COMELEC itself upon the completion of the canvass of the results of the
plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with
Commissioner Davide. I support the stand of Commissioner Bernas
because it is really the date of the casting of the "yes" votes that is the
date of the ratification of the Constitution The announcement merely
confirms the ratification even if the results are released two or three days
after. I think it is a fundamental principle in political law, even in civil law,
because an announcement is a mere confirmation The act of ratification is
the act of voting by the people. So that is the date of the ratification. If
there should be any need for presidential proclamation, that proclamation
will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the
same support for Commissioner Bernas, because the canvass thereafter
is merely the mathematical confirmation of what was done during the date
of the plebiscite and the proclamation of the President is merely the official
confirmatory declaration of an act which was actually done by the Filipino
people in adopting the Constitution when they cast their votes on the date
of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to
fix a date for the effectivity of the Constitution. Suppose the
announcement is delayed by, say, 10 days or a month, what happens to
the obligations and rights that accrue upon the approval of the
Constitution? So I think we must have a definite date. I am, therefore, in
favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a
necessity for the Commission on Elections to declare the results of the
canvass?
FR. BERNAS. There would be because it is the Commission on Elections
which makes the official announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will there
be a necessity for the President to make a proclamation of the results of
the canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the
proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President
would be immaterial because under the law, the administration of all
election laws is under an independent Commission on Elections. It is the
Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the
proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts
what the Commission on Elections says, it would have no effect. I would
only add that when we say that the date of effectivity is on the day of the
casting of the votes, what we mean is that the Constitution takes effect on
every single minute and every single second of that day, because the Civil
Code says a day has 24 hours.So that even if the votes are cast in the
morning, the Constitution is really effective from the previous midnight.
So that when we adopted the new rule on citizenship, the children of
Filipino mothers or anybody born on the date of effectivity of the 1973
Constitution, which is January 17, 1973, are natural-born citizens, no
matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts to
the date of the plebiscite?
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite
date. I think it is precisely the proposal of Commissioner Bernas which
speaks of the date (of ratification that would have a definite date,
because there would be no definite date if we depend upon the
canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it
the COMELEC or the President, would announce that a majority of the
votes cast on a given date was in favor of the Constitution. And that is the
date when the Constitution takes effect, apart from the fact that the
provision on the drafting or amendment of the Constitution provides that a
constitution becomes effective upon ratification by a majority of the votes
cast, although I would not say from the very beginning of the date of
election because as of that time it is impossible to determine whether
there is a majority. At the end of the day of election or plebiscite, the
determination is made as of that time-the majority of the votes cast in a
plebiscite held on such and such a date. So that is the time when the new
Constitution will be considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment
of Commissioner Davide and I support the view of Commissioner Bernas
and the others because the ratification of the Constitution is on the date
the people, by a majority vote, have cast their votes in favor of the
Constitution. Even in civil law, if there is a contract, say, between an agent
and a third person and that contract is confirmed or ratified by the
principal, the validity does not begin on the date of ratification but it
retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the
date that the people have cast their affirmative votes in favor of the
Constitution.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he
is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of
the opinion that it will be effective on the very day of the plebiscite, I
am withdrawing my amendment on the assumption that any of the
following bodies the Office of the President or the COMELEC will make
the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original
provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation
indicated in the original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and shall
supersede all previous Constitutions.
We ask for a vote, Madam President.
V O T I N G
THE PRESIDENT. As many as are in favor, please raise their hand.
(Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his
hand.)
The results show 35 votes in favor and none against; Section 12 is
approved.
2

The Court next holds as a consequence of its declaration at bar that the Constitution
took effect on the date of its ratification in the plebiscite held on February 2, 1987, that:
(1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to
have been superseded by the 1987 Constitution on the same date February 2, 1987
and (2) by and after said date, February 2, 1987, absent any saying clause to the
contrary in the Transitory Article of the Constitution, respondent OIC Governor could no
longer exercise the power to replace petitioners in their positions as Barangay Captain
and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of their successors could no longer
produce any legal force and effect. While the Provisional Constitution provided for a
one-year period expiring on March 25, 1987 within which the power of replacement
could be exercised, this period was shortened by the ratification and effectivity on
February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution
been otherwise, they would have so provided for in the Transitory Article, as indeed
they provided for multifarious transitory provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the incumbent President and Vice-President to
noon of June 30, 1992 for purposes of synchronization of elections, the continued
exercise of legislative powers by the incumbent President until the convening of the first
Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of
some seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported
extended (by) the President on February 2, 1987 . . . could be open to serious
questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the
Constitution which require prior endorsement thereof by the Judicial and Bar Council
created under the Constitution. It should be stated for the record that the reported date
of the appointments, February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals Justices were transmitted to
this Court on February 1, 1987 and they were all appointed on or before January 31,
1987.
3
(Similarly, the records of the Department of Justice likewise show that the
appointment papers of the last batch of provincial and city fiscals signed by the
President in completion of the reorganization of the prosecution service were made on
January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a
matter of record that since February 2, 1987, no appointments to the Judiciary have
been extended by the President, pending the constitution of the Judicial and Bar
Council, indicating that the Chief Executive has likewise considered February 2, 1987
as the effective date of the Constitution, as now expressly declared by the Court.
CRUZ, J ., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more
telling effect than the tones of thunder. She has written another persuasive opinion, and
I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna,
Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no
longer be summarily replaced, having acquired security of tenure under the new
Constitution. Our difference is that whereas I would make that right commence on
February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera
would opt for February 2, 1987, when the new Constitution was ratified. I yield to that
better view and agree with her ponencia completely.
SARMIENTO, J ., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the
Provisional Constitution with respect to the tenure of government functionaries, as
follows:
period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts
whether or not that cut-off period began on February 2, 1987, the date of the plebiscite
held to approve the new Charter. To my mind the 1987 constitution took effect on
February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation
No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification
by a majority of the votes cast in a plebiscite held for the purpose and
shall supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its
ratification shall have been ascertained, and not at the time the people cast their votes
to approve or reject it. For it cannot be logically said that Constitution was ratified during
such a plebiscite, when the will of the people as of that time, had not, and could not
have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government
performed acts that would have been valid under the Provisional Constitution but would
otherwise have been void under the 1987 Charter. I recall, in particular, the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55
city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8
(1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex oficio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy, Such
appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as
well as the amendments thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera,
2
we held that the 1973 Constitution became in force and effect
on January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by
the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention,"
was issued, although Mr. Justice, now Chief Justice, Teehankee would push its
effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive
Secretary,
3
became final. And this was so notwithstanding Section 16, Article XVII, of
the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall supersede the Constitution
of nineteen-hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595,
proclaiming the ratification of the 1976 amendments submitted in the plebiscite of
October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments
embodied in this certificate as duly ratified by the Filipino people in the referendum-
plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect
as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall
have proclaimed that they have been ratified by a majority of the votes
cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming
the Ratification by the Filipino People of the Amendments of Section 7, Article X of the
Constitution" (lengthening the terms of office of judges and justices). The Proclamation
provides:
[t]he above-quoted amendment has been duly ratified by a majority of the
votes cast in the plebiscite held, together with the election for local
officials, on January 30, 1980, and that said amendment is hereby
declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed
amendment shall take effect on the date the incumbent President/Prime Minister shall
proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the
Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas
Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and
Effect." The Proclamation, in declaring the said amendments duly approved, further
declared them "[e]ffective and in full force and in effect as of the date of this
Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2
of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly,
which parented these amendments, the same:
. . .shall become valid as part of the Constitution when approved by a
majority of the votes cast in a plebiscite to be held pursuant to Section 2,
Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People,
for Ratification or Rejection, the Amendment to the Constitution of the Philippines,
Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its
Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore,"
provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and
proclaim the result of the plebiscite using the certificates submitted to it,
duly authenticated and certified by the Board of Canvassers of each
province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite
of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang
Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the
amendments:
....are therefore effective and in full force and effect as of the date of this
Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and
Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of
the Philippines shall proclaim that they have been ratified by a majority of
the votes cast in the plebiscite held for the purpose, but not later than
three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when
approved by a majority of the votes cast in an election/plebiscite at which
it is submitted to the people for their ratification pursuant to Section 2 of
Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their
ratification and not at the time of the plebiscite is a view that is not peculiar to the
Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947
plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of
Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9,
1947 Resolution makes no mention of a retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on
February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the
Constitutional Commission of 1986, including the Ordinance appended
thereto, has been duly ratified by the Filipino people and is therefore
effective and in full force and effect.
4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect
at no other time.
I submit that our ruling in Ponsica v. Ignalaga
5
in which we declared, in passing, that
the new Charter was ratified on February 2, 1987, does not in any way weaken this
dissent. As I stated, the remark was said in passing-we did not resolve the case on
account of a categorical holding that the 1987 Constitution came to life on February 2,
1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the
challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution not
being then as yet in force.

Separate Opinions
TEEHANKEE, CJ ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution took
effect on February 2, 1987, the date that the plebiscite for its ratification was held or
whether it took effect on February 11, 1987, the date its ratification was proclaimed per
Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue
of the provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take
effect immediately upon its ratification by a majority of the votes cast in a plebiscite held
for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its
ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the
date its ratification shall have been ascertained and not at the time the people cast their
votes to approve or reject it." This view was actually proposed at the Constitutional
Commission deliberations, but was withdrawn by its proponent in the face of the
"overwhelming" contrary view that the Constitution "will be effective on the very day of
the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully
supports the Court's judgment. It shows that the clear, unequivocal and express intent
of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor
and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987
Constitution was that "the act of ratification is the act of voting by the people. So that is
the date of the ratification" and that "the canvass thereafter [of the votes] is merely the
mathematical confirmation of what was done during the date of the plebiscite and the
proclamation of the President is merely the official confirmatory declaration of an act
which was actually done by the Filipino people in adopting the Constitution when they
cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the
original formulation of the committee as indicated in Section 12, unless
there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the
following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And on the last line, after "constitutions," add the
following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner
Davide is going to propose an additional sentence, the committee would
suggest that we take up first his amendment to the first sentence as
originally formulated. We are now ready to comment on that proposed
amendment.
The proposed amendment would be to delete the words "its ratification
and in lieu thereof insert the words "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And the second
amendment would be: After the word "constitutions," add the words" AND
THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we
regret that we cannot accept the second proposed amendment after the
word "constitutions" because the committee feels that when we talk of all
previous Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But,
Madam President, may I request that I be allowed to read the second
amendment so the Commission would be able to appreciate the change in
the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION
SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION
OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE
RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman,
the committee feels that the second proposed amendment in the form of a
new sentence would not be exactly necessary and the committee feels
that it would be too much for us to impose a time frame on the President
to make the proclamation. As we would recall, Madam President, in the
approved Article on the Executive, there is a provision which says that the
President shall make certain that all laws shall be faithfully complied.
When we approve this first sentence, and it says that there will be a
proclamation by the President that the Constitution has been ratified, the
President will naturally comply with the law in accordance with the
provisions in the Article on the Executive which we have cited. It would be
too much to impose on the President a time frame within which she will
make that declaration. It would be assumed that the President would
immediately do that after the results shall have been canvassed by the
COMELEC.
Therefore, the committee regrets that it cannot accept the second
sentence which the Gentleman is proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that
there will be an immediate proclamation of the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of
the amendment which makes the effectivity of the new Constitution
dependent upon the proclamation of the President. The effectivity of the
Constitution should commence on the date of the ratification, not on the
date of the proclamation of the President. What is confusing, I think,
is what happened in 1976 when the amendments of 1976 were ratified. In
that particular case, the reason the amendments of 1976 were effective
upon the proclamation of the President was that the draft presented to the
people said that the amendment will be effective upon the proclamation
made by the President. I have a suspicion that was put in there precisely
to give the President some kind of leeway on whether to announce the
ratification or not. Therefore, we should not make this dependent on the
action of the President since this will be a manifestation of the act of the
people to be done under the supervision of the COMELECand it should be
the COMELEC who should make the announcement that, in fact, the
votes show that the Constitution was ratified and there should be no need
to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory
questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed
as to exactly when the Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the
date the votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam
President. We present the Constitution to a plebiscite, the people exercise
their right to vote, then the votes are canvassed by the Commission on
Elections. If we delete the suggested amendment which says: "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED,"
what would be, in clear terms, the date when the Constitution is supposed
to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the
President were to say that the plebiscite would be held, for instance, on
January 19, 1987, then the date for the effectivity of the new Constitution
would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual
issuance of the results by the Commission on Elections which will be
doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the
act of saying "yes" is done when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam
President?
MR. MAAMBONG. With that statement of Commissioner Bernas, we
would like to know from the proponent, Commissioner Davide, if he is
insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment
because I cannot subscribe to the view of Commissioner Bernas, that the
date of the ratification is reckoned from the date of the casting of the
ballots. That cannot be the date of reckoning because it is a plebiscite all
over the country. We do not split the moment of casting by each of the
voters. Actually and technically speaking, it would be all right if it would be
upon the announcement of the results of the canvass conducted by the
COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement
of the results of the plebiscite. So it is either the President or the
COMELEC itself upon the completion of the canvass of the results of the
plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with
Commissioner Davide. I support the stand of Commissioner Bernas
because it is really the date of the casting of the "yes" votes that is the
date of the ratification of the Constitution The announcement merely
confirms the ratification even if the results are released two or three days
after. I think it is a fundamental principle in political law, even in civil law,
because an announcement is a mere confirmation The act of ratification is
the act of voting by the people. So that is the date of the ratification. If
there should be any need for presidential proclamation, that proclamation
will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the
same support for Commissioner Bernas, because the canvass thereafter
is merely the mathematical confirmation of what was done during the date
of the plebiscite and the proclamation of the President is merely the official
confirmatory declaration of an act which was actually done by the Filipino
people in adopting the Constitution when they cast their votes on the date
of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to
fix a date for the effectivity of the Constitution. Suppose the
announcement is delayed by, say, 10 days or a month, what happens to
the obligations and rights that accrue upon the approval of the
Constitution? So I think we must have a definite date. I am, therefore, in
favor of the Davide amendment.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a
necessity for the Commission on Elections to declare the results of the
canvass?
FR. BERNAS. There would be because it is the Commission on Elections
which makes the official announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will there
be a necessity for the President to make a proclamation of the results of
the canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the
proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President
would be immaterial because under the law, the administration of all
election laws is under an independent Commission on Elections. It is the
Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the
proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts
what the Commission on Elections says, it would have no effect. I would
only add that when we say that the date of effectivity is on the day of the
casting of the votes, what we mean is that the Constitution takes effect on
every single minute and every single second of that day, because the Civil
Code says a day has 24 hours.
So that even if the votes are cast in the morning, the Constitution is really
effective from the previous midnight. So that when we adopted the new
rule on citizenship, the children of Filipino mothers or anybody born on the
date of effectivity of the 1973 Constitution, which is January 17, 1973, are
natural-born citizens, no matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts to
the date of the plebiscite?
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite
date. I think it is precisely the proposal of Commissioner Bernas which
speaks of the date (of ratification that would have a definite date,
because there would be no definite date if we depend upon the
canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it
the COMELEC or the President, would announce that a majority of the
votes cast on a given date was in favor of the Constitution. And that is the
date when the Constitution takes effect, apart from the fact that the
provision on the drafting or amendment of the Constitution provides that a
constitution becomes effective upon ratification by a majority of the votes
cast, although I would not say from the very beginning of the date of
election because as of that time it is impossible to determine whether
there is a majority. At the end of the day of election or plebiscite, the
determination is made as of that time-the majority of the votes cast in a
plebiscite held on such and such a date. So that is the time when the new
Constitution will be considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment
of Commissioner Davide and I support the view of Commissioner Bernas
and the others because the ratification of the Constitution is on the date
the people, by a majority vote, have cast their votes in favor of the
Constitution. Even in civil law, if there is a contract, say, between an agent
and a third person and that contract is confirmed or ratified by the
principal, the validity does not begin on the date of ratification but it
retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the
date that the people have cast their affirmative votes in favor of the
Constitution.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he
is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of
the opinion that it will be effective on the very day of the plebiscite, I
am withdrawing my amendment on the assumption that any of the
following bodies the Office of the President or the COMELEC will make
the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original
provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation
indicated in the original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and shall
supersede all previous Constitutions.
We ask for a vote, Madam President.
V O T I N G
THE PRESIDENT. As many as are in favor, please raise their hand.
(Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his
hand.)
The results show 35 votes in favor and none against; Section 12 is
approved.
2

The Court next holds as a consequence of its declaration at bar that the Constitution
took effect on the date of its ratification in the plebiscite held on February 2, 1987, that:
(1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to
have been superseded by the 1987 Constitution on the same date February 2, 1987
and (2) by and after said date, February 2, 1987, absent any saying clause to the
contrary in the Transitory Article of the Constitution, respondent OIC Governor could no
longer exercise the power to replace petitioners in their positions as Barangay Captain
and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of their successors could no longer
produce any legal force and effect. While the Provisional Constitution provided for a
one-year period expiring on March 25, 1987 within which the power of replacement
could be exercised, this period was shortened by the ratification and effectivity on
February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution
been otherwise, they would have so provided for in the Transitory Article, as indeed
they provided for multifarious transitory provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the incumbent President and Vice-President to
noon of June 30, 1992 for purposes of synchronization of elections, the continued
exercise of legislative powers by the incumbent President until the convening of the first
Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of
some seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported
extended (by) the President on February 2, 1987 . . . could be open to serious
questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the
Constitution which require prior endorsement thereof by the Judicial and Bar Council
created under the Constitution. It should be stated for the record that the reported date
of the appointments, February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals Justices were transmitted to
this Court on February 1, 1987 and they were all appointed on or before January 31,
1987.
3
(Similarly, the records of the Department of Justice likewise show that the
appointment papers of the last batch of provincial and city fiscals signed by the
President in completion of the reorganization of the prosecution service were made on
January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a
matter of record that since February 2, 1987, no appointments to the Judiciary have
been extended by the President, pending the constitution of the Judicial and Bar
Council, indicating that the Chief Executive has likewise considered February 2, 1987
as the effective date of the Constitution, as now expressly declared by the Court.
CRUZ, J ., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more
telling effect than the tones of thunder. She has written another persuasive opinion, and
I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna,
Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no
longer be summarily replaced, having acquired security of tenure under the new
Constitution. Our difference is that whereas I would make that right commence on
February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera
would opt for February 2, 1987, when the new Constitution was ratified. I yield to that
better view and agree with her ponencia completely.
SARMIENTO, J ., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the
Provisional Constitution with respect to the tenure of government functionaries, as
follows:
period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts
whether or not that cut-off period began on February 2, 1987, the date of the plebiscite
held to approve the new Charter. To my mind the 1987 constitution took effect on
February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation
No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification
by a majority of the votes cast in a plebiscite held for the purpose and
shall supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its
ratification shall have been ascertained, and not at the time the people cast their votes
to approve or reject it. For it cannot be logically said that Constitution was ratified during
such a plebiscite, when the will of the people as of that time, had not, and could not
have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government
performed acts that would have been valid under the Provisional Constitution but would
otherwise have been void under the 1987 Charter. I recall, in particular, the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55
city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8
(1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex oficio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
xxx xxx xxx
2Sec. 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy, Such
appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as
well as the amendments thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera,
2
we held that the 1973 Constitution became in force and effect
on January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by
the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention,"
was issued, although Mr. Justice, now Chief Justice, Teehankee would push its
effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive
Secretary,
3
became final. And this was so notwithstanding Section 16, Article XVII, of
the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall supersede the Constitution
of nineteen-hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595,
proclaiming the ratification of the 1976 amendments submitted in the plebiscite of
October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments
embodied in this certificate as duly ratified by the Filipino people in the referendum
plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect
as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall
have proclaimed that they have been ratified by a majority of the votes
cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming
the Ratification by the Filipino People of the Amendments of Section 7, Article X of the
Constitution" (lengthening the terms of office of judges and justices). The Proclamation
provides:
[t]he above-quoted amendment has been duly ratified by a majority of the
votes cast in the plebiscite held, together with the election for local
officials, on January 30, 1980, and that said amendment is hereby
declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed
amendment shall take effect on the date the incumbent President/Prime Minister shall
proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the
Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas
Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and
Effect." The Proclamation, in declaring the said amendments duly approved, further
declared them "[e]ffective and in full force and in effect as of the date of this
Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2
of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly,
which parented these amendments, the same:
... shall become valid as part of the Constitution when approved by a
majority of the votes cast in a plebiscite to be held pursuant to Section 2,
Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People,
for Ratification or Rejection, the Amendment to the Constitution of the Philippines,
Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its
Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore,"
provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and
proclaim the result of the plebiscite using the certificates submitted to it,
duly authenticated and certified by the Board of Canvassers of each
province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite
of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang
Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the
amendments:
....are therefore effective and in full force and effect as of the date of this
Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and
Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of
the Philippines shall proclaim that they have been ratified by a majority of
the votes cast in the plebiscite held for the purpose, but not later than
three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a
majority of the votes cast in an election/plebiscite at which it is submitted to the people
for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their
ratification and not at the time of the plebiscite is a view that is not peculiar to the
Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947
plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of
Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9,
1947 Resolution makes no mention of a retroactive application. Accordingly, when the
incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at
Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the
Constitutional Commission of 1986, including the Ordinance appended
thereto, has been duly ratified by the Filipino people and is therefore
effective and in full force and effect.
4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect
at no other time.
I submit that our ruling in Ponsica v. Ignalaga
5
in which we declared, in passing, that
the new Charter was ratified on February 2, 1987, does not in any way weaken this
dissent. As I stated, the remark was said in passing-we did not resolve the case on
account of a categorical holding that the 1987 Constitution came to life on February 2,
1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the
challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution not
being then as yet in force.

SUPREME COURT
Manila
EN BANC

G.R. No. 92299 April 19, 1991
REYNALDO R. SAN JUAN, petitioner,
vs.
CIVIL SERVICE COMMISSION, DEPARTMENT OF BUDGET AND MANAGEMENT
and CECILIA ALMAJOSE,respondents.
Legal Services Division for petitioner.
Sumulong, Sumulong, Paras & Abano Law Offices for private respondent.

GUTIERREZ, JR., J .:p
In this petition for certiorari pursuant to Section 7, Article IX (A) of the present
Constitution, the petitioner Governor of the Province of Rizal, prays for the nullification
of Resolution No. 89-868 of the Civil Service Commission (CSC) dated November 21,
1989 and its Resolution No. 90-150 dated February 9, 1990.
The dispositive portion of the questioned Resolution reads:
WHEREFORE, foregoing premises considered, the Commission resolved
to dismiss, as it hereby dismisses the appeal of Governor Reynaldo San
Juan of Rizal. Accordingly, the approved appointment of Ms. Cecilia
Almajose as Provincial Budget Officer of Rizal, is upheld. (Rollo, p. 32)
The subsequent Resolution No. 90-150 reiterates CSC's position upholding the private
respondent's appointment by denying the petitioner's motion for reconsideration for lack
of merit.
The antecedent facts of the case are as follows:
On March 22, 1988, the position of Provincial Budget Officer (PBO) for the province of
Rizal was left vacant by its former holder, a certain Henedima del Rosario.
In a letter dated April 18, 1988, the petitioner informed Director Reynaldo Abella of the
Department of Budget and Management (DBM) Region IV that Ms. Dalisay Santos
assumed office as Acting PBO since March 22, 1988 pursuant to a Memorandum
issued by the petitioner who further requested Director Abella to endorse the
appointment of the said Ms. Dalisay Santos to the contested position of PBO of Rizal.
Ms. Dalisay Santos was then Municipal Budget Officer of Taytay, Rizal before she
discharged the functions of acting PBO.
In a Memorandum dated July 26, 1988 addressed to the DBM Secretary, then Director
Abella of Region IV recommended the appointment of the private respondent as PBO of
Rizal on the basis of a comparative study of all Municipal Budget Officers of the said
province which included three nominees of the petitioner. According to Abella, the
private respondent was the most qualified since she was the only Certified Public
Accountant among the contenders.
On August 1, 1988, DBM Undersecretary Nazario S. Cabuquit, Jr. signed the
appointment papers of the private respondent as PBO of Rizal upon the aforestated
recommendation of Abella.
In a letter dated August 3, 1988 addressed to Secretary Carague, the petitioner
reiterated his request for the appointment of Dalisay Santos to the contested position
unaware of the earlier appointment made by Undersecretary Cabuquit.
On August 31, 1988, DBM Regional Director Agripino G. Galvez wrote the petitioner
that Dalisay Santos and his other recommendees did not meet the minimum
requirements under Local Budget Circular No. 31 for the position of a local budget
officer. Director Galvez whether or not through oversight further required the petitioner
to submit at least three other qualified nominees who are qualified for the position of
PBO of Rizal for evaluation and processing.
On November 2, 1988, the petitioner after having been informed of the private
respondent's appointment wrote Secretary Carague protesting against the said
appointment on the grounds that Cabuquit as DBM Undersecretary is not legally
authorized to appoint the PBO; that the private respondent lacks the required three
years work experience as provided in Local Budget Circular No. 31; and that under
Executive Order No. 112, it is the Provincial Governor, not the Regional Director or a
Congressman, who has the power to recommend nominees for the position of PBO.
On January 9, 1989 respondent DBM, through its Director of the Bureau of Legal &
Legislative Affairs (BLLA) Virgilio A. Afurung, issued a Memorandum ruling that the
petitioner's letter-protest is not meritorious considering that public respondent DBM
validly exercised its prerogative in filling-up the contested position since none of the
petitioner's nominees met the prescribed requirements.
On January 27, 1989, the petitioner moved for a reconsideration of the BLLA ruling.
On February 28, 1989, the DBM Secretary denied the petitioner's motion for
reconsideration.
On March 27, 1989, the petitioner wrote public respondent CSC protesting against the
appointment of the private respondent and reiterating his position regarding the matter.
Subsequently, public respondent CSC issued the questioned resolutions which
prompted the petitioner to submit before us the following assignment of errors:
A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT BY DBM
ASSISTANT SECRETARY CABUQUIT OF CECILIA ALMAJOSE AS PBO
OF RIZAL.
B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA JOSE
POSSESSES ALL THE REQUIRED QUALIFICATIONS.
C. THE CSC ERRED IN DECLARING THAT PETITIONER'S NOMINEES
ARE NOT QUALIFIED TO THE SUBJECT POSITION.
D. THE CSC AND THE DBM GRAVELY ABUSED THEIR DISCRETION
IN NOT ALLOWING PETITIONER TO SUBMIT NEW NOMINEES WHO
COULD MEET THE REQUIRED QUALIFICATION (Petition, pp. 7-
8, Rollo, pp. 15-16)
All the assigned errors relate to the issue of whether or not the private respondent is
lawfully entitled to discharge the functions of PBO of Rizal pursuant to the appointment
made by public respondent DBM's Undersecretary upon the recommendation of then
Director Abella of DBM Region IV.
The petitioner's arguments rest on his contention that he has the sole right and privilege
to recommend the nominees to the position of PBO and that the appointee should come
only from his nominees. In support thereof, he invokes Section 1 of Executive Order No.
112 which provides that:
Sec. 1. All budget officers of provinces, cities and municipalities shall be
appointed henceforth by the Minister of Budget and Management upon
recommendation of the local chief executive concerned, subject to civil
service law, rules and regulations, and they shall be placed under the
administrative control and technical supervision of the Ministry of Budget
and Management.
The petitioner maintains that the appointment of the private respondent to the
contested position was made in derogation of the provision so that both the
public respondents committed grave abuse of discretion in upholding Almajose's
appointment.
There is no question that under Section 1 of Executive Order No. 112 the petitioner's
power to recommend is subject to the qualifications prescribed by existing laws for the
position of PBO. Consequently, in the event that the recommendations made by the
petitioner fall short of the required standards, the appointing authority, the Minister (now
Secretary) of public respondent DBM is expected to reject the same.
In the event that the Governor recommends an unqualified person, is the Department
Head free to appoint anyone he fancies ? This is the issue before us.
Before the promulgation of Executive Order No. 112 on December 24, 1986, Batas
Pambansa Blg. 337, otherwise known as the Local Government Code vested upon the
Governor, subject to civil service rules and regulations, the power to appoint the PBO
(Sec. 216, subparagraph (1), BP 337). The Code further enumerated the qualifications
for the position of PBO. Thus, Section 216, subparagraph (2) of the same code states
that:
(2) No person shall be appointed provincial budget officer unless he is a
citizen of the Philippines, of good moral character, a holder of a degree
preferably in law, commerce, public administration or any related course
from a recognized college or university, a first grade civil service eligibility
or its equivalent, and has acquired at least five years experience in
budgeting or in any related field.
The petitioner contends that since the appointing authority with respect to the Provincial
Budget Officer of Rizal was vested in him before, then, the real intent behind Executive
Order No. 112 in empowering him to recommend nominees to the position of Provincial
Budget Officer is to make his recommendation part and parcel of the appointment
process. He states that the phrase "upon recommendation of the local chief executive
concerned" must be given mandatory application in consonance with the state policy of
local autonomy as guaranteed by the 1987 Constitution under Art. II, Sec. 25 and Art. X,
Sec. 2 thereof. He further argues that his power to recommend cannot validly be
defeated by a mere administrative issuance of public respondent DBM reserving to itself
the right to fill-up any existing vacancy in case the petitioner's nominees do not meet the
qualification requirements as embodied in public respondent DBM's Local Budget
Circular No. 31 dated February 9, 1988.
The questioned ruling is justified by the public respondent CSC as follows:
As required by said E.O. No. 112, the DBM Secretary may choose from
among the recommendees of the Provincial Governor who are thus
qualified and eligible for appointment to the position of the PBO of Rizal.
Notwithstanding, the recommendation of the local chief executive is
merely directory and not a condition sine qua non to the exercise by the
Secretary of DBM of his appointing prerogative. To rule otherwise would in
effect give the law or E.O. No. 112 a different interpretation or construction
not intended therein, taking into consideration that said officer has been
nationalized and is directly under the control and supervision of the DBM
Secretary or through his duly authorized representative. It cannot be
gainsaid that said national officer has a similar role in the local
government unit, only on another area or concern, to that of a Commission
on Audit resident auditor. Hence, to preserve and maintain the
independence of said officer from the local government unit, he must be
primarily the choice of the national appointing official, and the exercise
thereof must not be unduly hampered or interfered with, provided the
appointee finally selected meets the requirements for the position in
accordance with prescribed Civil Service Law, Rules and Regulations. In
other words, the appointing official is not restricted or circumscribed to the
list submitted or recommended by the local chief executive in the final
selection of an appointee for the position. He may consider other
nominees for the position vis a vis the nominees of the local chief
executive. (CSC Resolution No. 89-868, p. 2;Rollo, p. 31)
The issue before the Court is not limited to the validity of the appointment of one
Provincial Budget Officer. The tug of war between the Secretary of Budget and
Management and the Governor of the premier province of Rizal over a seemingly
innocuous position involves the application of a most important constitutional policy and
principle, that of local autonomy. We have to obey the clear mandate on local
autonomy. Where a law is capable of two interpretations, one in favor of centralized
power in Malacaang and the other beneficial to local autonomy, the scales must be
weighed in favor of autonomy.
The exercise by local governments of meaningful power has been a national goal since
the turn of the century. And yet, inspite of constitutional provisions and, as in this case,
legislation mandating greater autonomy for local officials, national officers cannot seem
to let go of centralized powers. They deny or water down what little grants of autonomy
have so far been given to municipal corporations.
President McKinley's Instructions dated April 7, 1900 to the Second Philippine
Commission ordered the new Government "to devote their attention in the first instance
to the establishment of municipal governments in which natives of the Islands, both in
the cities and rural communities, shall be afforded the opportunity to manage their own
local officers to the fullest extent of which they are capable and subject to the least
degree of supervision and control which a careful study of their capacities and
observation of the workings of native control show to be consistent with the
maintenance of law, order and loyalty.
In this initial organic act for the Philippines, the Commission which combined both
executive and legislative powers was directed to give top priority to making local
autonomy effective.
The 1935 Constitution had no specific article on local autonomy. However, in
distinguishing between presidential control and supervision as follows:
The President shall have control of all the executive departments,
bureaus, or offices, exercise general supervision over all local
governments as may be provided by law, and take care that the laws be
faithfully executed. (Sec. 11, Article VII, 1935 Constitution)
the Constitution clearly limited the executive power over local governments to
"general supervision . . . as may be provided by law." The President controls the
executive departments. He has no such power over local governments. He has
only supervision and that supervision is both general and circumscribed by
statute.
In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court stated:
. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the then Justice, now
Chief Justice, Concepcion as the ponente, clarified matters. As was
pointed out, the presidential competence is not even supervision in
general, but general supervision as may be provided by law. He could not
thus go beyond the applicable statutory provisions, which bind and fetter
his discretion on the matter. Moreover, as had been earlier ruled in an
opinion penned by Justice Padilla in Mondano V. Silvosa, (97 Phil. 143
[1955]) referred to by the present Chief Justice in his opinion in the
Hebron case, supervision goes no further than "overseeing or the power
or authority of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them the former may take such
action or step as prescribed by law to make them perform their duties."
(Ibid, pp. 147-148) Control, on the other hand, "means the power of an
officer to alter or modify or nullify or set aside what a subordinate had
done in the performance of their duties and to substitute the judgment of
the former for that of the latter." It would follow then, according to the
present Chief Justice, to go back to the Hebron opinion, that the President
had to abide by the then provisions of the Revised Administrative Code on
suspension and removal of municipal officials, there being no power of
control that he could rightfully exercise, the law clearly specifying the
procedure by which such disciplinary action would be taken.
Pursuant to this principle under the 1935 Constitution, legislation implementing local
autonomy was enacted. In 1959, Republic Act No. 2264, "An Act Amending the Law
Governing Local Governments by Increasing Their Autonomy and Reorganizing Local
Governments" was passed. It was followed in 1967 when Republic Act No. 5185, the
Decentralization Law was enacted, giving "further autonomous powers to local
governments governments."
The provisions of the 1973 Constitution moved the country further, at least insofar as
legal provisions are concerned, towards greater autonomy. It provided under Article II
as a basic principle of government:
Sec. 10. The State shall guarantee and promote the autonomy of local
government units, especially the barangay to ensure their fullest
development as self-reliant communities.
An entire article on Local Government was incorporated into the Constitution. It called
for a local government code defining more responsive and accountable local
government structures. Any creation, merger, abolition, or substantial boundary
alteration cannot be done except in accordance with the local government code and
upon approval by a plebiscite. The power to create sources of revenue and to levy taxes
was specifically settled upon local governments.
The exercise of greater local autonomy is even more marked in the present
Constitution.
Article II, Section 25 on State Policies provides:
Sec. 25. The State shall ensure the autonomy of local governments
The 14 sections in Article X on Local Government not only reiterate earlier doctrines but
give in greater detail the provisions making local autonomy more meaningful. Thus,
Sections 2 and 3 of Article X provide:
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.
When the Civil Service Commission interpreted the recommending power of the
Provincial Governor as purely directory, it went against the letter and spirit of the
constitutional provisions on local autonomy. If the DBM Secretary jealously hoards the
entirety of budgetary powers and ignores the right of local governments to develop self-
reliance and resoluteness in the handling of their own funds, the goal of meaningful
local autonomy is frustrated and set back.
The right given by Local Budget Circular No. 31 which states:
Sec. 6.0 The DBM reserves the right to fill up any existing vacancy
where none of the nominees of the local chief executive meet the
prescribed requirements.
is ultra vires and is, accordingly, set aside. The DBM may appoint only from the
list of qualified recommendees nominated by the Governor. If none is qualified,
he must return the list of nominees to the Governor explaining why no one meets
the legal requirements and ask for new recommendees who have the necessary
eligibilities and qualifications.
The PBO is expected to synchronize his work with DBM. More important, however, is
the proper administration of fiscal affairs at the local level. Provincial and municipal
budgets are prepared at the local level and after completion are forwarded to the
national officials for review. They are prepared by the local officials who must work
within the constraints of those budgets. They are not formulated in the inner sanctums
of an all-knowing DBM and unilaterally imposed on local governments whether or not
they are relevant to local needs and resources. It is for this reason that there should be
a genuine interplay, a balancing of viewpoints, and a harmonization of proposals from
both the local and national officials. It is for this reason that the nomination and
appointment process involves a sharing of power between the two levels of
government.
It may not be amiss to give by way of analogy the procedure followed in the
appointments of Justices and Judges. Under Article VIII of the Constitution, nominations
for judicial positions are made by the Judicial and Bar Council. The President makes the
appointments from the list of nominees submitted to her by the Council. She cannot
apply the DBM procedure, reject all the Council nominees, and appoint another person
whom she feels is better qualified. There can be no reservation of the right to fill up a
position with a person of the appointing power's personal choice.
The public respondent's grave abuse of discretion is aggravated by the fact that Director
Galvez required the Provincial Governor to submit at least three other names of
nominees better qualified than his earlier recommendation. It was a meaningless
exercise. The appointment of the private respondent was formalized before the
Governor was extended the courtesy of being informed that his nominee had been
rejected. The complete disregard of the local government's prerogative and the smug
belief that the DBM has absolute wisdom, authority, and discretion are manifest.
In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated that the value
of local governments as institutions of democracy is measured by the degree of
autonomy that they enjoy. Citing Tocqueville, he stated that "local assemblies of citizens
constitute the strength of free nations. . . . A people may establish a system of free
government but without the spirit of municipal institutions, it cannot have the spirit of
liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp. 705-706).
Our national officials should not only comply with the constitutional provisions on local
autonomy but should also appreciate the spirit of liberty upon which these provisions
are based.
WHEREFORE, the petition is hereby GRANTED. The questioned resolutions of the Civil
Service Commission are SET ASIDE. The appointment of respondent Cecilia Almajose
is nullified. The Department of Budget and Management is ordered to appoint the
Provincial Budget Officer of Rizal from among qualified nominees submitted by the
Provincial Governor.
SO ORDERED.

SUPREME COURT
Manila
EN BANC
G.R. No. 93252 August 5, 1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents.
G.R. No. 93746 August 5,1991
MARY ANN RIVERA ARTIEDA, petitioner,
vs.
HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local
Government, NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of
the Department of Local Government and SALVADOR CABALUNA
JR., respondents.
G.R. No. 95245 August 5,1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as
the Secretary of the Department of Local Government, respondents.
Nicolas P. Sonalan for petitioner in 93252.
Romeo A. Gerochi for petitioner in 93746.
Eugenio Original for petitioner in 95245.

SARMIENTO, J .:p
The petitioners take common issue on the power of the President (acting through the
Secretary of Local Government), to suspend and/or remove local officials.
The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member
of the Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.
The petitions of Mayor Ganzon originated from a series of administrative complaints, ten
in number, filed against him by various city officials sometime in 1988, on various
charges, among them, abuse of authority, oppression, grave misconduct, disgraceful
and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary
detention.
1
The personalities involved are Joceleehn Cabaluna, a clerk at the city
health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant City
Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German
Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang
Panglunsod; and Pancho Erbite, a barangay tanod. The complaints against the Mayor
are set forth in the opinion of the respondent Court of Appeals.
2
We quote:
xxx xxx xxx
In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the
City Health, Office of Iloilo City charged that due to political reasons,
having supported the rival candidate, Mrs. Rosa 0. Caram, the petitioner
City Mayor, using as an excuse the exigency of the service and the
interest of the public, pulled her out from rightful office where her
qualifications are best suited and assigned her to a work that should be
the function of a non-career service employee. To make matters worse, a
utility worker in the office of the Public Services, whose duties are alien to
the complainant's duties and functions, has been detailed to take her
place. The petitioner's act are pure harassments aimed at luring her away
from her permanent position or force her to resign.
In the case of Dra. Felicidad Ortigoza, she claims that the petitioner
handpicked her to perform task not befitting her position as Assistant City
Health Officer of Iloilo City; that her office was padlocked without any
explanation or justification; that her salary was withheld without cause
since April 1, 1988; that when she filed her vacation leave, she was given
the run-around treatment in the approval of her leave in connivance with
Dr. Rodolfo Villegas and that she was the object of a well-engineered
trumped-up charge in an administrative complaint filed by Dr. Rodolfo
Villegas (Annex B).
On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of
Iloilo City and complainants Rolando Dabao, Dan Dalido, German
Gonzales, Larry Ong and Eduardo Pefia Pedondo are members of the
Sangguniang Panglunsod of the City of Iloilo. Their complaint arose out
from the case where Councilor Larry Ong, whose key to his office was
unceremoniously and without previous notice, taken by petitioner. Without
an office, Councilor Ong had to hold office at Plaza Libertad, The Vice-
Mayor and the other complainants sympathized with him and decided to
do the same. However, the petitioner, together with its fully-armed security
men, forcefully drove them away from Plaza Libertad. Councilor Ong
denounced the petitioner's actuations the following day in the radio station
and decided to hold office at the Freedom Grandstand at Iloilo City and
there were so many people who gathered to witness the incident.
However, before the group could reach the area, the petitioner, together
with his security men, led the firemen using a firetruck in dozing water to
the people and the bystanders.
Another administrative case was filed by Pancho Erbite, a barangay
tanod, appointed by former mayor Rosa O. Caram. On March 13, 1988,
without the benefit of charges filed against him and no warrant of arrest
was issued, Erbite was arrested and detained at the City Jail of Iloilo City
upon orders of petitioner. In jail, he was allegedly mauled by other
detainees thereby causing injuries He was released only the following
day.
3

The Mayor thereafter answered
4
and the cases were shortly set for hearing. The
opinion of the Court of Appeals also set forth the succeeding events:
xxx xxx xxx
The initial hearing in the Cabaluna and Ortigoza cases were set for
hearing on June 20-21, 1988 at the Regional Office of the Department of
Local Government in Iloilo City. Notices, through telegrams, were sent to
the parties (Annex L) and the parties received them, including the
petitioner. The petitioner asked for a postponement before the scheduled
date of hearing and was represented by counsel, Atty. Samuel Castro.
The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez
had to come all the way from Manila for the two-day hearings but was
actually held only on June 20,1988 in view of the inability and
unpreparedness of petitioner's counsel.
The next hearings were re-set to July 25, 26, 27,1988 in the same venue-
Iloilo City. Again, the petitioner attempted to delay the proceedings and
moved for a postponement under the excuse that he had just hired his
counsel. Nonetheless, the hearing officers denied the motion to postpone,
in view of the fact that the parties were notified by telegrams of the
scheduled hearings (Annex M).
In the said hearings, petitioner's counsel cross-examined the complainants
and their witnesses.
Finding probable grounds and reasons, the respondent issued a
preventive suspension order on August 11, 1988 to last until October
11,1988 for a period of sixty (60) days.
Then the next investigation was set on September 21, 1988 and the
petitioner again asked for a postponement to September 26,1988. On
September 26, 1988, the complainants and petitioner were present,
together with their respective counsel. The petitioner sought for a
postponement which was denied. In these hearings which were held in
Mala the petitioner testified in Adm. Case No. C-10298 and 10299.
The investigation was continued regarding the Malabor case and the
complainants testified including their witnesses.
On October 10, 1988, petitioner's counsel, Atty. Original moved for a
postponement of the October 24, 1988 hearing to November 7 to 11, 1988
which was granted. However, the motion for change of venue as denied
due to lack of funds. At the hearing on November 7, 1988, the parties and
counsel were present. Petitioner reiterated his motion to change venue
and moved for postponement anew. The counsel discussed a proposal to
take the deposition of witnesses in Iloilo City so the hearing was
indefinitely postponed. However, the parties failed to come to terms and
after the parties were notified of the hearing, the investigation was set to
December 13 to 15, 1988.
The petitioner sought for another postponement on the ground that his
witnesses were sick or cannot attend the investigation due to lack of
transportation. The motion was denied and the petitioner was given up to
December 14, 1988 to present his evidence.
On December 14,1988, petitioner's counsel insisted on his motion for
postponement and the hearing officers gave petitioner up to December 15,
1988 to present his evidence. On December 15, 1988, the petitioner failed
to present evidence and the cases were considered submitted for
resolution.
In the meantime, a prima facie evidence was found to exist in the arbitrary
detention case filed by Pancho Erbite so the respondent ordered the
petitioner's second preventive suspension dated October 11, 1988 for
another sixty (60) days. The petitioner was able to obtain a restraining
order and a writ of preliminary injunction in the Regional Trial Court,
Branch 33 of Iloilo City. The second preventive suspension was not
enforced.
5

Amidst the two successive suspensions, Mayor Ganzon instituted an action for
prohibition against the respondent Secretary of Local Government (now, Interior) in the
Regional Trial Court, Iloilo City, where he succeeded in obtaining a writ of preliminary
injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in
the respondent Court of Appeals.
Meanwhile, on May 3, 1990, the respondent Secretary issued another order,
preventively suspending Mayor Ganzon for another sixty days, the third time in twenty
months, and designating meantime Vice-Mayor Mansueto Malabor as acting mayor.
Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of
Appeals, a petition for prohibition,
6
(Malabor it is to be noted, is one of the
complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)
On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R.
SP No. 16417. On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R.
SP No. 20736. In a Resolution dated January 24, 1990, it issued a Resolution certifying
the petition of Mary Ann Artieda, who had been similary charged by the respondent
Secretary, to this Court.
On June 26,1990, we issued a Temporary Restraining Order, barring the respondent
Secretary from implementing the suspension orders, and restraining the enforcement of
the Court of Appeals' two decisions.
In our Resolution of November 29, 1990, we consolidated all three cases. In our
Resolutions of January 15, 1991, we gave due course thereto.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local
Government in hearing the ten cases against him, had denied him due process of law
and that the respondent Secretary had been "biased, prejudicial and hostile" towards
him
7
arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng
Demokratikong Pilipino party
8
and the running political rivalry they maintained in the
last congressional and local elections;
9
and his alleged refusal to operate a lottery in
Iloilo City.
10
He also alleges that he requested the Secretary to lift his suspension since
it had come ninety days prior to an election (the barangay elections of November 14,
1988),
11
notwithstanding which, the latter proceeded with the hearing and meted out two
more suspension orders of the aforementioned cases.
12
He likewise contends that he
sought to bring the cases to Iloilo City (they were held in Manila) in order to reduce the
costs of proceeding, but the Secretary rejected his request.
13
He states that he asked
for postponement on "valid and justifiable"
14
grounds, among them, that he was
suffering from a heart ailment which required confinement; that his "vital"
15
witness was
also hospitalized
16
but that the latter unduly denied his request.
17

Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary
of Local Government is devoid, in any event, of any authority to suspend and remove
local officials, an argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R.
No. 93746).
As to Mayor Ganzon's charges of denial of due process, the records do not show very
clearly in what manner the Mayor might have been deprived of his rights by the
respondent Secretary. His claims that he and Secretary Luis-Santos were (are) political
rivals and that his "persecution" was politically motivated are pure speculation and
although the latter does not appear to have denied these contentions (as he, Mayor
Ganzon, claims), we can not take his word for it the way we would have under less
political circumstances, considering furthermore that "political feud" has often been a
good excuse in contesting complaints.
The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had
attempted to seduce him to join the administration party and to operate a lottery in Iloilo
City. Again, although the Secretary failed to rebut his allegations, we can not accept
them, at face value, much more, as judicial admissions as he would have us accept
them
18
for the same reasons above-stated and furthermore, because his say so's were
never corroborated by independent testimonies. As a responsible public official,
Secretary Santos, in pursuing an official function, is presumed to be performing his
duties regularly and in the absence of contrary evidence, no ill motive can be ascribed
to him.
As to Mayor Ganzon's contention that he had requested the respondent Secretary to
defer the hearing on account of the ninety-day ban prescribed by Section 62 of Batas
Blg. 337, the Court finds the question to be moot and academic since we have in fact
restrained the Secretary from further hearing the complaints against the petitioners.
19

As to his request, finally, for postponements, the Court is afraid that he has not given
any compelling reason why we should overturn the Court of Appeals, which found no
convincing reason to overrule Secretary Santos in denying his requests. Besides,
postponements are a matter of discretion on the part of the hearing officer, and based
on Mayor Ganzon's above story, we are not convinced that the Secretary has been
guilty of a grave abuse of discretion.
The Court can not say, under these circumstances, that Secretary Santos' actuations
deprived Mayor Ganzon of due process of law.
We come to the core question: Whether or not the Secretary of Local Government, as
the President's alter ego, can suspend and/or remove local officials.
It is the petitioners' argument that the 1987 Constitution
20
no longer allows the
President, as the 1935 and 1973 Constitutions did, to exercise the power of suspension
and/or removal over local officials. According to both petitioners, the Constitution is
meant, first, to strengthen self-rule by local government units and second, by deleting
the phrase
21
as may be provided by law to strip the President of the power of control
over local governments. It is a view, so they contend, that finds support in the debates
of the Constitutional Commission. The provision in question reads as follows:
Sec. 4. The President of the Philippines shall exercise general supervision
over local governments. Provinces with respect to component cities and
municipalities, and cities and municipalities with respect to component
barangays shall ensure that the acts of their component units are within
the scope of their prescribed powers and functions.
22

It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:
Sec. 10. The President shall have control of all the executive departments,
bureaus, or offices, exercise general supervision over all Local
governments as may be provided by law, and take care that the laws be
faithfully executed.
23

The petitioners submit that the deletion (of "as may be provided by law") is significant,
as their argument goes, since: (1) the power of the President is "provided by law" and
(2) hence, no law may provide for it any longer.
It is to be noted that in meting out the suspensions under question, the Secretary of
Local Government acted in consonance with the specific legal provisions of Batas Blg.
337, the Local Government Code, we quote:
Sec. 62. Notice of Hearing. Within seven days after the complaint is
filed, the Minister of local Government, or the sanggunian concerned, as
the case may be, shall require the respondent to submit his verified
answer within seven days from receipt of said complaint, and commence
the hearing and investigation of the case within ten days after receipt of
such answer of the respondent. No investigation shall be held within
ninety days immediately prior to an election, and no preventive
suspension shall be imposed with the said period. If preventive
suspension has been imposed prior to the aforesaid period, the preventive
suspension shall be lifted.
24

Sec. 63. Preventive Suspension. (1) Preventive suspension may be
imposed by the Minister of Local Government if the respondent is a
provincial or city official, by the provincial governor if the respondent is an
elective municipal official, or by the city or municipal mayor if the
respondent is an elective barangay official.
(2) Preventive suspension may be imposed at any time after the issues
are joined, when there is reasonable ground to believe that the respondent
has committed the act or acts complained of, when the evidence of
culpability is strong, when the gravity of the offense so warrants, or when
the continuance in office of the respondent could influence the witnesses
or pose a threat to the safety and integrity of the records and other
evidence. In all cases, preventive suspension shall not extend beyond
sixty days after the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed
reinstated in office without prejudice to the continuation of the proceedings
against him until its termination. However ' if the delay in the proceedings
of the case is due to his fault, neglect or request, the time of the delay
shall not be counted in computing the time of suspension.
25

The issue, as the Court understands it, consists of three questions: (1) Did the 1987
Constitution, in deleting the phrase "as may be provided by law" intend to divest the
President of the power to investigate, suspend, discipline, and/or remove local officials?
(2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code?
(3) What is the significance of the change in the constitutional language?
It is the considered opinion of the Court that notwithstanding the change in the
constitutional language, the charter did not intend to divest the legislature of its right or
the President of her prerogative as conferred by existing legislation to provide
administrative sanctions against local officials. It is our opinion that the omission (of "as
may be provided by law") signifies nothing more than to underscore local governments'
autonomy from congress and to break Congress' "control" over local government affairs.
The Constitution did not, however, intend, for the sake of local autonomy, to deprive the
legislature of all authority over municipal corporations, in particular, concerning
discipline.
Autonomy does not, after all, contemplate making mini-states out of local government
units, as in the federal governments of the United States of America (or Brazil or
Germany), although Jefferson is said to have compared municipal corporations
euphemistically to "small republics."
26
Autonomy, in the constitutional sense, is subject
to the guiding star, though not control, of the legislature, albeit the legislative
responsibility under the Constitution and as the "supervision clause" itself suggest-is to
wean local government units from over-dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing,
but subject to, among other things, the passage of a local government code,
27
a local
tax law,
28
income distribution legislation,
29
and a national representation law,
30
and
measures
31
designed to realize autonomy at the local level. It is also noteworthy that in
spite of autonomy, the Constitution places the local government under the general
supervision of the Executive. It is noteworthy finally, that the Charter allows Congress to
include in the local government code provisions for removal of local officials, which
suggest that Congress may exercise removal powers, and as the existing Local
Government Code has done, delegate its exercise to the President. Thus:
Sec. 3. The Congress shall enact a local government code which shall
provide for a more responsive and accountable local government structure
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.
32

As hereinabove indicated, the deletion of "as may be provided by law" was meant to
stress, sub silencio, the objective of the framers to strengthen local autonomy by
severing congressional control of its affairs, as observed by the Court of Appeals, like
the power of local legislation.
33
The Constitution did nothing more, however, and insofar
as existing legislation authorizes the President (through the Secretary of Local
Government) to proceed against local officials administratively, the Constitution contains
no prohibition.
The petitioners are under the impression that the Constitution has left the President
mere supervisory powers, which supposedly excludes the power of investigation, and
denied her control, which allegedly embraces disciplinary authority. It is a mistaken
impression because legally, "supervision" is not incompatible with disciplinary authority
as this Court has held,
34
thus:
xxx xxx xxx
It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p.
2884, this Court had occasion to discuss the scope and extent of the
power of supervision by the President over local government officials in
contrast to the power of control given to him over executive officials of our
government wherein it was emphasized that the two terms, control and
supervision, are two different things which differ one from the other in
meaning and extent. Thus in that case the Court has made the following
digression: "In administration law supervision means overseeing or the
power or authority of an officer to see that subordinate officers perform
their duties. If the latter fail or neglect to fulfill them the former may take
such action or step as prescribed by law to make them perform their
duties. Control, on the other hand, means the power of an officer to alter
or modify or nullify of set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for
that of the latter." But from this pronouncement it cannot be reasonably
inferred that the power of supervision of the President over local
government officials does not include the power of investigation when in
his opinion the good of the public service so requires, as postulated in
Section 64(c) of the Revised Administrative Code. ...
35

xxx xxx xxx
"Control" has been defined as "the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for test of the latter."
36
"Supervision" on the other
hand means "overseeing or the power or authority of an officer to see that subordinate
officers perform their duties.
37
As we held,
38
however, "investigating" is not inconsistent
with "overseeing", although it is a lesser power than "altering". The impression is
apparently exacerbated by the Court's pronouncements in at least three cases,Lacson
v. Roque,
39
Hebron v. Reyes,
40
and Mondano v. Silvosa,
41
and possibly, a fourth one,
Pelaez v. Auditor General.
42
In Lacson, this Court said that the President enjoyed no
control powers but only supervision "as may be provided by law,"
43
a rule we reiterated
in Hebron, and Mondano. In Pelaez, we stated that the President "may not . . . suspend
an elective official of a regular municipality or take any disciplinary action against him,
except on appeal from a decision of the corresponding provincial board."
44
However,
neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from
exercising acts of disciplinary authority because she did not exercise control powers,
but because no law allowed her to exercise disciplinary authority. Thus, according
to Lacson:
The contention that the President has inherent power to remove or
suspend municipal officers is without doubt not well taken. Removal and
suspension of public officers are always controlled by the particular law
applicable and its proper construction subject to constitutional
limitations.
45

In Hebron we stated:
Accordingly, when the procedure for the suspension of an officer is
specified by law, the same must be deemed mandatory and adhered to
strictly, in the absence of express or clear provision to the contrary-which
does not et with respect to municipal officers ...
46

In Mondano, the Court held:
... The Congress has expressly and specifically lodged the provincial
supervision over municipal officials in the provincial governor who is
authorized to "receive and investigate complaints made under oath
against municipal officers for neglect of duty, oppression, corruption or
other form of maladministration of office, and conviction by final judgment
of any crime involving moral turpitude." And if the charges are serious, "he
shall submit written charges touching the matter to the provincial board,
furnishing a copy of such charges to the accused either personally or by
registered mail, and he may in such case suspend the officer (not being
the municipal treasurer) pending action by the board, if in his opinion the
charge by one affecting the official integrity of the officer in question."
Section 86 of the Revised Administration Code adds nothing to the power
of supervision to be exercised by the Department Head over the
administration of ... municipalities ... . If it be construed that it does and
such additional power is the same authority as that vested in the
Department Head by section 79(c) of the Revised Administrative Code,
then such additional power must be deemed to have been abrogated by
Section 110(l), Article VII of the Constitution.
47

xxx xxx xxx
In Pelaez, we stated that the President can not impose disciplinary measures on local
officials except on appeal from the provincial board pursuant to the Administrative
Code.
48

Thus, in those case that this Court denied the President the power (to suspend/remove)
it was not because we did not think that the President can not exercise it on account of
his limited power, but because the law lodged the power elsewhere. But in those cases
ii which the law gave him the power, the Court, as in Ganzon v. Kayanan, found little
difficulty in sustaining him.
49

The Court does not believe that the petitioners can rightfully point to the debates of the
Constitutional Commission to defeat the President's powers. The Court believes that the
deliberations are by themselves inconclusive, because although Commissioner Jose
Nolledo would exclude the power of removal from the President,
50
Commissioner Blas
Ople would not.
51

The Court is consequently reluctant to say that the new Constitution has repealed the
Local Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not
incompatible terms and one may stand with the other notwithstanding the stronger
expression of local autonomy under the new Charter. We have indeed held that in spite
of the approval of the Charter, Batas Blg. 337 is still in force and effect.
52

As the Constitution itself declares, local autonomy means "a more responsive and
accountable local government structure instituted through a system of
decentralization."
53
The Constitution as we observed, does nothing more than to break
up the monopoly of the national government over the affairs of local governments and
as put by political adherents, to "liberate the local governments from the imperialism of
Manila." Autonomy, however, is not meant to end the relation of partnership and inter-
dependence between the central administration and local government units, or
otherwise, to user in a regime of federalism. The Charter has not taken such a radical
step. Local governments, under the Constitution, are subject to regulation, however
limited, and for no other purpose than precisely, albeit paradoxically, to enhance self-
government.
As we observed in one case,
54
decentralization means devolution of national
administration but not power to the local levels. Thus:
Now, autonomy is either decentralization of administration or
decentralization of power. There is decentralization of administration when
the central government delegates administrative powers to political
subdivisions in order to broaden the base of government power and in the
process to make local governments "more responsive and accountable,"
and "ensure their fullest development as self-reliant communities and
make them more effective partners in the pursuit of national development
and social progress." At the same time, it relieves the central government
of the burden of managing local affairs and enables it to concentrate on
national concerns. The President exercises "general supervision" over
them, but only to "ensure that local affairs are administered according to
law." He has no control over their acts in the sense that he can substitute
their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of
political power in the favor of local governments units declared to be
autonomous, In that case, the autonomous government is free to chart its
own destiny and shape its future with minimum intervention from central
authorities. According to a constitutional author, decentralization of power
amounts to "self-immolation," since in that event, the autonomous
government becomes accountable not to the central authorities but to its
constituency.
55

The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit
another matter. What bothers the Court, and what indeed looms very large, is the fact
that since the Mayor is facing ten administrative charges, the Mayor is in fact facing the
possibility of 600 days of suspension, in the event that all ten cases yield prima
faciefindings. The Court is not of course tolerating misfeasance in public office
(assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly another
question to make him serve 600 days of suspension, which is effectively, to suspend
him out of office. As we held:
56

2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur.
His term of office does not expire until 1986. Were it not for this
information and the suspension decreed by the Sandiganbayan according
to the Anti-Graft and Corrupt Practices Act, he would have been all this
while in the full discharge of his functions as such municipal mayor. He
was elected precisely to do so. As of October 26, 1983, he has been
unable to. it is a basic assumption of the electoral process implicit in the
right of suffrage that the people are entitled to the services of elective
officials of their choice. For misfeasance or malfeasance, any of them
could, of course, be proceeded against administratively or, as in this
instance, criminally. In either case, Ms culpability must be established.
Moreover, if there be a criminal action, he is entitled to the constitutional
presumption of innocence. A preventive suspension may be justified. Its
continuance, however, for an unreasonable length of time raises a due
process question. For even if thereafter he were acquitted, in the
meanwhile his right to hold office had been nullified. Clearly, there would
be in such a case an injustice suffered by him. Nor is he the only victim.
There is injustice inflicted likewise on the people of Lianga They were
deprived of the services of the man they had elected to serve as mayor. In
that sense, to paraphrase Justice Cardozo, the protracted continuance of
this preventive suspension had outrun the bounds of reason and resulted
in sheer oppression. A denial of due process is thus quite manifest. It is to
avoid such an unconstitutional application that the order of suspension
should be lifted.
57

The plain truth is that this Court has been ill at ease with suspensions, for the above
reasons,
58
and so also, because it is out of the ordinary to have a vacancy in local
government. The sole objective of a suspension, as we have held,
59
is simply "to
prevent the accused from hampering the normal cause of the investigation with his
influence and authority over possible witnesses"
60
or to keep him off "the records and
other evidence.
61

It is a means, and no more, to assist prosecutors in firming up a case, if any, against an
erring local official. Under the Local Government Code, it can not exceed sixty
days,
62
which is to say that it need not be exactly sixty days long if a shorter period is
otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors have
achieved their purpose in a shorter span.
Suspension is not a penalty and is not unlike preventive imprisonment in which the
accused is held to insure his presence at the trial. In both cases, the accused (the
respondent) enjoys a presumption of innocence unless and until found guilty.
Suspension finally is temporary and as the Local Government Code provides, it may be
imposed for no more than sixty days. As we held,
63
a longer suspension is unjust and
unreasonable, and we might add, nothing less than tyranny.
As we observed earlier, imposing 600 days of suspension which is not a remote
possibility Mayor Ganzon is to all intents and purposes, to make him spend the rest of
his term in inactivity. It is also to make, to all intents and purposes, his suspension
permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has
not been proven. Worse, any absolution will be for naught because needless to say, the
length of his suspension would have, by the time he is reinstated, wiped out his tenure
considerably.
The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to
see that justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor
Ganzon successive suspensions when apparently, the respondent Secretary has had
sufficient time to gather the necessary evidence to build a case against the Mayor
without suspending him a day longer. What is intriguing is that the respondent Secretary
has been cracking down, so to speak, on the Mayor piecemeal apparently, to pin him
down ten times the pain, when he, the respondent Secretary, could have pursued a
consolidated effort.
We reiterate that we are not precluding the President, through the Secretary of Interior
from exercising a legal power, yet we are of the opinion that the Secretary of Interior is
exercising that power oppressively, and needless to say, with a grave abuse of
discretion.
The Court is aware that only the third suspension is under questions, and that any talk
of future suspensions is in fact premature. The fact remains, however, that Mayor
Ganzon has been made to serve a total of 120 days of suspension and the possibility of
sixty days more is arguably around the corner (which amounts to a violation of the Local
Government Code which brings to light a pattern of suspensions intended to suspend
the Mayor the rest of his natural tenure. The Court is simply foreclosing what appears to
us as a concerted effort of the State to perpetuate an arbitrary act.
As we said, we can not tolerate such a state of affairs.
We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third
suspension and lifting, for the purpose, the Temporary Restraining Order earlier issued.
Insofar as the seven remaining charges are concerned, we are urging the Department
of Local Government, upon the finality of this Decision, to undertake steps to expedite
the same, subject to Mayor Ganzon's usual remedies of appeal, judicial or
administrative, or certiorari, if warranted, and meanwhile, we are precluding the
Secretary from meting out further suspensions based on those remaining complaints,
notwithstanding findings of prima facie evidence.
In resume the Court is laying down the following rules:
1. Local autonomy, under the Constitution, involves a mere decentralization of
administration, not of power, in which local officials remain accountable to the central
government in the manner the law may provide;
2. The new Constitution does not prescribe federalism;
3. The change in constitutional language (with respect to the supervision clause) was
meant but to deny legislative control over local governments; it did not exempt the latter
from legislative regulations provided regulation is consistent with the fundamental
premise of autonomy;
4. Since local governments remain accountable to the national authority, the latter may,
by law, and in the manner set forth therein, impose disciplinary action against local
officials;
5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not
signify "control" (which the President does not have);
6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but
may no longer be suspended for the offenses he was charged originally; provided:
a) that delays in the investigation of those charges "due to
his fault, neglect or request, (the time of the delay) shall not
be counted in computing the time of suspension. [Supra,
sec. 63(3)]
b) that if during, or after the expiration of, his preventive
suspension, the petitioner commits another or other crimes
and abuses for which proper charges are filed against him
by the aggrieved party or parties, his previous suspension
shall not be a bar to his being preventively suspended again,
if warranted under subpar. (2), Section 63 of the Local
Government Code.
WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary
Restraining Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED,
provided that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve future
suspensions on account of any of the remaining administrative charges pending against
him for acts committed prior to August 11, 1988. The Secretary of Interior is ORDERED
to consolidate all such administrative cases pending against Mayor Ganzon.
The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is
AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ
concur.

SUPREME COURT
Manila
EN BANC

G.R. No. 91649 May 14, 1991
ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN
AND LORENZO SANCHEZ,petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.
H.B. Basco & Associates for petitioners.
Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J .:p
A TV ad proudly announces:
"The new PAGCOR responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant petition seeking to
annul the Philippine Amusement and Gaming Corporation (PAGCOR) Charter PD
1869, because it is allegedly contrary to morals, public policy and order, and because
A. It constitutes a waiver of a right prejudicial to a third person with a right
recognized by law. It waived the Manila City government's right to impose
taxes and license fees, which is recognized by law;
B. For the same reason stated in the immediately preceding paragraph,
the law has intruded into the local government's right to impose local taxes
and license fees. This, in contravention of the constitutionally enshrined
principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it
legalizes PAGCOR conducted gambling, while most other forms of
gambling are outlawed, together with prostitution, drug trafficking and
other vices;
D. It violates the avowed trend of the Cory government away from
monopolistic and crony economy, and toward free enterprise and
privatization. (p. 2, Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the
declared national policy of the "new restored democracy" and the people's will as
expressed in the 1987 Constitution. The decree is said to have a "gambling objective"
and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and
Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second Amended Petition;
p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers
(petitioner Basco being also the Chairman of the Committee on Laws of the City Council
of Manila), can question and seek the annulment of PD 1869 on the alleged grounds
mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue
of P.D. 1067-A dated January 1, 1977 and was granted a franchise under P.D. 1067-B
also dated January 1, 1977 "to establish, operate and maintain gambling casinos on
land or water within the territorial jurisdiction of the Philippines." Its operation was
originally conducted in the well known floating casino "Philippine Tourist." The operation
was considered a success for it proved to be a potential source of revenue to fund
infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2,
1978 for PAGCOR to fully attain this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the
Government to regulate and centralize all games of chance authorized by existing
franchise or permitted by law, under the following declared policy
Sec. 1. Declaration of Policy. It is hereby declared to be the policy of
the State to centralize and integrate all games of chance not heretofore
authorized by existing franchises or permitted by law in order to attain the
following objectives:
(a) To centralize and integrate the right and authority to operate and
conduct games of chance into one corporate entity to be controlled,
administered and supervised by the Government.
(b) To establish and operate clubs and casinos, for amusement and
recreation, including sports gaming pools, (basketball, football, lotteries,
etc.) and such other forms of amusement and recreation including games
of chance, which may be allowed by law within the territorial jurisdiction of
the Philippines and which will: (1) generate sources of additional revenue
to fund infrastructure and socio-civic projects, such as flood control
programs, beautification, sewerage and sewage projects, Tulungan ng
Bayan Centers, Nutritional Programs, Population Control and such other
essential public services; (2) create recreation and integrated facilities
which will expand and improve the country's existing tourist attractions;
and (3) minimize, if not totally eradicate, all the evils, malpractices and
corruptions that are normally prevalent on the conduct and operation of
gambling clubs and casinos without direct government involvement.
(Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over the
Philippines. Under its Charter's repealing clause, all laws, decrees, executive orders,
rules and regulations, inconsistent therewith, are accordingly repealed, amended or
modified.
It is reported that PAGCOR is the third largest source of government revenue, next to
the Bureau of Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR
earned P3.43 Billion, and directly remitted to the National Government a total of P2.5
Billion in form of franchise tax, government's income share, the President's Social Fund
and Host Cities' share. In addition, PAGCOR sponsored other socio-cultural and
charitable projects on its own or in cooperation with various governmental agencies,
and other private associations and organizations. In its 3 1/2 years of operation under
the present administration, PAGCOR remitted to the government a total of P6.2 Billion.
As of December 31, 1989, PAGCOR was employing 4,494 employees in its nine (9)
casinos nationwide, directly supporting the livelihood of Four Thousand Four Hundred
Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the
same is "null and void" for being "contrary to morals, public policy and public order,"
monopolistic and tends toward "crony economy", and is violative of the equal protection
clause and local autonomy as well as for running counter to the state policies
enunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13
(Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the
most deliberate consideration by the Court, involving as it does the exercise of what has
been described as "the highest and most delicate function which belongs to the judicial
department of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146
SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and
coordinate branch of the government We need not be reminded of the time-honored
principle, deeply ingrained in our jurisprudence, that a statute is presumed to be valid.
Every presumption must be indulged in favor of its constitutionality. This is not to say
that We approach Our task with diffidence or timidity. Where it is clear that the
legislature or the executive for that matter, has over-stepped the limits of its authority
under the constitution, We should not hesitate to wield the axe and let it fall heavily, as
fall it must, on the offending statute (Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr.
Justice Zaldivar underscored the
. . . thoroughly established principle which must be followed in all cases
where questions of constitutionality as obtain in the instant cases are
involved. All presumptions are indulged in favor of constitutionality; one
who attacks a statute alleging unconstitutionality must prove its invalidity
beyond a reasonable doubt; that a law may work hardship does not render
it unconstitutional; that if any reasonable basis may be conceived which
supports the statute, it will be upheld and the challenger must negate all
possible basis; that the courts are not concerned with the wisdom, justice,
policy or expediency of a statute and that a liberal interpretation of the
constitution in favor of the constitutionality of legislation should be
adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton,
106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46
SCRA 734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30,
55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983]
cited in Citizens Alliance for Consumer Protection v. Energy Regulatory
Board, 162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are questioning the legal
personality of petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and in keeping
with the Court's duty, under the 1987 Constitution, to determine whether or not the other
branches of government have kept themselves within the limits of the Constitution and
the laws and that they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of this petition.
(Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA
371)
With particular regard to the requirement of proper party as applied in the
cases before us, We hold that the same is satisfied by the petitioners and
intervenors because each of them has sustained or is in danger of
sustaining an immediate injury as a result of the acts or measures
complained of. And even if, strictly speaking they are not covered by the
definition, it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive orders
issued by President Quirino although they were involving only an indirect
and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled that
"the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must
technicalities of procedure." We have since then applied the exception in
many other cases. (Association of Small Landowners in the Philippines,
Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive issues
raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the
prohibition of gambling does not mean that the Government cannot regulate it in the
exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has been defined
as the "state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As
defined, it consists of (1) an imposition or restraint upon liberty or property, (2) in order
to foster the common good. It is not capable of an exact definition but has been,
purposely, veiled in general terms to underscore its all-comprehensive embrace.
(Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the
future where it could be done, provides enough room for an efficient and flexible
response to conditions and circumstances thus assuming the greatest benefits. (Edu v.
Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its origin
to the charter. Along with the taxing power and eminent domain, it is inborn in the very
fact of statehood and sovereignty. It is a fundamental attribute of government that has
enabled it to perform the most vital functions of governance. Marshall, to whom the
expression has been credited, refers to it succinctly as the plenary power of the state "to
govern its citizens". (Tribe, American Constitutional Law, 323, 1978). The police power
of the State is a power co-extensive with self-protection and is most aptly termed the
"law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660,
708) It is "the most essential, insistent, and illimitable of powers." (Smith Bell & Co. v.
National, 40 Phil. 136) It is a dynamic force that enables the state to meet the agencies
of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and
centralize thru an appropriate institution all games of chance authorized by existing
franchise or permitted by law" (1st whereas clause, PD 1869). As was subsequently
proved, regulating and centralizing gambling operations in one corporate entity the
PAGCOR, was beneficial not just to the Government but to society in general. It is a
reliable source of much needed revenue for the cash strapped Government. It provided
funds for social impact projects and subjected gambling to "close scrutiny, regulation,
supervision and control of the Government" (4th Whereas Clause, PD 1869). With the
creation of PAGCOR and the direct intervention of the Government, the evil practices
and corruptions that go with gambling will be minimized if not totally eradicated. Public
welfare, then, lies at the bottom of the enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila
to impose taxes and legal fees; that the exemption clause in P.D. 1869 is violative of the
principle of local autonomy. They must be referring to Section 13 par. (2) of P.D. 1869
which exempts PAGCOR, as the franchise holder from paying any "tax of any kind or
form, income or otherwise, as well as fees, charges or levies of whatever nature,
whether National or Local."
(2) Income and other taxes. a) Franchise Holder: No tax of any kind or
form, income or otherwise as well as fees, charges or levies of whatever
nature, whether National or Local, shall be assessed and collected under
this franchise from the Corporation; nor shall any form or tax or charge
attach in any way to the earnings of the Corporation, except a franchise
tax of five (5%) percent of the gross revenues or earnings derived by the
Corporation from its operations under this franchise. Such tax shall be due
and payable quarterly to the National Government and shall be in lieu of
all kinds of taxes, levies, fees or assessments of any kind, nature or
description, levied, established or collected by any municipal, provincial or
national government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right to
impose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil.
337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or statute
must plainly show an intent to confer that power or the municipality cannot assume it"
(Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield
to a legislative act which is superior having been passed upon by the state itself which
has the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol.
1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It should be
stressed that "municipal corporations are mere creatures of Congress" (Unson v.
Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and abolish
municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28
Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of
control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if
Congress can grant the City of Manila the power to tax certain matters, it can also
provide for exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has long been
revoked. As early as 1975, the power of local governments to regulate gambling thru
the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771 and was
vested exclusively on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority
of chartered cities and other local governments to issue license, permit or
other form of franchise to operate, maintain and establish horse and dog
race tracks, jai-alai and other forms of gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and
establish, horse and dog race tracks, jai-alai and other forms of gambling
shall be issued by the national government upon proper application and
verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or permits"
for the operation of gambling. Necessarily, the power to demand or collect license fees
which is a consequence of the issuance of "licenses or permits" is no longer vested in
the City of Manila.
(d) Local governments have no power to tax instrumentalities of the National
Government. PAGCOR is a government owned or controlled corporation with an
original charter, PD 1869. All of its shares of stocks are owned by the National
Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also
exercises regulatory powers thus:
Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of
the affiliated entities, and shall exercise all the powers, authority and the
responsibilities vested in the Securities and Exchange Commission over
such affiliating entities mentioned under the preceding section, including,
but not limited to amendments of Articles of Incorporation and By-Laws,
changes in corporate term, structure, capitalization and other matters
concerning the operation of the affiliated entities, the provisions of the
Corporation Code of the Philippines to the contrary notwithstanding,
except only with respect to original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is
governmental, which places it in the category of an agency or instrumentality of the
Government. Being an instrumentality of the Government, PAGCOR should be and
actually is exempt from local taxes. Otherwise, its operation might be burdened,
impeded or subjected to control by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede,
burden or in any manner control the operation of constitutional laws
enacted by Congress to carry into execution the powers vested in the
federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local
governments.
Justice Holmes, speaking for the Supreme Court, made reference to the
entire absence of power on the part of the States to touch, in that way
(taxation) at least, the instrumentalities of the United States (Johnson v.
Maryland, 254 US 51) and it can be agreed that no state or political
subdivision can regulate a federal instrumentality in such a way as to
prevent it from consummating its federal responsibilities, or even to
seriously burden it in the accomplishment of them. (Antieau, Modern
Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination
of what local authorities may perceive to be undesirable activities or enterprise using the
power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc
Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or creation of
the very entity which has the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be
violated by P.D. 1869. This is a pointless argument. Article X of the 1987 Constitution
(on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own
source of revenue and to levy taxes, fees, and other charges subject to
such guidelines and limitation as the congress may provide, consistent
with the basic policy on local autonomy. Such taxes, fees and charges
shall accrue exclusively to the local government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to
"limitations" which Congress may provide by law. Since PD 1869 remains an "operative"
law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its
"exemption clause" remains as an exception to the exercise of the power of local
governments to impose taxes and fees. It cannot therefore be violative but rather is
consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means
"decentralization" (III Records of the 1987 Constitutional Commission, pp. 435-436, as
cited in Bernas, The Constitution of the Republic of the Philippines, Vol. II, First Ed.,
1988, p. 374). It does not make local governments sovereign within the state or an
"imperium in imperio."
Local Government has been described as a political subdivision of a
nation or state which is constituted by law and has substantial control of
local affairs. In a unitary system of government, such as the government
under the Philippine Constitution, local governments can only be an intra
sovereign subdivision of one sovereign nation, it cannot be
an imperium in imperio. Local government in such a system can only
mean a measure of decentralization of the function of government.
(emphasis supplied)
As to what state powers should be "decentralized" and what may be delegated to local
government units remains a matter of policy, which concerns wisdom. It is therefore a
political question. (Citizens Alliance for Consumer Protection v. Energy Regulatory
Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with gambling
is a State concern and hence, it is the sole prerogative of the State to retain it or
delegate it to local governments.
As gambling is usually an offense against the State, legislative grant or
express charter power is generally necessary to empower the local
corporation to deal with the subject. . . . In the absence of express grant of
power to enact, ordinance provisions on this subject which are
inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107
So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah
You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited
in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of the
Constitution, because "it legalized PAGCOR conducted gambling, while most
gambling are outlawed together with prostitution, drug trafficking and other vices" (p.
82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners' posture
ignores the well-accepted meaning of the clause "equal protection of the laws." The
clause does not preclude classification of individuals who may be accorded different
treatment under the law as long as the classification is not unreasonable or arbitrary
(Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal force
on all persons or things to be conformable to Article III, Section 1 of the Constitution
(DECS v. San Diego, G.R. No. 89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing classes
of individuals or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G.
2847). The Constitution does not require situations which are different in fact or opinion
to be treated in law as though they were the same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the
equal protection is not clearly explained in the petition. The mere fact that some
gambling activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended by
RA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are
legalized under certain conditions, while others are prohibited, does not render the
applicable laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be
overthrown because there are other instances to which it might have been
applied. (Gomez v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that
all occupations called by the same name must be treated the same way;
the state may do what it can to prevent which is deemed as evil and stop
short of those cases in which harm to the few concerned is not less than
the harm to the public that would insure if the rule laid down were made
mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory
Government away from monopolies and crony economy and toward free enterprise and
privatization" suffice it to state that this is not a ground for this Court to nullify P.D. 1869.
If, indeed, PD 1869 runs counter to the government's policies then it is for the Executive
Department to recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare
what the law is and not what the law should be. Under our system of
government, policy issues are within the domain of the political branches
of government and of the people themselves as the repository of all state
power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when public
interest so requires. No combinations in restraint of trade or unfair
competition shall be allowed. (Art. XII, National Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not necessarily
prohibited by the Constitution. The state must still decide whether public interest
demands that monopolies be regulated or prohibited. Again, this is a matter of policy for
the Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12
(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to
state also that these are merely statements of principles and, policies. As such, they are
basically not self-executing, meaning a law should be passed by Congress to clearly
define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-
executing principles ready for enforcement through the courts. They were
rather directives addressed to the executive and the legislature. If the
executive and the legislature failed to heed the directives of the articles
the available remedy was not judicial or political. The electorate could
express their displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad,
47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas
v. Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified, it must be shown
that there is a clear and unequivocal breach of the Constitution, not merely a doubtful
and equivocal one. In other words, the grounds for nullity must be clear and beyond
reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to declare
a law, or parts thereof, unconstitutional must clearly establish the basis for such a
declaration. Otherwise, their petition must fail. Based on the grounds raised by
petitioners to challenge the constitutionality of P.D. 1869, the Court finds that petitioners
have failed to overcome the presumption. The dismissal of this petition is therefore,
inevitable. But as to whether P.D. 1869 remains a wise legislation considering the
issues of "morality, monopoly, trend to free enterprise, privatization as well as the state
principles on social justice, role of youth and educational values" being raised, is up for
Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory
Board, 162 SCRA 521
Presidential Decree No. 1956, as amended by Executive Order No. 137
has, in any case, in its favor the presumption of validity and
constitutionality which petitioners Valmonte and the KMU have not
overturned. Petitioners have not undertaken to identify the provisions in
the Constitution which they claim to have been violated by that statute.
This Court, however, is not compelled to speculate and to imagine how
the assailed legislation may possibly offend some provision of the
Constitution. The Court notes, further, in this respect that petitioners have
in the main put in question the wisdom, justice and expediency of the
establishment of the OPSF, issues which are not properly addressed to
this Court and which this Court may not constitutionally pass upon. Those
issues should be addressed rather to the political departments of
government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is
precisely so when the gambling resorted to is excessive. This excessiveness
necessarily depends not only on the financial resources of the gambler and his family
but also on his mental, social, and spiritual outlook on life. However, the mere fact that
some persons may have lost their material fortunes, mental control, physical health, or
even their lives does not necessarily mean that the same are directly attributable to
gambling. Gambling may have been the antecedent,but certainly not necessarily the
cause. For the same consequences could have been preceded by an overdose of food,
drink, exercise, work, and even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento,
Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

PADILLA, J ., concurring:
I concur in the result of the learned decision penned by my brother Mr. Justice Paras.
This means that I agree with the decision insofar as it holds that the prohibition, control,
and regulation of the entire activity known as gambling properly pertain to "state policy."
It is, therefore, the political departments of government, namely, the legislative and the
executive that should decide on what government should do in the entire area of
gambling, and assume full responsibility to the people for such policy.
The courts, as the decision states, cannot inquire into the wisdom, morality or
expediency of policies adopted by the political departments of government in areas
which fall within their authority, except only when such policies pose a clear and present
danger to the life, liberty or property of the individual. This case does not involve such a
factual situation.
However, I hasten to make of record that I do not subscribe to gambling in any form. It
demeans the human personality, destroys self-confidence and eviscerates one's self-
respect, which in the long run will corrode whatever is left of the Filipino moral
character. Gambling has wrecked and will continue to wreck families and homes; it is an
antithesis to individual reliance and reliability as well as personal industry which are the
touchstones of real economic progress and national development.
Gambling is reprehensible whether maintained by government or privatized. The
revenues realized by the government out of "legalized" gambling will, in the long run, be
more than offset and negated by the irreparable damage to the people's moral values.
Also, the moral standing of the government in its repeated avowals against "illegal
gambling" is fatally flawed and becomes untenable when it itself engages in the very
activity it seeks to eradicate.
One can go through the Court's decision today and mentally replace the activity referred
to therein as gambling, which is legal only because it is authorized by law and run by
the government, with the activity known asprostitution. Would prostitution be any less
reprehensible were it to be authorized by law, franchised, and "regulated" by the
government, in return for the substantial revenues it would yield the government to carry
out its laudable projects, such as infrastructure and social amelioration? The question, I
believe, answers itself. I submit that the sooner the legislative department outlaws all
forms of gambling, as a fundamental state policy, and the sooner the executive
implements such policy, the better it will be for the nation.
Melencio-Herrera, J., concur.

SUPREME COURT
Manila
EN BANC

G.R. No. 111097 July 20, 1994
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND
GAMING CORPORATION,respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.

CRUZ, J .:
There was instant opposition when PAGCOR announced the opening of a casino in
Cagayan de Oro City. Civic organizations angrily denounced the project. The religious
elements echoed the objection and so did the women's groups and the youth.
Demonstrations were led by the mayor and the city legislators. The media trumpeted
the protest, describing the casino as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in several cities,
PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it
leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of the
herein private respondents, renovated and equipped the same, and prepared to
inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and
hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS
PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY
ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS
PREMISES OR PORTION THEREOF FOR THE OPERATION OF
CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan
de Oro, in session assembled that:
Sec. 1. That pursuant to the policy of the city banning the operation of
casino within its territorial jurisdiction, no business permit shall be issued
to any person, partnership or corporation for the operation of casino within
the city limits.
Sec. 2. That it shall be a violation of existing business permit by any
persons, partnership or corporation to use its business establishment or
portion thereof, or allow the use thereof by others for casino operation and
other gambling activities.
Sec. 3. PENALTIES. Any violation of such existing business permit
as defined in the preceding section shall suffer the following penalties, to
wit:
a) Suspension of the business permit for sixty
(60) days for the first offense and a fine of
P1,000.00/day
b) Suspension of the business permit for Six
(6) months for the second offense, and a fine
of P3,000.00/day
c) Permanent revocation of the business permit
and imprisonment of One (1) year, for the third
and subsequent offenses.
Sec. 4. This Ordinance shall take effect ten (10) days from publication
thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93
reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND
PROVIDING PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against
CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another
Resolution No. 2673, reiterating its policy against the establishment of
CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No.
3353, prohibiting the issuance of Business Permit and to cancel existing
Business Permit to any establishment for the using and allowing to be
used its premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the
Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No.
(4), Paragraph VI of the implementing rules of the Local Government
Code, the City Council as the Legislative Body shall enact measure to
suppress any activity inimical to public morals and general welfare of the
people and/or regulate or prohibit such activity pertaining to amusement or
entertainment in order to protect social and moral welfare of the
community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. The operation of gambling CASINO in the City of Cagayan de
Oro is hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to the following
penalties:
a) Administrative fine of P5,000.00 shall be imposed against the
proprietor, partnership or corporation undertaking the operation, conduct,
maintenance of gambling CASINO in the City and closure thereof;
b) Imprisonment of not less than six (6) months nor more than one (1)
year or a fine in the amount of P5,000.00 or both at the discretion of the
court against the manager, supervisor, and/or any person responsible in
the establishment, conduct and maintenance of gambling CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days after its
publication in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by
PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On
March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the
writ prayed for to prohibit their enforcement.
1
Reconsideration of this decision was
denied on July 13, 1993.
2

Cagayan de Oro City and its mayor are now before us in this petition for review under
Rule 45 of the Rules of Court.
3
They aver that the respondent Court of Appeals erred in
holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of
Cagayan de Oro does not have the power and authority to prohibit the
establishment and operation of a PAGCOR gambling casino within the
City's territorial limits.
2. The phrase "gambling and other prohibited games of chance" found in
Sec. 458, par. (a), sub-par. (1) (v) of R.A. 7160 could only mean "illegal
gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are therefore
invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial to
cockfighting and are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with the
general powers and purposes of the instrumentality concerned and
inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v.
PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing of
the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate
all games of chance, including casinos on land and sea within the territorial jurisdiction
of the Philippines. In Basco v. Philippine Amusements and Gaming Corporation,
4
this
Court sustained the constitutionality of the decree and even cited the benefits of the
entity to the national economy as the third highest revenue-earner in the government,
next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact
ordinances for the purposes indicated in the Local Government Code. It is expressly
vested with the police power under what is known as the General Welfare Clause now
embodied in Section 16 as follows:
Sec. 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among
other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The
Sangguniang Panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient
and effective city government, and in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent,
suppress and impose appropriate penalties for
habitual drunkenness in public places,
vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill
repute,gambling and other prohibited games of
chance, fraudulent devices and ways to obtain
money or property, drug addiction,
maintenance of drug dens, drug pushing,
juvenile delinquency, the printing, distribution
or exhibition of obscene or pornographic
materials or publications, and such other
activities inimical to the welfare and morals of
the inhabitants of the city;
This section also authorizes the local government units to regulate properties and
businesses within their territorial limits in the interest of the general welfare.
5

The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod
may prohibit the operation of casinos because they involve games of chance, which are
detrimental to the people. Gambling is not allowed by general law and even by the
Constitution itself. The legislative power conferred upon local government units may be
exercised over all kinds of gambling and not only over "illegal gambling" as the
respondents erroneously argue. Even if the operation of casinos may have been
permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to
prohibit them within its territory pursuant to the authority entrusted to it by the Local
Government Code.
It is submitted that this interpretation is consonant with the policy of local autonomy as
mandated in Article II, Section 25, and Article X of the Constitution, as well as various
other provisions therein seeking to strengthen the character of the nation. In giving the
local government units the power to prevent or suppress gambling and other social
problems, the Local Government Code has recognized the competence of such
communities to determine and adopt the measures best expected to promote the
general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local
government units to prevent and suppress gambling and other prohibited games of
chance, like craps, baccarat, blackjack and roulette, it meant allforms of gambling
without distinction. Ubi lex non distinguit, nec nos distinguere debemos.
6
Otherwise, it
would have expressly excluded from the scope of their power casinos and other forms
of gambling authorized by special law, as it could have easily done. The fact that it did
not do so simply means that the local government units are permitted to prohibit all
kinds of gambling within their territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of
modifying the charter of the PAGCOR. The Code is not only a later enactment than P.D.
1869 and so is deemed to prevail in case of inconsistencies between them. More than
this, the powers of the PAGCOR under the decree are expressly discontinued by the
Code insofar as they do not conform to its philosophy and provisions, pursuant to Par.
(f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this Code are
hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local
Government Code on P.D. 1869, the doubt must be resolved in favor of the petitioners,
in accordance with the direction in the Code calling for its liberal interpretation in favor of
the local government units. Section 5 of the Code specifically provides:
Sec. 5. Rules of Interpretation. In the interpretation of the provisions of
this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally
interpreted in its favor, and in case of doubt, any question thereon shall be
resolved in favor of devolution of powers and of the lower local
government unit. Any fair and reasonable doubt as to the existence of the
power shall be interpreted in favor of the local government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in accelerating
economic development and upgrading the quality of life for the people in
the community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various
provisions of the Constitution and several decisions of this Court expressive of the
general and official disapprobation of the vice. They invoke the State policies on the
family and the proper upbringing of the youth and, as might be expected, call attention
to the old case of U.S. v. Salaveria,
7
which sustained a municipal ordinance prohibiting
the playing of panguingue. The petitioners decry the immorality of gambling. They also
impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in
creating PAGCOR and authorizing it to operate casinos "on land and sea within the
territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it
is generally considered inimical to the interests of the people, there is nothing in the
Constitution categorically proscribing or penalizing gambling or, for that matter, even
mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the
exercise of its own discretion, the legislature may prohibit gambling altogether or allow it
without limitation or it may prohibit some forms of gambling and allow others for
whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In
making such choices, Congress has consulted its own wisdom, which this Court has no
authority to review, much less reverse. Well has it been said that courts do not sit to
resolve the merits of conflicting theories.
8
That is the prerogative of the political
departments. It is settled that questions regarding the wisdom, morality, or practicibility
of statutes are not addressed to the judiciary but may be resolved only by the legislative
and executive departments, to which the function belongs in our scheme of government.
That function is exclusive. Whichever way these branches decide, they are answerable
only to their own conscience and the constituents who will ultimately judge their acts,
and not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance
No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of
Cagayan de Oro City. And we shall do so only by the criteria laid down by law and not
by our own convictions on the propriety of gambling.
The tests of a valid ordinance are well established. A long line of decisions
9
has held
that to be valid, an ordinance must conform to the following substantive requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government Code, local
government units are authorized to prevent or suppress, among others, "gambling
and other prohibited games of chance." Obviously, this provision excludes games of
chance which are not prohibited but are in fact permitted by law. The petitioners are less
than accurate in claiming that the Code could have excluded such games of chance but
did not. In fact it does. The language of the section is clear and unmistakable. Under the
rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or given
the same meaning of, words with which it is associated. Accordingly, we conclude that
since the word "gambling" is associated with "and other prohibited games of chance,"
the word should be read as referring to only illegal gambling which, like
the other prohibited games of chance, must be prevented or suppressed.
We could stop here as this interpretation should settle the problem quite conclusively.
But we will not. The vigorous efforts of the petitioners on behalf of the inhabitants of
Cagayan de Oro City, and the earnestness of their advocacy, deserve more than short
shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and
the public policy embodied therein insofar as they prevent PAGCOR from exercising the
power conferred on it to operate a casino in Cagayan de Oro City. The petitioners have
an ingenious answer to this misgiving. They deny that it is the ordinances that have
changed P.D. 1869 for an ordinance admittedly cannot prevail against a statute. Their
theory is that the change has been made by the Local Government Code itself, which
was also enacted by the national lawmaking authority. In their view, the decree has
been, not really repealed by the Code, but merely "modified pro tanto" in the sense that
PAGCOR cannot now operate a casino over the objection of the local government unit
concerned. This modification of P.D. 1869 by the Local Government Code is
permissible because one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting that the decree
has only been "modifiedpro tanto," they are actually arguing that it is already dead,
repealed and useless for all intents and purposes because the Code has shorn
PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its
operations may now be not only prohibited by the local government unit; in fact, the
prohibition is not only discretionary but mandated by Section 458 of the Code if the word
"shall" as used therein is to be given its accepted meaning. Local government units
have now no choice but to prevent and suppress gambling, which in the petitioners'
view includes both legal and illegal gambling. Under this construction, PAGCOR will
have no more games of chance to regulate or centralize as they must all be prohibited
by the local government units pursuant to the mandatory duty imposed upon them by
the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless
tiger or a white elephant and will no longer be able to exercise its powers as a prime
source of government revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause,
conveniently discarding the rest of the provision which painstakingly mentions the
specific laws or the parts thereof which are repealed (or modified) by the Code.
Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause,
which is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise
known as the "Local Government Code," Executive Order No. 112 (1987),
and Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees,
orders, instructions, memoranda and issuances related to or concerning
the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939
regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No.
5447 regarding the Special Education Fund; Presidential Decree No. 144
as amended by Presidential Decree Nos. 559 and 1741; Presidential
Decree No. 231 as amended; Presidential Decree No. 436 as amended by
Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464,
477, 526, 632, 752, and 1136 are hereby repealed and rendered of no
force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs
locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar as
they are inconsistent with the provisions of this Code: Sections 2, 16, and
29 of Presidential Decree No. 704; Sections 12 of Presidential Decree No.
87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and Section 16 of Presidential
Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this Code are
hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the
absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v.
Apostol,
10
this Court explained:
The cases relating to the subject of repeal by implication all proceed on
the assumption that if the act of later date clearly reveals an intention on
the part of the lawmaking power to abrogate the prior law, this intention
must be given effect; but there must always be a sufficient revelation of
this intention, and it has become an unbending rule of statutory
construction that the intention to repeal a former law will not be imputed to
the Legislature when it appears that the two statutes, or provisions, with
reference to which the question arises bear to each other the relation of
general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as
the private respondent points out, PAGCOR is mentioned as the source of funding in
two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under
the Department of Justice for the benefit of victims of unjust punishment or detention or
of violent crimes, and R.A. 7648, providing for measures for the solution of the power
crisis. PAGCOR revenues are tapped by these two statutes. This would show that the
PAGCOR charter has not been repealed by the Local Government Code but has in fact
been improved as it were to make the entity more responsive to the fiscal problems of
the government.
It is a canon of legal hermeneutics that instead of pitting one statute against another in
an inevitably destructive confrontation, courts must exert every effort to reconcile them,
remembering that both laws deserve a becoming respect as the handiwork of a
coordinate branch of the government. On the assumption of a conflict between P.D.
1869 and the Code, the proper action is not to uphold one and annul the other but to
give effect to both by harmonizing them if possible. This is possible in the case before
us. The proper resolution of the problem at hand is to hold that under the Local
Government Code, local government units may (and indeed must) prevent and
suppress all kinds of gambling within their territories except only those allowed by
statutes like P.D. 1869. The exception reserved in such laws must be read into the
Code, to make both the Code and such laws equally effective and mutually
complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit, the
illegal and those authorized by law. Legalized gambling is not a modern concept; it is
probably as old as illegal gambling, if not indeed more so. The petitioners' suggestion
that the Code authorizes them to prohibit all kinds of gambling would erase the
distinction between these two forms of gambling without a clear indication that this is the
will of the legislature. Plausibly, following this theory, the City of Manila could, by mere
ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery
as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro
Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion
urged on us by the petitioners that the ordinances in question are valid. On the contrary,
we find that the ordinances violate P.D. 1869, which has the character and force of a
statute, as well as the public policy expressed in the decree allowing the playing of
certain games of chance despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute is
obvious. Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred on them by Congress as
the national lawmaking body. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter. It is a heresy to suggest that the local
government units can undo the acts of Congress, from which they have derived their
power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and
rights wholly from the legislature. It breathes into them the breath of life,
without which they cannot exist. As it creates, so it may destroy. As it may
destroy, it may abridge and control. Unless there is some constitutional
limitation on the right, the legislature might, by a single act, and if we can
suppose it capable of so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the State, and the
corporation could not prevent it. We know of no limitation on the right so
far as to the corporation themselves are concerned. They are, so to
phrase it, the mere tenants at will of the legislature.
11

This basic relationship between the national legislature and the local government units
has not been enfeebled by the new provisions in the Constitution strengthening the
policy of local autonomy. Without meaning to detract from that policy, we here confirm
that Congress retains control of the local government units although in significantly
reduced degree now than under our previous Constitutions. The power to create still
includes the power to destroy. The power to grant still includes the power to withhold or
recall. True, there are certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax,
12
which cannot now be
withdrawn by mere statute. By and large, however, the national legislature is still the
principal of the local government units, which cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of
their constituents and their apprehensions that the welfare of Cagayan de Oro City will
be endangered by the opening of the casino. We share the view that "the hope of large
or easy gain, obtained without special effort, turns the head of the workman"
13
and that
"habitual gambling is a cause of laziness and ruin."
14
In People v. Gorostiza,
15
we
declared: "The social scourge of gambling must be stamped out. The laws against
gambling must be enforced to the limit." George Washington called gambling "the child
of avarice, the brother of iniquity and the father of mischief." Nevertheless, we must
recognize the power of the legislature to decide, in its own wisdom, to legalize certain
forms of gambling, as was done in P.D. 1869 and impliedly affirmed in the Local
Government Code. That decision can be revoked by this Court only if it contravenes the
Constitution as the touchstone of all official acts. We do not find such contravention
here.
We hold that the power of PAGCOR to centralize and regulate all games of chance,
including casinos on land and sea within the territorial jurisdiction of the Philippines,
remains unimpaired. P.D. 1869 has not been modified by the Local Government Code,
which empowers the local government units to prevent or suppress only those forms of
gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that
cannot be amended or nullified by a mere ordinance. Hence, it was not competent for
the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353
prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93
prohibiting the operation of casinos. For all their praiseworthy motives, these ordinances
are contrary to P.D. 1869 and the public policy announced therein and are
therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the respondent
Court of Appeals is AFFIRMED, with costs against the petitioners. It is so ordered.
Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason,
Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Separate Opinions

I concur with the majority holding that the city ordinances in question cannot modify
much less repeal PAGCOR's general authority to establish and maintain gambling
casinos anywhere in the Philippines under Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52,
I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the prohibition, control,
and regulation of the entire activity known as gambling properly pertain to
"state policy". It is, therefore, the political departments of government,
namely, the legislative and the executive that should decide on what
government should do in the entire area of gambling, and assume full
responsibility to the people for such policy." (Emphasis supplied)
However, despite the legality of the opening and operation of a casino in Cagayan de
Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form
runs counter to the government's own efforts to re-establish and resurrect the Filipino
moral character which is generally perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to carefully
weigh the advantages and disadvantages of setting up more gambling facilities in the
country.
That the PAGCOR contributes greatly to the coffers of the government is not enough
reason for setting up more gambling casinos because, undoubtedly, this will not help
improve, but will cause a further deterioration in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always moral and 2)
the ends do not always justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization
of the former will not render it any less reprehensible even if substantial revenue for the
government can be realized from it. The same is true of gambling.
In the present case, it is my considered view that the national government (through
PAGCOR) should re-examine and re-evaluate its decision of imposing the gambling
casino on the residents of Cagayan de Oro City; for it is abundantly clear that public
opinion in the city is very much against it, and again the question must be seriously
deliberated: will the prospects of revenue to be realized from the casino outweigh the
further destruction of the Filipino sense of values?

DAVIDE, JR., J ., concurring:
While I concur in part with the majority, I wish, however, to express my views on certain
aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation (PRYCE)
directly filed with the Court of Appeals its so-called petition for prohibition, thereby
invoking the said court's original jurisdiction to issue writs of prohibition under Section
9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for
declaratory relief: to declare null and unconstitutional for, inter alia, having been
enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and
for being inconsistent with public policy the challenged ordinances enacted by
the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein
of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further
underscores the "declaratory relief" nature of the action. PAGCOR assails the
ordinances for being contrary to the non-impairment and equal protection clauses of the
Constitution, violative of the Local Government Code, and against the State's national
policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have
jurisdiction over the nature of the action. Even assuming arguendo that the case is one
for prohibition, then, under this Court's established policy relative to the hierarchy of
courts, the petition should have been filed with the Regional Trial Court of Cagayan de
Oro City. I find no special or compelling reason why it was not filed with the said court. I
do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom,
in which case the filing of the petition with the Court of Appeals may have been impelled
by tactical considerations. A dismissal of the petition by the Court of Appeals would
have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415,
[1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this
Court stated:
A last word. This court's original jurisdiction to issue writs of certiorari (as
well as prohibition,mandamus, quo warranto, habeas corpus and
injunction) is not exclusive. It is shared by this Court with Regional Trial
Courts (formerly Courts of First Instance), which may issue the writ,
enforceable in any part of their respective regions. It is also shared by this
court, and by the Regional Trial Court, with the Court of Appeals (formerly,
Intermediate Appellate Court), although prior to the effectivity ofBatas
Pambansa Bilang 129 on August 14, 1981, the latter's competence to
issue the extraordinary writs was restricted by those "in aid of its appellate
jurisdiction." This concurrence of jurisdiction is not, however, to be taken
as according to parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the revenue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of extraordinary writs
against first level ("inferior") courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to issue these writs
should be allowed only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This is established
policy. It is a policy that is necessary to prevent inordinate demands upon
the Court's time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-crowding of the
Court's docket. Indeed, the removal of the restriction of the jurisdiction of
the Court of Appeals in this regard, supra resulting from the deletion of
the qualifying phrase, "in aid of its appellate jurisdiction" was evidently
intended precisely to relieve this Court pro tanto of the burden of dealing
with applications for extraordinary writs which, but for the expansion of the
Appellate Court's corresponding jurisdiction, would have had to be filed
with it. (citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this case a
propensity on the part of petitioner, and, for that matter, the same may be
said of a number of litigants who initiate recourses before us, to disregard
the hierarchy of courts in our judicial system by seeking relief directly from
this Court despite the fact that the same is available in the lower courts in
the exercise of their original or concurrent jurisdiction, or is even
mandated by law to be sought therein. This practice must be stopped, not
only because of the imposition upon the previous time of this Court but
also because of the inevitable and resultant delay, intended or otherwise,
in the adjudication of the case which often has to be remanded or referred
to the lower court as the proper forum under the rules of procedure, or as
better equipped to resolve the issues since this Court is not a trier of facts.
We, therefore, reiterate the judicial policy that this Court will not entertain
direct resort to it unless 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 our
primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance
Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To
Any Establishment for the Using and Allowing to be Used Its Premises or Portion
Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An
Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation
Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution
Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the
Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19
November 1990 nearly two years before PRYCE and PAGCOR entered into a
contract of lease under which the latter leased a portion of the former's Pryce Plaza
Hotel for the operation of a gambling casino which resolution was vigorously
reiterated in Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's
express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii),
and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power
under Section 16 thereof (the general welfare clause) which reads:
Sec. 16. General Welfare. Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well
as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of
the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety,
enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and
The issue that necessarily arises is whether in granting local governments (such as the
City of Cagayan de Oro) the above powers and functions, the Local Government Code
has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to
establish and maintain gambling casinos anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.
The nullification by the Court of Appeals of the challenged ordinances
as unconstitutional primarily because it is in contravention to P.D. No. 1869 is
unwarranted. A contravention of a law is not necessarily a contravention of the
constitution. In any case, the ordinances can still stand even if they be conceded as
offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So
reconciled, the ordinances should be construed as not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of Cagayan de
Oro City are, for obvious reasons, strongly against the opening of the gambling casino
in their city. Gambling, even if legalized, would be inimical to the general welfare of the
inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-
owned corporation, must consider the valid concerns of the people of the City of
Cagayan de Oro and should not impose its will upon them in an arbitrary, if not
despotic, manner.

# Separate Opinions
I concur with the majority holding that the city ordinances in question cannot modify
much less repeal PAGCOR's general authority to establish and maintain gambling
casinos anywhere in the Philippines under Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52,
I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the prohibition, control,
and regulation of the entire activity known as gambling properly pertain to
"state policy". It is, therefore, the political departments of government,
namely, the legislative and the executive that should decide on what
government should do in the entire area of gambling, and assume full
responsibility to the people for such policy. (emphasis supplied)
However, despite the legality of the opening and operation of a casino in Cagayan de
Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form
runs counter to the government's own efforts to re-establish and resurrect the Filipino
moral character which is generally perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to carefully
weigh the advantages and disadvantages of setting up more gambling facilities in the
country.
That the PAGCOR contributes greatly to the coffers of the government is not enough
reason for setting up more gambling casinos because, undoubtedly, this will not help
improve, but will cause a further deterioration in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always moral and 2)
the ends do not always justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization
of the former will not render it any less reprehensible even if substantial revenue for the
government can be realized from it. The same is true of gambling.
In the present case, it is my considered view that the national government (through
PAGCOR) should re-examine and re-evaluate its decision of imposing the gambling
casino on the residents of Cagayan de Oro City; for it is abundantly clear that public
opinion in the city is very much against it, and again the question must be seriously
deliberated: will the prospects of revenue to be realized from the casino outweigh the
further destruction of the Filipino sense of values?
DAVIDE, JR., J ., concurring:
While I concur in part with the majority, I wish, however, to express my views on certain
aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation (PRYCE)
directly filed with the Court of Appeals its so-called petition for prohibition, thereby
invoking the said court's original jurisdiction to issue writs of prohibition under Section
9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for
declaratory relief: to declare null and unconstitutional for, inter alia, having been
enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and
for being inconsistent with public policy the challenged ordinances enacted by the
Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of
public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further
underscores the "declaratory relief" nature of the action. PAGCOR assails the
ordinances for being contrary to the non-impairment and equal protection clauses of the
Constitution, violative of the Local Government Code, and against the State's national
policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have
jurisdiction over the nature of the action. Even assuming arguendo that the case is one
for prohibition, then, under this Court's established policy relative to the hierarchy of
courts, the petition should have been filed with the Regional Trial Court of Cagayan de
Oro City. I find no special or compelling reason why it was not filed with the said court. I
do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom,
in which case the filing of the petition with the Court of Appeals may have been impelled
by tactical considerations. A dismissal of the petition by the Court of Appeals would
have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415,
[1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this
Court stated:
A last word. This court's original jurisdiction to issue writs of certiorari (as
well as prohibition,mandamus, quo warranto, habeas corpus and
injunction) is not exclusive. It is shared by this Court with Regional Trial
Courts (formerly Courts of First Instance), which may issue the writ,
enforceable in any part of their respective regions. It is also shared by this
court, and by the Regional Trial Court, with the Court of Appeals (formerly,
Intermediate Appellate Court), although prior to the effectivity ofBatas
Pambansa Bilang 129 on August 14, 1981, the latter's competence to
issue the extraordinary writs was restricted by those "in aid of its appellate
jurisdiction." This concurrence of jurisdiction is not, however, to be taken
as according to parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the revenue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of extraordinary writs
against first level ("inferior") courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to issue these writs
should be allowed only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This is established
policy. It is a policy that is necessary to prevent inordinate demands upon
the Court's time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-crowding of the
Court's docket. Indeed, the removal of the restriction of the jurisdiction of
the Court of Appeals in this regard, supra resulting from the deletion of
the qualifying phrase, "in aid of its appellate jurisdiction" was evidently
intended precisely to relieve this Court pro tanto of the burden of dealing
with applications for extraordinary writs which, but for the expansion of the
Appellate Court's corresponding jurisdiction, would have had to be filed
with it. (citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this case a
propensity on the part of petitioner, and, for that matter, the same may be
said of a number of litigants who initiate recourses before us, to disregard
the hierarchy of courts in our judicial system by seeking relief directly from
this Court despite the fact that the same is available in the lower courts in
the exercise of their original or concurrent jurisdiction, or is even
mandated by law to be sought therein. This practice must be stopped, not
only because of the imposition upon the previous time of this Court but
also because of the inevitable and resultant delay, intended or otherwise,
in the adjudication of the case which often has to be remanded or referred
to the lower court as the proper forum under the rules of procedure, or as
better equipped to resolve the issues since this Court is not a trier of facts.
We, therefore, reiterate the judicial policy that this Court will not entertain
direct resort to it unless 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 our
primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance
Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To
Any Establishment for the Using and Allowing to be Used Its Premises or Portion
Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An
Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation
Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution
Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the
Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19
November 1990 nearly two years before PRYCE and PAGCOR entered into a
contract of lease under which the latter leased a portion of the former's Pryce Plaza
Hotel for the operation of a gambling casino which resolution was vigorously
reiterated in Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's
express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii),
and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power
under Section 16 thereof (the general welfare clause) which reads:
Sec. 16. General Welfare. Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well
as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of
the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety,
enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and
The issue that necessarily arises is whether in granting local governments (such as the
City of Cagayan de Oro) the above powers and functions, the Local Government Code
has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to
establish and maintain gambling casinos anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.
The nullification by the Court of Appeals of the challenged ordinances
as unconstitutional primarily because it is in contravention to P.D. No. 1869 is
unwarranted. A contravention of a law is not necessarily a contravention of the
constitution. In any case, the ordinances can still stand even if they be conceded as
offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So
reconciled, the ordinances should be construed as not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of Cagayan de
Oro City are, for obvious reasons, strongly against the opening of the gambling casino
in their city. Gambling, even if legalized, would be inimical to the general welfare of the
inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-
owned corporation, must consider the valid concerns of the people of the City of
Cagayan de Oro and should not impose its will upon them in an arbitrary, if not
despotic, manner.

SUPREME COURT
Manila
EN BANC
G.R. No. 89651 November 10, 1989
DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU
MACALIMPOWAC DELANGALEN, CELSO PALMA, ALI MONTANA BABAO,
JULMUNIR JANNARAL, RASHID SABER, and DATU JAMAL ASHLEY ABBAS,
representing the other taxpayers of Mindanao, petitioners,
vs.
COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE,
DEPARTMENT SECRETARY OF BUDGET AND MANAGEMENT, respondents.
G.R. No. 89965 November 10, 1989
ATTY. ABDULLAH D. MAMA-O, petitioner,
vs.
HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the Budget, and
the COMMISSION ON ELECTIONS, respondents.
Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners in G.R. Nos. 89651
and 89965.
Abdullah D. Mama-o for and in his own behalf in 89965.

CORTES, J .:
The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9)
cities in Mindanao and Palawan,
1
scheduled for November 19, 1989, in implementation
of Republic Act No. 6734, entitled "An Act Providing for an Organic Act for the
Autonomous Region in Muslim Mindanao."
These consolidated petitions pray that the Court: (1) enjoin the Commission on
Elections (COMELEC) from conducting the plebiscite and the Secretary of Budget and
Management from releasing funds to the COMELEC for that purpose; and (2) declare
R.A. No. 6734, or parts thereof, unconstitutional .
After a consolidated comment was filed by Solicitor General for the respondents, which
the Court considered as the answer, the case was deemed submitted for decision, the
issues having been joined. Subsequently, petitioner Mama-o filed a "Manifestation with
Motion for Leave to File Reply on Respondents' Comment and to Open Oral
Arguments," which the Court noted.
The arguments against R.A. 6734 raised by petitioners may generally be categorized
into either of the following:
(a) that R.A. 6734, or parts thereof, violates the Constitution, and
(b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.
The Tripoli Agreement, more specifically, the Agreement Between the government of
the Republic of the Philippines of the Philippines and Moro National Liberation Front
with the Participation of the Quadripartie Ministerial Commission Members of the Islamic
Conference and the Secretary General of the Organization of Islamic Conference" took
effect on December 23, 1976. It provided for "[t]he establishment of Autonomy in the
southern Philippines within the realm of the sovereignty and territorial integrity of the
Republic of the Philippines" and enumerated the thirteen (13) provinces comprising the
"areas of autonomy."
2

In 1987, a new Constitution was ratified, which the for the first time provided for regional
autonomy, Article X, section 15 of the charter provides that "[t]here shall be created
autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing common and distinctive historical
and cultural heritage, economic and social structures, and other relevant characteristics
within the framework of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines."
To effectuate this mandate, the Constitution further provides:
Sec. 16. The President shall exercise general supervision over
autonomous regions to ensure that the laws are faithfully executed.
Sec. 17. All powers, functions, and responsibilities not granted by this
Constitution or by law to the autonomous regions shall be vested in the
National Government.
Sec. 18. The Congress shall enact an organic act for each autonomous
region with the assistance and participation of the regional consultative
commission composed of representatives appointed by the President from
a list of nominees from multisectoral bodies. The organic act shall define
the basic structure of government for the region consisting of the
executive and representative of the constituent political units. The organic
acts shall likewise provide for special courts with personal, family, and
property law jurisdiction consistent with the provisions of this Constitution
and national laws.
The creation of the autonomous region shall be effective when approved
by majority of the votes cast by the constituent units in a plebiscite called
for the purpose, provided that only the provinces, cities, and geographic
areas voting favorably in such plebiscite shall be included in the
autonomous region.
Sec. 19 The first Congress elected under this Constitution shall, within
eighteen months from the time of organization of both Houses, pass the
organic acts for the autonomous regions in Muslim Mindanao and the
Cordilleras.
Sec. 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous regions
shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage;
and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
Sec. 21. The preservation of peace and order within the regions shall be
the responsibility of the local police agencies which shall be organized,
maintained, supervised, and utilized in accordance with applicable laws.
The defense and security of the region shall be the responsibility of the
National Government.
Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law
on August 1, 1989.
1. The Court shall dispose first of the second category of arguments raised by
petitioners, i.e. that certain provisions of R.A. No. 6734 conflict with the provisions of the
Tripoli Agreement.
Petitioners premise their arguments on the assumption that the Tripoli Agreement is
part of the law of the land, being a binding international agreement . The Solicitor
General asserts that the Tripoli Agreement is neither a binding treaty, not having been
entered into by the Republic of the Philippines with a sovereign state and ratified
according to the provisions of the 1973 or 1987 Constitutions, nor a binding international
agreement.
We find it neither necessary nor determinative of the case to rule on the nature of the
Tripoli Agreement and its binding effect on the Philippine Government whether under
public international or internal Philippine law. In the first place, it is now the Constitution
itself that provides for the creation of an autonomous region in Muslim Mindanao. The
standard for any inquiry into the validity of R.A. No. 6734 would therefore be what is so
provided in the Constitution. Thus, any conflict between the provisions of R.A. No. 6734
and the provisions of the Tripoli Agreement will not have the effect of enjoining the
implementation of the Organic Act. Assuming for the sake of argument that the Tripoli
Agreement is a binding treaty or international agreement, it would then constitute part of
the law of the land. But as internal law it would not be superior to R.A. No. 6734, an
enactment of the Congress of the Philippines, rather it would be in the same class as
the latter [SALONGA, PUBLIC INTERNATIONAL LAW 320 (4th ed., 1974), citing Head
Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if at
all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent
law. Only a determination by this Court that R.A. No. 6734 contravened the Constitution
would result in the granting of the reliefs sought.
3

2. The Court shall therefore only pass upon the constitutional questions which have
been raised by petitioners.
Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous
region in Mindanao, contrary to the aforequoted provisions of the Constitution on the
autonomous region which make the creation of such region dependent upon the
outcome of the plebiscite.
In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which
declares that "[t]here is hereby created the Autonomous Region in Muslim Mindanao, to
be composed of provinces and cities voting favorably in the plebiscite called for the
purpose, in accordance with Section 18, Article X of the Constitution." Petitioner
contends that the tenor of the above provision makes the creation of an autonomous
region absolute, such that even if only two provinces vote in favor of autonomy, an
autonomous region would still be created composed of the two provinces where the
favorable votes were obtained.
The matter of the creation of the autonomous region and its composition needs to be
clarified.
Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of
the Constitution which sets forth the conditions necessary for the creation of the
autonomous region. The reference to the constitutional provision cannot be glossed
over for it clearly indicates that the creation of the autonomous region shall take place
only in accord with the constitutional requirements. Second, there is a specific provision
in the Transitory Provisions (Article XIX) of the Organic Act, which incorporates
substantially the same requirements embodied in the Constitution and fills in the details,
thus:
SEC. 13. The creation of the Autonomous Region in Muslim Mindanao
shall take effect when approved by a majority of the votes cast by the
constituent units provided in paragraph (2) of Sec. 1 of Article II of this Act
in a plebiscite which shall be held not earlier than ninety (90) days or later
than one hundred twenty (120) days after the approval of this
Act: Provided, That only the provinces and cities voting favorably in such
plebiscite shall be included in the Autonomous Region in Muslim
Mindanao. The provinces and cities which in the plebiscite do not vote for
inclusion in the Autonomous Region shall remain the existing
administrative determination, merge the existing regions.
Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region
shall take effect only when approved by a majority of the votes cast by the constituent
units in a plebiscite, and only those provinces and cities where a majority vote in favor
of the Organic Act shall be included in the autonomous region. The provinces and cities
wherein such a majority is not attained shall not be included in the autonomous region.
It may be that even if an autonomous region is created, not all of the thirteen (13)
provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall
be included therein. The single plebiscite contemplated by the Constitution and R.A. No.
6734 will therefore be determinative of (1) whether there shall be an autonomous region
in Muslim Mindanao and (2) which provinces and cities, among those enumerated in
R.A. No. 6734, shall compromise it. [See III RECORD OF THE CONSTITUTIONAL
COMMISSION 482-492 (1986)].
As provided in the Constitution, the creation of the Autonomous region in Muslim
Mindanao is made effective upon the approval "by majority of the votes cast by the
constituent units in a plebiscite called for the purpose" [Art. X, sec. 18]. The question
has been raised as to what this majority means. Does it refer to a majority of the total
votes cast in the plebiscite in all the constituent units, or a majority in each of the
constituent units, or both?
We need not go beyond the Constitution to resolve this question.
If the framers of the Constitution intended to require approval by a majority of all the
votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section
27, it is provided that "[t]his Constitution shall take effect immediately upon its ratification
by a majority of the votes cast in a plebiscite held for the purpose ... Comparing this with
the provision on the creation of the autonomous region, which reads:
The creation of the autonomous region shall be effective when approved
by majority of the votes cast by the constituent units in a plebiscite called
for the purpose, provided that only provinces, cities and geographic areas
voting favorably in such plebiscite shall be included in the autonomous
region. [Art. X, sec, 18, para, 2].
it will readily be seen that the creation of the autonomous region is made to depend, not
on the total majority vote in the plebiscite, but on the will of the majority in each of the
constituent units and the proviso underscores this. for if the intention of the framers of
the Constitution was to get the majority of the totality of the votes cast, they could have
simply adopted the same phraseology as that used for the ratification of the
Constitution, i.e. "the creation of the autonomous region shall be effective when
approved by a majority of the votes cast in a plebiscite called for the purpose."
It is thus clear that what is required by the Constitution is a simple majority of votes
approving the organic Act in individual constituent units and not a double majority of the
votes in all constituent units put together, as well as in the individual constituent units.
More importantly, because of its categorical language, this is also the sense in which
the vote requirement in the plebiscite provided under Article X, section 18 must have
been understood by the people when they ratified the Constitution.
Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other
hand, maintains that only those areas which, to his view, share common and distinctive
historical and cultural heritage, economic and social structures, and other relevant
characteristics should be properly included within the coverage of the autonomous
region. He insists that R.A. No. 6734 is unconstitutional because only the provinces of
Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del Norte and Maguindanao and the
cities of Marawi and Cotabato, and not all of the thirteen (13) provinces and nine (9)
cities included in the Organic Act, possess such concurrence in historical and cultural
heritage and other relevant characteristics. By including areas which do not strictly
share the same characteristics. By including areas which do not strictly share the same
characteristic as the others, petitioner claims that Congress has expanded the scope of
the autonomous region which the constitution itself has prescribed to be limited.
Petitioner's argument is not tenable. The Constitution lays down the standards by which
Congress shall determine which areas should constitute the autonomous region.
Guided by these constitutional criteria, the ascertainment by Congress of the areas that
share common attributes is within the exclusive realm of the legislature's discretion. Any
review of this ascertainment would have to go into the wisdom of the law. This the Court
cannot do without doing violence to the separation of governmental powers. [Angara v.
Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R. No. L-20387, January
31, 1968, 22 SCRA 424].
After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis,
petitioner Mama-o would then adopt the extreme view that other non-Muslim areas in
Mindanao should likewise be covered. He argues that since the Organic Act covers
several non-Muslim areas, its scope should be further broadened to include the rest of
the non-Muslim areas in Mindanao in order for the other non-Muslim areas denies said
areas equal protection of the law, and therefore is violative of the Constitution.
Petitioner's contention runs counter to the very same constitutional provision he had
earlier invoked. Any determination by Congress of what areas in Mindanao should
compromise the autonomous region, taking into account shared historical and cultural
heritage, economic and social structures, and other relevant characteristics, would
necessarily carry with it the exclusion of other areas. As earlier stated, such
determination by Congress of which areas should be covered by the organic act for the
autonomous region constitutes a recognized legislative prerogative, whose wisdom may
not be inquired into by this Court.
Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil.
56 (1963); Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land tenure
Administration, G.R. No. L-21064, February 18, 1970, 31 SCRA 413]. In Dumlao v.
Commission on Elections G.R. No. 52245, January 22, 1980, 95 SCRA 392], the Court
ruled that once class may be treated differently from another where the groupings are
based on reasonable and real distinctions. The guarantee of equal protection is thus not
infringed in this case, the classification having been made by Congress on the basis of
substantial distinctions as set forth by the Constitution itself.
Both petitions also question the validity of R.A. No. 6734 on the ground that it violates
the constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection
centers on a provision in the Organic Act which mandates that should there be any
conflict between the Muslim Code [P.D. No. 1083] and the Tribal Code (still be enacted)
on the one had, and the national law on the other hand, the Shari'ah courts created
under the same Act should apply national law. Petitioners maintain that the islamic law
(Shari'ah) is derived from the Koran, which makes it part of divine law. Thus it may not
be subjected to any "man-made" national law. Petitioner Abbas supports this objection
by enumerating possible instances of conflict between provisions of the Muslim Code
and national law, wherein an application of national law might be offensive to a Muslim's
religious convictions.
As enshrined in the Constitution, judicial power includes the duty to settle actual
controversies involving rights which are legally demandable and enforceable. [Art. VIII,
Sec. 11. As a condition precedent for the power to be exercised, an actual controversy
between litigants must first exist [Angara v. Electoral Commission, supra; Tan v.
Macapagal, G.R. No. L-34161, February 29, 1972, 43 SCRA 677]. In the present case,
no actual controversy between real litigants exists. There are no conflicting claims
involving the application of national law resulting in an alleged violation of religious
freedom. This being so, the Court in this case may not be called upon to resolve what is
merely a perceived potential conflict between the provisions the Muslim Code and
national law.
Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734
which, among others, states:
. . . Provided, That only the provinces and cities voting favorably in such
plebiscite shall be included in the Autonomous Region in Muslim
Mindanao. The provinces and cities which in the plebiscite do not vote for
inclusion in the Autonomous Region shall remain in the existing
administrative regions:Provided, however, that the President may, by
administrative determination, merge the existing regions.
According to petitioners, said provision grants the President the power to merge
regions, a power which is not conferred by the Constitution upon the President. That the
President may choose to merge existing regions pursuant to the Organic Act is
challenged as being in conflict with Article X, Section 10 of the Constitution which
provides:
No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected.
It must be pointed out that what is referred to in R.A. No. 6734 is the merger of
administrative regions, i.e. Regions I to XII and the National Capital Region, which are
mere groupings of contiguous provinces for administrative purposes [Integrated
Reorganization Plan (1972), which was made as part of the law of the land by Pres.
dec. No. 1, Pres. Dec. No. 742]. Administrative regions are not territorial and political
subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of
the Constitution]. While the power to merge administrative regions is not expressly
provided for in the Constitution, it is a power which has traditionally been lodged with
the President to facilitate the exercise of the power of general supervision over local
governments [see Art. X, sec. 4 of the Constitution]. There is no conflict between the
power of the President to merge administrative regions with the constitutional provision
requiring a plebiscite in the merger of local government units because the requirement
of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or
barangays, not to administrative regions.
Petitioners likewise question the validity of provisions in the Organic Act which create an
Oversight Committee to supervise the transfer to the autonomous region of the powers,
appropriations, and properties vested upon the regional government by the organic Act
[Art. XIX, Secs. 3 and 4]. Said provisions mandate that the transfer of certain national
government offices and their properties to the regional government shall be made
pursuant to a schedule prescribed by the Oversight Committee, and that such transfer
should be accomplished within six (6) years from the organization of the regional
government.
It is asserted by petitioners that such provisions are unconstitutional because while the
Constitution states that the creation of the autonomous region shall take effect upon
approval in a plebiscite, the requirement of organizing an Oversight committee tasked
with supervising the transfer of powers and properties to the regional government would
in effect delay the creation of the autonomous region.
Under the constitution, the creation of the autonomous region hinges only on the result
of the plebiscite. if the Organic Act is approved by majority of the votes cast by
constituent units in the scheduled plebiscite, the creation of the autonomous region
immediately takes effect. The questioned provisions in R.A. No. 6734 requiring an
oversight Committee to supervise the transfer do not provide for a different date of
effectivity. Much less would the organization of the Oversight Committee cause an
impediment to the operation of the Organic Act, for such is evidently aimed at effecting
a smooth transition period for the regional government. The constitutional objection on
this point thus cannot be sustained as there is no bases therefor.
Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad,
47 Phil. 387 (1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA
734; Morfe v. Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978,
82 SCRA 30]. Those who petition this Court to declare a law, or parts thereof,
unconstitutional must clearly establish the basis for such a declaration. otherwise, their
petition must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to
overcome the presumption. The dismissal of these two petitions is, therefore, inevitable.
WHEREFORE, the petitions are DISMISSED for lack of merit.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Melencio-Herrera, J., is on leave.

SUPREME COURT
Manila
EN BANC

G.R. No. 96754 June 22, 1995
CONGRESSMAN JAMES L. CHIONGBIAN (Third District, South Cotobato)
ADELBERT W. ANTONINO (First District, South Cotobato), WILFREDO G.
CAINGLET (Third District, Zamboanga del Norte), HILARION RAMIRO, JR.
(Second Division, Misamis Occidental), ERNESTO S. AMATONG (Second District,
Zamboanga del Norte), ALVIN G. DANS (Lone District, Basilan), ABDULLAH M.
DIMAPORO (Second District, Lanao del Norte), and CONGRESSWOMAN MARIA
CLARA A. LOBREGAT (Lone District, Zamboanga City) petitioners,
vs.
HON. OSCAR M. ORBOS, Executive Secretary; COMMITTEE CHAIRMAN SEC.
FIDEL V. RAMOS, CABINET OFFICERS FOR REGIONAL DEVELOPMENT FOR
REGIONS X AND XII, CHAIRMAN OF THE REGIONAL DEVELOPMENT COUNCIL
FOR REGION X, CHAIRMAN JESUS V. AYALA, CABINET OFFICERS FOR
REGIONAL DEVELOPMENT FOR REGIONS XI and XII, DEPARTMENT OF LOCAL
GOVERNMENT, NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY
SECRETARIAT, PRESIDENTIAL MANAGEMENT STAFF, HON. GUILLERMO
CARAGUE, Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT; and
HON. ROSALINA S. CAJUCUM, OIC National Treasurer, respondents.
IMMANUEL JALDON, petitioner,
vs.
HON. EXECUTIVE SECRETARY OSCAR M. ORBOS, HON. FIDEL RAMOS, HON.
SECRETARY LUIS SANTOS, AND HON. NATIONAL TREASURER ROSALINA
CAJUCOM, respondents.

MENDOZA, J .:
These suits challenge the validity of a provision of the Organic Act for the Autonomous
Region in Muslim Mindanao (R.A. No. 6734), authorizing the President of the
Philippines to "merge" by administrative determination the regions remaining after the
establishment of the Autonomous Region, and the Executive Order issued by the
President pursuant to such authority, "Providing for the Reorganization of Administrative
Regions in Mindanao." A temporary restraining order prayed for by the petitioners was
issued by this Court on January 29, 1991, enjoining the respondents from enforcing the
Executive Order and statute in question.
The facts are as follows:
Pursuant to Art. X, 18 of the 1987 Constitution, Congress passed R.A. No. 6734, the
Organic Act for the Autonomous Region in Muslim Mindanao, calling for a plebiscite to
be held in the provinces of Basilan, Cotobato, Davao del Sur, Lanao del Norte, Lanao
del Sur, Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi,
Zamboanga del Norte, and Zamboanga del Sur, and the cities of Cotabato, Dapitan,
Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa and Zamboanga.
In the ensuing plebiscite held on November 16, 1989, four provinces voted in favor of
creating an autonomous region. These are the provinces of Lanao del Sur,
Maguindanao, Sulu and Tawi-Tawi. In accordance with the constitutional provision,
these provinces became the Autonomous Region in Muslim Mindanao.
On the other hand, with respect to provinces and cities not voting in favor of the
Autonomous Region, Art. XIX, 13 of R.A. No. 6734 provides,
That only the provinces and cities voting favorably in such plebiscites shall
be included in the Autonomous Region in Muslim Mindanao. The
provinces and cities which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative
regions. Provided, however, that the President may, by administrative
determination, merge the existing regions.
Pursuant to the authority granted by this provision, then President Corazon C. Aquino
issued on October 12, 1990 Executive Order No. 429, "providing for the Reorganization
of the Administrative Regions in Mindanao." Under this Order, as amended by E.O. No.
439
(1) Misamis Occidental, at present part of Region X, will become part of
Region IX.
(2) Oroquieta City, Tangub City and Ozamiz City, at present parts of
Region X will become parts of Region IX.
(3) South Cotobato, at present a part of Region XI, will become part of
Region XII.
(4) General Santos City, at present part of Region XI, will become part of
Region XII.
(5) Lanao del Norte, at present part of Region XII, will become part of
Region IX.
(6) Iligan City and Marawi City, at present part of Region XII, will become
part of Region IX.
Petitioners in G.R. No. 96754 are, or at least at the time of the filing of their petition,
members of Congress representing various legislative districts in South Cotobato,
Zamboanga del Norte, Basilan, Lanao del Norte and Zamboanga City. On November
12, 1990, they wrote then President Aquino protesting E.O. No. 429. They contended
that
There is no law which authorizes the President to pick certain provinces
and cities within the existing regions some of which did not even take
part in the plebiscite as in the case of the province of Misamis Occidental
and the cities of Oroquieta, Tangub and Ozamiz and restructure them
to new administrative regions. On the other hand, the law (Sec. 13, Art.
XIX, R.A. 6734) is specific to the point, that is, that "the provinces and
cities which in the plebiscite do not vote for inclusion in the Autonomous
Region shall remain in the existing administrative regions."
The transfer of the provinces of Misamis Occidental from Region X to
Region IX; Lanao del Norte from Region XII to Region IX, and South
Cotobato from Region XI to Region XII are alterations of the existing
structures of governmental units, in other words, reorganization. This can
be gleaned from Executive Order No. 429, thus
Whereas, there is an urgent need to reorganize the
administrative regions in Mindanao to guarantee the
effective delivery of field services of government agencies
taking into consideration the formation of the Autonomous
Region in Muslim Mindanao.
With due respect to Her Excellency, we submit that while the authority
necessarily includes the authority to merge, the authority to merge does
not include the authority to reorganize. Therefore, the President's authority
under RA 6734 to "merge existing regions" cannot be construed to include
the authority to reorganize them. To do so will violate the rules of statutory
construction.
The transfer of regional centers under Executive Order 429 is actually a
restructuring (reorganization) of administrative regions. While this
reorganization, as in Executive Order 429, does not affect the
apportionment of congressional representatives, the same is not valid
under the penultimate paragraph of Sec. 13, Art. XIX of R.A. 6734 and
Ordinance appended to the 1986 Constitution apportioning the seats of
the House of Representatives of Congress of the Philippines to the
different legislative districts in provinces and cities.
1

As their protest went unheeded, while Inauguration Ceremonies of the New
Administrative Region IX were scheduled on January 26, 1991, petitioners brought this
suit for certiorari and prohibition.
On the other hand, the petitioner in G.R. No. 96673, Immanuel Jaldon, is a resident of
Zamboanga City, who is suing in the capacity of taxpayer and citizen of the Republic of
the Philippines.
Petitioners in both cases contend that Art. XIX, 13 of R.A. No. 6734 is unconstitutional
because (1) it unduly delegates legislative power to the President by authorizing him to
"merge [by administrative determination] the existing regions" or at any rate provides no
standard for the exercise of the power delegated and (2) the power granted is not
expressed in the title of the law.
In addition, petitioner in G.R. No. 96673 challenges the validity of E.O. No. 429 on the
ground that the power granted by Art. XIX, 13 to the President is only to "merge
regions IX and XII" but not to reorganize the entire administrative regions in Mindanao
and certainly not to transfer the regional center of Region IX from Zamboanga City to
Pagadian City.
The Solicitor General defends the reorganization of regions in Mindanao by E.O. No.
429 as merely the exercise of a power "traditionally lodged in the President," as held
in Abbas v. Comelec,
2
and as a mere incident of his power of general supervision over
local governments and control of executive departments, bureaus and offices under Art.
X, 16 and Art. VII, 17, respectively, of the Constitution.
He contends that there is no undue delegation of legislative power but only a grant of
the power to "fill up" or provide the details of legislation because Congress did not have
the facility to provide for them. He cites by analogy the case of Municipality of Cardona
v. Municipality of Binangonan,
3
in which the power of the Governor-General to fix
municipal boundaries was sustained on the ground that
[such power] is simply a transference of certain details with respect to
provinces, municipalities, and townships, many of them newly created,
and all of them subject to a more or less rapid change both in
development and centers of population, the proper regulation of which
might require not only prompt action but action of such a detailed
character as not to permit the legislative body, as such, to take it
efficiently.
The Solicitor General justifies the grant to the President of the power "to merge the
existing regions" as something fairly embraced in the title of R.A. No. 6734, to wit, "An
Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao,"
because it is germane to it.
He argues that the power is not limited to the merger of those regions in which the
provinces and cities which took part in the plebiscite are located but that it extends to all
regions in Mindanao as necessitated by the establishment of the autonomous region.
Finally, he invokes P.D. No. 1416, as amended by P.D. No. 1772 which provides:
1. The President of the Philippines shall have the continuing authority to
reorganize the National Government. In exercising this authority, the
President shall be guided by generally acceptable principles of good
government and responsive national government, including but not limited
to the following guidelines for a more efficient, effective, economical and
development-oriented governmental framework:
(a) More effective planning implementation, and review
functions;
(b) Greater decentralization and responsiveness in decision-
making process;
(c) Further minimization, if not, elimination, of duplication or
overlapping of purposes, functions, activities, and programs;
(d) Further development of as standardized as possible
ministerial, sub-ministerial and corporate organizational
structures;
(e) Further development of the regionalization process; and
(f) Further rationalization of the functions of and
administrative relationships among government entities.
For purposes of this Decree, the coverage of the continuing
authority of the President to reorganize shall be interpreted
to encompass all agencies, entities, instrumentalities, and
units of the National Government, including all government
owned or controlled corporations as well as the entire range
of the powers, functions, authorities, administrative
relationships, acid related aspects pertaining to these
agencies, entities, instrumentalities, and units.
2. [T]he President may, at his discretion, take the following actions:
xxx xxx xxx
f. Create, abolish, group, consolidate, merge, or integrate
entities, agencies, instrumentalities, and units of the National
Government, as well as expand, amend, change, or
otherwise modify their powers, functions and authorities,
including, with respect to government-owned or controlled
corporations, their corporate life, capitalization, and other
relevant aspects of their charters.
g. Take such other related actions as may be necessary to
carry out the purposes and objectives of this Decree.
Considering the arguments of the parties, the issues are:
(1) whether the power to "merge" administrative regions is legislative in character, as
petitioners contend, or whether it is executive in character, as respondents claim it is,
and, in any event, whether Art. XIX, 13 is invalid because it contains no standard to
guide the President's discretion;
(2) whether the power given is fairly expressed in the title of the statute; and
(3) whether the power granted authorizes the reorganization even of regions the
provinces and cities in which either did not take part in the plebiscite on the creation of
the Autonomous Region or did not vote in favor of it; and
(4) whether the power granted to the President includes the power to transfer the
regional center of Region IX from Zamboanga City to Pagadian City.
It will be useful to recall first the nature of administrative regions and the basis and
purpose for their creation. On September 9, 1968, R.A. No. 5435 was passed
"authorizing the President of the Philippines, with the help of a Commission on
Reorganization, to reorganize the different executive departments, bureaus, offices,
agencies and instrumentalities of the government, including banking or financial
institutions and corporations owned or controlled by it." The purpose was to promote
"simplicity, economy and efficiency in the government."
4
The Commission on
Reorganization created under the law was required to submit an integrated
reorganization plan not later than December 31, 1969 to the President who was in turn
required to submit the plan to Congress within forty days after the opening of its next
regular session. The law provided that any reorganization plan submitted would become
effective only upon the approval of Congress.
5

Accordingly, the Reorganization Commission prepared an Integrated Reorganization
Plan which divided the country into eleven administrative regions.
6
By P.D. No. 1, the
Plan was approved and made part of the law of the land on September 24, 1972. P.D.
No. 1 was twice amended in 1975, first by P.D. No. 742 which "restructur[ed] the
regional organization of Mindanao, Basilan, Sulu and Tawi-Tawi" and later by P.D. No.
773 which further "restructur[ed] the regional organization of Mindanao and divid[ed]
Region IX into two sub-regions." In 1978, P.D. No. 1555 transferred the regional center
of Region IX from Jolo to Zamboanga City.
Thus the creation and subsequent reorganization of administrative regions have been
by the President pursuant to authority granted to him by law. In conferring on the
President the power "to merge [by administrative determination] the existing regions"
following the establishment of the Autonomous Region in Muslim Mindanao, Congress
merely followed the pattern set in previous legislation dating back to the initial
organization of administrative regions in 1972. The choice of the President as delegate
is logical because the division of the country into regions is intended to facilitate not only
the administration of local governments but also the direction of executive departments
which the law requires should have regional offices. As this Court observed in Abbas,
"while the power to merge administrative regions is not expressly provided for in the
Constitution, it is a power which has traditionally been lodged with the President to
facilitate the exercise of the power of general supervision over local governments
[see Art. X, 4 of the Constitution]." The regions themselves are not territorial and
political divisions like provinces, cities, municipalities and barangays but are "mere
groupings of contiguous provinces for administrative purposes."
7
The power conferred
on the President is similar to the power to adjust municipal boundaries
8
which has been
described in Pelaez v. Auditor General
9
or as "administrative in nature."
There is, therefore, no abdication by Congress of its legislative power in conferring on
the President the power to merge administrative regions. The question is whether
Congress has provided a sufficient standard by which the President is to be guided in
the exercise of the power granted and whether in any event the grant of power to him is
included in the subject expressed in the title of the law.
First, the question of standard. A legislative standard need not be expressed. It may
simply be gathered or implied.
10
Nor need it be found in the law challenged because it
may be embodied in other statutes on the same subject as that of the challenged
legislation.
11

With respect to the power to merge existing administrative regions, the standard is to be
found in the same policy underlying the grant to the President in R.A. No. 5435 of the
power to reorganize the Executive Department, to wit: "to promote simplicity, economy
and efficiency in the government to enable it to pursue programs consistent with
national goals for accelerated social and economic development and to improve the
service in the transaction of the public business."
12
Indeed, as the original eleven
administrative regions were established in accordance with this policy, it is logical to
suppose that in authorizing the President to "merge [by administrative determination]
the existing regions" in view of the withdrawal from some of those regions of the
provinces now constituting the Autonomous Region, the purpose of Congress was to
reconstitute the original basis for the organization of administrative regions.
Nor is Art. XIX, 13 susceptible to charge that its subject is not embraced in the title of
R.A. No. 6734. The constitutional requirement that "every bill passed by the Congress
shall embrace only one subject which shall be expressed in the title thereof"
13
has
always been given a practical rather than a technical construction. The title is not
required to be an index of the content of the bill. It is a sufficient compliance with the
constitutional requirement if the title expresses the general subject and all provisions of
the statute are germane to that subject.
14
Certainly the reorganization of the remaining
administrative regions is germane to the general subject of R.A. No. 6734, which is the
establishment of the Autonomous Region in Muslim Mindanao.
Finally, it is contended that the power granted to the President is limited to the
reorganization of administrative regions in which some of the provinces and cities which
voted in favor of regional autonomy are found, because Art. XIX, 13 provides that
those which did not vote for autonomy "shall remain in the existing administrative
regions." More specifically, petitioner in G.R. No. 96673 claims:
The questioned Executive Order No. 429 distorted and, in fact,
contravened the clear intent of this provision by moving out or transferring
certain political subdivisions (provinces/cities) out of their legally
designated regions. Aggravating this unacceptable or untenable situation
is EO No. 429's effecting certain movements on areas which did not even
participate in the November 19, 1989 plebiscite. The unauthorized action
of the President, as effected by and under the questioned EO No. 429, is
shown by the following dispositions: (1) Misamis Occidental, formerly of
Region X and which did not even participate in the plebiscite, was moved
from said Region X to Region IX; (2) the cities of Ozamis, Oroquieta, and
Tangub, all formerly belonging to Region X, which likewise did not
participate in the said plebiscite, were transferred to Region IX; (3) South
Cotobato, from Region XI to Region XII; (4) General Santos City: from
Region XI to Region XII; (5) Lanao del Norte, from Region XII to Region
IX; and (6) the cities of Marawi and Iligan from Region XII to Region IX. All
of the said provinces and cities voted "NO", and thereby rejected their
entry into the Autonomous Region in Muslim Mindanao, as provided under
RA No. 6734.
15

The contention has no merit. While Art. XIX, 13 provides that "The provinces and cities
which do not vote for inclusion in the Autonomous Region shall remain in the existing
administrative regions," this provision is subject to the qualification that "the President
may by administrative determination merge the existing regions." This means that while
non-assenting provinces and cities are to remain in the regions as designated upon the
creation of the Autonomous Region, they may nevertheless be regrouped with
contiguous provinces forming other regions as the exigency of administration may
require.
The regrouping is done only on paper. It involves no more than are definition or
redrawing of the lines separating administrative regions for the purpose of facilitating the
administrative supervision of local government units by the President and insuring the
efficient delivery of essential services. There will be no "transfer" of local governments
from one region to another except as they may thus be regrouped so that a province
like Lanao del Norte, which is at present part of Region XII, will become part of Region
IX.
The regrouping of contiguous provinces is not even analogous to a redistricting or to the
division or merger of local governments, which all have political consequences on the
right of people residing in those political units to vote and to be voted for. It cannot be
overemphasized that administrative regions are mere groupings of contiguous
provinces for administrative purposes, not for political representation.
Petitioners nonetheless insist that only those regions, in which the provinces and cities
which voted for inclusion in the Autonomous Region are located, can be "merged" by
the President.
To be fundamental reason Art. XIX, 13 is not so limited. But the more fundamental
reason is that the President's power cannot be so limited without neglecting the
necessities of administration. It is noteworthy that the petitioners do not claim that the
reorganization of the regions in E.O. No. 429 is irrational. The fact is that, as they
themselves admit, the reorganization of administrative regions in E.O. No. 429 is based
on relevant criteria, to wit: (1) contiguity and geographical features; (2) transportation
and communication facilities; (3) cultural and language groupings; (4) land area and
population; (5) existing regional centers adopted by several agencies; (6) socio-
economic development programs in the regions and (7) number of provinces and cities.
What has been said above applies to the change of the regional center from
Zamboanga City to Pagadian City. Petitioners contend that the determination of
provincial capitals has always been by act of Congress. But as, this Court said in
Abbas,
16
administrative regions are mere "groupings of contiguous provinces for
administrative purposes, . . . [They] are not territorial and political subdivisions like
provinces, cities, municipalities and barangays." There is, therefore, no basis for
contending that only Congress can change or determine regional centers. To the
contrary, the examples of P.D. Nos. 1, 742, 773 and 1555 suggest that the power to
reorganize administrative regions carries with it the power to determine the regional
center.
It may be that the transfer of the regional center in Region IX from Zamboanga City to
Pagadian City may entail the expenditure of large sums of money for the construction of
buildings and other infrastructure to house regional offices. That contention is
addressed to the wisdom of the transfer rather than to its legality and it is settled that
courts are not the arbiters of the wisdom or expediency of legislation. In any event this
is a question that we will consider only if fully briefed and upon a more adequate record
than that presented by petitioners.
WHEREFORE, the petitions for certiorari and prohibition are DISMISSED for lack of
merit.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan and Francisco, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. 79956 January 29, 1990
CORDILLERA BROAD COALITION, petitioner,
vs.
COMMISSION ON AUDIT, respondent.
G.R. No. 82217 January 29, 1990
LILIA YARANON and BONA BAUTISTA, assisted by their spouses, BRAULIO D.
YARANON and DEMETRIO D. BAUTISTA, JR., respectively; JAMES BRETT and
SINAI C. HAMADA, petitioners,
vs.
THE COMMISSION ON AUDIT, HON. CATALINO MACARAIG, Executive Secretary,
HON. VICENTE JAYME, Secretary of Finance, HON. GUILLERMO N. CARAGUE,
Secretary of Budget and Management, and HON. ROSALINA S. CAJUCOM, OIC
National Treasurer, respondents.

CORTES, J .:
In these consolidated petitions, the constitutionality of Executive Order No. 220,
dated July 15, 1987, which created the (Cordillera Administrative Region, is
assailed on the primary ground that it pre-empts the enactment of an organic act
by the Congress and the creation of' the autonomous region in the Cordilleras
conditional on the approval of the act through a plebiscite.
Relative to the creation of autonomous regions, the constitution, in Article X,
provides:
AUTONOMOUS REGIONS
Sec. 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and
distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of
this Constitution and the national sovereignty as well as territorial
integrity of the Republic of the Philippines.
SEC. 16. The President shall exercise general supervision over
autonomous regions to ensure that laws are faithfully executed.
Sec. 17. All powers, functions, and responsibilities not granted
Constitution or by law to the autonomous regions shall be vested in
the National Government.
Sec. 18. The Congress shall enact an organic act for each
autonomous region with the assistance and participation of the
regional consultative commission composed of representatives
appointed by the President from a list of nominees from multi-
sectoral bodies. The organic act shall define the basic structure of
government for the region consisting of the executive department
and legislative assembly, both of which shall be elective and
representative of the constituent political units. The organic acts
shall likewise provide for special courts with personal, family and
property law jurisdiction consistent with the provisions of this
Constitution and national laws.
The creation of the autonomous region shall be effective when
approved by majority of the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only provinces, cities,
and geographic areas voting favorably in such plebiscite shall be
included in the autonomous region.
Sec. 19. The first Congress elected under this Constitution shall,
within eighteen months from the time of organization of both
Houses, pass the organic acts for the autonomous regions in Muslim
Mindanao and the Cordilleras.
Sec. 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(4) Personal, family and property relations;
(6) Economic, social and tourism development ;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
Sec. 21. The preservation of peace and order within the regions shall
be the responsibility of the local police agencies which shall be
organized, maintained, supervised, and utilized in accordance with
applicable laws. The defense and security of the regions shall be the
responsibility of the National Government.
A study of E.O. No. 220 would be incomplete Without reference to its historical
background.
In April 1986, just after the EDSA Revolution, Fr. Conrado M. Balweg,
S.V.D., broke off on ideological grounds from the Communist Party
of the Philippines (CPP) and its military arm the New People's Army.
(NPA).
After President Aquino was installed into office by People Power,
she advocated a policy of national reconciliation. She called on all
revolutionary forces to a peace dialogue. The CPLA heeded this call
of the President. After the preliminary negotiations, President Aquino
and some members of her Cabinet flew to Mt. Data in the Mountain
Province on September 13, 1986 and signed with Fr. Conrado M.
Balweg (As Commander of the CPLA and Ama Mario Yag-ao (as
President of Cordillera Bodong Administration, the civil government
of the CPLA a ceasefire agreement that signified the cessation of
hostilities (WHEREAS No. 7, E.O. 220).
The parties arrived at an agreement in principle: the Cordillera
people shall not undertake their demands through armed and violent
struggle but by peaceful means, such as political negotiations. The
negotiations shall be a continuing process until the demands of the
Cordillera people shall have been substantially granted.
On March 27, 1987, Ambassador Pelaez [Acting as Chief Negotiator
of the government], in pursuance of the September 13, 1986
agreement, flew to the Mansion House, Baguio City, and signed with
Fr. Balweg (as Chairman of the Cordillera panel) a joint agreement,
paragraphs 2 and 3 of which state:
Par. 2- Work together in drafting an Executive Order to create a
preparatory body that could perform policy-making and
administrative functions and undertake consultations and studies
leading to a draft organic act for the Cordilleras.
Par. 3- Have representatives from the Cordillera panel join the study
group of the R.P. Panel in drafting the Executive Order.
Pursuant to the above joint agreement, E.O. 220 was drafted by a
panel of the Philippine government and of the representatives of the
Cordillera people.
On July 15, 1987, President Corazon C. Aquino signed the joint draft
into law, known now as E.O. 220. [Rejoinder G.R. No. 82217, pp. 2-3].
Executive Order No. 220, issued by the President in the exercise of her legislative
powers under Art. XVIII, sec. 6 of the 1987 Constitution, created the Cordillera
Administrative Region (CAR) , which covers the provinces of Abra, Benguet,
Ifugao, Kalinga-Apayao and Mountain Province and the City of Baguio [secs. 1
and 2]. It was created to accelerate economic and social growth in the region and
to prepare for the establishment of the autonomous region in the Cordilleras [sec.
3]. Its main function is to coordinate the planning and implementation of
programs and services in the region, particularly, to coordinate with the local
government units as well as with the executive departments of the National
Government in the supervision of field offices and in identifying, planning,
monitoring, and accepting projects and activities in the region [sec. 5]. It shall
also monitor the implementation of all ongoing national and local government
projects in the region [sec. 20]. The CAR shall have a Cordillera Regional
Assembly as a policy-formulating body and a Cordillera Executive Board as an
implementing arm [secs. 7, 8 and 10]. The CAR and the Assembly and Executive
Board shall exist until such time as the autonomous regional government is
established and organized [sec. 17].
Explaining the rationale for the issuance of E.O. No. 220, its last "Whereas"
clause provides:
WHEREAS, pending the convening of the first Congress and the
enactment of the organic act for a Cordillera autonomous region,
there is an urgent need, in the interest of national security and public
order, for the President to reorganize immediately the existing
administrative structure in the Cordilleras to suit it to the existing
political realities therein and the Government's legitimate concerns
in the areas, without attempting to pre-empt the constitutional duty
of the first Congress to undertake the creation of an autonomous
region on a permanent basis.
During the pendency of this case, Republic Act No. 6766 entitled "An Act
Providing for an Organic Act for the Cordillera Autonomous Region," was
enacted and signed into law. The Act recognizes the CAR and the offices and
agencies created under E.O. No. 220 and its transitory nature is reinforced in Art.
XXI of R.A. No. 6766, to wit:
SEC. 3. The Cordillera Executive Board, the Cordillera Region
Assembly as well as all offices and agencies created under Execute
Order No. 220 shall cease to exist immediately upon the ratification
of this Organic Act.
All funds, properties and assets of the Cordillera Executive Board
and the Cordillera Regional Assembly shall automatically be
transferred to the Cordillera Autonomous Government.
I
It is well-settled in our jurisprudence that respect for the inherent and stated
powers and prerogatives of the law-making body, as well as faithful adherence to
the principle of separation of powers, require that its enactment be accorded the
presumption of constitutionality. Thus, in any challenge to the constitutionality of
a statute, the burden of clearly and unequivocally proving its unconstitutionality
always rests upon the challenger. Conversely, failure to so prove will necessarily
defeat the challenge.
We shall be guided by these principles in considering these consolidated
petitions.
In these cases, petitioners principally argue that by issuing E.O. No. 220 the
President, in the exercise of her legislative powers prior to the convening of the
first Congress under the 1987 Constitution, has virtually pre-empted Congress
from its mandated task of enacting an organic act and created an autonomous
region in the Cordilleras. We have carefully studied the Constitution and E.O. No.
220 and we have come to the conclusion that petitioners' assertions are
unfounded. Events subsequent to the issuance of E.O. No. 220 also bear out this
conclusion.
1. A reading of E.O. No. 220 will easily reveal that what it actually envisions is the
consolidation and coordination of the delivery of services of line departments
and agencies of the National Government in the areas covered by the
administrative region as a step preparatory to the grant of autonomy to the
Cordilleras. It does not create the autonomous region contemplated in the
Constitution. It merely provides for transitory measures in anticipation of the
enactment of an organic act and the creation of an autonomous region. In short, it
prepares the ground for autonomy. This does not necessarily conflict with the
provisions of the Constitution on autonomous regions, as we shall show later.
The Constitution outlines a complex procedure for the creation of an autonomous
region in the Cordilleras. A regional consultative commission shall first be
created. The President shall then appoint the members of a regional consultative
commission from a list of nominees from multi-sectoral bodies. The commission
shall assist the Congress in preparing the organic act for the autonomous region.
The organic act shall be passed by the first Congress under the 1987 Constitution
within eighteen months from the time of its organization and enacted into law.
Thereafter there shall be held a plebiscite for the approval of the organic act [Art.
X, sec. 18]. Only then, after its approval in the plebiscite, shall the autonomous
region be created.
Undoubtedly, all of these will take time. The President, in 1987 still exercising
legislative powers, as the first Congress had not yet convened, saw it fit to
provide for some measures to address the urgent needs of the Cordilleras in the
meantime that the organic act had not yet been passed and the autonomous
region created. These measures we find in E.O. No. 220. The steps taken by the
President are obviously perceived by petitioners, particularly petitioner Yaranon
who views E.O. No. 220 as capitulation to the Cordillera People's Liberation Army
(CPLA) of Balweg, as unsound, but the Court cannot inquire into the wisdom of
the measures taken by the President, We can only inquire into whether or not the
measures violate the Constitution. But as we have seen earlier, they do not.
2. Moreover, the transitory nature of the CAR does not necessarily mean that it is,
as petitioner Cordillera Broad Coalition asserts, "the interim autonomous region
in the Cordilleras" [Petition, G.R. No. 79956, p. 25].
The Constitution provides for a basic structure of government in the autonomous
region composed of an elective executive and legislature and special courts with
personal, family and property law jurisdiction [Art. X, sec. 18]. Using this as a
guide, we find that E.O. No. 220 did not establish an autonomous regional
government. It created a region, covering a specified area, for administrative
purposes with the main objective of coordinating the planning and
implementation of programs and services [secs. 2 and 5]. To determine policy, it
created a representative assembly, to convene yearly only for a five-day regular
session, tasked with, among others, identifying priority projects and development
programs [sec. 9]. To serve as an implementing body, it created the Cordillera
Executive Board composed of the Mayor of Baguio City, provincial governors and
representatives of the Cordillera Bodong Administration, ethno-linguistic groups
and non-governmental organizations as regular members and all regional
directors of the line departments of the National Government as ex-
officio members and headed by an Executive Director [secs. 10 and 11]. The
bodies created by E.O. No. 220 do not supplant the existing local governmental
structure, nor are they autonomous government agencies. They merely constitute
the mechanism for an "umbrella" that brings together the existing local
governments, the agencies of the National Government, the ethno-linguistic
groups or tribes, and non-governmental organizations in a concerted effort to
spur development in the Cordilleras.
The creation of the CAR for purposes of administrative coordination is
underscored by the mandate of E.O. No. 220 for the President and appropriate
national departments and agencies to make available sources of funds for priority
development programs and projects recommended by the CAR [sec. 21] and the
power given to the President to call upon the appropriate executive departments
and agencies of the National Government to assist the CAR [sec. 24].
3. Subsequent to the issuance of E.O. No. 220, the Congress, after it was
convened, enacted Republic Act No. 6658 which created the Cordillera Regional
Consultative Commission. The President then appointed its members. The
commission prepared a draft organic act which became the basis for the
deliberations of the Senate and the House of Representatives. The result was
Republic Act No. 6766, the organic act for the Cordillera autonomous region,
which was signed into law on October 23, 1989. A plebiscite for the approval of
the organic act, to be conducted shortly, shall complete the process outlined in
the Constitution.
In the meantime, E.O. No. 220 had been in force and effect for more than two
years and we find that, despite E.O. No. 220, the autonomous region in the
Cordilleras is still to be created, showing the lack of basis of petitioners'
assertion. Events have shown that petitioners' fear that E.O. No. 220 was a
"shortcut" for the creation of the autonomous region in the Cordilleras was totally
unfounded.
Clearly, petitioners' principal challenge has failed.
II
A collateral issue raised by petitioners is the nature of the CAR: whether or not it
is a territorial and political subdivision. The Constitution provides in Article X:
Section 1. The territorial and political subdivisions of the Republic of
the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim Mindanao
and the Cordilleras as hereinafter provided.
xxx xxx xxx
Sec. 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.
We have seen earlier that the CAR is not the autonomous region in the
Cordilleras contemplated by the Constitution, Thus, we now address petitioners'
assertion that E. 0. No. 220 contravenes the Constitution by creating a new
territorial and political subdivision.
After carefully considering the provisions of E.O. No. 220, we find that it did not
create a new territorial and political subdivision or merge existing ones into a
larger subdivision.
1. Firstly, the CAR is not a public corporation or a territorial and political
subdivision. It does not have a separate juridical personality, unlike provinces,
cities and municipalities. Neither is it vested with the powers that are normally
granted to public corporations, e.g. the power to sue and be sued, the power to
own and dispose of property, the power to create its own sources of revenue, etc.
As stated earlier, the CAR was created primarily to coordinate the planning and
implementation of programs and services in the covered areas.
The creation of administrative regions for the purpose of expediting the delivery
of services is nothing new. The Integrated Reorganization Plan of 1972, which
was made as part of the law of the land by virtue of Presidential Decree No. 1,
established eleven (11) regions, later increased to twelve (12), with definite
regional centers and required departments and agencies of the Executive Branch
of the National Government to set up field offices therein. The functions of the
regional offices to be established pursuant to the Reorganization Plan are: (1) to
implement laws, policies, plans, programs, rules and regulations of the
department or agency in the regional areas; (2) to provide economical, efficient
and effective service to the people in the area; (3) to coordinate with regional
offices of other departments, bureaus and agencies in the area; (4) to coordinate
with local government units in the area; and (5) to perform such other functions
as may be provided by law. [See Part II, chap. III, art. 1, of the Reorganization
Plan].
We can readily see that the CAR is in the same genre as the administrative
regions created under the Reorganization Plan, albeit under E.O. No. 220 the
operation of the CAR requires the participation not only of the line departments
and agencies of the National Government but also the local governments, ethno-
linguistic groups and non-governmental organizations in bringing about the
desired objectives and the appropriation of funds solely for that purpose.
2. Then, considering the control and supervision exercised by the President over
the CAR and the offices created under E.O. No. 220, and considering further the
indispensable participation of the line departments of the National Government,
the CAR may be considered more than anything else as a regional coordinating
agency of the National Government, similar to the regional development councils
which the President may create under the Constitution [Art. X, sec. 14]. These
councils are "composed of local government officials, regional heads of
departments and other government offices, and representatives from non-
governmental organizations within the region for purposes of administrative
decentralization to strengthen the autonomy of the units therein and to accelerate
the economic and social growth and development of the units in the region."
[Ibid.] In this wise, the CAR may be considered as a more sophisticated version of
the regional development council.
III
Finally, petitioners incidentally argue that the creation of the CAR contravened
the constitutional guarantee of the local autonomy for the provinces (Abra,
Benguet, Ifugao, Kalinga-Apayao and Mountain Province) and city (Baguio City)
which compose the CAR.
We find first a need to clear up petitioners' apparent misconception of the
concept of local autonomy.
It must be clarified that the constitutional guarantee of local autonomy in the
Constitution [Art. X, sec. 2] refers to the administrative autonomy of local
government units or, cast in more technical language, the decentralization of
government authority [Villegas v. Subido, G.R. No. L-31004, January 8, 1971, 37
SCRA 1]. Local autonomy is not unique to the 1987 Constitution, it being
guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And while there was
no express guarantee under the 1935 Constitution, the Congress enacted the
Local Autonomy Act (R.A. No. 2264) and the Decentralization Act (R.A. No. 5185),
which ushered the irreversible march towards further enlargement of local
autonomy in the country [Villegas v. Subido, supra.]
On the other hand, the creation of autonomous regions in Muslim Mindanao and
the Cordilleras, which is peculiar to the 1987 Constitution contemplates the grant
of political autonomy and not just administrative autonomy these regions. Thus,
the provision in the Constitution for an autonomous regional government with a
basic structure consisting of an executive department and a legislative assembly
and special courts with personal, family and property law jurisdiction in each of
the autonomous regions [Art. X, sec. 18].
As we have said earlier, the CAR is a mere transitory coordinating agency that
would prepare the stage for political autonomy for the Cordilleras. It fills in the
resulting gap in the process of transforming a group of adjacent territorial and
political subdivisions already enjoying local or administrative autonomy into an
autonomous region vested with political autonomy.
Anent petitioners' objection, we note the obvious failure to show how the creation
of the CAR has actually diminished the local autonomy of the covered provinces
and city. It cannot be over-emphasized that pure speculation and a resort to
probabilities are insufficient to cause the invalidation of E.O. No. 220.
WHEREFORE, the petitions are DISMISSED for lack of merit.
SO ORDERED.
Fernan, C.J ., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado, J J ., concur.

Separate Opinions

GUTIERREZ, JR., J ., concurring:
I concur in the result because with the enactments of Republic Acts No. 6658 and
No. 6766, the questioned Executive Order No. 220 has been superseded. The
basic issues have become moot and academic. The Cordillera Regional
Consultative Commission and the Cordillera Autonomous Region have taken
over the functions of the Cordillera Administrative Region. The latter office has
becomefunctus oficio. Moreover, there can be no question about the validity of its
acts because if it is not de jure, at the very least it is a de facto office.
I make these observations because I have grave doubts about the authority of the
President to create such an office as the Cordillera Administrative Region (CAR)
by mere executive fiat. The office has to be created by statute. To me, the
functions of CAR go beyond ordinary planning and preparation for the real office.
In fact, Congress had to pass Republic Act 6658 for this purpose. CAR was an
agency which accelerated economic and social growth in the Cordilleras,
coordinated the implementation of programs, accepted projects and activities in
the Cordilleras, and discharged basic administrative functions. It was a de
facto agency whose acts are valid but not a de jure or fully valid creation.

Separate Opinions
GUTIERREZ, JR., J ., concurring:
I concur in the result because with the enactments of Republic Acts No. 6658 and
No. 6766, the questioned Executive Order No. 220 has been superseded. The
basic issues have become moot and academic. The Cordillera Regional
Consultative Commission and the Cordillera Autonomous Region have taken
over the functions of the Cordillera Administrative Region. The latter office has
becomefunctus oficio. Moreover, there can be no question about the validity of its
acts because if it is not de jure, at the very least it is a de facto office.
I make these observations because I have grave doubts about the authority of the
President to create such an office as the Cordillera Administrative Region (CAR)
by mere executive fiat. The office has to be created by statute. To me, the
functions of CAR go beyond ordinary planning and preparation for the real office.
In fact, Congress had to pass Republic Act 6658 for this purpose. CAR was an
agency which accelerated economic and social growth in the Cordilleras,
coordinated the implementation of programs, accepted projects and activities in
the Cordilleras, and discharged basic administrative functions. It was a de
facto agency whose acts are valid but not a de jure or fully valid creation.

EN BANC
[G.R. No. 93054 : December 4, 1990.]
192 SCRA 100
Cordillera Regional Assembly Member ALEXANDER P. ORDILLO, (Banaue),
Ifugao Provincial Board Member CORAZON MONTINIG, (Mayoyao), Former Vice-
Mayor MARTIN UDAN (Banaue), Municipal Councilors MARTIN GANO, (Lagawe),
and TEODORO HEWE, (Hingyon), Barangay Councilman PEDRO W. DULAG
(Lamut); Aguinaldo residents SANDY B. CHANGIWAN, and DONATO TIMAGO;
Lamut resident REY ANTONIO; Kiangan residents ORLANDO PUGUON, and
REYNAND DULDULAO; Lagawe residents TOMAS KIMAYONG, GREGORIO
DANGO, GEORGE B. BAYWONG, and VICENTE LUNAG; Hingyon residents
PABLO M. DULNUAN and CONSTANCIO GANO; Mayoyao residents PEDRO M.
BAOANG, LEONARDO IGADNA, and MAXIMO IGADNA; and Banaue residents
PUMA-A CULHI, LATAYON BUTTIG, MIGUEL PUMELBAN, ANDRES ORDILLO,
FEDERICO MARIANO, SANDY BINOMNGA, GABRIEL LIMMANG, ROMEO
TONGALI, RUBEN BAHATAN, MHOMDY GABRIEL, and NADRES GHAMANG,
Petitioners, vs. THE COMMISSION ON ELECTIONS; The Honorable FRANKLIN M.
DRILON, Secretary of Justice; Hon. CATALINO MACARAIG, Executive Secretary;
The Cabinet Officer for Regional Development; Hon. GUILLERMO CARAGUE,
Secretary of Budget and Management; and Hon. ROSALINA S. CAJUCOM, OIC,
National Treasurer, Respondents.

D E C I S I O N

GUTIERREZ, JR., J .:

The question raised in this petition is whether or not the province of Ifugao, being the
only province which voted favorably for the creation of the Cordillera Autonomous
Region can, alone, legally and validly constitute such Region.
The antecedent facts that gave rise to this petition are as follows:
On January 30, 1990, the people of the provinces of Benguet, Mountain Province,
Ifugao, Abra and Kalinga-Apayao and the city of Baguio cast their votes in a plebiscite
held pursuant to Republic Act No. 6766 entitled "An Act Providing for an Organic Act for
the Cordillera Autonomous Region."
The official Commission on Elections (COMELEC) results of the plebiscite showed that
the creation of the Region was approved by a majority of 5,889 votes in only the Ifugao
Province and was overwhelmingly rejected by 148,676 votes in the rest of the provinces
and city above-mentioned.
Consequently, the COMELEC, on February 14, 1990, issued Resolution No. 2259
stating that the Organic Act for the Region has been approved and/or ratified by majority
of the votes cast only in the province of Ifugao. On the same date, the Secretary of
Justice issued a memorandum for the President reiterating the COMELEC resolution
and provided:
". . . [A]nd considering the proviso in Sec. 13(A) that only the provinces and city voting
favorably shall be included in the CAR, the province of Ifugao being the only province
which voted favorably then, alone, legally and validly constitutes the CAR." (Rollo, p.
7)
As a result of this, on March 8, 1990, Congress enacted Republic Act No. 6861 setting
the elections in the Cordillera Autonomous Region of Ifugao on the first Monday of
March 1991.: nad
Even before the issuance of the COMELEC resolution, the Executive Secretary on
February 5, 1990 issued a Memorandum granting authority to wind up the affairs of the
Cordillera Executive Board and the Cordillera Regional Assembly created under
Executive Order No. 220.
On March 9, 1990, the petitioner filed a petition with COMELEC to declare the non-
ratification of the Organic Act for the Region. The COMELEC merely noted said petition.
On March 30, 1990, the President issued Administrative Order No. 160 declaring
among others that the Cordillera Executive Board and Cordillera Regional Assembly
and all the offices created under Executive Order No. 220 were abolished in view of the
ratification of the Organic Act.- nad
The petitioners maintain that there can be no valid Cordillera Autonomous Region in
only one province as the Constitution and Republic Act No. 6766 require that the said
Region be composed of more than one constituent unit.
The petitioners, then, pray that the Court: (1) declare null and void COMELEC
resolution No. 2259, the memorandum of the Secretary of Justice, the memorandum of
the Executive Secretary, Administrative Order No. 160, and Republic Act No. 6861 and
prohibit and restrain the respondents from implementing the same and spending public
funds for the purpose and (2) declare Executive Order No. 220 constituting the
Cordillera Executive Board and the Cordillera Regional Assembly and other offices to
be still in force and effect until another organic law for the Autonomous Region shall
have been enacted by Congress and the same is duly ratified by the voters in the
constituent units. We treat the Comments of the respondents as an answer and decide
the case.
This petition is meritorious.
The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region.
It is explicit in Article X, Section 15 of the 1987 Constitution that:
"Section 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordillera consisting of provinces, cities, municipalities and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures,
and other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines."
(Emphasis Supplied)
The keywords provinces, cities, municipalities and geographical areas connote that
"region" is to be made up of more than one constituent unit. The term "region" used in
its ordinary sense means two or more provinces. This is supported by the fact that the
thirteen (13) regions into which the Philippines is divided for administrative purposes are
groupings of contiguous provinces. (Integrated Reorganization Plan (1972), which was
made as part of the law of the land by P.D. No. 1; P.D. No. 742) Ifugao is a province by
itself. To become part of a region, it must join other provinces, cities, municipalities, and
geographical areas. It joins other units because of their common and distinctive
historical and cultural heritage, economic and social structures and other relevant
characteristics. The Constitutional requirements are not present in this case.- nad
The well-established rule in statutory construction that the language of the Constitution,
as much as possible should be understood in the sense it has in common use and that
the words used in constitutional provisions are to be given their ordinary meaning
except where technical terms are employed, must then, be applied in this case. (See
Baranda v. Gustilo, 165 SCRA 757, 770, [1988]; J.M. Tuason & Co., Inc. v. Land
Tenure Administration, 31 SCRA 413, 422-423 [1970]).
Aside from the 1987 Constitution, a reading of the provisions of Republic Act No. 6766
strengthens the petitioner's position that the Region cannot be constituted from only one
province.
Article III, Sections 1 and 2 of the Statute provide that the Cordillera Autonomous
Region is to be administered by the Cordillera government consisting of the Regional
Government and local government units. It further provides that:
"SECTION 2. The Regional Government shall exercise powers and functions necessary
for the proper governance and development of all provinces, cities, municipalities, and
barangay or ili within the Autonomous Region . . ."
From these sections, it can be gleaned that Congress never intended that a single
province may constitute the autonomous region. Otherwise, we would be faced with the
absurd situation of having two sets of officials, a set of provincial officials and another
set of regional officials exercising their executive and legislative powers over exactly the
same small area.
Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative power in the
Cordillera Assembly whose members shall be elected from regional assembly districts
apportioned among provinces and the cities composing the Autonomous
Region. chanrobles virtual law library
If we follow the respondent's position, the members of such Cordillera Assembly shall
then be elected only from the province of Ifugao creating an awkward predicament of
having two legislative bodies the Cordillera Assembly and the Sangguniang
Panlalawigan exercising their legislative powers over the province of Ifugao. And
since Ifugao is one of the smallest provinces in the Philippines, population-wise, it would
have too many government officials for so few people.:-cralaw
Article XII, Section 10 of the law creates a Regional Planning and Development Board
composed of the Cordillera Governor, all the provincial governors and city mayors or
their representatives, two members of the Cordillera Assembly, and members
representing the private sector. The Board has a counterpart in the provincial level
called the Provincial Planning and Development Coordinator. The Board's functions
(Article XII, Section 10, par. 2, Republic Act No. 6766) are almost similar to those of the
Provincial Coordinator's (Title Four, Chapter 3, Article 10, Section 220 (4), Batas
Pambansa Blg. 337 Local Government Code). If it takes only one person in the
provincial level to perform such functions while on the other hand it takes an entire
Board to perform almost the same tasks in the regional level, it could only mean that a
larger area must be covered at the regional level. The respondent's theory of the
Autonomous Region being made up of a single province must, therefore, fail.
Article XXI, Section 13 (B) (c) alloting the huge amount of Ten Million Pesos
(P10,000,000.00) to the Regional Government for its initial organizational requirements
cannot be construed as funding only a lone and small province.
These sections of Republic Act No. 6766 show that a one province Cordillera
Autonomous Region was never contemplated by the law creating it.
The province of Ifugao makes up only 11% of the total population of the areas
enumerated in Article I, Section 2 (b) of Republic Act No. 6766 which include Benguet,
Mountain Province, Abra, Kalinga-Apayao and Baguio City. It has the second smallest
number of inhabitants from among the provinces and city above mentioned. The
Cordillera population is distributed in round figures as follows: Abra, 185,000; Benguet,
486,000; Ifugao, 149,000; Kalinga-Apayao, 214,000; Mountain Province, 116,000; and
Baguio City, 183,000; Total population of these five provinces and one city; 1,332,000
according to the 1990 Census (Manila Standard, September 30, 1990, p. 14).
There are other provisions of Republic Act No. 6766 which are either violated or which
cannot be complied with. Section 16 of Article V calls for a Regional Commission on
Appointments with the Speaker as Chairman and are (6) members coming from
different provinces and cities in the Region. Under the respondents' view, the
Commission would have a Chairman and only one member. It would never have a
quorum. Section 3 of Article VI calls for cabinet members, as far as practicable, to come
from various provinces and cities of the Region. Section 1 of Article VII creates a
system of tribal courts for the various indigenous cultural communities of the Region.
Section 9 of Article XV requires the development of a common regional language based
upon the various languages and dialects in the region which regional language in turn is
expected to enrich the national language.
The entirety of Republic Act No. 6766 creating the Cordillera Autonomous Region is
infused with provisions which rule against the sole province of Ifugao constituting the
Region.:-cralaw
To contemplate the situation envisioned by the respondent would not only violate the
letter and intent of the Constitution and Republic Act No. 6766 but would also be
impractical and illogical.
Our decision in Abbas, et al. v. COMELEC, (G.R. No. 89651, November 10, 1969), is
not applicable in the case at bar contrary to the view of the Secretary of Justice.
The Abbas case laid down the rate on the meaning of majority in the phrase "by majority
of the votes cast by the constituent units called for the purpose" found in the
Constitution, Article X, Section 18. It stated:
x x x
". . . [I]t is thus clear that what is required by the Constitution is simple majority of votes
approving the Organic Act in individual constituent units and not a double majority of the
votes in all constituent units put together, as well as in the individual constituent units."
This was the pronouncement applied by the Secretary of Justice in arriving at his
conclusion stated in his Memorandum for the President that:
x x x
". . . [i]t is believed that the creation of the Cordillera Autonomous Region (CAR) as
mandated by R.A. No. 6766 became effective upon its approval by the majority of the
votes cast in the province of Ifugao. And considering the proviso in Section 13 (a) that
only the provinces and city voting favorably shall be included in the CAR, the province
of Ifugao being the only province which voted favorably can, alone, legally and validly
constitute the CAR." (Rollo. p. 40).
The plebiscites mandated by the Constitution and Republic Act No. 6766 for the
Cordillera and Republic Act No. 6734 for the Autonomous Region in Muslim Mindanao
determine (1) whether there shall be an autonomous region in the Cordillera and in
Muslim Mindanao and (2) which provinces and cities, among those enumerated in the
two Republic Acts, shall comprise said Autonomous Regions. (See III, Record of the
Constitutional Commission, 487-492 [1986]).
The Abbas case established the rule to follow on which provinces and cities shall
comprise the autonomous region in Muslim Mindanao which is, consequently, the same
rule to follow with regard to the autonomous region in the Cordillera. However, there is
nothing in the Abbas decision which deals with the issue on whether an autonomous
region, in either Muslim Mindanao or Cordillera could exist despite the fact that only one
province or one city is to constitute it.chanrobles virtual law library
Stated in another way, the issue in this case is whether the sole province of Ifugao can
validly and legally constitute the Cordillera Autonomous Region. The issue is not
whether the province of Ifugao is to be included in the Cordillera Autonomous Region. It
is the first issue which the Court answers in the instant case.
WHEREFORE, the petition is hereby GRANTED. Resolution No. 2259 of the
Commission on Elections, insofar as it upholds the creation of an autonomous region,
the February 14, 1990 memorandum of the Secretary of Justice, the February 5, 1990
memorandum of the Executive Secretary, Administrative Order No. 160, and Republic
Act No. 6861 are declared null and void while Executive Order No. 220 is declared to be
still in force and effect until properly repealed or amended.
SO ORDERED.
Fernan C.J ., Narvasa, Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin,
Sarmiento, Grio-Aquino, Medialdea and Regalado, J J ., concur.
Feliciano, J ., is on leave.

EN BANC

ROGELIO Z. BAGABUYO,
Petitioner,

- versus -

COMMISSION ON ELECTIONS,
Respondent.
G.R. No. 176970

Present:

PUNO, C.J.,
QUISUMBING,

*
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

Promulgated:

December 8, 2008

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

D E C I S I O N

BRION, J .:

Before us is the petition for certiorari, prohibition, and mandamus,
[1]
with a prayer
for the issuance of a temporary restraining order and a writ of preliminary injunction,
filed by Rogelio Bagabuyo (petitioner) to prevent the Commission on Elections
(COMELEC) from implementing Resolution No. 7837 on the ground that Republic
Act No. 9371
[2]
the law that Resolution No. 7837 implements is unconstitutional.

BACKGROUND FACTS

On October 10, 2006, Cagayan de Oros then Congressman Constantino G.
Jaraula filed and sponsored House Bill No. 5859: An Act Providing for the
Apportionment of the Lone Legislative District of the City of Cagayan De Oro.
[3]
This
law eventually became Republic Act (R.A.) No. 9371.
[4]
It increased Cagayan de Oros
legislative district from one to two. For the election of May 2007, Cagayan de Oros
voters would be classified as belonging to either the first or the second district,
depending on their place of residence. The constituents of each district would elect their
own representative to Congress as well as eight members of theSangguniang
Panglungsod.

Section 1 of R.A. No. 9371 apportioned the Citys barangays as follows:
Legislative Districts The lone legislative district of the City
of Cagayan De Oro is hereby apportioned to commence in the next
national elections after the effectivity of this Act. Henceforth, barangays
Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon,
San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan,
Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga,
Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first
district while barangays Macabalan, Puntod, Consolacion, Camaman-an,
Nazareth, Macasandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico,
Tablon, Agusan, Puerto, Bugo, and Balubal and all urban barangays from
Barangay 1 to Barangay 40 shall comprise the second district.
[5]

On March 13, 2007, the COMELEC en Banc promulgated Resolution No.
7837
[6]
implementing R.A. No. 9371.

Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC
on March 27, 2007.
[7]
On 10 April 2008, the petitioner amended the petition to include
the following as respondents: Executive Secretary Eduardo Ermita; the Secretary of the
Department of Budget and Management; the Chairman of the Commission on Audit; the
Mayor and the members of theSangguniang Panglungsod of Cagayan de Oro City; and
its Board of Canvassers.
[8]

In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on
constitutional grounds, the petitioner argued that the COMELEC cannot implement R.A.
No. 9371 without providing for the rules, regulations and guidelines for the conduct of a
plebiscite which is indispensable for the division or conversion of a local government
unit. He prayed for the issuance of an order directing the respondents to cease and
desist from implementing R.A. No. 9371 and COMELEC Resolution No. 7837, and to
revert instead to COMELEC Resolution No. 7801 which provided for a single legislative
district for Cagayan de Oro.

Since the Court did not grant the petitioners prayer for a temporary restraining
order or writ of preliminary injunction, the May 14 National and Local Elections
proceeded according to R.A. No. 9371 and Resolution No. 7837.

The respondents Comment on the petition, filed through the Office of the
Solicitor General, argued that: 1) the petitioner did not respect the hierarchy of courts,
as the Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases
assailing the constitutionality of a statute; 2) R.A. No. 9371 merely increased the
representation of Cagayan de Oro City in the House of Representatives
and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987
Constitution; 3) the criteria established under Section 10, Article X of the 1987
Constitution only apply when there is a creation, division, merger, abolition or
substantial alteration of boundaries of a province, city, municipality, or barangay; in this
case, no such creation, division, merger, abolition or alteration of boundaries of a local
government unit took place; and 4) R.A. No. 9371 did not bring about any change in
Cagayan de Oros territory, population and income classification; hence, no plebiscite is
required.

The petitioner argued in his reply that: 1) pursuant to the Courts ruling in Del Mar
v. PAGCOR,
[9]
the Court may take cognizance of this petition if compelling reasons, or
the nature and importance of the issues raised, warrant the immediate exercise of its
jurisdiction; 2) Cagayan de Oro Citys reapportionment under R.A. No. 9371 falls within
the meaning of creation, division, merger, abolition or substantial alteration of
boundaries of cities under Section 10, Article X of the Constitution; 3) the creation,
division, merger, abolition or substantial alteration of boundaries of local government
units involve a common denominator the material change in the political and
economic rights of the local government units directly affected, as well as of the people
therein; 4) a voters sovereign power to decide on who should be elected as the entire
citys Congressman was arbitrarily reduced by at least one half because the questioned
law and resolution only allowed him to vote and be voted for in the district designated by
the COMELEC; 5) a voter was also arbitrarily denied his right to elect the Congressman
and the members of the city council for the other legislative district, and 6) government
funds were illegally disbursed without prior approval by the sovereign electorate of
Cagayan De Oro City.
[10]

THE ISSUES

The core issues, based on the petition and the parties memoranda, can be
limited to the following contentious points:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant
petition be dismissed on this ground?
2) Does R.A. No. 9371 merely provide for the legislative reapportionment of
Cagayan de Oro City, or does it involve the division and conversion of a local
government unit?
3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING

Except for the issue of the hierarchy of courts rule, we find the petition
totally without merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.
[11]
It was pursuant to this
original jurisdiction that the petitioner filed the present petition.

While this jurisdiction is shared with the Court of Appeals
[12]
and the RTCs,
[13]
a
direct invocation of the Supreme Courts jurisdiction is allowed only when there are
special and important reasons therefor, clearly and especially set out in the
petition.Reasons of practicality, dictated by an increasingly overcrowded docket and the
need to prioritize in favor of matters within our exclusive jurisdiction, justify the existence
of this rule otherwise known as the principle of hierarchy of courts. More generally
stated, the principle requires that recourse must first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court.
[14]

Among the cases we have considered sufficiently special and important to be
exceptions to the rule, are petitions forcertiorari, prohibition, mandamus and quo
warranto against our nations lawmakers when the validity of their enactments is
assailed.
[15]
The present petition is of this nature; its subject matter and the nature of
the issues raised among them, whether legislative reapportionment involves a division
of Cagayan de Oro City as a local government unit are reasons enough for
considering it an exception to the principle of hierarchy of courts. Additionally, the
petition assails as well a resolution of the COMELEC en banc issued to implement the
legislative apportionment that R.A. No. 9371 decrees. As an action against a
COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that in
turn requires a review by this Court via a Rule 65 petition for certiorari.
[16]
For these
reasons, we do not see the principle of hierarchy of courts to be a stumbling block in our
consideration of the present case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan
de Oro as a local government unit, and does not merely provide for the Citys legislative
apportionment. This argument essentially proceeds from a misunderstanding of the
constitutional concepts of apportionment of legislative districts and division of local
government units.

Legislative apportionment is defined by Blacks Law Dictionary as the
determination of the number of representatives which a State, county or other
subdivision may send to a legislative body.
[17]
It is the allocation of seats in a legislative
body in proportion to the population; the drawing of voting district lines so as to equalize
population and voting power among the districts.
[18]
Reapportionment, on the other
hand, is the realignment or change in legislative districts brought about by changes in
population and mandated by the constitutional requirement of equality of
representation.
[19]

Article VI (entitled Legislative Department) of the 1987 Constitution lays down the
rules on legislative apportionment under its Section 5 which provides:
Sec. 5(1). (1) The House of Representatives shall be composed of
not more than two hundred fifty members unless otherwise fixed by law,
who shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional and sectoral
parties or organizations.

x x x

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

(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts based on
the standards provided in this section.

Separately from the legislative districts that legal apportionment or
reapportionment speaks of, are the local government units (historically and generically
referred to as municipal corporations) that the Constitution itself classified into
provinces, cities, municipalities and barangays.
[20]
In its strict and proper sense, a
municipality has been defined as a body politic and corporate constituted by the
incorporation of the inhabitants of a city or town for the purpose of local government
thereof.
[21]
The creation, division, merger, abolition or alteration of boundary of local
government units, i.e., of provinces, cities, municipalities, andbarangays, are covered by
the Article on Local Government (Article X). Section 10 of this Article provides:

No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the
political unit directly affected.

Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the
authority to act has been vested in the Legislature. The Legislature undertakes the
apportionment and reapportionment of legislative districts,
[22]
and likewise acts on local
government units by setting the standards for their creation, division, merger, abolition
and alteration of boundaries and by actually creating, dividing, merging, abolishing local
government units and altering their boundaries through legislation. Other than this, not
much commonality exists between the two provisions since they are inherently different
although they interface and relate with one another.

The concern that leaps from the text of Article VI, Section 5 is political
representation and the means to make a legislative district sufficiently represented so
that the people can be effectively heard. As above stated, the aim of legislative
apportionment is to equalize population and voting power among districts.
[23]
Hence,
emphasis is given to the number of people represented; the uniform and progressive
ratio to be observed among the representative districts; and accessibility and
commonality of interests in terms of each district being, as far as practicable,
continuous, compact and adjacent territory. In terms of the people represented, every
city with at least 250,000 people and every province (irrespective of population) is
entitled to one representative. In this sense, legislative districts, on the one hand, and
provinces and cities, on the other, relate and interface with each other. To ensure
continued adherence to the required standards of apportionment, Section 5(4)
specifically mandates reapportionment as soon as the given standards are met.

In contrast with the equal representation objective of Article VI, Section 5, Article
X, Section 10 expressly speaks of how local government units may be created, divided,
merged, abolished, or its boundary substantially altered. Its concern is the
commencement, the termination, and the modification of local government units
corporate existence and territorial coverage; and it speaks of two specific standards that
must be observed in implementing this concern, namely, the criteria established in the
local government code and the approval by a majority of the votes cast in a plebiscite in
the political units directly affected. Under the Local Government Code (R.A. No. 7160)
passed in 1991, the criteria of income, population and land area are specified as
verifiable indicators of viability and capacity to provide services.
[24]
The division or
merger of existing units must comply with the same requirements (since a new local
government unit will come into being), provided that a division shall not reduce the
income, population, or land area of the unit affected to less than the minimum
requirement prescribed in the Code.
[25]

A pronounced distinction between Article VI, Section 5 and, Article X, Section 10
is on the requirement of a plebiscite. The Constitution and the Local Government Code
expressly require a plebiscite to carry out any creation, division, merger, abolition or
alteration of boundary of a local
government unit.
[26]
In contrast, no plebiscite requirement exists under the
apportionment or reapportionment provision. InTobias v. Abalos,
[27]
a case that arose
from the division of the congressional district formerly covering San Juan and
Mandaluyong into separate districts, we confirmed this distinction and the fact that no
plebiscite is needed in a legislative reapportionment. The plebiscite issue came up
because one was ordered and held for Mandaluyong in the course of its conversion into
a highly urbanized city, while none was held for San Juan. In explaining why this
happened, the Court ruled that no plebiscite was necessary for San Juan because the
objective of the plebiscite was the conversion of Mandaluyong into a highly urbanized
city as required by Article X, Section 10 the Local Government Code; the creation of a
new legislative district only followed as a consequence. In other words, the
apportionment alone and by itself did not call for a plebiscite, so that none was needed
for San Juan where only a reapportionment took place.

The need for a plebiscite under Article X, Section 10 and the lack of requirement
for one under Article VI, Section 5 can best be appreciated by a consideration of the
historical roots of these two provisions, the nature of the concepts they embody as
heretofore discussed, and their areas of application.

A Bit of History.

In Macias v. COMELEC,
[28]
we first jurisprudentially acknowledged the American
roots of our apportionment provision, noting its roots from the
Fourteenth Amendment
[29]
of the U.S. Constitution and from the constitutions of some
American states. The Philippine Organic Act of 1902 created the Philippine
Assembly,
[30]
the body that acted as the lower house of the bicameral legislature under
the Americans, with the Philippine Commission acting as the upper house. While the
members of the Philippine Commission were appointed by the U.S. President with the
conformity of the U.S. Senate, the members of the Philippine Assembly were elected by
representative districts previously delineated under the Philippine Organic Act of 1902
pursuant to the mandate to apportion the seats of the Philippine Assembly among the
provinces as nearly as practicable according to population. Thus, legislative
apportionment first started in our country.

The Jones Law or the Philippine Autonomy Act of 1916 maintained the
apportionment provision, dividing the country into 12 senate districts and 90
representative districts electing one delegate each to the House of
Representatives. Section 16 of the Act specifically vested the Philippine Legislature
with the authority to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the concept of
legislative apportionment together with district as the basic unit of apportionment; the
concern was equality of representation . . . as an essential feature of republican
institutions as expressed in the leading case of Macias v. COMELEC.
[31]
The case
ruled that inequality of representation is a justiciable, not a political issue, which ruling
was reiterated in Montejo v. COMELEC.
[32]
Notably, no issue regarding the holding of a
plebiscite ever came up in these cases and the others that followed, as no plebiscite
was required.

Article VIII, Section 2 of the 1973 Constitution retained the concept of equal
representation in accordance with the number of their respective inhabitants and on the
basis of a uniform and progressive ratio with each district being, as far as practicable,
contiguous, compact and adjacent territory. This formulation was essentially carried
over to the 1987 Constitution, distinguished only from the previous one by the presence
of party-list representatives. In neither Constitution was a plebiscite required.

The need for a plebiscite in the creation, division, merger, or abolition of local
government units was not constitutionally enshrined until the 1973
Constitution. However, as early as 1959, R.A. No. 2264
[33]
required, in the creation of
barrios by Provincial Boards, that the creation and definition of boundaries be upon
petition of a majority of the voters in the areas affected.In 1961, the Charter of the City
of Caloocan (R.A. No. 3278) carried this further by requiring that the Act shall take
effect after a majority of voters of the Municipality of Caloocan vote in favor of the
conversion of their municipality into a city in a plebiscite. This was followed up to 1972
by other legislative enactments requiring a plebiscite as a condition for the creation and
conversion of local government units as well as the transfer of sitios from one legislative
unit to another.
[34]
In 1973, the plebiscite requirement was accorded constitutional
status.

Under these separate historical tracks, it can be seen that the holding of a
plebiscite was never a requirement in legislative apportionment or
reapportionment. After it became constitutionally entrenched, a plebiscite was also
always identified with the creation, division, merger, abolition and alteration of
boundaries of local government units, never with the concept of legislative
apportionment.

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a sense, be
called a political unit because it is the basis for the election of a member of the House of
Representatives and members of the local legislative body. It is not, however, a political
subdivision through which functions of government are carried out. It can more
appropriately be described as a representative unit that may or may not encompass the
whole of a city or a province, but unlike the latter, it is not a corporate unit. Not being a
corporate unit, a district does not act for and in behalf of the people comprising the
district; it merely delineates the areas occupied by the people who will choose a
representative in their national affairs. Unlike a province, which has a governor; a city or
a municipality, which has a mayor; and a barangay, which has a punong barangay, a
district does not have its own chief executive. The role of the congressman that it elects
is to ensure that the voice of the people of the district is heard in Congress, not to
oversee the affairs of the legislative district. Not being a corporate unit also signifies that
it has no legal personality that must be created or dissolved and has no capacity to
act. Hence, there is no need for any plebiscite in the creation, dissolution or any other
similar action on a legislative district.

The local government units, on the other hand, are political
and corporate units. They are the territorial and political subdivisions of the
state.
[35]
They possess legal personality on the authority of the Constitution and by
action of the Legislature. The Constitution defines them as entities that Congress can,
by law, create, divide, abolish, merge; or whose boundaries can be altered based on
standards again established by both the Constitution and the Legislature.
[36]
A local
government units corporate existence begins upon the election and qualification of its
chief executive and a majority of the members of its Sanggunian.
[37]

As a political subdivision, a local government unit is an instrumentality of the
state in carrying out the functions of government.
[38]
As a corporate entity with a distinct
and separate juridical personality from the State, it exercises special functions for the
sole benefit of its constituents. It acts as an agency of the community in the
administration of local affairs
[39]
and the mediums through which the people act in their
corporate capacity on local concerns.
[40]
In light of these roles, the Constitution saw it fit
to expressly secure the consent of the people affected by the creation, division, merger,
abolition or alteration of boundaries of local government units through a plebiscite.

These considerations clearly show the distinctions between a legislative
apportionment or reapportionment and the division of a local government
unit. Historically and by its intrinsic nature, a legislative apportionment does not
mean, and does not even imply, a division of a local government unit where the
apportionment takes place. Thus, the plebiscite requirement that applies to the division
of a province, city, municipality or barangay under the Local Government Code should
not apply to and be a requisite for the validity of a legislative apportionment or
reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation
passed in accordance with the authority granted to Congress under Article VI, Section
5(4) of the Constitution. Its core provision Section 1 provides:

SECTION 1. Legislative Districts. The lone legislative district of
the City of Cagayan de Oro is hereby apportioned to commence in the
next national elections after the effectivity of this Act. Henceforth,
barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan,
Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia,
Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon,
Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall
comprise the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macansandig, Indahag, Lapasan,
Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo and Balubal
and all urban barangays from Barangay 1 to Barangay 40 shall comprise
the second district.

Under these wordings, no division of Cagayan de Oro City as a political and
corporate entity takes place or is mandated. Cagayan de Oro City politically remains a
single unit and its administration is not divided along territorial lines. Its territory remains
completely whole and intact; there is only the addition of another legislative district and
the delineation of the city into two districts for purposes of representation in the House
of Representatives. Thus, Article X, Section 10 of the Constitution does not come into
play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two
districts.

Admittedly, the legislative reapportionment carries effects beyond the creation of
another congressional district in the city by providing, as reflected in COMELEC
Resolution No. 7837, for additional Sangguniang Panglunsod seats to be voted for
along the lines of the congressional apportionment made. The effect on
the Sangguniang Panglunsod, however, is not directly traceable to R.A. No. 9371 but to
another law R.A. No. 6636
[41]
whose Section 3 provides:

SECTION 3. Other Cities. The provision of any law to the contrary
notwithstanding the City of Cebu, City of Davao, and any other city with
more than one representative district shall have eight (8) councilors for
each district who shall be residents thereof to be elected by the qualified
voters therein, provided that the cities of Cagayan de Oro, Zamboanga,
Bacolod, Iloilo and other cities comprising a representative district shall
have twelve (12) councilors each and all other cities shall have ten (10)
councilors each to be elected at large by the qualified voters of the said
cities: Provided, That in no case shall the present number of councilors
according to their charters be reduced.

However, neither does this law have the effect of dividing the City of Cagayan de
Oro into two political and corporate units and territories. Rather than divide the city
either territorially or as a corporate entity, the effect is merely to enhance voter
representation by giving each city voter more and greater say, both in Congress and in
the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro had only
one congressman and 12 city council members citywide for its population of
approximately 500,000.
[42]
By having two legislative districts, each of them with one
congressman, Cagayan de Oro now effectively has two congressmen, each one
representing 250,000 of the citys population. In terms of services for city residents, this
easily means better access to their congressman since each one now services only
250,000 constituents as against the 500,000 he used to represent. The same goes true
for the Sangguniang Panglungsod with its ranks increased from 12 to 16 since each
legislative district now has 8 councilors. In representation terms, the fewer constituents
represented translate to a greater voice for each individual city resident in Congress and
in the Sanggunian; each congressman and each councilor represents both a smaller
area and fewer constituents whose fewer numbers are now concentrated in each
representative. The City, for its part, now has twice the number of congressmen
speaking for it and voting in the halls of Congress. Since the total number of
congressmen in the country has not increased to the point of doubling its numbers, the
presence of two congressman (instead of one) from the same city cannot but be a
quantitative and proportional improvement in the representation of Cagayan de Oro City
in Congress.

Equality of representation.

The petitioner argues that the distribution of the legislative districts is unequal.
District 1 has only 93,719 registered voters while District 2 has 127,071. District 1 is
composed mostly of rural barangays while District 2 is composed mostly of
urban barangays.
[43]
Thus, R.A. No. 9371 violates the principle of equality of
representation.

A clarification must be made. The law clearly provides that the basis for
districting shall be the number of the inhabitants of a city or a province, not the number
of registered voters therein. We settled this very same question in Herrera v.
COMELEC
[44]
when we interpreted a provision in R.A. No.
7166 and COMELEC Resolution No. 2313 that applied to the Province of Guimaras. We
categorically ruled
that the basis for districting is the number of inhabitants of the Province of Guimaras by
municipality based onthe official 1995 Census of Population as certified to by Tomas P.
Africa, Administrator of the National Statistics Office.

The petitioner, unfortunately, did not provide information about the actual
population of Cagayan de Oro City. However, we take judicial notice of the August 2007
census of the National Statistics Office which shows that barangays comprising
Cagayan de Oros first district have a total population of 254,644, while the second
district has 299,322 residents. Undeniably, these figures show a disparity in the
population sizes of the districts.
[45]
The Constitution, however, does not require
mathematical exactitude or rigid equality as a standard in gauging equality of
representation.
[46]
In fact, for cities, all it asks is that each city with a population of at
least two hundred fifty thousand shall have one representative, while ensuring
representation for every province regardless of the size of its population. To ensure
quality representation through commonality of interests and ease of access by the
representative to the constituents, all that the Constitution requires is that every
legislative district should comprise, as far as practicable, contiguous, compact, and
adjacent territory. Thus, the Constitution leaves the local government units as they are
found and does not require their division, merger or transfer to satisfy the numerical
standard it imposes. Its requirements are satisfied despite some numerical disparity if
the units are contiguous, compact and adjacent as far as practicable.

The petitioners contention that there is a resulting inequality in the division of
Cagayan de Oro City into two districts because the barangays in the first district are
mostly rural barangays while the second district is mostly urban, is largely
unsubstantiated. But even if backed up by proper proof, we cannot question the
division on the basis of the difference in the barangays levels of development or
developmental focus as these are not part of the constitutional standards for legislative
apportionment or reapportionment. What the components of the two districts of
Cagayan de Oro would be is a matter for the lawmakers to determine as a matter of
policy. In the absence of any grave abuse of discretion or violation of the established
legal parameters, this Court cannot intrude into the wisdom of these policies.
[47]

WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against
the petitioner.

SO ORDERED.

SUPREME COURT
Manila
EN BANC
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS
SACDALAN and/or VICE-GOVERNOR EMMANUEL PIOL, for and in his own
behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN
and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the
present and duly-appointed Presidential Adviser on the Peace Process (OPAPP)
or the so-called Office of the Presidential Adviser on the Peace
Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L.
LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident
of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep.
ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH
ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace
Process,respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH
CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN;
GEN. HERMOGENES ESPERON, JR., in his capacity as the present and duly
appointed Presidential Adviser on the Peace Process; and/or SEC. EDUARDO
ERMITA, in his capacity as Executive Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented
by HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON.
FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the
Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON,
Congresswoman, 1
st
Congressional District, HON. CESAR G. JALOSJOS,
Congressman, 3
rd
Congressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO
M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH
BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S.
DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E.
TORRINO,petitioners,
vs.
NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and
HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of
Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL
III, petitioners,
vs.
NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and
the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL,
represented by its Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N.
DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR
CHERRYLYN P. SANTOS-AKBAR,petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a resident of the
Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous
Peoples in Mindanao Not Belonging to the MILF, petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C.
ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of
Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-
intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT
(MMMPD), respondent-in-intervention.
x--------------------------------------------x
D E C I S I O N
CARPIO MORALES, J .:
Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process.While the facts surrounding this controversy center on the
armed conflict in Mindanao between the government and the Moro Islamic Liberation
Front (MILF), the legal issue involved has a bearing on all areas in the country where
there has been a long-standing armed conflict. Yet again, the Court is tasked to perform
a delicate balancing act. It must uncompromisingly delineate the bounds within which
the President may lawfully exercise her discretion, but it must do so in strict adherence
to the Constitution, lest its ruling unduly restricts the freedom of action vested by that
same Constitution in the Chief Executive precisely to enable her to pursue the peace
process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the
MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic basis
towards Marxist-Maoist orientations.
1

The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases before
the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of
several prior agreements between the two parties beginning in 1996, when the GRP-
MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels
signed the Agreement on General Cessation of Hostilities. The following year, they
signed the General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by
stating that the same contained, among others, the commitment of the parties to pursue
peace negotiations, protect and respect human rights, negotiate with sincerity in the
resolution and pacific settlement of the conflict, and refrain from the use of threat or
force to attain undue advantage while the peace negotiations on the substantive agenda
are on-going.
2

Early on, however, it was evident that there was not going to be any smooth sailing in
the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF
attacked a number of municipalities in Central Mindanao and, in March 2000, it took
control of the town hall of Kauswagan, Lanao del Norte.
3
In response, then President
Joseph Estrada declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive against
the MILF was suspended and the government sought a resumption of the peace talks.
The MILF, according to a leading MILF member, initially responded with deep
reservation, but when President Arroyo asked the Government of Malaysia through
Prime Minister Mahathir Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to seriously discuss the
matter and, eventually, decided to meet with the GRP.
4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by
the Malaysian government, the parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks Between the GRP and the
MILF. The MILF thereafter suspended all its military actions.
5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following aspects of
the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli
Agreement 2001 simply agreed "that the same be discussed further by the Parties in
their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001
which ended with the signing of the Implementing Guidelines on the Security Aspect of
the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was
followed by the Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002
at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and
he was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.
Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.
6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever embodied in
an instrument - the MOA-AD which is assailed principally by the present petitions
bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral
Domain
7
and the Presidential Adviser on the Peace Process (PAPP) Hermogenes
Esperon, Jr.
On July 23, 2008, the Province of North Cotabato
8
and Vice-Governor Emmanuel Piol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with
Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining
Order.
9
Invoking the right to information on matters of public concern, petitioners seek to
compel respondents to disclose and furnish them the complete and official copies of the
MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the holding of a public
consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.
10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition
11
filed by the City of Zamboanga,
12
Mayor Celso Lobregat,
Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be
excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in
the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to cease and
desist from formally signing the MOA-AD.
13
The Court also required the Solicitor
General to submit to the Court and petitioners the official copy of the final draft of the
MOA-AD,
14
to which she complied.
15

Meanwhile, the City of Iligan
16
filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the
MOA-AD or, if the same had already been signed, from implementing the same, and
that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,
17
Governor Rolando Yebes, Vice-Governor
Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the
members
18
of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August
15, 2008 a petition for Certiorari, Mandamus and Prohibition,
19
docketed as G.R. No.
183951. They pray, inter alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition for Prohibition,
20
docketed as G.R. No. 183962, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and executing
the MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel
A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of
Isabela
21
and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat
22
and Gov.
Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,
23
Ruy Elias
Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino
Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez,
Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The
Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective Comments-in-
Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners submitted their
respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the
Executive Department shall thoroughly review the MOA-AD and pursue further
negotiations to address the issues hurled against it, and thus moved to dismiss the
cases. In the succeeding exchange of pleadings, respondents' motion was met with
vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the
following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure
of official copies of the final draft of the Memorandum of Agreement
(MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units
is concerned, if it is considered that consultation has become fait
accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace
Panel committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it negotiated and initiated the MOA vis--vis ISSUES Nos. 4
and 5;
4. Whether there is a violation of the people's right to information on matters of
public concern (1987 Constitution, Article III, Sec. 7) under a state policy of full
disclosure of all its transactions involving public interest (1987 Constitution,
Article II, Sec. 28) including public consultation under Republic Act No. 7160
(LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of
Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the
Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not
recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the
MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation
Front for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section
3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del
Norte in/from the areas covered by the projected Bangsamoro Homeland is a
justiciable question; and
7. Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the Philippines.
24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most
of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five
petitions and six petitions-in-intervention against the MOA-AD, as well as the two
comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the
MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four
earlier agreements between the GRP and MILF, but also two agreements between the
GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on
the Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during
the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)
25
and the Indigenous Peoples Rights
Act (IPRA),
26
and several international law instruments - the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the
UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among
others.
The MOA-AD includes as a final TOR the generic category of "compact rights
entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or territory under peace agreement) that
partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-
harb (the Abode of War). The first referred to those lands where Islamic laws held sway,
while the second denoted those lands where Muslims were persecuted or where Muslim
laws were outlawed or ineffective.
27
This way of viewing the world, however, became
more complex through the centuries as the Islamic world became part of the
international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and
inter-governmental organizations, the classical division of the world into dar-ul-
Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe
novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-
mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which,
though under a secular regime, maintained peaceful and cooperative relations with
Muslim States, having been bound to each other by treaty or agreement. Dar-ul-
aman (land of order), on the other hand, referred to countries which, though not bound
by treaty with Muslim States, maintained freedom of religion for Muslims.
28

It thus appears that the "compact rights entrenchment" emanating from the regime
of dar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements between the
MILF and the Philippine government - the Philippines being the land of compact and
peace agreement - that partake of the nature of a treaty device, "treaty" being broadly
defined as "any solemn agreement in writing that sets out understandings, obligations,
and benefits for both parties which provides for a framework that elaborates the
principles declared in the [MOA-AD]."
29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
Bangsamoros.'" It defines "Bangsamoro people" as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether
mixed or of full blood, including their spouses.
30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes
not only "Moros" as traditionally understood even by Muslims,
31
but
all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples shall be respected. What this freedom of
choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of
which is vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.
32
Both parties to the MOA-AD acknowledge that ancestral domain does not
form part of the public domain.
33

The Bangsamoro people are acknowledged as having the right to self-governance,
which right is said to be rooted on ancestral territoriality exercised originally under the
suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The
sultanates were described as states or "karajaan/kadatuan" resembling a body politic
endowed with all the elements of a nation-state in the modern sense.
34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on
the past suzerain authority of the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and, specifically in the case of
the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of whom was
supreme over the others.
35

The MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with
defined territory and with a system of government having entered into treaties of amity
and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that
territory, particularly those known as Indians. In Canada, each of these indigenous
peoples is equally entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations."
36
To that extent, the MOA-AD, by
identifying the Bangsamoro people as "the First Nation" - suggesting its exclusive
entitlement to that designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE)
to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro.
37

B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region.
38

More specifically, the core of the BJE is defined as the present geographic area of the
ARMM - thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-
Tawi, Basilan, and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.
39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each of
these areas is to be subjected to a plebiscite to be held on different dates, years apart
from each other. Thus, Category A areas are to be subjected to a plebiscite not later
than twelve (12) months following the signing of the MOA-AD.
40
Category B areas, also
called "Special Intervention Areas," on the other hand, are to be subjected to a
plebiscite twenty-five (25) years from the signing of a separate agreement - the
Comprehensive Compact.
41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its "internal waters," defined as extending fifteen (15) kilometers from
the coastline of the BJE area;
42
that the BJE shall also have "territorial waters," which
shall stretch beyond the BJE internal waters up to the baselines of the Republic of the
Philippines (RP) south east and south west of mainland Mindanao; and that within
these territorialwaters, the BJE and the "Central Government" (used interchangeably
with RP) shall exercise joint jurisdiction, authority and management over all natural
resources.
43
Notably, the jurisdiction over the internal waters is not similarly described
as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through production
sharing and economic cooperation agreement.
44
The activities which the Parties are
allowed to conduct on the territorial waters are enumerated, among which are the
exploration and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.
45
There is no similar
provision on the sharing of minerals and allowed activities with respect to
the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and
trade relations with foreign countries and shall have the option to establish trade
missions in those countries. Such relationships and understandings, however, are not to
include aggression against the GRP. The BJE may also enter into environmental
cooperation agreements.
46

The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to "take necessary steps to ensure
the BJE's participation in international meetings and events" like those of the ASEAN
and the specialized agencies of the UN. The BJE is to be entitled to participate in
Philippine official missions and delegations for the negotiation of border agreements or
protocols for environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part of the
ancestral domain.
47

With regard to the right of exploring for, producing, and obtaining all potential sources of
energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE "as the party having control within its territorial
jurisdiction." This right carries the proviso that, "in times of national emergency, when
public interest so requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.
48

The sharing between the Central Government and the BJE of total production pertaining
to natural resources is to be 75:25 in favor of the BJE.
49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising
from any unjust dispossession of their territorial and proprietary rights, customary land
tenures, or their marginalization shall be acknowledged. Whenever restoration is no
longer possible, reparation is to be in such form as mutually determined by the Parties.
50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those issued by the
present ARMM.
51

D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the "details for the effective enforcement" and "the mechanisms and modalities
for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that the
participation of the third party shall not in any way affect the status of the relationship
between the Central Government and the BJE.
52

The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as
"associative," characterized by shared authority and responsibility. And it states that the
structure of governance is to be based on executive, legislative, judicial, and
administrative institutions with defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal
framework" shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present controversy hangs on
the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions
inclusive of civil service, electoral, financial and banking, education, legislation, legal,
economic, police and internal security force, judicial system and correctional
institutions, the details of which shall be discussed in the negotiation of the
comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo
Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP
and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD
identifies the signatories as "the representatives of the Parties," meaning the GRP and
MILF themselves, and not merely of the negotiating panels.
53
In addition, the signature
page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak,
Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador
Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary
General and Special Envoy for Peace Process in Southern Philippines, and SIGNED
"IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and
Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom
were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps
of the provinces, municipalities, and barangays under Categories A and B earlier
mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies.
54
Courts decline
to issue advisory opinions or to resolve hypothetical or feigned problems, or mere
academic questions.
55
The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other branches of
government.
56

An actual case or controversy 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. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence.
57
The Court can
decide the constitutionality of an act or treaty only when a proper case between
opposing parties is submitted for judicial determination.
58

Related to the requirement of an actual case or controversy is the requirement of
ripeness. A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it.
59
For a case to be considered ripe
for adjudication, it is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture,
60
and the
petitioner must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action.
61
He must show that he has sustained or is immediately
in danger of sustaining some direct injury as a result of the act complained of.
62

The Solicitor General argues that there is no justiciable controversy that is ripe for
judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further
negotiations and legislative enactments as well as constitutional
processes aimed at attaining a final peaceful agreement. Simply put, the MOA-
AD remains to be a proposal that does not automatically create legally
demandable rights and obligations until the list of operative acts required have
been duly complied with. x x x
x x x x
In the cases at bar, it is respectfully submitted that this Honorable Court has no
authority to pass upon issues based on hypothetical or feigned constitutional
problems or interests with no concrete bases. Considering
the preliminary character of the MOA-AD, there are no concrete acts that could
possibly violate petitioners' and intervenors' rights since the acts complained of
are mere contemplated steps toward the formulation of a final peace agreement.
Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary
and illusory apart from being unfounded and based on mere conjectures.
(Underscoring supplied)
The Solicitor General cites
63
the following provisions of the MOA-AD:
TERRITORY
x x x x
2. Toward this end, the Parties enter into the following stipulations:
x x x x
d. Without derogating from the requirements of prior agreements, the
Government stipulates to conduct and deliver, using all possible legal measures,
within twelve (12) months following the signing of the MOA-AD, a plebiscite
covering the areas as enumerated in the list and depicted in the map as
Category A attached herein (the "Annex"). The Annex constitutes an integral part
of this framework agreement. Toward this end, the Parties shall endeavor to
complete the negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from the signing of the MOA-
AD.
x x x x
GOVERNANCE
x x x x
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into forceupon the signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal framework with
due regard to non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact.
64
(Underscoring
supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy
ripe. In Pimentel, Jr. v. Aguirre,
65
this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said 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.
x x x x
By the same token, when an act of the President, who in our constitutional
scheme is a coequal of Congress, is seriously alleged to have infringed the
Constitution and the laws x x x settling the dispute becomes the duty and the
responsibility of the courts.
66

In Santa Fe Independent School District v. Doe,
67
the United States Supreme Court held
that the challenge to the constitutionality of the school's policy allowing student-led
prayers and speeches before games was ripe for adjudication, even if no public prayer
had yet been led under the policy, because the policy was being challenged as
unconstitutional on its face.
68

That the law or act in question is not yet effective does not negate ripeness. For
example, in New York v. United States,
69
decided in 1992, the United States Supreme
Court held that the action by the State of New York challenging the provisions of the
Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the questioned
provision was not to take effect until January 1, 1996, because the parties agreed that
New York had to take immediate action to avoid the provision's consequences.
70

The present petitions pray for Certiorari,
71
Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in
the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of
its jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.
72
Mandamus is a remedy granted by law when any tribunal, corporation,
board, officer 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 or enjoyment of a right or office to which such other is
entitled.
73
Certiorari, Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative
and executive officials.
74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O.
No. 3), issued on February 28, 2001.
75
The said executive order requires that "[t]he
government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order."
76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted
the terms of the MOA-AD without consulting the local government units or communities
affected, nor informing them of the proceedings. As will be discussed in greater detail
later, such omission, by itself, constitutes a departure by respondents from their
mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring
amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal
framework," implying an amendment of the Constitution to accommodate the MOA-
AD. This stipulation, in effect,guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority. Again, these points
will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the
Constitution and statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe for
adjudication exists. When an act of a branch of government is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty
of the judiciary to settle the dispute.
77

B. LOCUS STANDI
For a party to have locus standi, one must allege "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."
78

Because constitutional cases are often public actions in which the relief sought is likely
to affect other persons, a preliminary question frequently arises as to this interest in the
constitutional question raised.
79

When suing as a citizen, the person complaining must allege 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 or act
complained of.
80
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.
81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are
illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law.
82
The Court retains
discretion whether or not to allow a taxpayer's suit.
83

In the case of a legislator or member of Congress, an act of the Executive that injures
the institution of Congress causes a derivative but nonetheless substantial injury that
can be questioned by legislators. A member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.
84

An organization may be granted standing to assert the rights of its members,
85
but the
mere invocation by theIntegrated Bar of the Philippines or any member of the legal
profession of the duty to preserve the rule of law does not suffice to clothe it with
standing.
86

As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.
87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy
the requirements of the law authorizing intervention,
88
such as a legal interest in the
matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi,
given the liberal attitude it has exercised, highlighted in the case of David v. Macapagal-
Arroyo,
89
where technicalities of procedure were brushed aside, the constitutional issues
raised being of paramount public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty and weight as
precedents.
90
The Court's forbearing stance on locus standi on issues involving
constitutional issues has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within the
limits of the Constitution and the laws and have not abused the discretion given them,
has brushed aside technical rules of procedure.
91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R.
No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-
intervention Province of Sultan Kudarat, City of Isabela and Municipality of
Linamon havelocus standi in view of the direct and substantial injury that they, as
LGUs, would suffer as their territories, whether in whole or in part, are to be included in
the intended domain of the BJE. These petitioners allege that they did not vote for their
inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners'
legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure to specify
that they would be denied some right or privilege or there would be wastage of public
funds. The fact that they are a former Senator, an incumbent mayor of Makati City, and
a resident of Cagayan de Oro, respectively, is of no consequence. Considering their
invocation of the transcendental importance of the issues at hand, however, the Court
grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,
assert that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can
be given legal standing. Their allegation that the issues involved in these petitions are of
"undeniable transcendental importance" clothes them with added basis for their
personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a
member of the Senate and a citizen to enforce compliance by respondents of the
public's constitutional right to be informed of the MOA-AD, as well as on a genuine legal
interest in the matter in litigation, or in the success or failure of either of the parties. He
thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the
3
rd
district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B.
Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino
Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato
City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the
present petitions. Just the same, the Court exercises its discretion to relax the
procedural technicality on locus standi given the paramount public interest in the issues
at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and
prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a
non-government organization of Muslim lawyers, allege that they stand to be benefited
or prejudiced, as the case may be, in the resolution of the petitions concerning the
MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such
legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA."
92

In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.
93

In David v. Macapagal-Arroyo,
94
this Court held that the "moot and academic" principle
not being a magical formula that automatically dissuades courts in resolving a case, it
will decide cases, otherwise moot and academic, if it finds that (a) there is a grave
violation of the Constitution;
95
(b) the situation is of exceptional character and paramount
public interest is involved;
96
(c) the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;
97
and (d) the case is
capable of repetition yet evading review.
98

Another exclusionary circumstance that may be considered is where there is
a voluntary cessation of the activity complained of by the defendant or doer. Thus, once
a suit is filed and the doer voluntarily ceases the challenged conduct, it does not
automatically deprive the tribunal of power to hear and determine the case and does not
render the case moot especially when the plaintiff seeks damages or prays for injunctive
relief against the possible recurrence of the violation.
99

The present petitions fall squarely into these exceptions to thus thrust them into the
domain of judicial review. The grounds cited above in David are just as applicable in the
present cases as they were, not only in David, but also in Province of Batangas v.
Romulo
100
and Manalo v. Calderon
101
where the Court similarly decided them on the
merits, supervening events that would ordinarily have rendered the same moot
notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It
bears emphasis that the signing of the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of
consensus points," especially given its nomenclature, the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the
creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal
framework for certain provisions of the MOA-AD to take effect. Consequently, the
present petitions are not confined to the terms and provisions of the MOA-AD, but to
other on-going and future negotiations and agreements necessary for its realization.
The petitions have not, therefore, been rendered moot and academic simply by the
public disclosure of the MOA-AD,
102
the manifestation that it will not be signed as well as
the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the country's territory and the wide-ranging political
modifications of affected LGUs. The assertion that the MOA-AD is subject to further
legal enactments including possible Constitutional amendments more than ever
provides impetus for the Court to formulate controlling principles to guide the
bench, the bar, the public and, in this case, the government and its negotiating
entity.
Respondents cite Suplico v. NEDA, et al.
103
where the Court did not "pontificat[e] on
issues which no longer legitimately constitute an actual case or controversy [as this] will
do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what
was assailed and eventually cancelled was a stand-alone government procurement
contract for a national broadband network involving a one-time contractual
relation between two parties-the government and a private foreign corporation. As the
issues therein involved specific government procurement policies and standard
principles on contracts, the majority opinion in Suplico found nothing exceptional
therein, the factual circumstances being peculiar only to the transactions and parties
involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of
agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which
dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such
component to be undertaken following the implementation of the Security Aspect in
August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May
2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to
the Solicitor General, has stated that "no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD],"mootness will not set in in light of
the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to
carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or
in any form, which could contain similar or significantly drastic provisions. While the
Court notes the word of the Executive Secretary that the government "is committed to
securing an agreement that is both constitutional and equitable because that is the only
way that long-lasting peace can be assured," it is minded to render a decision on the
merits in the present petitions toformulate controlling principles to guide the bench,
the bar, the public and, most especially, the government in negotiating with the
MILF regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice
Artemio Panganiban inSanlakas v. Reyes
104
in which he stated that the doctrine of
"capable of repetition yet evading review" can override mootness, "provided the party
raising it in a proper case has been and/or continue to be prejudiced or damaged as a
direct result of their issuance." They contend that the Court must have jurisdiction over
the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises
original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for
Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has
far reaching implications and raises questions that need to be resolved.
105
At all events,
the Court has jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark
cases.
106
There is a reasonable expectation that petitioners, particularly the Provinces of
North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga,
Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same
problem in the future as respondents' actions are capable of repetition, in another or any
form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its annexes. Too,
intervenors have been furnished, or have procured for themselves, copies of the MOA-
AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD
was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation
and the right to information when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public
concern, as provided in Section 7, Article III on the Bill of Rights:
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.
107

As early as 1948, in Subido v. Ozaeta,
108
the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded
constitutional status.
The right of access to public documents, as enshrined in both the 1973 Constitution and
the 1987 Constitution, has been recognized as a self-executory constitutional right.
109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,
110
the Court ruled that access to
public records is predicated on the right of the people to acquire information on matters
of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest
in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nation's problems, nor a meaningful democratic
decision-making if they are denied access to information of general interest. Information
is needed to enable the members of society to cope with the exigencies of the times. As
has been aptly observed: "Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x
111

In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation
112
so that they may be able to criticize and participate in the affairs
of the government in a responsible, reasonable and effective manner. It is by ensuring
an unfettered and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people.
113

The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public
concern
114
faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.
115
In previous cases, the Court found that the regularity of real
estate transactions entered in the Register of Deeds,
116
the need for adequate notice to
the public of the various laws,
117
the civil service eligibility of a public employee,
118
the
proper management of GSIS funds allegedly used to grant loans to public officials,
119
the
recovery of the Marcoses' alleged ill-gotten wealth,
120
and the identity of party-list
nominees,
121
among others, are matters of public concern. Undoubtedly, the MOA-AD
subject of the present cases is of public concern, involving as it does
thesovereignty and territorial integrity of the State, which directly affects the lives of
the public at large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as to the
executory nature or commercial character of agreements, the Court has categorically
ruled:
x x x [T]he 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 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."
122
(Emphasis and italics in the original)
Intended as a "splendid symmetry"
123
to the right to information under the Bill of Rights is
the policy of public disclosure under Section 28, Article II of the Constitution reading:
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.
124

The policy of full public disclosure enunciated in above-quoted Section
28 complements the right of access to information on matters of public concern found in
the Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information even
if nobody demands.
125

The policy of public disclosure establishes a concrete ethical principle for the conduct of
public affairs in a genuinely open democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable by following such
policy.
126
These provisions are vital to the exercise of the freedom of expression and
essential to hold public officials at all times accountable to the people.
127

Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be
enunciated or will not be in force and effect until after Congress shall have
provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of
course, the implementing law will have to be enacted by Congress, Mr. Presiding
Officer.
128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on
the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer,
did I get the Gentleman correctly as having said that this is not a self-executing
provision? It would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards on national
interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take
effect and Congress may provide for reasonable safeguards on the sole
ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of
course, Congress here may no longer pass a law revoking it, or if this is
approved, revoking this principle, which is inconsistent with this
policy.
129
(Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the
passing of a statute. As Congress cannot revoke this principle, it is merely directed to
provide for "reasonable safeguards." The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive
the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to
say that the broader
130
right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions involving
public interest is not enforceable until there is an enabling law.Respondents cannot thus
point to the absence of an implementing legislation as an excuse in not effecting such
policy.
An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the interest
of the State that the channels for free political discussion be maintained to the end that
the government may perceive and be responsive to the people's will.
131
Envisioned to
be corollary to the twin rights to information and disclosure is the design for feedback
mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be
able to participate? Will the government provide feedback mechanisms so
that the people can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to the
government? I suppose this will be part of the government implementing
operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how
these courses take place. There is a message and a feedback, both ways.
x x x x
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about
public officials but also network of private business o[r] community-based
organizations that will be reacting. As a matter of fact, we will put more
credence or credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid that there will be
another OMA in the making.
132
(Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is
evident in the "marching orders" to respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the peace agenda and process
is manifestly provided by E.O. No. 3.
133
The preambulatory clause of E.O. No. 3
declares that there is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it
"should be community-based, reflecting the sentiments, values and principles important
to all Filipinos" and "shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community."
134
Included as a
component of the comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the mobilization
and facilitation of people's participation in the peace process."
135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is
"more than sufficient consultation."
136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to "[c]onductregular dialogues with the National Peace Forum (NPF) and other
peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace
process."
137
E.O. No. 3 mandates the establishment of the NPF to be "the principal
forumfor the PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels, on the
implementation of the comprehensive peace process, as well as for government[-]civil
society dialogue and consensus-building on peace agenda and initiatives."
138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace
agenda, as a corollary to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the
pertinent consultation. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to a
whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law and
discharge the functions within the authority granted by the President.
139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents'
retort in justifying the denial of petitioners' right to be consulted. Respondents' stance
manifests the manner by which they treat the salient provisions of E.O. No. 3 on
people's participation. Such disregard of the express mandate of the President is not
much different from superficial conduct toward token provisos that border on classic lip
service.
140
It illustrates a gross evasion of positive duty and a virtual refusal to perform
the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable
under the premises. The argument defies sound reason when contrasted with E.O. No.
3's explicit provisions on continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the public's right even
before the GRP makes its official recommendations or before the government proffers
its definite propositions.
141
It bear emphasis that E.O. No. 3 seeks to elicit relevant
advice, information, comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in
view of their unqualified disclosure of the official copies of the final draft of the MOA-AD.
By unconditionally complying with the Court's August 4, 2008 Resolution, without a
prayer for the document's disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State
policy to "require all national agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and people's organizations, and
other concerned sectors of the community before any project or program is
implemented in their respective jurisdictions"
142
is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by
government authoritiesunless the consultations mentioned in Sections 2 (c) and
26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.
143
(Italics and
underscoring supplied)
In Lina, Jr. v. Hon. Pao,
144
the Court held that the above-stated policy and above-
quoted provision of the LGU apply only to national programs or projects which are to be
implemented in a particular local community. Among the programs and projects covered
are those that are critical to the environment and human ecology including those that
may call for the eviction of a particular group of people residing in the locality where
these will be implemented.
145
The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,
146
which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs),
whose interests are represented herein by petitioner Lopez and are adversely affected
by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and
destinies.
147
The MOA-AD, an instrument recognizing ancestral domain, failed to justify
its non-compliance with the clear-cut mechanisms ordained in said Act,
148
which entails,
among other things, the observance of the free and prior informed consent of the
ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency
the power to delineate and recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-
AD, without which all other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without complying
with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the
MOA-AD is still subject to necessary changes to the legal framework. While paragraph
7 on Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people and all government authority
emanating from them.
149

ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot
all be accommodated under the present Constitution and laws. Respondents have
admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least
some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of
any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be considered later. For now, the
Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE. Petitioners assert that the powers granted to the BJE
exceed those granted to any local government under present laws, and even go beyond
those of the present ARMM. Before assessing some of the specific powers that would
have been vested in the BJE, however, it would be useful to turn first to a general idea
that serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to
this concept, indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe theenvisioned
relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro
juridical entity shall beassociative characterized by shared authority and
responsibility with a structure of governance based on executive, legislative,
judicial and administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between the Central
Government and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined
more precisely in the still to be forged Comprehensive Compact. Nonetheless, given
that there is a concept of "association" in international law, and the MOA-AD - by its
inclusion of international law instruments in its TOR- placed itself in an international
legal context, that concept of association may be brought to bear in understanding the
use of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate, delegates
certain responsibilities to the other, the principal, while maintaining its
international status as a state. Free associations represent a middle ground
between integration and independence. x x x
150
(Emphasis and underscoring
supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated
States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the
Pacific Islands,
151
are associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar, indicating their very
close ties with the U.S., yet they issue their own travel documents, which is a mark of
their statehood. Their international legal status as states was confirmed by the UN
Security Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM
generally have the capacity to conduct foreign affairs in their own name and right, such
capacity extending to matters such as the law of the sea, marine resources, trade,
banking, postal, civil aviation, and cultural relations. The U.S. government, when
conducting its foreign affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S. government) regards as relating
to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of establishing and using
military areas and facilities within these associated states and has the right to bar the
military personnel of any third country from having access to these territories for military
purposes.
It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national
constitution, and each party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.-associated states to
the UN in 1990, the UN recognized that the American model of free association is
actually based on an underlying status of independence.
152

In international practice, the "associated state" arrangement has usually been used as
a transitional device of former colonies on their way to full independence. Examples of
states that have passed through the status of associated states as a transitional phase
are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All
have since become independent states.
153

Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept ofassociation, specifically the following: the BJE's capacity to
enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the
ASEAN and the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE's right to participate in
Philippine official missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water adjacent to or
between the islands forming part of the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted by the U.S. government
on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to
vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an "associative" relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state.
The Constitution, however, does not contemplate any state in this jurisdiction other than
the Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao
and in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant
characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE
is a state in all but name as it meets the criteria of a state laid down in the
Montevideo Convention,
154
namely, a permanent population, a defined territory,
a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it - which has betrayed itself by its use of the
concept of association - runs counter to the national sovereignty and territorial
integrity of the Republic.
The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present Constitution, it is not
surprising that many of the specific provisions of the MOA-AD on the formation
and powers of the BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous
region shall be effective when approved by a majority of the votes cast by the
constituent units in a plebiscite called for the purpose, provided that only provinces,
cities, and geographic areas voting favorably in such plebiscite shall be included
in the autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term "autonomous region" in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c)
on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM
and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the
ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and
Tangkal - are automatically part of the BJE without need of another plebiscite, in
contrast to the areas under Categories A and B mentioned earlier in the overview.
That the present components of the ARMM and the above-mentioned municipalities
voted for inclusion therein in 2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because what these areas voted for then
was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions
shall provide for legislative powers over:
(4) Personal, family, and property relations;
(6) Economic, social, and tourism development;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the
MOA-AD would require an amendment that would expand the above-quoted provision.
The mere passage of new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that might vest in the BJE
the powers found in the MOA-AD must, itself, comply with other provisions of the
Constitution. It would not do, for instance, to merely pass legislation vesting the BJE
with treaty-making power in order to accommodate paragraph 4 of the strand on
RESOURCES which states: "The BJE is free to enter into any economic cooperation
and trade relations with foreign countries: provided, however, that such relationships
and understandings do not include aggression against the Government of the Republic
of the Philippines x x x." Under our constitutional system, it is only the President who
has that power. Pimentel v. Executive Secretary
155
instructs:
In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's
sole representative with foreign nations. As the chief architect of foreign
policy, the President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal
with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations. In the realm of treaty-making, the President
has the sole authority to negotiate with other states. (Emphasis and
Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision states: "The
State recognizes and promotes the rights ofindigenous cultural communities within the
framework of national unity and development." (Underscoring
supplied)An associative arrangement does not uphold national unity. While there may
be a semblance of unity because of the associative ties between the BJE and the
national government, the act of placing a portion of Philippine territory in a status which,
in international practice, has generally been a preparation for independence, is certainly
not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent
with prevailing statutory law, among which are R.A. No. 9054
156
or the Organic Act
of the ARMM, and the IPRA.
157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts
and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as "Bangsamoros". The Bangsamoro
people refers to those who are natives or original inhabitants of Mindanao
and its adjacent islands including Palawan and the Sulu archipelago at the time
of conquest or colonization of its descendants whether mixed or of full blood.
Spouses and their descendants are classified as Bangsamoro. The freedom of
choice of the Indigenous people shall be respected. (Emphasis and underscoring
supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers
to Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic
conditions distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social, economic,
cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By
paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in the
agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial
domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of
ancestral domains shall be done in accordance with the following procedures:
x x x x
b) Petition for Delineation. - The process of delineating a specific perimeter may
be initiated by the NCIP with the consent of the ICC/IP concerned, or through a
Petition for Delineation filed with the NCIP, by a majority of the members of the
ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries
including census of all community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon filing of the application by the
ICCs/IPs concerned. Delineation will be done in coordination with the community
concerned and shall at all times include genuine involvement and participation by
the members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the
testimony of elders or community under oath, and other documents directly or
indirectly attesting to the possession or occupation of the area since time
immemorial by such ICCs/IPs in the concept of owners which shall be any one
(1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and
hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as
mountains, rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the
community.
e) Preparation of Maps. - On the basis of such investigation and the findings of
fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a
perimeter map, complete with technical descriptions, and a description of the
natural features and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the
preliminary census and a report of investigation, shall be prepared by the
Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a translation in
the native language of the ICCs/IPs concerned shall be posted in a prominent
place therein for at least fifteen (15) days. A copy of the document shall also be
posted at the local, provincial and regional offices of the NCIP, and shall be
published in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition thereto within fifteen
(15) days from date of such publication: Provided, That in areas where no such
newspaper exists, broadcasting in a radio station will be a valid substitute:
Provided, further, That mere posting shall be deemed sufficient if both
newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the
NCIP endorsing a favorable action upon a claim that is deemed to have sufficient
proof. However, if the proof is deemed insufficient, the Ancestral Domains Office
shall require the submission of additional evidence: Provided, That the Ancestral
Domains Office shall reject any claim that is deemed patently false or fraudulent
after inspection and verification: Provided, further, That in case of rejection, the
Ancestral Domains Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be appealable to
the NCIP: Provided, furthermore, That in cases where there are conflicting claims
among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral
Domains Office shall cause the contending parties to meet and assist them in
coming up with a preliminary resolution of the conflict, without prejudice to its full
adjudication according to the section below.
x x x x
To remove all doubts about the irreconcilability of the MOA-AD with the present legal
system, a discussion of not only the Constitution and domestic statutes, but also of
international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the
generally accepted principles of international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,
158
held that the Universal Declaration of Human Rights is part of the law of the
land on account of which it ordered the release on bail of a detained alien of Russian
descent whose deportation order had not been executed even after two years. Similarly,
the Court in Agustin v. Edu
159
applied the aforesaid constitutional provision to the 1968
Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples,"
understood not merely as the entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec had a right to unilaterally
secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION
OF QUEBEC
160
had occasion to acknowledge that "the right of a people to self-
determination is now so widely recognized in international conventions that the principle
has acquired a status beyond convention' and is considered a general principle of
international law."
Among the conventions referred to are the International Covenant on Civil and Political
Rights
161
and the International Covenant on Economic, Social and Cultural
Rights
162
which state, in Article 1 of both covenants, that all peoples, by virtue of the
right of self-determination, "freely determine their political status and freely pursue their
economic, social, and cultural development."
The people's right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made between the
right of internal and external self-determination. REFERENCE RE SECESSION OF
QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-
determination - a people's pursuit of its political, economic, social and
cultural development within the framework of an existing state. A right
toexternal self-determination (which in this case potentially takes the form
of the assertion of a right to unilateral secession) arises in only the most
extreme of cases and, even then, under carefully defined circumstances. x
x x
External self-determination can be defined as in the following statement
from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free
association or integration with an independent State or the emergence into
any other political status freely determined by apeople constitute modes of
implementing the right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within
a framework of respect for the territorial integrity of existing states. The
various international documents that support the existence of a people's right to
self-determination also contain parallel statements supportive of the conclusion
that the exercise of such a right must be sufficiently limited to prevent threats to
an existing state's territorial integrity or the stability of relations between
sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to
external self-determination can arise, namely, where a people is under colonial rule, is
subject to foreign domination or exploitation outside a colonial context, and - less
definitely but asserted by a number of commentators - is blocked from the meaningful
exercise of its right to internal self-determination. The Court ultimately held that the
population of Quebec had no right to secession, as the same is not under colonial rule
or foreign domination, nor is it being deprived of the freedom to make political choices
and pursue economic, social and cultural development, citing that Quebec is equitably
represented in legislative, executive and judicial institutions within Canada, even
occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT
OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF
THE AALAND ISLANDS QUESTION.
163
There, Sweden presented to the Council of the
League of Nations the question of whether the inhabitants of the Aaland Islands should
be authorized to determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving
the question, appointed an International Committee composed of three jurists to submit
an opinion on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland. The Committee
stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the right of
disposing of national territory is essentially an attribute of the sovereignty
of every State. Positive International Law does not recognize the right of
national groups, as such, to separate themselves from the State of which
they form part by the simple expression of a wish, any more than it
recognizes the right of other States to claim such a separation. Generally
speaking, the grant or refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning such a
question, under normal conditions therefore, bears upon a question which
International Law leaves entirely to the domestic jurisdiction of one of the States
concerned. Any other solution would amount to an infringement of sovereign
rights of a State and would involve the risk of creating difficulties and a lack of
stability which would not only be contrary to the very idea embodied in term
"State," but would also endanger the interests of the international community. If
this right is not possessed by a large or small section of a nation, neither can it
be held by the State to which the national group wishes to be attached, nor by
any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a
question which is left by international law to the domestic jurisdiction of Finland, thereby
applying the exception rather than the rule elucidated above. Its ground for departing
from the general rule, however, was a very narrow one, namely, the Aaland Islands
agitation originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the
legitimacy of the Finnish national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the relevant time period,
a "definitively constituted" sovereign state. The Committee, therefore, found that Finland
did not possess the right to withhold from a portion of its population the option to
separate itself - a right which sovereign nations generally have with respect to their own
populations.
Turning now to the more specific category of indigenous peoples, this term has been
used, in scholarship as well as international, regional, and state practices, to refer to
groups with distinct cultures, histories, and connections to land (spiritual and otherwise)
that have been forcibly incorporated into a larger governing society. These groups are
regarded as "indigenous" since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples,
nations, or communities are culturally distinctive groups that find themselves engulfed
by settler societies born of the forces of empire and conquest.
164
Examples of groups
who have been regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states do
not have a general right to independence or secession from those states under
international law,
165
but they do have rights amounting to what was discussed above as
the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted
the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP)
through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines
being included among those in favor, and the four voting against being Australia,
Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of
indigenous peoples to self-determination, encompassing the right to autonomy or
self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right
to autonomy or self-government in matters relating to their internal and
local affairs, as well as ways and means for financing their autonomous
functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct
political, legal, economic, social and cultural institutions, while retaining their right
to participate fully, if they so choose, in the political, economic, social and cultural
life of the State.
Self-government, as used in international legal discourse pertaining to indigenous
peoples, has been understood as equivalent to "internal self-determination."
166
The
extent of self-determination provided for in the UN DRIP is more particularly defined in
its subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress
for:
(a) Any action which has the aim or effect of depriving them of their
integrity as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their
lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of
violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic
discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement
of their economic and social conditions, including, inter alia, in the areas of
education, employment, vocational training and retraining, housing, sanitation,
health and social security.
2. States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and social
conditions. Particular attention shall be paid to the rights and special needs of
indigenous elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or
acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or
other traditional occupation or use, as well as those which they have otherwise
acquired.
3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous
peoples, unless justified by a relevant public interest or otherwise freely agreed
with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples
concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military
activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other
resources.
2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their
free and informed consent prior to the approval of any project affecting their
lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors and to have States honour and respect
such treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the
rights of indigenous peoples contained in treaties, agreements and other
constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now
be regarded as embodying customary international law - a question which the Court
need not definitively resolve here - the obligations enumerated therein do not strictly
require the Republic to grant the Bangsamoro people, through the instrumentality of the
BJE, the particular rights and powers provided for in the MOA-AD. Even the more
specific provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
presupposes that it is the State which will provide protection for indigenous peoples
against acts like the forced dispossession of their lands - a function that is normally
performed by police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State, then surely the
protection of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous
peoples to the aerial domain and atmospheric space. What it upholds, in Article 26
thereof, is the right of indigenous peoples to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy,
does not obligate States to grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document are qualified in Article 46
as follows:
1. Nothing in this Declaration may be interpreted as implying for any State,
people, group or person any right to engage in any activity or to perform any act
contrary to the Charter of the United Nations orconstrued as authorizing or
encouraging any action which would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign and independent
States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article
II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD
so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot
be reconciled with the Constitution and the laws as presently worded.
Respondents proffer, however, that the signing of the MOA-AD alone would not have
entailed any violation of law or grave abuse of discretion on their part, precisely
because it stipulates that the provisions thereof inconsistent with the laws shall not take
effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on
GOVERNANCE quoted earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon signing of a Comprehensive Compact and
upon effecting the necessary changes to the legal framework with due regard to
non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD
from coming into force until the necessary changes to the legal framework are
effected. While the word "Constitution" is not mentioned in the provision now
under consideration or anywhere else in the MOA-AD, the term "legal framework"
is certainly broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of
incorporating in the MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states
that the "negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is
defective because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is
founded on E.O. No. 3, Section 5(c), which states that there shall be established
Government Peace Negotiating Panels for negotiations with different rebel groups to be
"appointed by the President as her official emissaries to conduct negotiations,
dialogues, and face-to-face discussions with rebel groups." These negotiating panels
are to report to the President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro
Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to
those options available under the laws as they presently stand. One of the components
of a comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths
to Peace," is the pursuit of social, economic, and political reforms which may require
new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,
167
states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive
peace process comprise the processes known as the "Paths to Peace". These
component processes are interrelated and not mutually exclusive, and must
therefore be pursued simultaneously in a coordinated and integrated fashion.
They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This
component involves the vigorous implementation of various
policies, reforms, programs and projects aimed at addressing the root
causes of internal armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to
address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict
in Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence,
they negotiated and were set on signing the MOA-AD that included various social,
economic, and political reforms which cannot, however, all be accommodated within the
present legal framework, and which thus would require new legislation and
constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here,
because it must be askedwhether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the
President, in the course of peace negotiations, agree to pursue reforms that would
require new legislation and constitutional amendments, or should the reforms be
restricted only to those solutions which the present laws allow? The answer to this
question requires a discussion of the extent of the President's power to conduct
peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is
not explicitly mentioned in the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive Secretary,
168
in issue was the authority of the
President to declare a state of rebellion - an authority which is not expressly provided
for in the Constitution. The Court held thus:
"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 President's
power to forbid the return of her exiled predecessor. The rationale for the
majority's ruling rested on the President's
. . . 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.
Thus, the President's 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. x x x (Emphasis and
Similarly, the President's power to conduct peace negotiations is implicitly included in
her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the
President has the general responsibility to promote public peace, and as Commander-
in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless
violence.
169

As the experience of nations which have similarly gone through internal armed conflict
will show, however, peace is rarely attained by simply pursuing a military solution.
Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's
constitutional structure is required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must
form the core of any post-conflict peace-building mission. As we have observed
in Liberia and Haiti over the last ten years, conflict cessation without modification
of the political environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building, is unlikely to
succeed. On average, more than 50 percent of states emerging from conflict
return to conflict. Moreover, a substantial proportion of transitions have resulted
in weak or limited democracies.
The design of a constitution and its constitution-making process can play an
important role in the political and governance transition. Constitution-making after
conflict is an opportunity to create a common vision of the future of a state and a
road map on how to get there. The constitution can be partly a peace agreement
and partly a framework setting up the rules by which the new democracy will
operate.
170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of
peace agreements, observed that the typical way that peace agreements establish or
confirm mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human
rights institutions.
171

In the Philippine experience, the link between peace agreements and constitution-
making has been recognized by no less than the framers of the Constitution. Behind the
provisions of the Constitution on autonomous regions
172
is the framers' intention to
implement a particular peace agreement, namely, the Tripoli Agreement of 1976
between the GRP and the MNLF, signed by then Undersecretary of National Defense
Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more
questions, I will reserve my right to ask them if they are not covered by the other
speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in
the Muslim region; it is working very well; it has, in fact, diminished a great deal
of the problems. So, my question is: since that already exists, why do we have
to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner
Yusup Abubakar is right thatcertain definite steps have been taken to
implement the provisions of the Tripoli Agreement with respect to an
autonomous region in Mindanao. This is a good first step, but there is no
question that this is merely a partial response to the Tripoli Agreement
itself and to the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.
173
(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them
have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino
people are still faced with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for bringing this conflict to
an end and to achieve lasting peace in Mindanao, then she must be given the leeway to
explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct
peace negotiations with rebel groups, the President is in a singular position to know the
precise nature of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she
considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of
the Constitution, to propose the recommended amendments or revision to the people,
call a constitutional convention, or submit to the electorate the question of calling such a
convention.
While the President does not possess constituent powers - as those powers may be
exercised only by Congress, a Constitutional Convention, or the people through
initiative and referendum - she may submit proposals for constitutional change to
Congress in a manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,
174
in issue was the legality of then President Marcos' act of
directly submitting proposals for constitutional amendments to a referendum, bypassing
the interim National Assembly which was the body vested by the 1973 Constitution with
the power to propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the President's act,
holding that "the urges of absolute necessity" compelled the President as the agent of
the people to act as he did, there being no interim National Assembly to propose
constitutional amendments. Against this ruling, Justices Teehankee and Muoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the
point on which it was then divided in that controversial case, but on that which was not
disputed by either side.
Justice Teehankee's dissent,
175
in particular, bears noting. While he disagreed that the
President may directly submit proposed constitutional amendments to a referendum,
implicit in his opinion is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential departments
of government, defines and delimits the powers of each and prescribes the
manner of the exercise of such powers, and the constituent power has not been
granted to but has been withheld from the President or Prime Minister, it follows
that the President's questioned decrees proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim
National Assembly in whom the power is expressly vested) are devoid of
constitutional and legal basis."
176
(Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President - in the
course of conducting peace negotiations - may validly consider implementing even
those policies that require changes to the Constitution, but she may not unilaterally
implement them without the intervention of Congress, or act in any way as if the
assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also submit
her recommendations to the people, not as a formal proposal to be voted on in a
plebiscite similar to what President Marcos did in Sanidad, but for their independent
consideration of whether these recommendations merit being formally proposed through
initiative.
These recommendations, however, may amount to nothing more than the President's
suggestions to the people, for any further involvement in the process of initiative by the
Chief Executive may vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds from the people. As
the Court stated in Lambino v. COMELEC:
177

"The Lambino Group claims that their initiative is the people's voice.' However,
the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the
verification of their petition with the COMELEC, that ULAP maintains its
unqualified support to the agenda of Her Excellency President Gloria Macapagal-
Arroyo for constitutional reforms.' The Lambino Group thus admits that their
people's' initiative is an unqualified support to the agenda' of the incumbent
President to change the Constitution. This forewarns the Court to be wary of
incantations of people's voice' or sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath of office,
178
only
to preserve and defend the Constitution. Such presidential power does not, however,
extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and revision, her
mere recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose new legislation is
not in controversy. It has been an accepted practice for Presidents in this jurisdiction to
propose new legislation. One of the more prominent instances the practice is usually
done is in the yearly State of the Nation Address of the President to Congress.
Moreover, the annual general appropriations bill has always been based on the budget
prepared by the President, which - for all intents and purposes - is a proposal for new
legislation coming from the President.
179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed
standards
Given the limited nature of the President's authority to propose constitutional
amendments, she cannot guarantee to any third party that the required amendments
will eventually be put in place, nor even be submitted to a plebiscite. The most she
could do is submit these proposals as recommendations either to Congress or the
people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof
which cannot be reconciled with the present Constitution and laws "shall come into force
upon signing of a Comprehensive Compact and upon effecting the necessary changes
to the legal framework." This stipulation does not bear the marks of a suspensive
condition - defined in civil law as a future and uncertain event - but of a term. It is not a
question of whether the necessary changes to the legal framework will be effected,
but when. That there is no uncertainty being contemplated is plain from what follows,
for the paragraph goes on to state that the contemplated changes shall be "with due
regard to non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes
to the legal framework contemplated in the MOA-AD - which changes would include
constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted
among the "prior agreements" from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these "consensus points" and, notably, the deadline for
effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of
the President's authority to propose constitutional amendments, it being a virtual
guarantee that the Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus points" found in the MOA-
AD.Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase Icovered a three-year transitional period involving
the putting up of new administrative structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD) and the Southern Philippines
Council for Peace and Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government through amendment or
repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the
expanded autonomous region envisioned by the parties. To that extent, they are similar
to the provisions of the MOA-AD. There is, however, a crucial difference between the
two agreements. While the MOA-AD virtually guarantees that the "necessary
changes to the legal framework" will be put in place, the GRP-MNLF final peace
agreement states thus: "Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the amendatory or
repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine
government to the international community that it would grant to the Bangsamoro
people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding international agreement had it
been signed. An examination of the prevailing principles in international law, however,
leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty
180
(the Lom Accord
case) of the Special Court of Sierra Leone is enlightening. The Lom Accord was a
peace agreement signed on July 7, 1999 between the Government of Sierra Leone and
the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone
Government had been in armed conflict for around eight years at the time of signing.
There were non-contracting signatories to the agreement, among which were the
Government of the Togolese Republic, the Economic Community of West African
States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General
and the Sierra Leone Government, another agreement was entered into by the UN and
that Government whereby the Special Court of Sierra Leone was established. The sole
purpose of the Special Court, an international court, was to try persons who bore the
greatest responsibility for serious violations of international humanitarian law and Sierra
Leonean law committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision for the full pardon of the
members of the RUF with respect to anything done by them in pursuit of their objectives
as members of that organization since the conflict began.
In the Lom Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries of the amnesty
provided therein, citing, among other things, the participation of foreign dignitaries and
international organizations in the finalization of that agreement. The Special Court,
however, rejected this argument, ruling that the Lome Accord is not a treaty and that
it can only create binding obligations and rights between the parties in municipal law,
not in international law. Hence, the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed
conflict it is easy to assume and to argue with some degree of plausibility,
as Defence counsel for the defendants seem to have done, that the mere
fact that in addition to the parties to the conflict, the document formalizing
the settlement is signed by foreign heads of state or their representatives
and representatives of international organizations, means the agreement of
the parties is internationalized so as to create obligations in international
law.
x x x x
40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose
auspices the settlement took place but who are not at all parties to the conflict,
are not contracting parties and who do not claim any obligation from the
contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the
State and the RUF which has no status of statehood and is to all intents
and purposes a faction within the state. The non-contracting signatories of
the Lom Agreement were moral guarantors of the principle that, in the
terms of Article XXXIV of the Agreement, "this peace agreement is
implemented with integrity and in good faith by both parties". The moral
guarantors assumed no legal obligation. It is recalled that the UN by its
representative appended, presumably for avoidance of doubt, an understanding
of the extent of the agreement to be implemented as not including certain
international crimes.
42. An international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will be a
breach determined under international law which will also provide principle
means of enforcement. The Lom Agreement created neither rights nor
obligations capable of being regulated by international law. An agreement
such as the Lom Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of peace that the
international community acting through the Security Council may take note
of. That, however, will not convert it to an international agreement which
creates an obligation enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace agreement resulting in
resumption of internal armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a reversal of the factual
situation of peace to be visited with possible legal consequences arising from the
new situation of conflict created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from the situation and not from the
agreement, nor from the obligation imposed by it. Such action cannot be
regarded as a remedy for the breach. A peace agreement which settles
an internal armed conflict cannot be ascribed the same status as one which
settles an international armed conflict which, essentially, must be between
two or more warring States. The Lom Agreement cannot be characterised
as an international instrument. x x x" (Emphasis, italics and underscoring
supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest
in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,
181
also known as the Nuclear Tests Case, decided by
the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's
nuclear tests in the South Pacific. France refused to appear in the case, but public
statements from its President, and similar statements from other French officials
including its Minister of Defence, that its 1974 series of atmospheric tests would be its
last, persuaded the ICJ to dismiss the case.
182
Those statements, the ICJ held,
amounted to a legal undertaking addressed to the international community, which
required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be
bound to the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often are, very specific. When
it is the intention of the State making the declaration that it should become
bound according to its terms, that intention confers on the declaration the
character of a legal undertaking, the State being thenceforth legally
required to follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations, is binding. In
these circumstances, nothing in the nature of a quid pro quo nor any subsequent
acceptance of the declaration, nor even any reply or reaction from other States,
is required for the declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may
choose to take up a certain position in relation to a particular matter
with the intention of being bound-the intention is to be ascertained by
interpretation of the act. When States make statements by which their freedom
of action is to be limited, a restrictive interpretation is called for.
x x x x
51. In announcing that the 1974 series of atmospheric tests would be the
last, the French Government conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests. It was bound to
assume that other States might take note of these statements and rely on
their being effective. The validity of these statements and their legal
consequences must be considered within the general framework of the
security of international intercourse, and the confidence and trust which are
so essential in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their making, that
the legal implications of the unilateral act must be deduced. The objects of
these statements are clear and they were addressed to the international
community as a whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers *270 that the
President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to which
his words were addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following
conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and
that not to give legal effect to those statements would be detrimental to the security of
international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case
decided by the ICJ entitledBurkina Faso v. Mali,
183
also known as the Case Concerning
the Frontier Dispute. The public declaration subject of that case was a statement made
by the President of Mali, in an interview by a foreign press agency, that Mali would
abide by the decision to be issued by a commission of the Organization of African Unity
on a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President
was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear
Tests case rested on the peculiar circumstances surrounding the French declaration
subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account
must be taken of all the factual circumstances in which the act occurred. For
example, in the Nuclear Tests cases, the Court took the view that since the
applicant States were not the only ones concerned at the possible
continuance of atmospheric testing by the French Government, that
Government's unilateral declarations had conveyed to the world at large,
including the Applicant, its intention effectively to terminate these
tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express
an intention to be bound otherwise than by unilateral declarations. It is
difficult to see how it could have accepted the terms of a negotiated
solution with each of the applicants without thereby jeopardizing its
contention that its conduct was lawful. The circumstances of the present
case are radically different. Here, there was nothing to hinder the Parties
from manifesting an intention to accept the binding character of the
conclusions of the Organization of African Unity Mediation Commission by
the normal method: a formal agreement on the basis of reciprocity. Since
no agreement of this kind was concluded between the Parties, the Chamber finds
that there are no grounds to interpret the declaration made by Mali's head of
State on 11 April 1975 as a unilateral act with legal implications in regard to the
present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international community.
The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or another, in
the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case,
the mere fact that in addition to the parties to the conflict, the peace settlement is signed
by representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal
effect to such commitments would not be detrimental to the security of international
intercourse - to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali President's statement was not
held to be a binding unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its intention to be bound to
other States, to manifest that intention by formal agreement. Here, that formal
agreement would have come about by the inclusion in the MOA-AD of a clear
commitment to be legally bound to the international community, not just the MILF, and
by an equally clear indication that the signatures of the participating states-
representatives would constitute an acceptance of that commitment. Entering into such
a formal agreement would not have resulted in a loss of face for the Philippine
government before the international community, which was one of the difficulties that
prevented the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal agreement suggests
that it had no intention to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under international
law notwithstanding, respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to constitute grave
abuse of discretion. The grave abuse lies not in the fact that they considered, as a
solution to the Moro Problem, the creation of a state within a state, but in their
brazen willingness toguarantee that Congress and the sovereign Filipino people
would give their imprimatur to their solution. Upholding such an act would amount
to authorizing a usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its
own territory to the Moros for the sake of peace, for it can change the Constitution in
any it wants, so long as the change is not inconsistent with what, in international law, is
known as Jus Cogens.
184
Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents from
their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention
and intervening respondents the requisitelocus standi in keeping with the liberal stance
adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court
finds that the present petitions provide an exception to the "moot and academic"
principle in view of (a) the grave violation of the Constitution involved; (b) the
exceptional character of the situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar, and the public; and (d) the
fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the
GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in
June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up
that could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in
view of the respondents' action in providing the Court and the petitioners with the official
copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III of
the Constitution is insplendid symmetry with the state policy of full public disclosure of
all its transactions involving public interest under Sec. 28, Article II of the Constitution.
The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody
demands. The complete and effective exercise of the right to information necessitates
that its complementary provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information contemplates steps
and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process
of communication between the government and the people. Corollary to these twin
rights is the design for feedback mechanisms. The right to public consultation was
envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the people's right to be consulted on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building. In fact, it is the
duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national
offices to conduct consultations before any project or program critical to the
environment and human ecology including those that may call for the eviction of a
particular group of people residing in such locality, is implemented therein. The MOA-
AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for
clear-cut procedure for the recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and prior informed consent of
the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not
grant the Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event, respondents effectively
waived such defense after it unconditionally disclosed the official copies of the final draft
of the MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated
by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process
by which the MOA-AD was designed and crafted runs contrary to and in excess of the
legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only
its specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, areunconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is
on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent
with the present legal framework will not be effective until that framework is amended,
the same does not cure its defect. The inclusion of provisions in the MOA-AD
establishing an associative relationship between the BJE and the Central Government
is, itself, a violation of the Memorandum of Instructions From The President dated
March 1, 2001, addressed to the government peace panel. Moreover, as the clause is
worded, it virtually guarantees that the necessary amendments to the Constitution and
the laws will eventually be put in place. Neither the GRP Peace Panel nor the President
herself is authorized to make such a guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening
petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution.
SO ORDERED.

SUPREME COURT
Manila
EN BANC
G.R. No. 94010 December 2, 1991
FELIPE EVARDONE, petitioner,
vs.
COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E. ACLAN
and NOEL A. NIVAL,respondents.
G.R. No. 95063 December 2, 1991
ALEXANDER R. APELADO, VICTORINO E. ACLAN and NOEL A.
NIVAL, petitioners,
vs.
COMMISSION ON ELECTIONS and MAYOR FELIPE EVARDONE, respondents.
Zosimo G. Alegre for Felipe Evardone.
Elmer C. Solidon for petitioners in G.R. No. 95063.

PADILLA, J .:p
These two (2) consolidated petitions have their origin in en banc Resolution No. 90-
0557 issued by the respondent Commission on Elections (COMELEC) dated 20 June
1990 which approved the recommendation of the Election Registrar of Sulat, Eastern
Samar to hold and conduct the signing of the petition for recall of the incumbent Mayor
of Sulat, Eastern Samar, on 14 July 1990.
G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance
of a restraining order and/or writ of preliminary injunction to restrain the holding of the
signing of the petition for recall on 14 July 1990.
G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en
banc Resolution No. 90-0660 of the respondent COMELEC nullifying the signing
process held on 14 July 1990 in Sulat, Eastern Samar for the recall of Mayor Evardone
of said municipality and en banc Resolution No. 90-0777 denying petitioners' motion for
reconsideration, on the basis of the temporary restraining order issued by this Court on
12 July 1990 in G.R. No. 94010.
Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of
Sulat, Eastern Samar, having been elected to the position during the 1988 local
elections. He assumed office immediately after proclamation.
On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival
(hereinafter referred to as Apelado, et al.) filed a petition for the recall of Evardone with
the Office of the Local Election Registrar, Municipality of Sulat.
In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No.
90-0557, approving the recommendation of Mr. Vedasto B. Sumbilla, Election Registrar
of Sulat, Eastern Samar, to hold on 14 July 1990 the signing of the petition for recall
against incumbent Mayor Evardone of the said Municipality.
On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent
prayer for immediate issuance of restraining order and/or writ of preliminary injunction,
which was docketed as G.R. No. 94010.
On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO),
effective immediately and continuing until further orders from the Court, ordering the
respondents to cease and desist from holding the signing of the petition for recall on 14
July 1990, pursuant to respondent COMELEC's Resolution No. 2272 dated 23 May
1990.
On the same day (12 July 1990), the notice of TRO was received by the Central Office
of the respondent COMELEC. But it was only on 15 July 1990 that the field agent of the
respondent COMELEC received the telegraphic notice of the TROa day after the
completion of the signing process sought to be temporarily stopped by the TRO.
In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC
nullified the signing process held in Sulat, Eastern Samar for being violative of the order
(the TRO) of this Court in G.R. No. 94010. Apelado, et al., filed a motion for
reconsideration and on 29 August 1990, the respondent COMELEC denied said motion
holding that:
. . . The critical date to consider is the service or notice of the Restraining
Order on 12 July 1990 upon the principal i.e. the Commission on Election,
and not upon its agent in the field. 1
Hence, the present petition for review on certiorari in G.R. No. 95063
which seeks to set aside en banc Resolution No. 90-0660 of respondent
COMELEC.
In G.R. No. 94010, Evardone contends that:
I. The COMELEC committed grave abuse of discretion in approving the
recommendation of the Election Registrar of Sulat, Eastern Samar to hold
the signing of the petition for recall without giving petitioner his day in
court.
II. The COMELEC likewise committed grave abuse of discretion
amounting to lack or excess of jurisdiction in promulgating Resolution No.
2272 on May 22, 1990 which is null and void for being unconstitutional. 2
In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing
process of the petition for recall held on 14 July 1990 has been rendered nugatory by
the TRO issued by this court in G.R. No. 94010 dated 12 July 1990 but received by the
COMELEC field agent only on 15 July 1990.
The principal issue for resolution by the Court is the constitutionality of Resolution No.
2272 promulgated by respondent COMELEC on 23 May 1990 by virtue of its powers
under the Constitution and Batas Pambansa Blg. 337 (Local Government Code). The
resolution embodies the general rules and regulations on the recall of elective
provincial, city and municipal officials.
Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas
Pambansa Blg. 337 in favor of one to be enacted by Congress. Said Section 3 provides:
Sec. 3. The Congress shall enact a local government code shall provide
for a more responsive and accountable local government structure
government units their powers, responsibilities and resources, and provide
for the qualifications, election, appointment and removal, term, salaries,
powers and functions and duties local officials, and all other matters
relating to the organization operation of the local units.
Since there was, during the period material to this case, no local government
code enacted by Congressafter the effectivity of the 1987 Constitution nor any
law for that matter on the subject of recall of elected government officials,
Evardone contends that there is no basis for COMELEC Resolution No. 2272
and that the recall proceedings in the case at bar is premature.
The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:
The constitutional provision does not refer only to a local government code
which is in futurum but also in esse. It merely sets forth the guidelines
which Congress will consider in amending the provisions of the present
Local Government Code. Pending the enactment of the amendatory law,
the existing Local Government Code remains operative. The adoption of
the 1987 Constitution did not abrogate the provisions of BP No. 337,
unless a certain provision thereof is clearly irreconciliable with the
provisions of the 1987 Constitution. In this case, Sections 54 to 59 of
Batas Pambansa No. 337 are not inconsistent with the provisions of the
Constitution. Hence, they are operative. 3
We find the contention of the respondent COMELEC meritorious.
Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws
not inconsistent with the 1987 Constitution shall remain operative, until amended,
repealed or revoked. Republic Act No. 7160 providing for the Local Government Code
of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg.
337 as provided in Sec. 534, Title Four of said Act. But the Local Government Code of
1991 will take effect only on 1 January 1992 and therefore the old Local Government
Code (B.P. Blg. 337) is still the law applicable to the present case. Prior to the
enactment of the new Local Government Code, the effectiveness of B.P. Blg. 337 was
expressly recognized in the proceedings of the 1986 Constitutional Commission.
Thus
MR. NOLLEDO. Besides, pending the enactment of a new Local
Government Code under the report of the Committee on Amendments and
Transitory Provisions, the former Local Government Code, which is Batas
Pambansa Blg. 337 shall continue to be effective until repealed by the
Congress of the Philippines. 4
Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of
local elective officials. Section 59 expressly authorizes the respondent COMELEC to
conduct and supervise the process of and election on recall and in the exercise of such
powers, promulgate the necessary rules and regulations.
The Election Code contains no special provisions on the manner of conducting elections
for the recall of a local official. Any such election shall be conducted in the manner and
under the rules on special elections, unless otherwise provided by law or rule of the
COMELEC. 5 Thus, pursuant to the rule-making power vested in respondent
COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is
valid and constitutional. Consequently, the respondent COMELEC had the authority to
approve the petition for recall and set the date for the signing of said petition.
The next issue for resolution is whether or not the TRO issued by this Court rendered
nugatory the signing process of the petition for recall held pursuant to Resolution No.
2272.
In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the
Philippines, et al., 6 this Court held:
. . . What is sought in this suit is to enjoin respondents particularly
respondent Commission from implementing Batas Pambansa Blg. 86,
specifically "from conducting, holding and undertaking the plebiscite
provided for in said act." The petition was filed on December 5, 1980.
There was a plea for a restraining order, but Proclamation No. 2034 fixing
the date for such plebiscite on December 6, 1980 had been issued as far
as back as November 11, 1980. Due this delay in to this suit, attributable
solely to petitioners, there was no time even to consider such a plea. The
plebiscite was duly held. The certificate of canvass and proclamation of
the result disclosed that out of 2,409 total votes cast in such plebiscite,
2,368 votes were cast in favor of the creation of the new municipality,
which, according to the statute, will be named municipality of Aguinaldo.
There were only 40 votes cast against. As a result, such municipality was
created. There is no turning back the clock. The moot and academic
character of this petition is thus apparent.
In the present case, the records show that Evardone knew of the Notice of Recall filed
by Apelado, et al. on or about 21 February 1990 as evidenced by the Registry Return
Receipt; yet, he was not vigilant in following up and determining the outcome of such
notice. Evardone alleges that it was only on or about 3 July 1990 that he came to know
about the Resolution of respondent COMELEC setting the signing of the petition for
recall on 14 July 1990. But despite his urgent prayer for the issuance of a TRO,
Evardone filed the petition for prohibition only on 10 July 1990.
Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall
took place just the same on the scheduled date through no fault of the respondent
COMELEC and Apelado, et al. The signing process was undertaken by the constituents
of the Municipality of Sulat and its Election Registrar in good faith and without
knowledge of the TRO earlier issued by this Court. As attested by Election Registrar
Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern Samar or about
34% signed the petition for recall. As held in Parades vs.Executive Secretary 7 there is
no turning back the clock.
The right to recall is complementary to the right to elect or appoint. It is
included in the right of suffrage. It is based on the theory that the
electorate must maintain a direct and elastic control over public
functionaries. It is also predicated upon the idea that a public office is
"burdened" with public interests and that the representatives of the people
holding public offices are simply agents or servants of the people with
definite powers and specific duties to perform and to follow if they wish to
remain in their respective offices. 8
Whether or not the electorate of the Municipality of Sulat has lost confidence in the
incumbent mayor is a political question. It belongs to the realm of politics where only the
people are the judge. 9 "Loss of confidence is the formal withdrawal by an electorate of
their trust in a person's ability to discharge his office previously bestowed on him by the
same electorate. 10 The constituents have made a judgment and their will to recall the
incumbent mayor (Evardone) has already been ascertained and must be afforded the
highest respect. Thus, the signing process held last 14 July 1990 in Sulat, Eastern
Samar, for the recall of Mayor Felipe P. Evardone of said municipality is valid and has
legal effect.
However, recall at this time is no longer possible because of the limitation provided in
Sec. 55 (2) of B.P. Blg, 337, which states:
Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not
be Held. . . .
(2) No recall shall take place within two years from the date of the official's
assumption of office or one year immediately preceding a regular local
election.
The Constitution has mandated a synchronized national and local election prior to 30
June 1992, or more specifically, as provided for in Article XVIII, Sec. 5 on the second
Monday of May, 1992. 11 Thus, to hold an election on recall approximately seven (7)
months before the regular local election will be violative of the above provisions of the
applicable Local Government Code (B.P. Blg. 337)
ACCORDINGLY, both petitions are DISMISSED for having become moot and
academic.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Grio-Aquino,
Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur.
Fernan, C.J., is on leave.

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 112243 February 23, 1995
THE SECRETARY OF HEALTH, DR. ORLANDO PUA and DR. JOSE
CABRERA, petitioners,
vs.
COURT OF APPEALS, HON. ROGER A. DOMAGAS and FE
SIBBALUCA, respondents.

BIDIN, J .:
Petitioners seek the reversal of respondent court's decision dated July 21, 1993
dismissing petitioners' petition forcertiorari and prohibition in CA-G.R No. 28361
assailing the decision and orders of respondent Presiding Judge the Regional Trial
Court, Branch 1 of Tuguegarao Cagayan restraining petitioners from enforcing the order
of preventive suspension issued against respondent Fe Sibbaluca, former
Administrative Officer of the Provincial Health Office of Cagayan.
The antecedent facts of the case as found by respondent court are as follows:
This petition for certiorari and prohibition filed by petitioners stemmed from
the administrative complaint filed against private respondent Fe Sibbaluca,
the Administrative Officer III of the Provincial Health Office of Cagayan, for
grave misconduct, dishonesty; etc. The case was docketed as
Administrative Case No. 000023 S. 1991 of the Department of Health,
Manila.
As a consequence of the administrative case, private respondent was
placed under preventive suspension for ninety [90] days per order dated
December 17, 1991, issued by herein petitioner Secretary of Health.
Private respondent sought the lifting of her suspension thru a motion
dated January 8, 1992.
Pending resolution of her said motion, private respondent instituted an
action for prohibition,mandamus, and injunction with a prayer for a
temporary restraining order and a writ of preliminary injunction before the
Regional Trial Court (RTC) of Tuguegarao (Branch 1), docketed as Civil
Case No. 4379 and 4397, seeking the nullification of the order of
preventive suspension and of the entire administrative proceedings. Her
action is anchored on her contention that when the New Local
Government Code took effect on January 1, 1992, the Secretary of Health
had lost his disciplinary power and authority over her, considering that
such power to discipline the personnel of the Provincial Health Office is
now vested in the Provincial Governor.
Finding merit to the ancillary remedy sought by private respondent, the
Regional Trial Court, thru the herein respondent Judge, issued a
temporary restraining order on January 15, 1992, restraining the Secretary
of Health and his representatives from enforcing the preventive
suspension order and from conducting further proceedings in the
administrative case against private respondent.
On February 3, 1992, the Secretary of Health filed an omnibus motion to
dismiss private respondent's action and to quash the temporary restraining
order, with opposition to the issuance of a preliminary injunction,
contending inter alia that private respondent had failed to exhaust
administrative remedies and that the New Local Government Code did not
divest the Secretary of Health of his disciplinary jurisdiction over the
private respondent.
During the hearing of the omnibus motion as well as the application for a
preliminary injunction, the counsel for the Secretary of Health manifested
that they are not participating in the proceedings. Thus, private respondent
presented her testimony, who was then cross-examined by the counsel for
the other two petitioners herein, Dr. Orlando Pua, the Director of the
Regional Health Office No. 2, and Dr. Jose Cabrera, the Officer-in-Charge
of the Provincial Health Office of Cagayan.
After the hearing, the parties were directed to submit their respective
memoranda.
In a decision dated March 25, 1992, the respondent Judge rendered
judgment in favor of private respondent and against petitioners, the
pertinent portion of which reads:
The Court is aware that ordinarily it should not interfere with
in the prosecution of administrative complaint as in the case
at bar based on the doctrine of exhaustion of administrative
remedies and forum shopping. Considering, however, that
with the enactment of the Local Government Code of 1991
which took effect on January 1, 1992, the provincial health
board headed by the governor is empowered to create
committees which shall advise local health agencies on
matters of grievance and complaints, personal discipline, it is
clear that the Secretary of Health ceases to have jurisdiction
over the person of the petitioner and consequently the power
and authority to issue the order of suspension (Sec. 102 of
the Local Government Code of 1991).
WHEREFORE, judgment is hereby rendered in favor of the
petitioner and against the respondents restraining
immediately the latter from enforcing the order of preventive
suspension dated December 17, 1991 until the
administrative case is investigated and resolved by the
provincial health board.
For insufficiency of evidence the contempt charge is hereby
dismissed.
SO ORDERED. (p. 39, Rollo)
The private respondent, in a motion dated April 3, 1992, sought
clarification of the decision. She also moved for the execution of the same.
Acting on the motion, the respondent Judge issued an order dated April
14, 1992, ordering the issuance of a writ of execution "to implement the
decision of the Court dated March 25, 1992." The order further states: "On
the motion for clarification, considering the finding of this Court that the
Secretary of Health ceases to have jurisdiction to discipline the petitioner
(now private respondent, necessarily, the order of suspension and all
other orders emanating thereafter are null and void and of no further
effect" (Annex "B", Petition; p. 40, Rollo).
Copies of the decision dated March 25, 1992 and the order dated April 14,
1992 were received by petitioners on April 10, 1992 and April 15, 1992,
respectively.
On April 27, 1992, petitioners filed a motion for reconsideration of the
March 25, 1992 decision and of the April 14, 1992 order, insisting that the
Secretary of Health has jurisdiction over the administrative case.
Petitioners also contended, among other things, that respondent Judge
has no jurisdiction to nullify all orders issued by the secretary of Health,
"they being of equal rank."
Petitioners' motion for reconsideration was denied in an order dated May
28, 1992 (Annex "A", Petition; p. 58, Rollo).
On the same date of May 28, 1992, the Secretary of Health filed a Notice
of Appeal with the court a quo, giving notice that he is appealing the
decision dated March 25, 1992 to the Court of Appeals on both questions
of fact and law (pp. 13 and 103, Rollo).
On June 17, 1992, the Secretary of Health filed another motion to stay the
execution of the assailed decision.
Both the notice of appeal and the motion to stay execution were denied
upon the ground that the notice of appeal was filed out of time and that the
assailed decision had already become final and executory. The denial was
contained in a decision dated June 26, 1992 which convicted co-petitioner
Dr. Jose Cabrera of indirect contempt of court for refusing to comply with
the writ of execution (Annex "C", Petition; p. 41, Rollo).
Hence, this petition for certiorari and prohibition under Rule 65 of the
Revised Rules of Court, assailing the decision dated March 25, 1992, the
order dated April 14, 1992 and the decision dated June 26, 1992. (Rollo,
pp. 32-35)
Respondent court dismissed the petition filed by petitioners and ruled that an ordinary
appeal by mere notice of appeal is the plain and adequate remedy of petitioners against
the three assailed processes of the lower court (Rollo, p. 35). The Motion for
Reconsideration filed by petitioners was also denied (Rollo, p. 54).
The petitioners raise the following errors allegedly committed by the Court of Appeals,
to wit:
I
RESPONDENT COURT OF APPEALS ERRED IN NOT GIVING DUE
COURSE TO THE SPECIAL CIVIL ACTION OF CERTIORARI AND
PROHIBITION FILED BY PETITIONERS DOCKETED AS CA-G.R. SP
NO. 28361.
II
RESPONDENT COURT OF APPEALS ERRED IN NOT TOUCHING ON
THE MERITS OF THE PETITION. (Rollo, pp. 17-18)
We find merit in this petition.
At the outset, it should be noted that petitioners' notice of appeal was filed out of time.
Petitioners then filed a petition for certiorari and prohibition before respondent court.
Respondent court, believing that the said petition was made as a substitute for the lost
remedy of appeal, held that where the proper remedy is appeal, the action
for certiorari will not entertained. Thus, the petition for certiorarifiled by petitioners was
dismissed.
In a long line of cases we held that the special civil action for certiorari under Rule 65 of
the Rules of Court will not lie as a substitute for an available or lost appeal (Sy v.
Romero, 214 SCRA 187 [1992]). Nevertheless, even when appeal is available and is
the proper remedy, this Court has allowed a writ of certiorari when the orders of the
lower court were issued either in excess of or without jurisdiction (PNB v. Florendo, 206
SCRA 582 [1992]).
In the present case, the petition for certiorari filed before respondent court was not filed
as a mere substitute for appeal. The facts and circumstances of this case warrant the
filing of the petition for certiorari and prohibition. The lower court issued a writ of
execution of its March 25, 1992 decision. The motion to stay execution of the said
decision filed by petitioner Secretary of Health was denied. Likewise, the notice of
appeal filed by the said petitioner was also denied. In the same order, petitioner Dr.
Jose Cabrera was found guilty of indirect contempt and a penalty of three months
imprisonment was imposed upon him for allegedly refusing to comply with the writ of
execution.
Most importantly, petitioners question the jurisdiction of the lower court in enjoining the
order issued by the Secretary of Health preventively suspending and subsequently
dismissing private respondent and declaring that the said department does not have the
jurisdiction to issue the said order.
On the merits, petitioners' main contention is that the court a quo erred in finding that
the Secretary of Health has ceased to have administrative jurisdiction over the person of
private respondent in view of the enactment of the Local Government Code of 1991
which took effect on January 1, 1992 (Rollo, p. 19).
The resolution of the main issue raised by the petitioners calls for the determination of
the date of effectivity of the Local Government Code of 1991.
The pertinent provision of the Local Government Code of 1991 provides:
Sec. 536. Effectivity Clause. This code shall take effect on January first,
nineteen hundred ninety-two, unless otherwise, provided herein, after its
complete publication in at least one (1) newspaper of general circulation.
(Emphasis Supplied)
It is explicit in the abovestated law that the local Government Code of 1991 shall take
effect on January 1, 1992. It is an elementary principle of statutory construction that
where the words and phrases of a statute are not obscure and ambiguous, the meaning
and intention of the legislature should be determined from the language employed, and
where there is no ambiguity in the words, there is no room for construction (Allarde v.
Commission on Audit, 218 SCRA 227 [1993]).
Furthermore, it is well-settled that jurisdiction is determined by the statute in force at the
time of the commencement of the action (Philippine Singapore Ports Corporation v.
NLRC, 218 SCRA 77 [1993]).
In the case at bar, respondent Fe Sibbaluca was administratively charged before
petitioner department in 1991. The case was docketed as Administrative Case No.
000023 S. 1991 and the suspension order was issued by petitioner Secretary of Health
on December 17, 1991. At the time of the commencement of the administrative action,
the operative laws are the Administrative Code of 1987 and Executive Order No. 119.
Under the said laws, the Secretary of Health exercises control, direction and supervision
over his subordinates, which include private respondent. Consequently, since
jurisdiction has been acquired by the Secretary of Health over the person of private
respondent before the effectivity of the Local Government Code on January 1, 1992, it
continues until the final disposition of the administrative case.
This Court already ruled in a number of cases that jurisdiction once acquired by a court
over a case remains with it until the full termination of the case, unless a law provides
the contrary (Bueno Industrial and Development Corporation v. Enage, 104 SCRA 600
[1981]).
At this juncture, it bears stressing that private respondent, a civil servant, cannot use the
courts of justice as a shield to prevent the implementation of administrative sanctions of
executive against erring public servants.
WHEREFORE, respondent court's decision is hereby REVERSED and SET ASIDE.
The challenged decision and orders of the Regional Trial Court, Branch I, of
Tuguegarao, Cagayan are hereby ANNULLED and SET ASIDE.
SO ORDERED.
Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.

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