EN BANC

PROF. RANDOLF S. DAVID, LORENZO TAADA III, G.R. No. 171396

RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. Present:
MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG, PANGANIBAN, C.J.,
Petitioners, *
PUNO,
QUISUMBING,
- versus - YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
GLORIA MACAPAGAL-ARROYO, AS AUSTRIA-MARTINEZ,
PRESIDENT AND COMMANDER-IN-CHIEF, CORONA,
EXECUTIVE SECRETARY EDUARDO ERMITA, CARPIO MORALES,
HON. AVELINO CRUZ II, SECRETARY OF CALLEJO, SR.,
NATIONAL DEFENSE, GENERAL GENEROSO AZCUNA,
SENGA, CHIEF OF STAFF, ARMED FORCES OF TINGA,
THE PHILIPPINES, DIRECTOR GENERAL ARTURO CHICO-NAZARIO,
LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, GARCIA, and
Respondents. VELASCO, JJ.
x-------------------------------------------------x
NIEZ CACHO-OLIVARES AND TRIBUNE Promulgated:
PUBLISHING CO., INC.,
Petitioners, May 3, 2006

- versus - G.R. No. 171409

HONORABLE SECRETARY EDUARDO ERMITA AND

HONORABLE DIRECTOR GENERAL ARTURO C.
LOMIBAO,
Respondents.
x-------------------------------------------------x
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A.
SANTIAGO, TEODORO A. CASINO, AGAPITO A.
AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA,
TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL
J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, G.R. No. 171485
RENATO B. MAGTUBO, JUSTIN MARC SB.
CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-
CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY
AMADO GAT INCIONG,
Petitioners,

- versus -
EDUARDO R. ERMITA, EXECUTIVE SECRETARY,
AVELINO J. CRUZ, JR., SECRETARY, DND
RONALDO V. PUNO, SECRETARY, DILG,
GENEROSO SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF PNP,
Respondents.
x-------------------------------------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS
CHAIRPERSON ELMER C. LABOG AND
SECRETARY GENERAL JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS
KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN,
Petitioners,

G.R. No. 171483

- versus -

HER EXCELLENCY, PRESIDENT GLORIA

MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE
CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, GENEROSO SENGA, AND THE PNP
DIRECTOR GENERAL, ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC. (ALG),
Petitioner,
- versus -

EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT.

GEN. GENEROSO SENGA, AND DIRECTOR
GENERAL ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
JOSE ANSELMO I. CADIZ, FELICIANO M.
BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M.
AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C.
ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V.
GARCIA AND INTEGRATED BAR OF THE
PHILIPPINES (IBP),
Petitioners, G.R. No. 171400
 - versus -

HON. EXECUTIVE SECRETARY EDUARDO

ERMITA, GENERAL GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF,
Respondents.
x-------------------------------------------------x
LOREN B. LEGARDA,
Petitioner,

- versus - G.R. No. 171489

GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY

AS PRESIDENT AND COMMANDER-IN-CHIEF;
ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN
HIS CAPACITY AS CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES (AFP); AND
EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY,
Respondents.

G.R. No. 171424

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

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are
necessary.[1] Superior strength the use of force cannot make wrongs into rights. In this
regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.
 Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He
said: In cases involving liberty, the scales of justice should weigh heavily against
government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Laws and actions that restrict fundamental rights come to
the courts with a heavy presumption against their constitutional validity. [2]
These seven (7) consolidated petitions for certiorari and prohibition allege that in
issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend
that respondent officials of the Government, in their professed efforts to defend and
preserve democratic institutions, are actually trampling upon the very freedom guaranteed
and protected by the Constitution. Hence, such issuances are void for being
unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How
does the Constitution of a free people combine the degree of liberty, without which, law
becomes tyranny, with the degree of law, without which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20 th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national emergency,
thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the

Republic of the Philippines and Commander-in-Chief of the Armed Forces of
the Philippines, by virtue of the powers vested upon me by Section 18, Article
7 of the Philippine Constitution which states that: The President. . . whenever
it becomes necessary, . . . may call out (the) armed forces to prevent or
suppress. . .rebellion. . ., and in my capacity as their Commander-in-
Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me personally
or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political

opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists the historical enemies of the democratic
Philippine State who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the
duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the

President;

WHEREAS, the claims of these elements have been recklessly

magnified by certain segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State by

obstructing governance including hindering the growth of the economy
and sabotaging the peoples confidence in government and their
faith in the future of this country;
 WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the

extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the

defense and preservation of the democratic institutions and the State the
primary duty of Government;

WHEREAS, the activities above-described, their consequences,

ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition

have conspired with authoritarians of the extreme Left, represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists -
the historical enemies of the democratic Philippine State and who are now
in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly-constituted Government elected in
May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down
our republican government;

WHEREAS, the claims of these elements have been recklessly

magnified by certain segments of the national media;

WHEREAS, these series of actions is hurting the Philippine State by

obstructing governance, including hindering the growth of the economy and
sabotaging the peoples confidence in the government and their faith in the
future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the

extreme Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense

and preservation of the democratic institutions and the State the primary duty
of Government;

WHEREAS, the activities above-described, their consequences,

ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been

issued declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of

the powers vested in me under the Constitution as President of the Republic of
 the Philippines, and Commander-in-Chief of the Republic of the Philippines,
and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby
call upon the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), to prevent and suppress acts of terrorism and lawless violence in
the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP,
as well as the officers and men of the AFP and PNP, to immediately carry
out the necessary and appropriate actions and measures to suppress
and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP 1017. She
issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article
XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February

24, 2006, which were issued on the basis of Proclamation No. 1017, the
Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), were directed to maintain law and order throughout the Philippines,
prevent and suppress all form of lawless violence as well as any act of
rebellion and to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed

and quelled the acts lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President

of the Republic of the Philippines, by virtue of the powers vested in me by
law, hereby declare that the state of national emergency has ceased
to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents
stated that the proximate cause behind the executive issuances was the conspiracy among
some military officers, leftist insurgents of the New Peoples Army (NPA), and some
members of the political opposition in a plot to unseat or assassinate President Arroyo.
[4]
They considered the aim to oust or assassinate the President and take-over the reigns of
government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was
no refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling out the
armed forces. He emphasized that none of the petitioners has shown that PP 1017 was
without factual bases. While he explained that it is not respondents task to state the facts
behind the questioned Proclamation, however, they are presenting the same, narrated
hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo
Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig
City. In a public statement, they vowed to remain defiant and to elude arrest at all
costs. They called upon the people to show and proclaim our displeasure at the sham
regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also
by wearing red bands on our left arms. [5]

On February 17, 2006, the authorities got hold of a document entitled Oplan Hackle
I which detailed plans for bombings and attacks during the Philippine Military Academy
Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including
some cabinet members and President Arroyo herself. [6] Upon the advice of her security,
President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height
of the celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing minutes of
the meetings between members of the Magdalo Group and the National Peoples Army
(NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive
documents.[7] Prior to his arrest, Lt. San Juan announced through DZRH that the
Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he immediately
ordered SAF Commanding General Marcelino Franco, Jr. to disavow any defection. The
latter promptly obeyed and issued a public statement: All SAF units are under the
effective control of responsible and trustworthy officers with proven integrity and
unquestionable loyalty.
On the same day, at the house of former Congressman Peping Cojuangco, President
Cory Aquinos brother, businessmen and mid-level government officials plotted moves to
bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor
Saycon, longtime Arroyo critic, called a U.S. government official about his groups plans if
President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified
him as B/Gen. Danilo Lim, Commander of the Armys elite Scout Ranger. Lim said it was
all systems go for the planned movement against Arroyo.[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge
number of soldiers would join the rallies to provide a critical mass and armed component to
the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2)
officers, there was no way they could possibly stop the soldiers because they too, were
breaking the chain of command to join the forces foist to unseat the President. However,
Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of
command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return
to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within
the military and the police establishments in order to forge alliances with its members and
key officials. NPA spokesman Gregorio Ka Roger Rosal declared: The Communist Party
and revolutionary movement and the entire people look forward to the possibility in the
coming year of accomplishing its immediate task of bringing down the Arroyo regime; of
rendering it to weaken and unable to rule that it will not take much longer to end it.[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front
(NDF) at North Central Mindanao, publicly announced: Anti-Arroyo groups within the
military and police are growing rapidly, hastened by the economic difficulties suffered by the
families of AFP officers and enlisted personnel who undertake counter-insurgency operations
in the field. He claimed that with the forces of the national democratic movement, the
anti-Arroyo conservative political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the Presidents ouster is nearing its
concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the issuance
of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the
death of three (3) soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and ensure
that the chain of command remains solid and undivided. To protect the young students
from any possible trouble that might break loose on the streets, the President suspended
classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance
of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs
and activities related to the 20th anniversary celebration of Edsa People Power I; and revoked
the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul
Gonzales stated that political rallies, which to the Presidents mind were organized for
purposes of destabilization, are cancelled.Presidential Chief of Staff Michael Defensor
announced that warrantless arrests and take-over of facilities, including media, can
already be implemented.[11]
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of
Metro Manila with the intention of converging at the EDSA shrine. Those who were already
near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-
trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to
stop and break up the marching groups, and scatter the massed participants. The same
police action was used against the protesters marching forward to Cubao, Quezon City and
to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen
broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in
Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for
the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and newspaper
columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the
newspaper; while policemen from the Manila Police District were stationed outside the
building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister publication,
the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is meant to
show a strong presence, to tell media outlets not to connive or do anything that would
help the rebels in bringing down this government. The PNP warned that it would take over
any media organization that would not follow standards set by the government during the
state of national emergency. Director General Lomibao stated that if they do not follow
the standards and the standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017
we will recommend a takeover. National Telecommunications Commissioner Ronald
Solis urged television and radio networks to cooperate with the government for the
duration of the state of national emergency. He asked for balanced reporting from
broadcasters when covering the events surrounding the coup attempt foiled by the
government. He warned that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage when the national security is
threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving
his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltrans
lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed
during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of
these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were
told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were
arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as
Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club in
Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and Gabriela
Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the
PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of
Representatives where the Batasan 5 decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017
and G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of
these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge
to avoid the constitutional requirements for the imposition of martial law; and (3) it violates
the constitutional guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear case of
censorship or prior restraint. They also claimed that the term emergency refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is absolutely no
emergency that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives, including
Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute usurpation of legislative
powers; violation of freedom of expression and a declaration of martial law. They
alleged that President Arroyo gravely abused her discretion in calling out the armed forces
without clear and verifiable factual basis of the possibility of lawless violence and a showing
that there is necessity to do so.
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that
PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo
the power to enact laws and decrees; (2) their issuance was without factual basis;
and (3) they violate freedom of expression and the right of the people to peaceably
assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article
II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article
VI, and (d) Section 17 [20]
of Article XII of the Constitution.
 In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is
an arbitrary and unlawful exercise by the President of her Martial Law powers. And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that it
amounts to an exercise by the President of emergency powers without congressional
approval. In addition, petitioners asserted that PP 1017 goes beyond the nature and
function of a proclamation as defined under the Revised Administrative Code.
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017
and G.O. No. 5 are unconstitutional for being violative of the freedom of expression,
including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4 of the
1987 Constitution. In this regard, she stated that these issuances prevented her from fully
prosecuting her election protest pending before the Presidential Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered that: first, the
petitions should be dismissed for being moot; second, petitioners in G.R. Nos.
171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and
171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to
implead President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis;
and fifth, PP 1017 does not violate the peoples right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the
above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and
academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP
1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.[21] This concept rests on the
extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the
theory of judicial review.[22]

But the power of judicial review does not repose upon the courts a self-starting
capacity.[23] Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to raise
a question of constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal
claims susceptible of judicial resolution. It is definite and concrete, touching the legal
relations of parties having adverse legal interest; a real and substantial controversy
admitting of specific relief. [25] The Solicitor General refutes the existence of such actual case
or controversy, contending that the present petitions were rendered moot and academic
by President Arroyos issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,[26] so that a declaration thereon would be of no practical use or
value.[27] Generally, courts decline jurisdiction over such case [28] or dismiss it on ground of
mootness.[29]
The Court holds that President Arroyos issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners, committed illegal acts in
implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify
these alleged illegal acts? These are the vital issues that must be resolved in the present
petitions. It must be stressed that an unconstitutional act is not a law, it confers no
rights, it imposes no duties, it affords no protection; it is in legal contemplation,
inoperative.[30]
The moot and academic principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; [31] second, the exceptional
character of the situation and the paramount public interest is involved; [32] third, when
constitutional issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public;[33] and fourth, the case is capable of repetition yet evading review. [34]
All the foregoing exceptions are present here and justify this Courts assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and
G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect
the publics interest, involving as they do the peoples basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the duty to formulate
guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the military and
the police, on the extent of the protection given by constitutional guarantees. [35] And lastly,
respondents contested actions are capable of repetition. Certainly, the petitions are
subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive Secretary.
[36]
However, they failed to take into account the Chief Justices very statement that an
otherwise moot case may still be decided provided the party raising it in a proper case
has been and/or continues to be prejudiced or damaged as a direct result of its
issuance. The present case falls right within this exception to the mootness rule pointed
out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.

Locus standi is defined as a right of appearance in a court of justice on a given

question.[37] In private suits, standing is governed by the real-parties-in interest rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides
that every action must be prosecuted or defended in the name of the real party
in interest. Accordingly, the real-party-in interest is the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails
of the suit.[38] Succinctly put, the plaintiffs standing is based on his own right to the
relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff
who asserts a public right in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a stranger, or in the category of a
citizen, or taxpayer. In either case, he has to adequately show that he is entitled to
seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both citizen and taxpayer standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was
held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a
citizens suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v. Collins:[40] In matter of
mere public right, howeverthe people are the real partiesIt is at least the right,
if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied. With
respect to taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public
funds to his injury cannot be denied.
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court laid down
the more stringent direct injury test in Ex Parte Levitt,[42] later reaffirmed in Tileston v.
Ullman.[43] The same Court ruled that for a private individual to invoke the judicial power to
determine the validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient that he
has a general interest common to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v. Vera,
[44]
it held that the person who impugns the validity of a statute must have a personal
and substantial interest in the case such that he has sustained, or will sustain
direct injury as a result. The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,[45] Manila Race Horse Trainers Association v. De la
Fuente,[46] Pascual v. Secretary of Public Works [47] and Anti-Chinese League of the Philippines
v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi may
be waived by the Court in the exercise of its discretion. This was done in the 1949
Emergency Powers Cases,Araneta v. Dinglasan,[49] where the transcendental
importance of the cases prompted the Court to act liberally. Such liberality was neither a
rarity nor accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the issues
raised due to the far-reaching implications of the petition notwithstanding its
categorical statement that petitioner therein had no personality to file the suit. Indeed,
there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings. [51]
Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of transcendental
importance. Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled
that the enforcement of the constitutional right to information and
 the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus
standi;

(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court

held that given the transcendental importance of the issues
involved, the Court may relax the standing requirements and allow
the suit to prosper despite the lack of direct injury to the parties
seeking judicial review of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a showing
that Balikatan 02-01 involves the exercise of Congress taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,[55] that in cases of transcendental importance, the cases must
be settled promptly and definitely and standing requirements may be
relaxed.

By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to
sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity
of the election law in question;
(4) for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Courts attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a
peoples organization does not give it the requisite personality to question the validity of
the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public
funds are being misused. Nor can it sue as a concerned citizen as it does not allege any
specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,
[57]
the Court reiterated the direct injury test with respect to concerned citizens cases
involving constitutional issues. It held that there must be a showing that the citizen
personally suffered some actual or threatened injury arising from the alleged illegal official
act.
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any
injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who
are members of Congress have standing to sue, as they claim that the Presidents
declaration of a state of rebellion is a usurpation of the emergency powers of
Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing,
equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged direct injury resulting from illegal arrest
and unlawful search committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are
used. Moreover, it is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,
[61]
Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,
[62]
Basco v. Philippine Amusement and Gaming Corporation, [63] and Taada v. Tuvera,[64] that
when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has
an interest in the execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right
to peaceful assembly may be deemed sufficient to give it legal standing. Organizations
may be granted standing to assert the rights of their members.[65] We take judicial
notice of the announcement by the Office of the President banning all rallies and canceling
all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege any
direct or potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the
Philippines v. Zamora,[66] the Court held that the mere invocation by the IBP of its duty to
preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe
it with standing in this case. This is too general an interest which is shared by other groups
and the whole citizenry. However, in view of the transcendental importance of the issue,
this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the
instant petition as there are no allegations of illegal disbursement of public funds. The fact
that she is a former Senator is of no consequence. She can no longer sue as a legislator on
the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O.
No. 5. Her claim that she is a media personality will not likewise aid her because there was
no showing that the enforcement of these issuances prevented her from pursuing her
occupation. Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017
will affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to
the bigger question of proper exercise of judicial power. This is the underlying legal tenet of
the liberality doctrine on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino
people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated
breath the ruling of this Court on this very critical matter. The petitions thus call for the
application of the transcendental importance doctrine, a relaxation of the standing
requirements for the petitioners in the PP 1017 cases.

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the

doctrine that the President, during his tenure of office or actual incumbency, [67] may not be
sued in any civil or criminal case, and there is no need to provide for it in the Constitution or
law. It will degrade the dignity of the high office of the President, the Head of State, if he
can be dragged into court litigations while serving as such. Furthermore, it is important that
he be freed from any form of harassment, hindrance or distraction to enable him to fully
attend to the performance of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon him by
the Constitution necessarily impairs the operation of the Government. However, this does
not mean that the President is not accountable to anyone. Like any other official, he
remains accountable to the people [68] but he may be removed from office only in the mode
provided by law and that is by impeachment.[69]

B. SUBSTANTIVE
I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
necessary for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the Presidents
exercise of his Commander-in-Chief power has reached its distilled point - from the indulgent
days of Barcelon v. Baker[70] and Montenegro v. Castaneda[71] to the volatile
era of Lansang v. Garcia, [72]
Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The
tug-of-war always cuts across the line defining political questions, particularly those
questions in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. [75] Barcelon and Montenegro were in
unison in declaring that the authority to decide whether an exigency has arisen
belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous
in the conviction that the Court has the authority to inquire into the existence of factual
bases in order to determine their constitutional sufficiency. From the principle of
separation of powers, it shifted the focus to the system of checks and balances,
under which the President is supreme, x x x only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to determine
whether or not he has so acted is vested in the Judicial Department, which
in this respect, is, in turn, constitutionally supreme.[76] In
1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the Court
was almost evenly divided on the issue of whether the validity of
the imposition of Martial Law is a political or justiciable question. [78] Then
came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need
to re-examine the latter case, ratiocinating that in times of war or national
emergency, the President must be given absolute control for the very life of the
nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God.[79]
The Integrated Bar of the Philippines v. Zamora [80] -- a recent case most pertinent to
these cases at bar -- echoed a principle similar to Lansang. While the Court considered the
Presidents calling-out power as a discretionary power solely vested in his wisdom, it
stressed that this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. This ruling is mainly a result of the
Courts reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of
the courts to determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are authorized not only
to settle actual controversies involving rights which are legally demandable and
enforceable, but also to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the government. The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of the government.
[81]
It speaks of judicial prerogative not only in terms of power but also of duty.[82]
 As to how the Court may inquire into the Presidents exercise of
power, Lansang adopted the test that judicial inquiry can go no further than to satisfy the
Court not that the Presidents decision iscorrect, but that the President did not
act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness.
[83]
In Integrated Bar of the Philippines, this Court further ruled that it is incumbent upon
the petitioner to show that the Presidents decision is totally bereft of factual
basis and that if he fails, by way of proof, to support his assertion, then this Court
cannot undertake an independent investigation beyond the pleadings.

Petitioners failed to show that President Arroyos exercise of the calling-out power,
by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor Generals
Consolidated Comment and Memorandum shows a detailed narration of the events leading
to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned
are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the Minutes of the Intelligence
Report and Security Group of the Philippine Army showing the growing alliance between the
NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any
contrary allegations, the Court is convinced that the President was justified in issuing PP
1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected
to simply fold her arms and do nothing to prevent or suppress what she believed was lawless
violence, invasion or rebellion. However, the exercise of such power or duty must not stifle
liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists

on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to the
nation, positive law enacted by the legislature might be inadequate or even a fatal obstacle
to the promptness of action necessary to avert catastrophe. In these situations, the Crown
retained a prerogative power to act according to discretion for the public good,
without the proscription of the law and sometimes even against it.[84] But Locke
recognized that this moral restraint might not suffice to avoid abuse of prerogative
powers. Who shall judge the need for resorting to the prerogative and how may
its abuse be avoided? Here, Locke readily admitted defeat, suggesting that the people
have no other remedy in this, as in all other cases where they have no judge on
earth, but to appeal to Heaven.[85]
 Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them disastrous
and make them bring about, at a time of crisis, the ruin of the State

It is wrong therefore to wish to make political institutions as strong as

to render it impossible to suspend their operation. Even Sparta allowed its law
to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme lawyer,
who shall silence all the laws and suspend for a moment the sovereign
authority. In such a case, there is no doubt about the general will, and it clear
that the peoples first intention is that the State shall not perish. [86]

Rosseau did not fear the abuse of the emergency dictatorship or supreme
magistracy as he termed it. For him, it would more likely be cheapened by indiscreet
use. He was unwilling to rely upon an appeal to heaven. Instead, he relied upon a
tenure of office of prescribed duration to avoid perpetuation of the dictatorship. [87]

John Stuart Mill concluded his ardent defense of representative government: I am

far from condemning, in cases of extreme necessity, the assumption of absolute
power in the form of a temporary dictatorship.[88]

Nicollo Machiavellis view of emergency powers, as one element in the whole

scheme of limited government, furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this chasm in democratic political
theory, thus:
Now, in a well-ordered society, it should never be necessary to resort
to extra constitutional measures; for although they may for a time be
beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she
has not by law provided for everything, having a remedy for every emergency
and fixed rules for applying it.[89]

Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with suitable
checks and controls in time of national danger. He attempted forthrightly to meet the
problem of combining a capacious reserve of power and speed and vigor in its application in
time of emergency, with effective constitutional restraints. [90]

Contemporary political theorists, addressing themselves to the problem of response

to emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw no reason why absolutism should not be
used as a means for the defense of liberal institutions, provided it serves to
protect established institutions from the danger of permanent injury in a period
of temporary emergency and is followed by a prompt return to the previous forms
of political life.[92] He recognized the two (2) key elements of the problem of emergency
governance, as well as all constitutional governance: increasing administrative powers
of the executive, while at the same time imposing limitation upon that
power.[93] Watkins placed his real faith in a scheme of constitutional dictatorship. These
are the conditions of success of such a dictatorship: The period of dictatorship must
be relatively shortDictatorship should always be strictly legitimate in
characterFinal authority to determine the need for dictatorship in any given case
must never rest with the dictator himself[94] and the objective of such an emergency
dictatorship should be strict political conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. [95] It is a
problem of concentrating power in a government where power has consciously been
divided to cope with situations of unprecedented magnitude and gravity. There must be
a broad grant of powers, subject to equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end. [96] Friedrich, too, offered criteria for judging
the adequacy of any of scheme of emergency powers, to wit: The emergency executive
must be appointed by constitutional means i.e., he must be legitimate; he
should not enjoy power to determine the existence of an emergency; emergency
powers should be exercised under a strict time limitation; and last, the objective
of emergency action must be the defense of the constitutional order.[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency

powers in Great Britain, France, Weimar, Germany and the United States, reverted to a
description of a scheme of constitutional dictatorship as solution to the vexing problems
presented by emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions of
success of the constitutional dictatorship, thus:
1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its constitutional
order

2) the decision to institute a constitutional dictatorship

should never be in the hands of the man or men who will constitute the
dictator

3) No government should initiate a constitutional dictatorship

without making specific provisions for its termination

4) all uses of emergency powers and all readjustments in the

organization of the government should be effected in pursuit of
constitutional or legal requirements

5) no dictatorial institution should be adopted, no right

invaded, no regular procedure altered any more than is absolutely
necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a

constitutional dictatorship should never be permanent in character or
effect

7) The dictatorship should be carried on by persons

representative of every part of the citizenry interested in the defense
of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every

action taken under a constitutional dictatorship. . .
 9) The decision to terminate a constitutional dictatorship, like
the decision to institute one should never be in the hands of the man
or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the

termination of the crisis for which it was instituted

11) the termination of the crisis must be followed by a

complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional
dictatorship[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency
powers than did Watkins. He would secure to Congress final responsibility for declaring the
existence or termination of an emergency, and he places great faith in the effectiveness of
congressional investigating committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of grave danger to the
nation is not based upon sound constitutional theory. To appraise emergency power
in terms of constitutional dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term dictator is used in its normal sense (as
applied to authoritarian rulers) or is employed to embrace all chief executives administering
emergency powers. However used, constitutional dictatorship cannot be divorced from
the implication of suspension of the processes of constitutionalism. Thus, they favored
instead the concept of constitutionalism articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis

of problems of emergency powers, and which is consistent with the findings of
this study, is that formulated by Charles H. McIlwain. While it does not by any
means necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly recognized the
need to repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and proper
test of constitutionalism was the existence of adequate processes for
keeping government responsible. He refused to equate constitutionalism
with the enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental power. He
found that the really effective checks on despotism have consisted not in the
weakening of government but, but rather in the limiting of it; between which
there is a great and very significant difference. In associating
constitutionalism with limited as distinguished from weak
government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary power
and a complete political responsibility of government to the
governed.[101]

In the final analysis, the various approaches to emergency of the above political
theorists - from Locks theory of prerogative, to Watkins doctrine of constitutional
dictatorship and, eventually, to McIlwains principle of constitutionalism --- ultimately
aim to solve one real problem in emergency governance, i.e., that of allotting increasing
areas of discretionary power to the Chief Executive, while insuring that such
powers will be exercised with a sense of political responsibility and under
effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution,
endeavored to create a government in the concept of Justice Jacksons balanced power
structure.[102] Executive, legislative, and judicial powers are dispersed to the President, the
Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each branch is given a
role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his power, using the
language of McIlwain. In other words, in times of emergency, our Constitution reasonably
demands that we repose a certain amount of faith in the basic integrity and wisdom of the
Chief Executive but, at the same time, it obliges him to operate within carefully
prescribed procedural limitations.

a. Facial Challenge

Petitioners contend that PP 1017 is void on its face because of its overbreadth.
They claim that its enforcement encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a chilling effect to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for
testing on their faces statutes in free speech cases, also known under the American
Law as First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. InUnited States v. Salerno,[104] the US Supreme Court held that we
have not recognized an overbreadth doctrine outside the limited context of the
First Amendment (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law
that reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct. Undoubtedly, lawless violence, insurrection and
rebellion are considered harmful and constitutionally unprotected conduct.
In Broadrick v. Oklahoma,[105] it was held:

It remains a matter of no little difficulty to determine when a law

may properly be held void on its face and when such summary action is
inappropriate. But the plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the
State to sanction moves from pure speech toward
conduct and that conduct even if expressive falls within the scope
of otherwise valid criminal laws that reflect legitimate state interests
in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words and again, that
overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct.[106] Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum
of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as manifestly strong medicine,

to be used sparingly and only as a last resort, and is generally
disfavored;[107] The reason for this is obvious. Embedded in the traditional rules governing
constitutional adjudication is the principle that a person to whom a law may be applied will
not be heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. [108] A writer
and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is

that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that a
statute is unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional aspects of the
law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the
rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the entire
statute on its face, not merely as applied for so that the overbroad law
becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the chilling; deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad laws very existence may cause others
not before the court to refrain from constitutionally protected speech or
expression. An overbreadth ruling is designed to remove that deterrent
effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the
Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,[109] it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies,

and requiring correction of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of
detailed statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can be no
instance when the assailed law may be valid. Here, petitioners did not even attempt to
show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of

vagueness. This, too, is unwarranted.
 Related to the overbreadth doctrine is the void for vagueness doctrine which
holds that a law is facially invalid if men of common intelligence must necessarily
guess at its meaning and differ as to its application.[110] It is subject to the same
principles governing overbreadth doctrine. For one, it is also an analytical tool for testing
on their faces statutes in free speech cases. And like overbreadth, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of common intelligence
cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions,
thus:

First provision:

by virtue of the power vested upon me by Section 18, Artilce VII do

hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion

Second provision:

and to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my direction;

Third provision:

as provided in Section 17, Article XII of the Constitution do hereby

declare a State of National Emergency.

First Provision: Calling-out Power

The first provision pertains to the Presidents calling-out power. In

Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that
Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed

forces of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines or any part
thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
 revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation
or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours

following such proclamation or suspension, convene in accordance with its
rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by

any citizen, the sufficiency of the factual bases of the proclamation of martial
law or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.

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

During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days, otherwise
he shall be released.

grants the President, as Commander-in-Chief, a sequence of graduated powers. From the

most to the least benign, these are: the calling-out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare Martial
Law. Citing Integrated Bar of the Philippines v. Zamora,[112] the Court ruled that the only
criterion for the exercise of the calling-out power is that whenever it becomes
necessary, the President may call the armed forces to prevent or suppress lawless
violence, invasion or rebellion. Are these conditions present in the instant cases? As
stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the
best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police
action. But every act that goes beyond the Presidents calling-out power is considered
illegal or ultra vires. For this reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes to act under a lesser
power. There lies the wisdom of our Constitution, the greater the power, the greater are the
limitations.

It is pertinent to state, however, that there is a distinction between the Presidents

authority to declare a state of rebellion (in Sanlakas) and the authority to proclaim a state
of national emergency. While President Arroyos authority to declare a state of rebellion
emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. Proclamations. Acts of the President fixing a date or

declaring a status or condition of public moment or interest, upon the
 existence of which the operation of a specific law or regulation is made
to depend, shall be promulgated in proclamations which shall have the
force of an executive order.

President Arroyos declaration of a state of rebellion was merely an act declaring a

status or condition of public moment or interest, a declaration allowed under Section 4 cited
above. Such declaration, in the words of Sanlakas, is harmless, without legal significance,
and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of
national emergency, President Arroyo did not only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion
or rebellion. She also relied on Section 17, Article XII, a provision on the States
extraordinary power to take over privately-owned public utility and business affected with
public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously,
such Proclamation cannot be deemed harmless, without legal significance, or not written, as
in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of

Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain
therein that what the President invoked was her calling-out power.

The declaration of Martial Law is a warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order, and that,
while the emergency lasts, they must, upon pain of arrest and punishment, not commit any
acts which will in any way render more difficult the restoration of order and the enforcement
of law.[113]

In his Statement before the Senate Committee on Justice on March 13, 2006, Mr.
Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three
powers of the President as Commander-in-Chief, the power to declare Martial Law poses the
most severe threat to civil liberties. It is a strong medicine which should not be resorted to
lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the
keeping of the President for the purpose of enabling him to secure the people from harm and
to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII,
provides:

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no
more than a call by the President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only under a valid declaration of
Martial Law can be done. Its use for any other purpose is a perversion of its nature and
scope, and any act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by
the President as Commander-in-Chief only where there is a valid declaration of Martial Law
or suspension of the writ of habeas corpus.
 Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President Arroyos calling-out power for the armed
forces to assist her in preventing or suppressing lawless violence.
Second Provision: Take Care Power

The second provision pertains to the power of the President to ensure that the laws
be faithfully executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.

As the Executive in whom the executive power is vested, [115] the primary function of
the President is to enforce the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath or affirmation to the
effect that as President of the Philippines, he will, among others, execute its laws. [116] In
the exercise of such function, the President, if needed, may employ the powers attached to
his office as the Commander-in-Chief of all the armed forces of the country, [117]including the
Philippine National Police[118] under the Department of Interior and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,

Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees
in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in
Congress. They assail the clause to enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me personally or upon my
direction.

Petitioners contention is understandable. A reading of PP 1017 operative clause

shows that it was lifted[120] from Former President Marcos Proclamation No. 1081, which
partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the

Philippines by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well
as any act of insurrection or rebellion and to enforce obedience to all
the laws and decrees, orders and regulations promulgated by me
personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its
enabling clause states: to enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my direction. Upon the
other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction.

Is it within the domain of President Arroyo to promulgate decrees?

 PP 1017 states in part: to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction.

The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. Acts of the President providing for rules of

a general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of
an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters
relating to internal administration, which the President desires to bring to the
attention of all or some of the departments, agencies, bureaus or offices of
the Government, for information or compliance, shall be embodied in
memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines shall be issued as general or special orders.

President Arroyos ordinance power is limited to the foregoing issuances. She

cannot issue decrees similar to those issued by Former President Marcos under PP
1081. Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative power
during the period of Martial Law under the 1973 Constitution. [121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate decrees. Legislative power
is peculiarly within the province of the Legislature. Section 1, Article VI categorically states
that [t]he legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives. To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos
exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It
follows that these decrees are void and, therefore, cannot be enforced. With respect to
laws, she cannot call the military to enforce or implement certain laws, such as customs
laws, laws governing family and property relations, laws on obligations and contracts and
the like. She can only order the military, under PP 1017, to enforce laws pertinent to its
duty to suppress lawless violence.
Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all

decrees, orders, and regulations promulgated by me personally
or upon my direction; and as provided in Section 17, Article
XII of the Constitution do hereby declare a state of
national emergency.

The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience to all the
laws and to all decrees x x x but also to act pursuant to the provision of Section 17, Article
XII which reads:

Sec. 17. In times of national emergency, when the public interest so

requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately-
owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when
she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP
1017 purports to grant the President, without any authority or delegation from Congress, to
take over or direct the operation of any privately-owned public utility or business affected
with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the
martial law thinking of the 1971 Constitutional Convention. [122] In effect at the time of its
approval was President Marcos Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over the management, control and
operation of the Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and end the present
national emergency.

Petitioners, particularly the members of the House of Representatives, claim that

President Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment on the
legislatures emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the Presidents authority to declare a state of

national emergency and to exercise emergency powers. To the first, as elucidated
by the Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues
arise.

Section 23, Article VI of the Constitution reads:

 SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in
joint session assembled, voting separately, shall have the sole power to
declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may,
by law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner withdrawn by resolution of
the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only
to war but also to other national emergency. If the intention of the Framers of our
Constitution was to withhold from the President the authority to declare a state of national
emergency pursuant to Section 18, Article VII (calling-out power) and grant it to Congress
(like the declaration of the existence of a state of war), then the Framers could have
provided so. Clearly, they did not intend that Congress should first authorize the President
before he can declare a state of national emergency. The logical conclusion then is that
President Arroyo could validly declare the existence of a state of national emergency even in
the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions of a
constitution which relate to the same subject matter will be construed together and
considered in the light of each other.[123] Considering that Section 17 of Article XII and
Section 23 of Article VI, previously quoted, relate to national emergencies, they must be
read together to determine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in

the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not reposed upon it. However,
knowing that during grave emergencies, it may not be possible or practicable for Congress
to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow
Congress to grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the

Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just another facet
of the emergency powers generally reposed upon Congress. Thus, when Section 17 states
that the the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest, it refers to Congress,
not the President. Now, whether or not the President may exercise such power is dependent
on whether Congress may delegate it to him pursuant to a law prescribing the reasonable
terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held:
 It is clear that if the President had authority to issue the order he did, it
must be found in some provision of the Constitution. And it is not claimed
that express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate of
his powers under the Constitution. Particular reliance is placed on provisions
in Article II which say that The executive Power shall be vested in a President
. . . .; that he shall take Care that the Laws be faithfully executed; and
that he shall be Commander-in-Chief of the Army and Navy of the United
States.

The order cannot properly be sustained as an exercise of the

Presidents military power as Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding broad
powers in military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though theater of
war be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander-in-Chief of the Armed
Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping
production. This is a job for the nations lawmakers, not for its
military authorities.

Nor can the seizure order be sustained because of the several

constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the Presidents
power to see that the laws are faithfully executed refutes the idea
that he is to be a lawmaker. The Constitution limits his functions in
the lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And the Constitution is
neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that
All legislative Powers herein granted shall be vested in a Congress
of the United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency under Section
17, Article XII refers to tsunami, typhoon, hurricane and similar
occurrences. This is a limited view of emergency.

Emergency, as a generic term, connotes the existence of conditions suddenly

intensifying the degree of existing danger to life or well-being beyond that which is accepted
as normal. Implicit in this definitions are the elements of intensity, variety, and perception.
[127]
Emergencies, as perceived by legislature or executive in the United Sates since 1933,
have been occasioned by a wide range of situations, classifiable under three (3) principal
heads: a) economic,[128] b) natural disaster,[129] and c) national security.[130]

Emergency, as contemplated in our Constitution, is of the same breadth. It may

include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or effect. [131] This is evident in the Records of the
Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committees definition of national

emergency which appears in Section 13, page 5? It reads:
 When the common good so requires, the State may temporarily take over
or direct the operation of any privately owned public utility or business
affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
national emergency.
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.[132]
x x x x x x
MR. TINGSON. May I ask the committee if national emergency refers
to military national emergency or could this be economic emergency?
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be able to
convene and, therefore, unable to delegate to the President the power to take over
privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through

which extraordinary measures are exercised, remains in Congress even in times of crisis.

x x x

After all the criticisms that have been made against the
efficiency of the system of the separation of powers, the fact remains
that the Constitution has set up this form of government, with all its
defects and shortcomings, in preference to the commingling of powers
in one man or group of men. The Filipino people by adopting
parliamentary government have given notice that they share the faith
of other democracy-loving peoples in this system, with all its faults, as
the ideal. The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting periods
of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in
ours, have specific functions of the legislative branch of enacting laws
been surrendered to another department unless we regard as
legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a
total war, or when it was engaged in a life-and-death struggle to
preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in
normal circumstances the various branches, executive, legislative,
and judicial, given the ability to act, are called upon to perform the
duties and discharge the responsibilities committed to them
respectively.

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during the
emergency to temporarily take over or direct the operation of any privately owned public
utility or business affected with public interest without authority from Congress.
 Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-owned
public utility or business affected with public interest. The President cannot decide
whether exceptional circumstances exist warranting the take over of privately-
owned public utility or business affected with public interest. Nor can he determine
when such exceptional circumstances have ceased. Likewise, without legislation, the
President has no power to point out the types of businesses affected with public interest that
should be taken over. In short, the President has no absolute authority to exercise all the
powers of the State under Section 17, Article VII in the absence of an emergency powers act
passed by Congress.

c. AS APPLIED CHALLENGE

One of the misfortunes of an emergency, particularly, that which pertains to security,

is that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are curtailed
and trampled upon. Here, the right against unreasonable search and seizure; the
right against warrantless arrest; and the freedom of speech, of expression, of the
press, and of assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate direct injury.

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24,
2006, they were arrested without warrants on their way to EDSA to celebrate the
20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the
arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives raided and ransacked without
warrant their office. Three policemen were assigned to guard their office as a possible
source of destabilization. Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were turned away and dispersed when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power I.

A perusal of the direct injuries allegedly suffered by the said petitioners shows that
they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general, does the illegal implementation of a law render it
unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although
they may be abused and misabused[135] and may afford an opportunity for abuse in
the manner of application.[136] The validity of a statute or ordinance is to be determined
from its general purpose and its efficiency to accomplish the end desired, not from its
effects in a particular case.[137] PP 1017 is merely an invocation of the Presidents
calling-out power. Its general purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the
police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens
constitutional rights.
 Now, may this Court adjudge a law or ordinance unconstitutional on the ground that
its implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the exercise
of power, and not a mere incidental result arising from its exertion.[138] This is
logical. Just imagine the absurdity of situations when laws maybe declared unconstitutional
just because the officers implementing them have acted arbitrarily. If this were so, judging
from the blunders committed by policemen in the cases passed upon by the Court, majority
of the provisions of the Revised Penal Code would have been declared unconstitutional a
long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines. They are internal rules issued
by the executive officer to his subordinates precisely for
the proper and efficient administration of law. Such rules and regulations create no
relation except between the official who issues them and the official who receives them.
[139]
They are based on and are the product of, a relationship in which power is their source,
and obedience, their object.[140] For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the necessary
and appropriate actions and measures to suppress and prevent acts of terrorism
and lawless violence.

Unlike the term lawless violence which is unarguably extant in our statutes and
the Constitution, and which is invariably associated with invasion, insurrection or
rebellion, the phrase acts of terrorism is still an amorphous and vague
concept. Congress has yet to enact a law defining and punishing acts of terrorism.

In fact, this definitional predicament or the absence of an agreed definition of

terrorism confronts not only our country, but the international community as well. The
following observations are quite apropos:

In the actual unipolar context of international relations, the fight

against terrorism has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states sponsoring terrorism and of
terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined by
strategic interests.

The basic problem underlying all these military actions or threats of

the use of force as the most recent by the United States against Iraq
consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of

acts of violence either by states, by armed groups such as liberation
movements, or by individuals.

The dilemma can by summarized in the saying One countrys

terrorist is another countrys freedom fighter. The apparent contradiction or
lack of consistency in the use of the term terrorism may further be
demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba in
Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally
labeled as terrorists by those who controlled the territory at the time, but later
became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?

Since the times of the Cold War the United Nations Organization has
been trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to bridge
the gap between those who associate terrorism with any violent act by
non-state groups against civilians, state functionaries or infrastructure or
military installations, and those who believe in the concept of the legitimate
use of force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned.

The dilemma facing the international community can best be

illustrated by reference to the contradicting categorization of organizations
and movements such as Palestine Liberation Organization (PLO) which is a
terrorist group for Israel and a liberation movement for Arabs and Muslims
the Kashmiri resistance groups who are terrorists in the perception of India,
liberation fighters in that of Pakistan the earlier Contras in Nicaragua
freedom fighters for the United States, terrorists for the Socialist camp or,
most drastically, the Afghani Mujahedeen (later to become the Taliban
movement): during the Cold War period they were a group of freedom fighters
for the West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way because of opposing
political interests that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting

perceptions and evaluations of one and the same group and its actions be
explained? In our analysis, the basic reason for these striking inconsistencies
lies in the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an
occupying power in a given territory, the definition of terrorism will
fluctuate accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will therefore speak of
a liberation struggle, not of terrorism when acts of violence by this
group are concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision

on the definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular
armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-
freedom fighter dichotomy. A policy of double standards on this vital issue
of international affairs has been the unavoidable consequence.

This definitional predicament of an organization consisting of

sovereign states and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! has become even more serious in
the present global power constellation: one superpower exercises the decisive
role in the Security Council, former great powers of the Cold War era as well as
medium powers are increasingly being marginalized; and the problem has
 become even more acute since the terrorist attacks of 11 September 2001 I
the United States.[141]

The absence of a law defining acts of terrorism may result in abuse and
oppression on the part of the police or military. An illustration is when a group of persons
are merely engaged in a drinking spree. Yet the military or the police may consider the act
as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this
is abuse and oppression on their part. It must be remembered that an act can only be
considered a crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.

So far, the word terrorism appears only once in our criminal laws, i.e., in P.D. No.
1835 dated January 16, 1981 enacted by President Marcos during the Martial Law
regime. This decree is entitled Codifying The Various Laws on Anti-Subversion and
Increasing The Penalties for Membership in Subversive Organizations. The word
terrorism is mentioned in the following provision: That one who conspires with any
other person for the purpose of overthrowing the Government of the Philippines x x x by
force, violence, terrorism, x x x shall be punished by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define acts of terrorism. Since there is no law defining acts of
terrorism, it is President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is absolute, without
restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking
into offices and residences, taking over the media enterprises, prohibition and dispersal of
all assemblies and gatherings unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus, this
Court declares that the acts of terrorism portion of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to

commit acts beyond what are necessary and appropriate to suppress and prevent
lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such
acts are considered illegal.
We first examine G.R. No. 171396 (David et al.
The Constitution provides that the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever nature and
for any purpose shall beinviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.[142] The plain import of the language of the Constitution is that searches, seizures
and arrests are normally unreasonable unless authorized by a validly issued search warrant
or warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate clothed with
power to issue or refuse to issue search warrants or warrants of arrest. [143]

In the Brief Account[144] submitted by petitioner David, certain facts are

established: first, he was arrested without warrant; second, the PNP operatives arrested him
on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he
was fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated
brusquely by policemen who held his head and tried to push him inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880[145] and Inciting to Sedition; sixth, he was detained for seven (7) hours;
and seventh, he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer
or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner

Davids warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective Oust Gloria
Now and their erroneous assumption that petitioner David was the leader of the rally.
[146]
Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt
and even if he was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the charge
of violation of BP 880 as it was not even known whether petitioner David was the leader
of the rally.[147]

But what made it doubly worse for petitioners David et al. is that not only was their
right against warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression,

or of the press, or the right of the people peaceably to assemble and petition
the government for redress of grievances.
Assembly means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our republican
institution and complements the right of speech. As in the case of freedom of expression,
this right is not to be limited, much less denied, except on a showing of a clear and
present danger of a substantive evil that Congress has a right to prevent. In other words,
like other rights embraced in the freedom of expression, the right to assemble is not subject
to previous restraint or censorship. It may not be conditioned upon the prior issuance of a
permit or authorization from the government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime, neither
was there a showing of a clear and present danger that warranted the limitation of that
right. As can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even the Solicitor General,
during the oral argument, failed to justify the arresting officers conduct. In De Jonge v.
Oregon,[148] it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime.
The holding of meetings for peaceable political action cannot be proscribed.
 Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices under which the
meeting was held but as to its purpose; not as to the relations of the speakers,
but whether their utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling have committed
crimes elsewhere, if they have formed or are engaged in a conspiracy against
the public peace and order, they may be prosecuted for their conspiracy or
other violations of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public discussion
as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacaangs directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale cancellation of
all permits to rally is a blatant disregard of the principle that freedom of assembly is not
to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that the State has a right to prevent.[149] Tolerance is
the rule and limitation is the exception. Only upon a showing that an assembly presents a
clear and present danger that the State may deny the citizens right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged
with the local government units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard on the revocation of their
permits.[150] The first time they learned of it was at the time of the dispersal. Such absence
of notice is a fatal defect. When a persons right is restricted by government action, it
behooves a democratic government to see to it that the restriction is fair, reasonable, and
according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of

speech i.e., the freedom of the press. Petitioners narration of facts, which the Solicitor
General failed to refute, established the following: first, the Daily Tribunes offices were
searched without warrant; second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o clock in the morning of
February 25, 2006; fourth, the search was conducted in the absence of any official of
the Daily Tribune except the security guard of the building; and fifth, policemen stationed
themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of

Staff Michael Defensor was quoted as saying that such raid was meant to show a
strong presence, to tell media outlets not to connive or do anything that would
help the rebels in bringing down this government. Director General Lomibao
further stated that if they do not follow the standards and the standards are if
they would contribute to instability in the government, or if they do not subscribe
to what is in General Order No. 5 and Proc. No. 1017 we will recommend
a takeover. National Telecommunications Commissioner Ronald Solis urged television
and radio networks to cooperate with the government for the duration of the state of
national emergency. He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for media coverage
during times when the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down
the steps in the conduct of search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates that the search of a
house, room, or any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in
the daytime, unless the property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any time of the day or night. All
these rules were violated by the CIDG operatives.

Not only that, the search violated petitioners freedom of the press. The best gauge
of a free and democratic society rests in the degree of freedom enjoyed by its media. In
the Burgos v. Chief of Staff[152] this Court held that --
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum newspapers.
As a consequence of the search and seizure, these premises were
padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or

censorship abhorrent to the freedom of the press guaranteed under
the fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment
and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the
Metropolitan Mail and We Forum newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded their enforcement duties. The search and seizure
of materials for publication, the stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government who tells the citizen
that he may speak only if allowed to do so, and no more and no less than what he is
permitted to say on pain of punishment should he be so rash as to disobey.
[153]
Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because
of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a
constitutional right even if it involves the most defiant of our citizens. Freedom to comment
on public affairs is essential to the vitality of a representative democracy. It is the duty of
the courts to be watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon. The motto should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the Tribunes offices and the seizure of its materials for publication and other
papers are illegal; and that the same are inadmissible for any purpose, thus:

JUSTICE CALLEJO:
 You made quite a mouthful of admission when you said
that the policemen, when inspected the Tribune for the
purpose of gathering evidence and you admitted that
the policemen were able to get the clippings. Is that not
in admission of the admissibility of these clippings that
were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were

illegally seized, I think and I know, Your Honor, and these
are inadmissible for any purpose.[155]

xxx xxx xxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the

Daily Tribune; all you have to do is to get those past
issues. So why do you have to go there at 1 oclock in
the morning and without any search warrant? Did they
become suddenly part of the evidence of rebellion or
inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not
upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it

is not based on any law, and it is not based on
Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor,

because there is nothing in 1017 which says that the
police could go and inspect and gather clippings from
Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

 SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I

dont know if it is premature to say this, we do not
condone this. If the people who have been injured
by this would want to sue them, they can sue and
there are remedies for this.[156]

Likewise, the warrantless arrests and seizures executed by the police were, according
to the Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction

in your theory.

SOLICITOR GENERAL BENIPAYO:

I dont know whether this will clarify. The acts, the

supposed illegal or unlawful acts committed on the occasion of
1017, as I said, it cannot be condoned. You cannot blame the
President for, as you said, a misapplication of the law. These
are acts of the police officers, that is their responsibility. [157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and should result in no constitutional or statutory breaches if applied according to
their letter.

The Court has passed upon the constitutionality of these issuances. Its ratiocination
has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited
to the calling out by the President of the military to prevent or suppress lawless violence,
invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the citizens rights under the
Constitution, this Court has to declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganibans concurring opinion,

attached hereto, is considered an integral part of this ponencia.
SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event
would have normally rendered this case moot and academic. However, while PP 1017 was
still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is
no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed if
the May 1 rallies become unruly and violent. Consequently, the transcendental issues
raised by the parties should not be evaded; they must now be resolved to prevent future
constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article VII of the Constitution and the relevant
jurisprudence discussed earlier. However, PP 1017s extraneous provisions giving the
President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce
obedience to all laws even those not related to lawless violence as well as decrees
promulgated by the President; and (3) to impose standards on media or any form of prior
restraint on the press, are ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the absence of a legislation,
cannot take over privately-owned public utility and private business affected with public
interest

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President acting as Commander-in-Chief addressed to subalterns in the AFP to carry out
the provisions of PP 1017. Significantly, it also provides a valid standard that the military
and the police should take only the necessary and appropriate actions and measures
to suppress and prevent acts of lawless violence. But the words acts of
terrorism found in G.O. No. 5 have not been legally defined and made punishable by
Congress and should thus be deemed deleted from the said G.O. While terrorism has
been denounced generally in media, no law has been enacted to guide the military, and
eventually the courts, to determine the limits of the AFPs authority in carrying out this
portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2)
the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3)
the imposition of standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal
or administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this
Court. Elementary due process bars this Court from making any specific pronouncement of
civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and

substantive civil rights are ends in themselves. How to give the military the
power it needs to protect the Republic without unnecessarily trampling individual
rights is one of the eternal balancing tasks of a democratic state. During
emergency, governmental action may vary in breadth and intensity from normal times, yet
they should not be arbitrary as to unduly restrain our peoples liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the
various competing political philosophies is that, it is possible to grant government the
authority to cope with crises without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary power, and political
responsibility of the government to the governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on
the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declaredUNCONSTITUTIONAL. In addition, the
provision in PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to
take over privately-owned public utility or business affected with public interest without prior
legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is necessary and appropriate actions
and measures to suppress and prevent acts of lawless violence. Considering that
acts of terrorism have not yet been defined and made punishable by the Legislature,
such portion of G.O. No. 5 is declaredUNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence
of proof that these petitioners were committing acts constituting lawless violence, invasion
or rebellion and violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune offices and whimsical
seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(On leave)
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Associate Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES

Associate Justice ROMEO J. CALLEJO, SR.
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
MINITA V. CHICO-NAZARIO Associate Justice
Associate Justice

CANCIO C. GARCIA
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA,
GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO
REYES,respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the
Marines) to join the Philippine National Police (the PNP) in visibility patrols around the
metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive, ordered the PNP
and the Marines to conduct joint visibility patrols for the purpose of crime prevention and
suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior and Local
Government were tasked to execute and implement the said order. In compliance with the
presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay,
formulated Letter of Instruction 02/2000 [1] (the LOI) which detailed the manner by which the
joint visibility patrols, called Task Force Tulungan, would be conducted.[2] Task
Force Tulungan was placed under the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the
Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP
and the PNP Chief.[3] In the Memorandum, the President expressed his desire to improve the
peace and order situation in Metro Manila through a more effective crime prevention
program including increased police patrols. [4] The President further stated that to heighten
police visibility in the metropolis, augmentation from the AFP is necessary. [5] Invoking his
powers as Commander-in-Chief under Section 18, Article VII of the Constitution, the
President directed the AFP Chief of Staff and PNP Chief to coordinate with each other for the
proper deployment and utilization of the Marines to assist the PNP in preventing or
suppressing criminal or lawless violence.[6] Finally, the President declared that the services of
the Marines in the anti-crime campaign are merely temporary in nature and for a reasonable
period only, until such time when the situation shall have improved. [7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:
 xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine
Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of
crime prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but
also by organized syndicates whose members include active and former police/military
personnel whose training, skill, discipline and firepower prove well-above the present
capability of the local police alone to handle. The deployment of a joint PNP NCRPO-
Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the
incidence of crimes specially those perpetrated by active or former police/military
personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility
patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to
minimize or eradicate all forms of high-profile crimes especially those perpetrated by
organized crime syndicates whose members include those that are well-trained, disciplined
and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional
Police Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve
the internal security of the state against insurgents and other serious threat to national
security, although the primary responsibility over Internal Security Operations still rests
upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile
crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept
requires the military and police to work cohesively and unify efforts to ensure a focused,
effective and holistic approach in addressing crime prevention. Along this line, the role of
the military and police aside from neutralizing crime syndicates is to bring a wholesome
atmosphere wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are
responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force
TULUNGAN shall be organized to provide the mechanism, structure, and procedures for the
integrated planning, coordinating, monitoring and assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM
City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center,
LRT/MRT Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null
and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE
CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY
REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A
CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE
XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO
PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS
UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE
UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden
duty to uphold the rule of law and the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President
in deploying the Marines, contending, among others, that petitioner has no legal
standing; that the question of deployment of the Marines is not proper for judicial scrutiny
since the same involves a political question; that the organization and conduct of police
visibility patrols, which feature the team-up of one police officer and one Philippine Marine
soldier, does not violate the civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the Presidents factual determination of the necessity of calling
the armed forces is subject to judicial review; and, (3) Whether or not the calling of the
armed forces to assist the PNP in joint visibility patrols violates the constitutional provisions
on civilian supremacy over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of
standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a violation
of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to
wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and substantial interest of the
party raising the constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial interest in
the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. [13] The term interest means a material interest,
an interest in issue affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest.[14] The gist of the question of standing is
whether a party alleges such personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. [15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP
asserts no other basis in support of itslocus standi. The mere invocation by the IBP of its
duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient
to clothe it with standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. Based on the standards above-stated, the IBP has failed to
present a specific and substantial interest in the resolution of the case. Its fundamental
purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards
of the law profession and to improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted that the interest of the
National President of the IBP who signed the petition, is his alone, absent a formal board
resolution authorizing him to file the present action. To be sure, members of the BAR, those
in the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming
that it has duly authorized the National President to file the petition, has not shown any
specific injury which it has suffered or may suffer by virtue of the questioned governmental
act. Indeed, none of its members, whom the IBP purportedly represents, has sustained any
form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged
that any of its members has been arrested or that their civil liberties have been violated by
the deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic institutions
and may cause more harm than good in the long run. Not only is the presumed injury not
personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the
requirement of standing. Since petitioner has not successfully established a direct and
personal injury as a consequence of the questioned act, it does not possess the personality
to assail the validity of the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to raise constitutional issues now
or in the future. The IBP must, by way of allegations and proof, satisfy this Court that it has
sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to
take cognizance of a suit which does not satisfy the requirement of legal standing when
paramount interest is involved.[16] In not a few cases, the Court has adopted a liberal attitude
on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people.[17] Thus, when the issues raised are of paramount
importance to the public, the Court may brush aside technicalities of procedure. [18] In this
case, a reading of the petition shows that the IBP has advanced constitutional issues which
deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are under constant threat and lawless
violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency
problem, the legal controversy raised in the petition almost certainly will not go away. It will
stare us in the face again. It, therefore, behooves the Court to relax the rules on standing
and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid the
PNP in visibility patrols. In this regard, the IBP admits that the deployment of the military
personnel falls under the Commander-in-Chief powers of the President as stated in Section
18, Article VII of the Constitution, specifically, the power to call out the armed forces to
prevent or suppress lawless violence, invasion or rebellion. What the IBP questions, however,
is the basis for the calling of the Marines under the aforestated provision. According to the
IBP, no emergency exists that would justify the need for the calling of the military to assist
the police force. It contends that no lawless violence, invasion or rebellion exist to warrant
the calling of the Marines. Thus, the IBP prays that this Court review the sufficiency of the
factual basis for said troop [Marine] deployment. [19]
The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review powers of
this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and
limits, and the extent of judicial review. But, while this Court gives considerable weight to
the parties formulation of the issues, the resolution of the controversy may warrant a
creative approach that goes beyond the narrow confines of the issues raised. Thus, while the
parties are in agreement that the power exercised by the President is the power to call out
the armed forces, the Court is of the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare. [20] For one, the
realities on the ground do not show that there exist a state of warfare, widespread civil
unrest or anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a
point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes
in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as protector of the
peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is
not limited merely to exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence. The President is not
only clothed with extraordinary powers in times of emergency, but is also tasked with
attending to the day-to-day problems of maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished
by the relative want of an emergency specified in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration of powers that follow cannot be
said to exclude the Presidents exercising as Commander-in-Chief powers short of the calling
of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring
martial law, in order to keep the peace, and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to
call out the armed forces to prevent or suppress lawless violence, invasion or rebellion, the
resolution of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.[22] It pertains to issues which are inherently susceptible of being
decided on grounds recognized by law. Nevertheless, the Court does not automatically
assume jurisdiction over actual constitutional cases brought before it even in instances that
are ripe for resolution. One class of cases wherein the Court hesitates to rule on are political
questions. The reason is that political questions are concerned with issues dependent upon
the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the
political question being a function of the separation of powers, the courts will not normally
interfere with the workings of another co-equal branch unless the case shows a clear need
for the courts to step in to uphold the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive branch
of government. Thus, if an issue is clearly identified by the text of the Constitution as
matters for discretionary action by a particular branch of government or to the people
themselves then it is held to be a political question. In the classic formulation of Justice
Brennan in Baker v. Carr,[24] [p]rominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the impossibility of a courts
undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarassment from multifarious
pronouncements by various departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he
Judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
[25]
Under this definition, the Court cannot agree with the Solicitor General that the issue
involved is a political question beyond the jurisdiction of this Court to review. When the grant
of power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected, is
justiciable - the problem being one of legality or validity, not its wisdom. [26] Moreover, the
jurisdiction to delimit constitutional boundaries has been given to this Court. [27] When
political questions are involved, the Constitution limits the determination as to whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the official whose action is being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.
[29]
Under this definition, a court is without power to directly decide matters over which full
discretionary authority has been delegated. But while this Court has no power to substitute
its judgment for that of Congress or of the President, it may look into the question of
whether such exercise has been made in grave abuse of discretion. [30] A showing that
plenary power is granted either department of government, may not be an obstacle to
judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable
controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or substitute
its own. However, this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of the constitutional intent to give the
President full discretionary power to determine the necessity of calling out the armed forces,
it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of
factual basis. The present petition fails to discharge such heavy burden as there is no
evidence to support the assertion that there exist no justification for calling out the armed
forces. There is, likewise, no evidence to support the proposition that grave abuse was
committed because the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military. In the performance of this
Courts duty of purposeful hesitation[32] before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court
interfere with the Presidents judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for the
exercise of such power. Section 18, Article VII of the Constitution, which embodies the
powers of the President as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion.In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus, or place the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of Section
18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall
be judicially charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension
and the Court may review the sufficiency of the factual basis thereof. However, there is no
such equivalent provision dealing with the revocation or review of the Presidents action to
call out the armed forces. The distinction places the calling out power in a different category
from the power to declare martial law and the power to suspend the privilege of the writ
of habeas corpus, otherwise, the framers of the Constitution would have simply lumped
together the three powers and provided for their revocation and review without any
qualification. Expressio unius est exclusio alterius. Where the terms are expressly limited to
certain matters, it may not, by interpretation or construction, be extended to other matters.
[33]
That the intent of the Constitution is exactly what its letter says, i.e., that the power to
call is fully discretionary to the President, is extant in the deliberation of the Constitutional
Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of
the President as Commander-in-Chief. First, he can call out such Armed Forces as may be
necessary to suppress lawless violence; then he can suspend the privilege of the writ
of habeas corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the
writ of habeas corpus, his judgment is subject to review. We are making it subject to review
by the Supreme Court and subject to concurrence by the National Assembly. But when he
exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is
my opinion that his judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be
handled by the first sentence: The President may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling
imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter
can be handled by the First Sentence: The President....may call out such Armed Forces to
prevent or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient
for handling imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of
the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
power to call out because it is considered as the lesser and more benign power compared to
the power to suspend the privilege of the writ of habeas corpus and the power to impose
martial law, both of which involve the curtailment and suppression of certain basic civil
rights and individual freedoms, and thus necessitating safeguards by Congress and review
by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power
to suspend the privilege of the writ of habeas corpus or to impose martial law, two
conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public
safety must require it. These conditions are not required in the case of the power to call out
the armed forces. The only criterion is that whenever it becomes necessary, the President
may call the armed forces to prevent or suppress lawless violence, invasion or rebellion."
The implication is that the President is given full discretion and wide latitude in the exercise
of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent investigation beyond
the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable
and cannot be objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the courts. Certain
pertinent information might be difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that there is a need to call
out the armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network
to gather information, some of which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and mass
destruction of property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any effect at all. Such
a scenario is not farfetched when we consider the present situation in Mindanao, where the
insurgency problem could spill over the other parts of the country. The determination of the
necessity for the calling out power if subjected to unfettered judicial scrutiny could be a
veritable prescription for disaster, as such power may be unduly straitjacketed by an
injunction or a temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his
judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion
or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely
abused, the Presidents exercise of judgment deserves to be accorded respect from this
Court.
The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the recent
bombings perpetrated by lawless elements in the shopping malls, public utilities, and other
public places. These are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President has sufficient factual basis to
call for military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor
does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of
the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law
enforcement is militarized in violation of Section 3, Article II[36] of the Constitution.
 We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of
military assets for civilian law enforcement. The participation of the Marines in the conduct
of joint visibility patrols is appropriately circumscribed. The limited participation of the
Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes
and bounds of the Marines authority. It is noteworthy that the local police forces are the ones
in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact,
the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility
patrols.[37] Under the LOI, the police forces are tasked to brief or orient the soldiers on police
patrol procedures.[38] It is their responsibility to direct and manage the deployment of the
Marines.[39] It is, likewise, their duty to provide the necessary equipment to the Marines and
render logistical support to these soldiers.[40] In view of the foregoing, it cannot be properly
argued that military authority is supreme over civilian authority. Moreover, the deployment
of the Marines to assist the PNP does not unmake the civilian character of the police
force. Neither does it amount to an insidious incursion of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of the Constitution. [41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the
AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed to
a civilian post in derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP, and
not with the military. Such being the case, it does not matter whether the AFP Chief actually
participates in the Task Force Tulungan since he does not exercise any authority or control
over the same. Since none of the Marines was incorporated or enlisted as members of the
PNP, there can be no appointment to civilian position to speak of. Hence, the deployment of
the Marines in the joint visibility patrols does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no insidious incursion of the
military in civilian affairs nor can there be a violation of the civilian supremacy clause in the
Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the implementation and execution of
certain traditionally civil functions. As correctly pointed out by the Solicitor General, some of
the multifarious activities wherein military aid has been rendered, exemplifying the activities
that bring both the civilian and the military together in a relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters; [44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities; [50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students; [52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices; [57]
17. Peace and order policy formulation in local government units. [58]
This unquestionably constitutes a gloss on executive power resulting from a systematic,
unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never
before questioned.[59] What we have here is mutual support and cooperation between the
military and civilian authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of
military force for domestic purposes has persisted, [60] and whose Constitution, unlike ours,
does not expressly provide for the power to call, the use of military personnel by civilian law
enforcement officers is allowed under circumstances similar to those surrounding the
present deployment of the Philippine Marines. Under the Posse ComitatusAct[61] of the US,
the use of the military in civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution
or Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or
otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more
than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded
Knee in such a manner that the military personnel subjected the citizens to the exercise of
military power which was regulatory, proscriptive, or compulsory[64] George Washington Law
Review, pp. 404-433 (1986), which discusses the four divergent standards for assessing
acceptable involvement of military personnel in civil law enforcement. See likewise
HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH
MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or
prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean
that military involvement, even when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or
compels some conduct on the part of those claiming relief. A mere threat of some future
injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement, the
conclusion is inevitable that no violation of the civilian supremacy clause in the Constitution
is committed. On this point, the Court agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory,
proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A.These soldiers,
second, also have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all
arrested persons are brought to the nearest police stations for proper disposition. And
last, these soldiers apply no coercive force. The materials or equipment issued to them,
as shown in No. 8(c)[70] of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or compulsory
military power, the deployment of a handful of Philippine Marines constitutes no
impermissible use of military power for civilian law enforcement. [71]
It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed forces
is just that - calling out the armed forces. Unless, petitioner IBP can show, which it has not,
that in the deployment of the Marines, the President has violated the fundamental law,
exceeded his authority or jeopardized the civil liberties of the people, this Court is not
inclined to overrule the Presidents determination of the factual basis for the calling of the
Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a
single citizen has complained that his political or civil rights have been violated as a result of
the deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil
liberties of the people that the joint visibility patrol was conceived. Freedom and democracy
will be in full bloom only when people feel secure in their homes and in the streets, not when
the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
SEPARATE OPINION
PUNO, J.:
If the case at bar is significant, it is because of the government attempt to foist
the political question doctrine to shield an executive act done in the exercise of the
commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would
have diminished the power of judicial review and weakened the checking
authority of this Court over the Chief Executive when he exercises his
commander-in-chief powers.The attempt should remind us of the tragedy that
befell the country when this Court sought refuge in the political question doctrine
and forfeited its most important role as protector of the civil and political rights
of our people. The ongoing conflict in Mindanao may worsen and can force the
Chief Executive to resort to the use of his greater commander-in-chief powers,
hence, this Court should be extra cautious in assaying similar attempts. A laid
back posture may not sit well with our people considering that the 1987
Constitution strengthened the checking powers of this Court and expanded its
jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction
xxx on the part of any branch or instrumentality of the Government. 1
The importance of the issue at bar includes this humble separate opinion. We can best
perceive the different intersecting dimensions of the political question doctrine by viewing
them from the broader canvass of history. Political questions are defined as those questions
which under the Constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the legislative or
executive branch of government.2 They have two aspects: (1) those matters that are to be
exercised by the people in their primary political capacity and (2) matters which have been
specifically delegated to some other department or particular office of the government, with
discretionary power to act.3 The exercise of the discretionary power of the legislative or
executive branch of government was often the area where the Court had to wrestle with the
political question doctrine.4
A brief review of some of our case law will thus give us a sharper perspective of the
political question doctrine. This question confronted the Court as early as 1905 in the case
of Barcelon v. Baker.5 The Governor-General of the Philippine Islands, pursuant to a
resolution of the Philippine Commission, suspended the privilege of the writ of habeas
corpus in Cavite and Batangas based on a finding of open insurrection in said
provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed a
petition for the issuance of a writ of habeas corpus alleging that there was no open
insurrection in Batangas. The issue to resolve was whether or not the judicial department
may investigate the facts upon which the legislative (the Philippine Commission) and
executive (the Governor-General) branches of government acted in suspending the privilege
of the writ.
The Court ruled that under our form of government, one department has no authority to
inquire into the acts of another, which acts are performed within the discretion of the other
department.6 Surveying American law and jurisprudence, it held that whenever a statute
gives discretionary power to any person, to be exercised by him upon his own opinion of
certain facts, the statute constitutes him the sole judge of the existence of those
facts.7 Since the Philippine Bill of 1902 empowered the Philippine Commission and the
Governor-General to suspend the privilege of the writ of habeas corpus, this power
is exclusively within the discretion of the legislative and executive branches of
government. The exercise of this discretion is conclusive upon the courts. 8
The Court further held that once a determination is made by the executive and
legislative departments that the conditions justifying the assailed acts exists, it will presume
that the conditions continue until the same authority decide that they no longer exist. 9 It
adopted the rationale that the executive branch, thru its civil and military branches,
are better situated to obtain information about peace and order from every corner of the
nation, in contrast with the judicial department, with its very limited machinery. 10 The seed
of the political question doctrine was thus planted in Philippine soil.
The doctrine barring judicial review because of the political question doctrine
was next applied to the internal affairs of the legislature. The Court refused to
interfere in the legislative exercise of disciplinary power over its own members. In the 1924
case of Alejandrino v. Quezon,11 Alejandrino, who was appointed Senator by the Governor-
General, was declared by Senate Resolution as guilty of disorderly conduct for assaulting
another Senator in the course of a debate, and was suspended from office for one
year. Senator Alejandrino filed a petition for mandamus and injunction to compel the Senate
to reinstate him. The Court held that under the Jones Law, the power of the Senate to punish
its members for disorderly behavior does not authorize it to suspend an appointive member
from the exercise of his office. While the Court found that the suspension was illegal, it
refused to issue the writ of mandamus on the ground that "the Supreme Court does not
possess the power of coercion to make the Philippine Senate take any particular
action. [T]he Philippine Legislature or any branch thereof cannot be directly controlled in the
exercise of their legislative powers by any judicial process." 12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino,13 three senators-elect who had been prevented from taking their oaths of office by
a Senate resolution repaired to this Court to compel their colleagues to allow them to occupy
their seats contending that only the Electoral Tribunal had jurisdiction over contests relating
to their election, returns and qualifications. Again, the Court refused to intervene
citing Alejandrino and affirmed the inherent right of the legislature to determine who shall
be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight
representatives who were proclaimed elected by Comelec were not allowed by Congress to
take part in the voting for the passage of the Parity amendment to the Constitution. If their
votes had been counted, the affirmative votes in favor of the proposed amendment would
have been short of the necessary three-fourths vote in either House of Congress to pass the
amendment. The amendment was eventually submitted to the people for ratification. The
Court declined to intervene and held that a proposal to amend the Constitution is a highly
political function performed by Congress in its sovereign legislative capacity. 15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the
legality of his detention ordered by the Senate for his refusal to answer questions put to him
by members of one of its investigating committees. This Court refused to order his release
holding that the process by which a contumacious witness is dealt with by the legislature is
a necessary concomitant of the legislative process and the legislature's exercise of its
discretionary authority is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line.
Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for serious
disorderly behavior for making a privilege speech imputing "malicious charges" against the
President of the Philippines. Osmena, Jr. invoked the power of review of this Court but the
Court once more did not interfere with Congress' power to discipline its members.
The contours of the political question doctrine have always been tricky. To be sure, the
Court did not always stay its hand whenever the doctrine is invoked. In the 1949 case
of Avelino v. Cuenco,18 Senate President Jose Avelino, who was deposed and replaced,
questioned his successor's title claiming that the latter had been elected without a quorum.
The petition was initially dismissed on the ground that the selection of Senate President was
an internal matter and not subject to judicial review. 19 On reconsideration, however, the
Court ruled that it could assume jurisdiction over the controversy in light of subsequent
events justifying intervention among which was the existence of a quorum. 20 Though the
petition was ultimately dismissed, the Court declared respondent Cuenco as the legally
elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute
involving the formation and composition of the Senate Electoral Tribunal. It rejected the
Solicitor General's claim that the dispute involved a political question. Instead, it declared
that the Senate is not clothed with "full discretionary authority" in the choice of members of
the Senate Electoral Tribunal and the exercise of its power thereon is subject to
constitutional limitations which are mandatory in nature. 22 It held that under the
Constitution, the membership of the Senate Electoral Tribunal was designed to insure the
exercise of judicial impartiality in the disposition of election contests affecting members of
the lawmaking body.23 The Court then nullified the election to the Senate Electoral Tribunal
made by Senators belonging to the party having the largest number of votes of two of their
party members but purporting to act on behalf of the party having the second highest
number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether
Congress had formed the Commission on Appointments in accordance with the Constitution
and found that it did not. It declared that the Commission on Appointments is a creature of
the Constitution and its power does not come from Congress but from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress,
acting as a constituent assembly in proposing amendments to the Constitution violates the
Constitution was held to be a justiciable and not a political issue. In Gonzales, the Court
ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted
thereto as a political one, declined to pass upon the question whether or not a given number
of votes cast in Congress in favor of a proposed amendment to the Constitution-which was
being submitted to the people for ratification-satisfied the three-fourths vote requirement of
the fundamental law. The force of this precedent has been weakened, however, by Suanes v.
Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v.
Commission on Elections. In the first, we held that the officers and employees of the Senate
Electoral Tribunal are under its supervision and control, not of that of the Senate President,
as claimed by the latter; in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third, we nullified the election, by
Senators belonging to the party having the largest number of votes in said chamber,
purporting to act on behalf of the party having the second largest number of votes therein,
of two (2) Senators belonging to the first party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress
purporting to apportion the representative districts for the House of Representatives upon
the ground that the apportionment had not been made as may be possible according to the
number of inhabitants of each province. Thus, we rejected the theory, advanced in these
four cases, that the issues therein raised were political questions the determination of which
is beyond judicial review.27
The Court explained that the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative powers to Congress.
As a constituent assembly, the members of Congress derive their authority from the
fundamental law and they do not have the final say on whether their acts are within or
beyond constitutional limits.28 This ruling was reiterated in Tolentino which held that acts of
a constitutional convention called for the purpose of proposing amendments to the
Constitution are at par with acts of Congress acting as a constituent assembly. 29
 In sum, this Court brushed aside the political question doctrine and assumed
jurisdiction whenever it found constitutionally-imposed limits on the exercise of
powers conferred upon the Legislature. 30
The Court hewed to the same line as regards the exercise of Executive
power. Thus, the respect accorded executive discretion was observed in Severino v.
Governor-General,31 where it was held that the Governor-General, as head of the executive
department, could not be compelled by mandamus to call a special election in the town of
Silay for the purpose of electing a municipal president. Mandamus and injunction could not
lie to enforce or restrain a duty which is discretionary. It was held that when the Legislature
conferred upon the Governor-General powers and duties, it did so for the reason that he was
in a better position to know the needs of the country than any other member of the
executive department, and with full confidence that he will perform such duties as his best
judgment dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be
compelled by mandamus to produce certain vouchers showing the various expenditures of
the Independence Commission. Under the principle of separation of powers, it ruled that it
was not intended by the Constitution that one branch of government could encroach upon
the field of duty of the other. Each department has an exclusive field within which it can
perform its part within certain discretionary limits. 34 It observed that "the executive and
legislative departments of government are frequently called upon to deal with what are
known as political questions, with which the judicial department of government has no
intervention. In all such questions, the courts uniformly refused to intervene for the purpose
of directing or controlling the actions of the other department; such questions being many
times reserved to those departments in the organic law of the state." 35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the
Chief Executive from deporting an obnoxious alien whose continued presence in the
Philippines was found by him to be injurious to the public interest. It noted that sudden and
unexpected conditions may arise, growing out of the presence of untrustworthy aliens,
which demand immediate action. The President's inherent power to deport undesirable
aliens is universally denominated as political, and this power continues to exist for the
preservation of the peace and domestic tranquility of the nation. 37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of the
President's appointing power. It held that the appointing power is the exclusive prerogative
of the President, upon which no limitations may be imposed by Congress, except those
resulting from the need of securing concurrence of the Commission on Appointments and
from the exercise of the limited legislative power to prescribe qualifications to a given
appointive office.
We now come to the exercise by the President of his powers as Commander-
in-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that as
Commander-in-Chief of the Armed Forces, the President has the power to determine whether
war, in the legal sense, still continues or has terminated. It ruled that it is within the province
of the political department and not of the judicial department of government to determine
when war is at end.39
In 1952, the Court decided the landmark case of Montenegro v.
Castaneda.40 President Quirino suspended the privilege of the writ of habeas corpus for
persons detained or to be detained for crimes of sedition, insurrection or rebellion. The
Court, citing Barcelon, declared that the authority to decide whether the exigency has
arisen requiring the suspension of the privilege belongs to the President and his decision
is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v.
Garcia came.42 Lansang reversed the previous cases and held that the suspension of the
privilege of the writ of habeas corpus was not a political question. According to the Court,
the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin v. Mott,
which involved the U.S. President's power to call out the militia which is a much broader
power than suspension of the privilege of the writ; and (2) the privilege was suspended by
the American Governor-General whose act, as representative of the sovereign affecting the
freedom of its subjects, could not be equated with that of the President of the Philippines
dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of
habeas corpus is neither absolute nor unqualified because the Constitution sets
limits on the exercise of executive discretion on the matter. These limits are: (1) that
the privilege must not be suspended except only in cases of invasion, insurrection or
rebellion or imminent danger thereof; and (2) when the public safety requires it, in any of
which events the same may be suspended wherever during such period the necessity for the
suspension shall exist. The extent of the power which may be inquired into by courts is
defined by these limitations.43
On the vital issue of how the Court may inquire into the President's exercise of power,
it ruled that the function of the Court is not to supplant but merely to check the Executive; to
ascertain whether the President has gone beyond the constitutional limits of his jurisdiction,
not to exercise the power vested in him or to determine the wisdom of his act. Judicial
inquiry is confined to the question of whether the President did not act arbitrarily. 44 Using
this yardstick, the Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the
political question defense. The issue divided the Court down the middle. Javellana v.
Executive Secretary45 showed that while a majority of the Court held that the issue of
whether or not the 1973 Constitution had been ratified in accordance with the 1935
Constitution was justiciable, a majority also ruled that the decisive issue of whether the
1973 Constitution had come into force and effect, with or without constitutional ratification,
was a political question.46
The validity of the declaration of martial law by then President Marcos was next litigated
before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial
law. On whether the validity of the imposition of martial law was a political or justiciable
question, the Court was almost evenly divided. One-half embraced the political question
position and the other half subscribed to the justiciable position in Lansang.Those adhering
to the political question doctrine used different methods of approach to it. 48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v.
Enrile.49 The petitioners therein were arrested and detained by the Philippine Constabulary
by virtue of a Presidential Commitment Order (PCO). Petitioners sought the issuance of a writ
of habeas corpus. The Court found that the PCO had the function of validating a person's
detention for any of the offenses covered in Proclamation No. 2045 which continued in force
the suspension of the privilege of the writ of habeas corpus. It held that the issuance of the
PCO by the President was not subject to judicial inquiry. 50 It went further by declaring that
there was a need to re-examine Lansang with a view to reverting to Barcelon and
Montenegro. It observed that in times of war or national emergency, the President must be
given absolute control for the very life of the nation and government is in great peril. The
President, it intoned, is answerable only to his conscience, the people, and God. 51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must
inquire into every phase and aspect of a person's detention from the moment he was taken
into custody up to the moment the court passes upon the merits of the petition. Only after
such a scrutiny can the court satisfy itself that the due process clause of the Constitution
has been met.53
It is now history that the improper reliance by the Court on the political
question doctrine eroded the people's faith in its capacity to check abuses
committed by the then Executive in the exercise of his commander-in-chief
powers, particularly violations against human rights. The refusal of courts to be
pro-active in the exercise of its checking power drove the people to the streets to
resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that
drafted the 1987 Constitution. The first was the need to grant this Court the express power
to review the exercise of the powers as commander-in-chief by the President and deny it of
any discretion to decline its exercise. The second was the need to compel the Court
to be pro-active by expanding its jurisdiction and, thus, reject its laid back stance against
acts constituting grave abuse of discretion on the part of any branch or instrumentality of
government. Then Chief Justice Roberto Concepcion, a member of the Constitutional
Commission, worked for the insertion of the second paragraph of Section 1, Article VIII in the
draft Constitution,54 which reads:
"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government."
The language of the provision clearly gives the Court the power to strike down acts
amounting to grave abuse of discretion of both the legislative and executive branches of
government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our
constitutional history. The provision states:
"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation
or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the
armed forces of the Philippines, may call out the armed forces subject to two
conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress
lawless violence, invasion or rebellion. Undeniably, these conditions lay down
the sine qua requirement for the exercise of the power and the objective sought to
be attained by the exercise of the power. They define the constitutional
parameters of the calling out power. Whether or not there is compliance with
these parameters is a justiciable issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission,
Commissioner Bernas opined that the President's exercise of the "calling out power," unlike
the suspension of the privilege of the writ of habeas corpus and the declaration of martial
law, is not a justiciable issue but a political question and therefore not subject to judicial
review.
It must be borne in mind, however, that while a member's opinion expressed on the
floor of the Constitutional Convention is valuable, it is not necessarily expressive of the
people's intent.55 The proceedings of the Convention are less conclusive on the proper
construction of the fundamental law than are legislative proceedings of the proper
construction of a statute, for in the latter case it is the intent of the legislature the courts
seek, while in the former, courts seek to arrive at the intent of the people through the
discussions and deliberations of their representatives. 56 The conventional wisdom is that the
Constitution does not derive its force from the convention which framed it, but from the
people who ratified it, the intent to be arrived at is that of the people. 57
It is true that the third paragraph of Section 18, Article VII of the 1987
Constitution expressly gives the Court the power to review the sufficiency of the
factual bases used by the President in the suspension of the privilege of the writ
of habeas corpus and the declaration of martial law. It does not follow, however,
that just because the same provision did not grant to this Court the power to
review the exercise of the calling out power by the President, ergo, this Court
cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power
merely means that the Court cannot decline the exercise of its power because of
the political question doctrine as it did in the past. In fine, the express grant
simply stresses the mandatory duty of this Court to check the exercise of the
commander-in-chief powers of the President. It eliminated the discretion of the
Court not to wield its power of review thru the use of the political question
doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to the
power to suspend the privilege of the writ of habeas corpus and the power to declare martial
law. Even then, its exercise cannot be left to the absolute discretion of the Chief Executive as
Commander-in-Chief of the armed forces, as its impact on the rights of our people protected
by the Constitution cannot be downgraded. We cannot hold that acts of the commander-in-
chief cannot be reviewed on the ground that they have lesser impact on the civil and
political rights of our people. The exercise of the calling out power may be "benign" in the
case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring
Opinion in Lansang that it would be dangerous and misleading to push the political question
doctrine too far, is apropos. It will not be complementary to the Court if it handcuffs itself to
helplessness when a grievously injured citizen seeks relief from a palpably unwarranted use
of presidential or military power, especially when the question at issue falls in the penumbra
between the "political" and the "justiciable. "58
We should not water down the ruling that deciding whether a matter has been
committed by the Constitution to another branch of government, or whether the action of
that branch exceeds whatever authority has been committed, is a delicate exercise in
constitutional interpretation, and is a responsibility of the Court as ultimate
interpreter of the fundamental law.59 When private justiciable rights are involved in a
suit, the Court must not refuse to assume jurisdiction even though questions of
extreme political importance are necessarily involved. 60 Every officer under a constitutional
government must act according to law and subject to the controlling power of the people,
acting through the courts, as well as through the executive and legislative. One department
is just as representative of the other, and the judiciary is the department which is charged
with the special duty of determining the limitations which the law places upon all official
action.61 This historic role of the Court is the foundation stone of a government of laws
and not of men.62
I join the Decision in its result.
SEPARATE OPINION
VITUG, J.:
In the equation of judicial power, neither of two extremes - one totalistic and the other
bounded - is acceptable nor ideal. The 1987 Constitution has introduced its definition of the
term "judicial power" to be that which -
x x x includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.1
It is not meant that the Supreme Court must be deemed vested with the awesome power of
overseeing the entire bureaucracy, let alone of institutionalizing judicial absolutism, under
its mandate. But while this Court does not wield unlimited authority to strike down an act of
its two co-equal branches of government, it must not wither under technical guise on its
constitutionally ordained task to intervene, and to nullify if need be, any such act as and
when it is attended by grave abuse of discretion amounting to lack or excess of
jurisdiction. The proscription then against an interposition by the Court into purely political
questions, heretofore known, no longer holds within that context.
Justice Feria, in the case of Avelino vs. Cuenco, 2 has aptly elucidated in his concurring
opinion:
"x x x [I] concur with the majority that this Court has jurisdiction over cases like the present
x x x so as to establish in this country the judicial supremacy, with the Supreme Court as the
final arbiter, to see that no one branch or agency of the government transcends the
Constitution, not only in justiceable but political questions as well." 3
It is here when the Court must have to depart from the broad principle of separation of
powers that disallows an intrusion by it in respect to the purely political decisions of its
independent and coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as being, and
confined to, a capricious and whimsical or despotic exercise of judgment amounting to lack
or excess of jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants
in the duel of views, the act of the President in simply calling on the Armed Forces of
the Philippines, an executive prerogative, to assist the Philippine National Police
in "joint visibility patrols" in the metropolis does not, I believe, constitute grave abuse of
discretion that would now warrant an exercise by the Supreme Court of its extraordinary
power as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.
MENDOZA, J., concurring and dissenting:
I concur in the opinion of the Court insofar as it holds petitioner to be without standing
to question the validity of LOI 02/2000 which mandates the Philippine Marines to conduct
"joint visibility" patrols with the police in Metro Manila. But I dissent insofar as the opinion
dismisses the petition in this case on other grounds. I submit that judgment on the
substantive constitutional issues raised by petitioner must await an actual case involving
real parties with "injuries" to show as a result of the operation of the challenged executive
action. While as an organization for the advancement of the rule of law petitioner has an
interest in upholding the Constitution, its interest is indistinguishable from the interest of the
rest of the citizenry and falls short of that which is necessary to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality of
governmental action requires that (1) the petitioner must have suffered an "injury in fact" of
an actual or imminent nature; (2) there must be a causal connection between the injury and
the conduct complained of; and (3) the injury is likely to be redressed by a favorable action
by this Court.1 The "injury in fact" test requires more than injury to a cognizable interest. It
requires that the party seeking review be himself among those injured. 2
My insistence on compliance with the standing requirement is grounded in the
conviction that only a party injured by the operation of the governmental action challenged
is in the best position to aid the Court in determining the precise nature of the problem
presented. Many a time we have adverted to the power of judicial review as an awesome
power not to be exercised save in the most exigent situation. For, indeed, sound judgment
on momentous constitutional questions is not likely to be reached unless it is the result of a
clash of adversary arguments which only parties with direct and specific interest in the
outcome of the controversy can make. This is true not only when we strike down a law or
official action but also when we uphold it.
In this case, because of the absence of parties with real and substantial interest to
protect, we do not have evidence on the effect of military presence in malls and commercial
centers, i.e., whether such presence is coercive or benign. We do not know whether the
presence of so many marines and policemen scares shoppers, tourists, and peaceful
civilians, or whether it is reassuring to them. To be sure, the deployment of troops to such
places is not like parading them at the Luneta on Independence Day. Neither is it, however,
like calling them out because of actual fighting or the outbreak of violence.
We need to have evidence on these questions because, under the Constitution, the
President's power to call out the armed forces in order to suppress lawless violence, invasion
or rebellion is subject to the limitation that the exercise of this power is required in the
interest of public safety.3
Indeed, whether it is the calling out of the armed forces alone in order to suppress
lawless violence, invasion or rebellion or also the suspension of the privilege of the writ of
habeas corpus or the proclamation of martial law (in case of invasion or rebellion), the
exercise of the President's powers as commander-in-chief, requires proof - not mere
assertion.4 As has been pointed out, "Standing is not `an ingenious academic exercise in the
conceivable' . . . but requires . . . a factual showing of perceptible harm." 5
Because of the absence of such record evidence, we are left to guess or even speculate
on these questions. Thus, at one point, the majority opinion says that what is involved here
is not even the calling out of the armed forces but only the use of marines for law
enforcement. (p. 13) At another point, however, the majority opinion somersaults and says
that because of bombings perpetrated by lawless elements, the deployment of troops in
shopping centers and public utilities is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground that the
calling out of the military does not violate the Constitution, just as we are likely to do so if
we grant the petition and invalidate the executive issuance in question. For indeed, the lack
of a real, earnest and vital controversy can only impoverish the judicial process. That is why,
as Justice Laurel emphasized in the Angara case, "this power of judicial review is limited to
actual cases and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis
mota presented."6
We are told, however, that the issues raised in this case are of "paramount interest" to
the nation. It is precisely because the issues raised are of paramount importance that we
should all the more forego ruling on the constitutional issues raised by petitioner and limit
the dismissal of this petition on the ground of lack of standing of petitioner. A Fabian policy
of leaving well enough alone is a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished by the
majority opinion on the constitutional questions raised, I am constrained to limit my
concurrence to the dismissal of this suit on the ground of lack of standing of petitioner and
the consequent lack of an actual case or controversy.
 EN BANC
[G.R. No. 127685. July 23, 1998]
BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR
VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA,
CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE
NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON
AUDIT, respondents.
DECISION
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople to
prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis
considered as "the most comprehensive of rights and the right most valued by civilized
men."[1] Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" on two important
constitutional grounds, viz: one, it is a usurpation of the power of Congress to legislate, and
two, it impermissibly intrudes on our citizenry's protected zone of privacy. We grant the
petition for the rights sought to be vindicated by the petitioner need stronger barriers
against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and reads
as follows:
"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to
conveniently transact business with basic service and social security providers and other
government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services on social security and reduce, if not totally eradicate,
fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services and social
security providing agencies and other government instrumentalities is required to achieve
such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue
of the powers vested in me by law, do hereby direct the following:
SECTION 1. Establishment of a National Computerized Identification Reference System. A
decentralized Identification Reference System among the key basic services and social
security providers is hereby established.
SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee
(IACC) to draw-up the implementing guidelines and oversee the implementation of the
System is hereby created, chaired by the Executive Secretary, with the following as
members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator, National
Statistics Office Managing Director, National Computer Center.
SEC. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat
to the IACC and as such shall provide administrative and technical support to the IACC.
SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the
NSO shall serve as the common reference number to establish a linkage among concerned
agencies. The IACC Secretariat shall coordinate with the different Social Security and
Services Agencies to establish the standards in the use of Biometrics Technology and in
computer application designs of their respective systems.
SEC. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary,
in coordination with the National Statistics Office, the GSIS and SSS as lead agencies and
other concerned agencies shall undertake a massive tri-media information dissemination
campaign to educate and raise public awareness on the importance and use of the PRN and
the Social Security Identification Reference.
SEC. 6. Funding. The funds necessary for the implementation of the system shall be sourced
from the respective budgets of the concerned agencies.
SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports
to the Office of the President, through the IACC, on the status of implementation of this
undertaking.
SEC. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen
Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS"
A.O. No. 308 was published in four newspapers of general circulation on January 22,
1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition against
respondents, then Executive Secretary Ruben Torres and the heads of the government
agencies, who as members of the Inter-Agency Coordinating Committee, are charged with
the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining
order enjoining its implementation.
Petitioner contends:
"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION
OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF
A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF
CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A
SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION." [2]
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL
REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS
OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE
SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. [3]
We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold issues relating to
the standing to sue of the petitioner and the justiciability of the case at bar. More
specifically, respondents aver that petitioner has no legal interest to uphold and that the
implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed of the requisite
standing to bring suit raising the issue that the issuance of A.O. No. 308 is a usurpation of
legislative power.[4] As taxpayer and member of the Government Service Insurance System
(GSIS), petitioner can also impugn the legality of the misalignment of public funds and the
misuse of GSIS funds to implement A.O. No. 308.[5]
The ripeness for adjudication of the petition at bar is not affected by the fact that the
implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O.
No. 308 as invalid per se and as infirmed on its face. His action is not premature for the rules
yet to be promulgated cannot cure its fatal defects. Moreover, the respondents themselves
have started the implementation of A.O. No. 308 without waiting for the rules. As early as
January 19, 1997, respondent Social Security System (SSS) caused the publication of a
notice to bid for the manufacture of the National Identification (ID) card. [6] Respondent
Executive Secretary Torres has publicly announced that representatives from the GSIS and
the SSS have completed the guidelines for the national identification system. [7] All signals
from the respondents show their unswerving will to implement A.O. No. 308 and we need not
wait for the formality of the rules to pass judgment on its constitutionality. In this light, the
dissenters insistence that we tighten the rule on standing is not a commendable stance as
its result would be to throttle an important constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a
mere administrative order but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308 establishes a system of identification that
is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain
of Congress is understandable. The blurring of the demarcation line between the power of
the Legislature to make laws and the power of the Executive to execute laws will disturb
their delicate balance of power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutinyby this Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative
power is "the authority, under the Constitution, to make laws, and to alter and repeal
them."[8] The Constitution, as the will of the people in their original, sovereign and unlimited
capacity, has vested this power in the Congress of the Philippines. [9] The grant of legislative
power to Congress is broad, general and comprehensive. [10] The legislative body possesses
plenary power for all purposes of civil government. [11] Any power, deemed to be legislative
by usage and tradition, is necessarily possessed by Congress, unless the Constitution has
lodged it elsewhere.[12] In fine, except as limited by the Constitution, either expressly or
impliedly, legislative power embraces all subjects and extends to matters of general concern
or common interest.[13]
While Congress is vested with the power to enact laws, the President executes the
laws.[14] The executive power is vested in the President.[15] It is generally defined as the
power to enforce and administer the laws.[16] It is the power of carrying the laws into
practical operation and enforcing their due observance.[17]
As head of the Executive Department, the President is the Chief Executive. He
represents the government as a whole and sees to it that all laws are enforced by the
officials and employees of his department. [18] He has control over the executive department,
bureaus and offices. This means that he has the authority to assume directly the functions of
the executive department, bureau and office, or interfere with the discretion of its officials.
[19]
Corollary to the power of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public order. Thus, he is
granted administrative power over bureaus and offices under his control to enable him to
discharge his duties effectively.[20]
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. [21] It enables the
President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents.[22] To this end, he can issue administrative orders,
rules and regulations.
 Prescinding from these precepts, we hold that A.O. No. 308 involves a subject
that is not appropriate to be covered by an administrative order. An administrative
order is:
"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular aspects of
governmental operation in pursuance of his duties as administrative head shall be
promulgated in administrative orders."[23]
An administrative order is an ordinance issued by the President which relates to specific
aspects in the administrative operation of government. It must be in harmony with the
law and should be for the sole purpose ofimplementing the law and carrying out
the legislative policy.[24] We reject the argument that A.O. No. 308 implements the
legislative policy of the Administrative Code of 1987. The Code is a general law and
"incorporates in a unified document the major structural, functional and procedural
principles of governance"[25] and "embodies changes in administrative structures and
procedures designed to serve the people." [26] The Code is divided into seven (7) Books: Book
I deals with Sovereignty and General Administration, Book II with the Distribution of Powers
of the three branches of Government, Book III on the Office of the President, Book IVon the
Executive Branch, Book V on the Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative Procedure. These Books contain
provisions on the organization, powers and general administration of the executive,
legislative and judicial branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the organization and
functions of the Constitutional Commissions and other constitutional bodies, the rules on the
national government budget, as well as guidelines for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization, personnel and recruitment,
supervision and discipline, and the effects of the functions performed by administrative
officials on private individuals or parties outside government.[27]
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National Computerized
Identification Reference System. Such a System requires a delicate adjustment of various
contending state policies-- the primacy of national security, the extent of privacy interest
against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of
Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some basic rights of our
citizenry vis-a-vis the State as well as the line that separates the administrative power of the
President to make rules and the legislative power of Congress, it ought to be evident that it
deals with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because it
confers no right, imposes no duty, affords no protection, and creates no office. Under A.O.
No. 308, a citizen cannot transact business with government agencies delivering basic
services to the people without the contemplated identification card. No citizen will refuse to
get this identification card for no one can avoid dealing with government. It is thus clear as
daylight that without the ID, a citizen will have difficulty exercising his rights and enjoying
his privileges. Given this reality, the contention that A.O. No. 308 gives no right and imposes
no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of Congress to make
laws. This is contrary to the established approach defining the traditional limits of
administrative legislation. As well stated by Fisher: "x x x Many regulations however,
bear directly on the public. It is here that administrative legislation must be
restricted in its scope and application. Regulations are not supposed to be a
substitute for the general policy-making that Congress enacts in the form of a
public law. Although administrative regulations are entitled to respect, the
authority to prescribe rules and regulations is not an independent source of
power to make laws."[28]
 III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it
cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to be let
alone."[29] In the 1965 case of Griswold v. Connecticut,[30] the United States Supreme Court
gave more substance to the right of privacy when it ruled that the right has a constitutional
foundation. It held that there is a right of privacy which can be found within the penumbras
of the First, Third, Fourth, Fifth and Ninth Amendments,[31] viz:
"Specific guarantees in the Bill of Rights have penumbras formed by emanations from these
guarantees that help give them life and substance x x x. Various guarantees create zones of
privacy. The right of association contained in the penumbra of the First Amendment is one,
as we have seen. The Third Amendment in its prohibition against the quartering of soldiers
`in any house' in time of peace without the consent of the owner is another facet of that
privacy. The Fourth Amendment explicitly affirms the `right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.' The
Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of
privacy which government may not force him to surrender to his detriment. The Ninth
Amendment provides: `The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.'"
In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique
Fernando, we held:
"xxx
The Griswold case invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the right
of privacy of married persons; rightfully it stressed "a relationship lying within the zone of
privacy created by several fundamental constitutional guarantees." It has wider implications
though. The constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition
independently of its identification with liberty; in itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is particularly apt: 'The concept of limited
government has always included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control of the individual,
in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of this private
sector-- protection, in other words, of the dignity and integrity of the individual--has become
increasingly important as modern society has developed. All the forces of a technological
age --industrialization, urbanization, and organization-- operate to narrow the area of privacy
and facilitate intrusion into it. In modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a democratic and a totalitarian
society.'"
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution.[33] It is
expressly recognized in Section 3(1) of the Bill of Rights:
"Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law."
Other facets of the right to privacy are protected in various provisions of the Bill of Rights,
viz:[34]
"Sec. 1. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
x x x.
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel
be impaired except in the interest of national security, public safety, or public health, as may
be provided by law.
x x x.
Sec. 8. The right of the people, including those employed in the public and private sectors,
to form unions, associations, or societies for purposes not contrary to law shall not be
abridged.
Sec. 17. No person shall be compelled to be a witness against himself."
Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality, privacy and peace
of mind of his neighbors and other persons" and punishes as actionable torts several acts by
a person of meddling and prying into the privacy of another. [35] It also holds a public officer
or employee or any private individual liable for damages for any violation of the rights and
liberties of another person,[36] and recognizes the privacy of letters and other private
communications.[37] The Revised Penal Code makes a crime the violation of secrets by an
officer,[38] the revelation of trade and industrial secrets, [39] and trespass to dwelling.
[40]
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law,[41] the
Secrecy of Bank Deposit Act [42] and the Intellectual Property Code. [43] The Rules of Court on
privileged communication likewise recognize the privacy of certain information. [44]
Unlike the dissenters, we prescind from the premise that the right to privacy
is a fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provide our citizens and foreigners with the facility to
conveniently transact business with basic service and social security providers and other
government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent
transactions and misrepresentations by persons seeking basic services. It is debatable
whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But
what is not arguable is the broadness, the vagueness, the overbreadth of A.O. No.
308 which if implemented will put our people's right to privacy in clear and
present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a linkage among
concerned agencies" through the use of "Biometrics Technology" and "computer application
designs."
Biometry or biometrics is "the science of the application of statistical methods to
biological facts; a mathematical analysis of biological data." [45] The term "biometrics" has
now evolved into a broad category of technologies which provide precise
confirmation of an individual's identity through the use of the individual's own
physiological and behavioral characteristics. [46] A physiological characteristic is a
relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry or
facial features. A behavioral characteristic is influenced by the individual's personality
and includes voice print, signature and keystroke. [47] Most biometric identification systems
use a card or personal identification number (PIN) for initial identification. The biometric
measurement is used to verify that the individual holding the card or entering the PIN is the
legitimate owner of the card or PIN.[48]
A most common form of biological encoding is finger-scanning where technology
scans a fingertip and turns the unique pattern therein into an individual number which is
called a biocrypt. The biocrypt is stored in computer data banks[49] and becomes a means of
identifying an individual using a service. This technology requires one's fingertip to be
scanned every time service or access is provided. [50] Another method is the retinal scan.
Retinal scan technology employs optical technology to map the capillary pattern of the
retina of the eye. This technology produces a unique print similar to a finger print. [51] Another
biometric method is known as the"artificial nose." This device chemically analyzes the
unique combination of substances excreted from the skin of people. [52] The latest on the list
of biometric achievements is the thermogram. Scientists have found that by taking
pictures of a face using infra-red cameras, a unique heat distribution pattern is seen. The
different densities of bone, skin, fat and blood vessels all contribute to the individual's
personal "heat signature."[53]
In the last few decades, technology has progressed at a galloping rate. Some science
fictions are now science facts. Today, biometrics is no longer limited to the use of
fingerprint to identify an individual. It is a new science that uses various technologies in
encoding any and all biological characteristics of an individual for identification. It is
noteworthy that A.O. No. 308 does not state what specific biological
characteristics and what particular biometrics technology shall be used to identify
people who will seek its coverage. Considering the banquet of options available to
the implementors of A.O. No. 308, the fear that it threatens the right to privacy of
our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it
does not state whether encoding of data is limited to biological information alone
for identification purposes. In fact, the Solicitor General claims that the adoption of the
Identification Reference System will contribute to the "generation of population data for
development planning."[54] This is an admission that the PRN will not be used solely for
identification but for the generation of other data with remote relation to the avowed
purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the
government the roving authority to store and retrieve information for a purpose
other than the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot
be underplayed as the dissenters do. Pursuant to said administrative order, an
individual must present his PRN everytime he deals with a government agency to avail of
basic services and security. His transactions with the government agency will necessarily be
recorded-- whether it be in the computer or in the documentary file of the agency. The
individual's file may include his transactions for loan availments, income tax returns,
statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The
more frequent the use of the PRN, the better the chance of building a huge and
formidable information base through the electronic linkage of the files. [55] The
data may be gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a covert
invitation to misuse, a temptation that may be too great for some of our
authorities to resist.[56]
We can even grant, arguendo, that the computer data file will be limited to the name,
address and other basic personal information about the individual. [57] Even that hospitable
assumption will not save A.O. No. 308 from constitutional infirmity for again said order
does not tell us in clear and categorical terms how these information gathered
shall be handled. It does not provide who shall control and access the data, under
what circumstances and for what purpose. These factors are essential to safeguard the
privacy and guaranty the integrity of the information. [58] Well to note, the computer linkage
gives other government agencies access to the information. Yet, there are no controls to
guard against leakage of information. When the access code of the control programs of
the particular computer system is broken, an intruder, without fear of sanction or penalty,
can make use of the data for whatever purpose, or worse, manipulate the data stored within
the system.[59]
It is plain and we hold that A.O. No. 308 falls short of assuring that personal information
which will be gathered about our people will only be processed for unequivocally specified
purposes.[60] The lack of proper safeguards in this regard of A.O. No. 308 may interfere with
the individual's liberty of abode and travel by enabling authorities to track down his
movement; it may also enable unscrupulous persons to access confidential information and
circumvent the right against self-incrimination; it may pave the way for "fishing expeditions"
by government authorities and evade the right against unreasonable searches and seizures.
[61]
The possibilities of abuse and misuse of the PRN, biometrics and computer
technology are accentuated when we consider that the individual lacks control
over what can be read or placed on his ID, much less verify the correctness of the
data encoded.[62] They threaten the very abuses that the Bill of Rights seeks to
prevent.[63]
The ability of a sophisticated data center to generate a comprehensive cradle-to-
grave dossier on an individual and transmit it over a national network is one of the most
graphic threats of the computer revolution. [64]The computer is capable of producing a
comprehensive dossier on individuals out of information given at different times and for
varied purposes.[65] It can continue adding to the stored data and keeping the information up
to date. Retrieval of stored data is simple. When information of a privileged character finds
its way into the computer, it can be extracted together with other data on the subject.
[66]
Once extracted, the information is putty in the hands of any person. The end of privacy
begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would
dismiss its danger to the right to privacy as speculative and hypothetical. Again, we cannot
countenance such a laidback posture.The Court will not be true to its role as the ultimate
guardian of the people's liberty if it would not immediately smother the sparks that
endanger their rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the National ID and the use of
biometrics technology as it stands on quicksand.The reasonableness of a person's
expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual
has exhibited an expectation of privacy; and (2) whether this expectation is one that society
recognizes as reasonable.[67] The factual circumstances of the case determines the
reasonableness of the expectation.[68] However, other factors, such as customs, physical
surroundings and practices of a particular activity, may serve to create or diminish this
expectation.[69] The use of biometrics and computer technology in A.O. No. 308 does not
assure the individual of a reasonable expectation of privacy. [70] As technology advances, the
level of reasonably expected privacy decreases. [71] The measure of protection granted by the
reasonable expectation diminishes as relevant technology becomes more widely accepted.
[72]
The security of the computer data file depends not only on the physical inaccessibility of
the file but also on the advances in hardware and software computer technology. A.O. No.
308 is so widely drawn that a minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy this fatal
defect. Rules and regulations merely implement the policy of the law or order. On its
face, A.O. No. 308 gives the IACC virtually unfettered discretion to determine the metes and
bounds of the ID System.
Nor do our present laws provide adequate safeguards for
a reasonable expectation of privacy. Commonwealth Act No. 591 penalizes the
disclosure by any person of data furnished by the individual to the NSO with imprisonment
and fine.[73] Republic Act No. 1161 prohibits public disclosure of SSS employment records and
reports.[74] These laws, however, apply to records and data with the NSO and the SSS. It is
not clear whether they may be applied to data with the other government agencies forming
part of the National ID System. The need to clarify the penal aspect of A.O. No. 308 is
another reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of
privacy by using the rational relationship test.[75] He stressed that the purposes of A.O.
No. 308 are: (1) to streamline and speed
up the implementation of basic government services, (2) eradicate fraud by avoiding
duplication of services, and (3) generate population data for development planning. He
concludes that these purposes justify the incursions into the right to privacy for the means
are rationally related to the end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police
power measure. We declared that the law, in compelling a public officer to make an annual
report disclosing his assets and liabilities, his sources of income and expenses, did not
infringe on the individual's right to privacy. The law was enacted to promote morality in
public administration by curtailing and minimizing the opportunities for official corruption
and maintaining a standard of honesty in the public service. [78]
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute,
not an administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear
on what practices were prohibited and penalized, and it was narrowly drawn to avoid
abuses. In the case at bar, A.O. No. 308 may have been impelled by a worthy purpose, but,
it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hold that
when the integrity of a fundamental right is at stake, this court will give the
challenged law, administrative order, rule or regulation a stricter scrutiny. It will
not do for the authorities to invoke the presumption of regularity in
the performance of official duties. Nor is it enough for the authorities to prove
that their act is not irrational for a basic right can be diminished, if not defeated,
even when the government does not act irrationally. They must satisfactorily
show the presence of compelling state interests and that the law, rule, or
regulation is narrowly drawn to preclude abuses. This approach is demanded by the
1987 Constitution whose entire matrix is designed to protect human rights and to prevent
authoritarianism. In case of doubt, the least we can do is to lean towards the stance that will
not put in danger the rights protected by the Constitution.
The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line. In Whalen,
the United States Supreme Court was presented with the question of whether the State of
New York could keep a centralized computer record of the names and addresses of all
persons who obtained certain drugs pursuant to a doctor's prescription. The New York State
Controlled Substances Act of 1972 required physicians to identify patients obtaining
prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use but
with a potential for abuse, so that the names and addresses of the patients can be recorded
in a centralized computer file of the State Department of Health. The plaintiffs, who were
patients and doctors, claimed that some people might decline necessary medication
because of their fear that the computerized data may be readily available and open to public
disclosure; and that once disclosed, it may stigmatize them as drug addicts. [80] The plaintiffs
alleged that the statute invaded a constitutionally protected zone of privacy, i.e, the
individual interest in avoiding disclosure of personal matters, and the interest in
independence in making certain kinds of important decisions. The U.S. Supreme Court held
that while an individual's interest in avoiding disclosure of personal matters is an aspect of
the right to privacy, the statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the enforcement of laws
designed to minimize the misuse of dangerous drugs. The patient-identification
requirement was a product of an orderly and rational legislative decision made
upon recommendation by a specially appointed commission which held extensive
hearings on the matter. Moreover, the statute was narrowly drawn and contained
numerous safeguards against indiscriminate disclosure. The statute laid down the
procedure and requirements for the gathering, storage and retrieval of the information. It
enumerated who were authorized to access the data. It also prohibited public disclosure of
the data by imposing penalties for its violation. In view of these safeguards, the infringement
of the patients' right to privacy was justified by a valid exercise of police power. As we
discussed above, A.O. No. 308 lacks these vital safeguards.
 Even while we strike down A.O. No. 308, we spell out in neon that the Court is
not per se against the use of computers to accumulate, store, process, retrieve
and transmit data to improve our bureaucracy. Computers work wonders to achieve
the efficiency which both government and private industry seek. Many information systems
in different countries make use of the computer to facilitate important social objectives, such
as better law enforcement, faster delivery of public services, more efficient management of
credit and insurance programs, improvement of telecommunications and streamlining of
financial activities.[81]Used wisely, data stored in the computer could help good
administration by making accurate and comprehensive information for those who have to
frame policy and make key decisions. [82] The benefits of the computer hasrevolutionized
information technology. It developed the internet, [83] introduced the concept of
cyberspace[84] and the information superhighway where the individual, armed only with his
personal computer, may surf and search all kinds and classes of information from libraries
and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not
bar all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and the
common good. It merely requires that the law be narrowly focused [85] and a compelling
interest justify such intrusions.[86] Intrusions into the right must be accompanied by proper
safeguards and well-defined standards to prevent unconstitutional invasions. We reiterate
that any law or order that invades individual privacy will be subjected by this Court to strict
scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit:
"The concept of limited government has always included the idea that governmental powers
stop short of certain intrusions into the personal life of the citizen. This is indeed one of the
basic distinctions between absolute and limited government. Ultimate and pervasive control
of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a
system of limited government safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state can control. Protection of this
private sector-- protection, in other words, of the dignity and integrity of the individual-- has
become increasingly important as modern society has developed. All the forces of a
technological age-- industrialization, urbanization, and organization-- operate to narrow the
area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a democratic and a
totalitarian society."[87]
IV
The right to privacy is one of the most threatened rights of man living in a
mass society. The threats emanate from various sources-- governments, journalists,
employers, social scientists, etc.[88] In the case at bar, the threat comes from the executive
branch of government which by issuing A.O. No. 308 pressures the people to surrender their
privacy by giving information about themselves on the pretext that it will facilitate delivery
of basic services. Given the record-keeping power of the computer, only the
indifferent will fail to perceive the danger that A.O. No. 308 gives the government
the power to compile a devastating dossier against unsuspecting citizens. It is
timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be
that everyone will live burdened by an unerasable record of his past and his limitations. In a
way, the threat is that because of its record-keeping, the society will have lost its benign
capacity to forget."[89] Oblivious to this counsel, the dissents still say we should not be too
quick in labelling the right to privacy as a fundamental right. We close with the statement
that the right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" declared null and
void for being unconstitutional.
SO ORDERED.
 Narvasa, C.J., Melo, and Quisumbing, JJ., joins J. Kapunan and J. Mendoza in their
dissents.
Regalado, J., in the result.
Davide, Jr., in the result; joins J. Panganiban in his separate opinion.
Romero, Vitug and Panganiban, JJ., see separate opinion.
Kapunan, and Mendoza, JJ., see dissenting opinion.
Bellosillo, and Martinez, JJ., concur.
Purisima, J., joins J. Mendozas dissent.

EN BANC
[G.R. No. 159139. January 13, 2004]
INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON
M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX C.
DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL ALCUAZ
JR., petitioners, vs. COMMISSION ON ELECTIONS; COMELEC
CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and
 AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE
GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ
JR.;MEGA PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC
CONSORTIUM, respondents.
DECISION
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is done contrary to the Constitution,
the law or jurisprudence;[1] or (2) when it is executed whimsically, capriciously or arbitrarily
out of malice, ill will or personal bias.[2] In the present case, the Commission on Elections
approved the assailed Resolution and awarded the subject Contract not only in clear
violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and
procedure. For the automation of the counting and canvassing of the ballots in the 2004
elections, Comelec awarded the Contract to Mega Pacific Consortium an entity that had not
participated in the bidding.Despite this grant, the poll body signed the actual automation
Contract with Mega Pacific eSolutions, Inc., a company that joined the bidding but had not
met the eligibility requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste, without
adequately checking and observing mandatory financial, technical and legal requirements. It
also accepted the proferred computer hardware and software even if, at the time of the
award, they had undeniably failed to pass eight critical requirements designed to safeguard
the integrity of elections, especially the following three items:
They failed to achieve the accuracy rating criteria of 99.9995 percent set-
up by the Comelec itself
They were not able to detect previously downloaded results at various
canvassing or consolidation levels and to prevent these from being inputted
again
They were unable to print the statutorily required audit trails of the
count/canvass at different levels without any loss of data
Because of the foregoing violations of law and the glaring grave abuse of discretion
committed by Comelec, the Court has no choice but to exercise its solemn constitutional
duty[3] to void the assailed Resolution and the subject Contract. The illegal, imprudent and
hasty actions of the Commission have not only desecrated legal and jurisprudential norms,
but have also cast serious doubts upon the poll bodys ability and capacity to conduct
automated elections. Truly, the pith and soul of democracy -- credible, orderly, and peaceful
elections -- has been put in jeopardy by the illegal and gravely abusive acts of Comelec.
The Case
Before us is a Petition[4] under Rule 65 of the Rules of Court, seeking (1) to declare null
and void Resolution No. 6074 of the Commission on Elections (Comelec), which awarded
Phase II of the Modernization Project of the Commission to Mega Pacific Consortium (MPC);
(2) to enjoin the implementation of any further contract that may have been entered into by
Comelec either with Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI); and
(3) to compel Comelec to conduct a re-bidding of the project.
The Facts
The following facts are not disputed. They were culled from official documents, the
parties pleadings, as well as from admissions during the Oral Argument on October 7, 2003.
On June 7, 1995, Congress passed Republic Act 8046, [5] which authorized Comelec to
conduct a nationwide demonstration of a computerized election system and allowed the poll
body to pilot-test the system in the March 1996 elections in the Autonomous Region in
Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 8436 [6] authorizing Comelec to
use an automated election system (AES) for the process of voting, counting votes and
canvassing/consolidating the results of the national and local elections. It also mandated the
poll body to acquire automated counting machines (ACMs), computer equipment, devices
and materials; and to adopt new electoral forms and printing materials.
 Initially intending to implement the automation during the May 11, 1998 presidential
elections, Comelec -- in its Resolution No. 2985 dated February 9, 1998 [7] -- eventually
decided against full national implementation and limited the automation to the Autonomous
Region in Muslim Mindanao (ARMM). However, due to the failure of the machines to read
correctly some automated ballots in one town, the poll body later ordered their manual
count for the entire Province of Sulu.[8]
In the May 2001 elections, the counting and canvassing of votes for both national and
local positions were also done manually, as no additional ACMs had been acquired for that
electoral exercise allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization
program for the 2004 elections. It resolved to conduct biddings for the three (3) phases of its
Automated Election System; namely, Phase I - Voter Registration and Validation System;
Phase II - Automated Counting and Canvassing System; and Phase III - Electronic
Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,
which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004 elections. Upon
the request of Comelec, she authorized the release of an additional P500 million.
On January 28, 2003, the Commission issued an Invitation to Apply for Eligibility and to
Bid, which we quote as follows:
INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos.
8189 and 8436, invites interested offerors, vendors, suppliers or lessors to apply for
eligibility and to bid for the procurement by purchase, lease, lease with option to purchase,
or otherwise, supplies, equipment, materials and services needed for a comprehensive
Automated Election System, consisting of three (3) phases: (a) registration/verification of
voters, (b) automated counting and consolidation of votes, and (c) electronic transmission of
election results, with an approved budget of TWO BILLION FIVE HUNDRED MILLION
(Php2,500,000,000) Pesos.
Only bids from the following entities shall be entertained:
a. Duly licensed Filipino citizens/proprietorships;
b. Partnerships duly organized under the laws of the Philippines and of which at
least sixty percent (60%) of the interest belongs to citizens of the Philippines;
c. Corporations duly organized under the laws of the Philippines, and of which at
least sixty percent (60%) of the outstanding capital stock belongs to citizens
of the Philippines;
d. Manufacturers, suppliers and/or distributors forming themselves into a joint
venture, i.e., a group of two (2) or more manufacturers, suppliers and/or
distributors that intend to be jointly and severally responsible or liable for a
particular contract, provided that Filipino ownership thereof shall be at least
sixty percent (60%); and
e. Cooperatives duly registered with the Cooperatives Development Authority.
Bid documents for the three (3) phases may be obtained starting 10 February 2003, during
office hours from the Bids and Awards Committee (BAC) Secretariat/Office of Commissioner
Resurreccion Z. Borra, 7th Floor, Palacio del Governador, Intramuros, Manila, upon payment
at the Cash Division, Commission on Elections, in cash or cashiers check, payable to the
Commission on Elections, of a non-refundable amount of FIFTEEN THOUSAND PESOS
(Php15,000.00) for each phase. For this purpose, interested offerors, vendors, suppliers or
lessors have the option to participate in any or all of the three (3) phases of the
comprehensive Automated Election System.
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall,
Commission on Elections, Postigo Street, Intramuros, Manila. Should there be questions on
the bid documents, bidders are required to submit their queries in writing to the BAC
Secretariat prior to the scheduled Pre-Bid Conference.
Deadline for submission to the BAC of applications for eligibility and bid envelopes for the
supply of the comprehensive Automated Election System shall be at the Session Hall,
Commission on Elections, Postigo Street, Intramuros, Manila on 28 February 2003 at 9:00
a.m.
The COMELEC reserves the right to review the qualifications of the bidders after the bidding
and before the contract is executed. Should such review uncover any misrepresentation
made in the eligibility statements, or any changes in the situation of the bidder to materially
downgrade the substance of such statements, the COMELEC shall disqualify the bidder upon
due notice without any obligation whatsoever for any expenses or losses that may be
incurred by it in the preparation of its bid.[9]
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility
criteria for bidders and the schedule of activities for the project bidding, as follows:
1.) Open to Filipino and foreign corporation duly registered and licensed to do
business and is actually doing business in the Philippines, subject to Sec. 43 of
RA 9184 (An Act providing In the Modernization Standardization and
Regulation of the Procurement Activities of the Government and for other
purposes etc.)
2.) Track Record:
a) For counting machines should have been used in at least one (1) political
exercise with no less than Twenty Million Voters;
b) For verification of voters the reference site of an existing data base
installation using Automated Fingerprint Identification System (AFIS) with
at least Twenty Million.
3.) Ten percent (10%) equity requirement shall be based on the total project cost;
and
4.) Performance bond shall be twenty percent (20%) of the bid offer.
RESOLVED moreover, that:
1) A. Due to the decision that the eligibility requirements and the rest of the Bid
documents shall be released at the same time, and the memorandum of
Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be
released on Friday, February 14, 2003 at 2:00 oclock p.m. shall be the
eligibility criteria, Terms of Reference (TOR) and other pertinent documents;
B. Pre-Bid conference shall be on February 18, 2003; and
C. Deadline for the submission and receipt of the Bids shall be on March 5,
2003.
2) The aforementioned documents will be available at the following offices:
a) Voters Validation: Office of Comm. Javier
b) Automated Counting Machines: Office of Comm. Borra
c) Electronic Transmission: Office of Comm. Tancangco [10]
On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure
the election automation machines. The Bids and Awards Committee (BAC) of Comelec
convened a pre-bid conference on February 18, 2003 and gave prospective bidders until
March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers, suppliers and/or
distributors forming themselves into a joint venture may be entertained, provided that the
Philippine ownership thereof shall be at least 60 percent. Joint venture is defined in the RFP
as a group of two or more manufacturers, suppliers and/or distributors that intend to be
jointly and severally responsible or liable for a particular contract. [11]
Basically, the public bidding was to be conducted under a two-envelope/two stage
system. The bidders first envelope or the Eligibility Envelope should establish the bidders
eligibility to bid and its qualifications to perform the acts if accepted. On the other hand, the
second envelope would be the Bid Envelope itself. The RFP outlines the bidding procedures
as follows:
25. Determination of Eligibility of Prospective Bidders
25.1 The eligibility envelopes of prospective Bidders shall be opened first to
determine their eligibility. In case any of the requirements specified in Clause 20 is
missing from the first bid envelope, the BAC shall declare said prospective Bidder
as ineligible to bid. Bid envelopes of ineligible Bidders shall be immediately
returned unopened.
25.2 The eligibility of prospective Bidders shall be determined using simple pass/fail
criteria and shall be determined as either eligible or ineligible. If the prospective
Bidder is rated passed for all the legal, technical and financial requirements, he
shall be considered eligible. If the prospective Bidder is rated failed in any of the
requirements, he shall be considered ineligible.
26. Bid Examination/Evaluation
26.1 The BAC will examine the Bids to determine whether they are complete,
whether any computational errors have been made, whether required securities
have been furnished, whether the documents have been properly signed, and
whether the Bids are generally in order.
26.2 The BAC shall check the submitted documents of each Bidder against the
required documents enumerated under Clause 20, to ascertain if they are all
present in the Second bid envelope (Technical Envelope). In case one (1) or more of
the required documents is missing, the BAC shall rate the Bid concerned as failed
and immediately return to the Bidder its Third bid envelope (Financial Envelope)
unopened. Otherwise, the BAC shall rate the first bid envelope as passed.
26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose
Technical Envelopes were passed or rated on or above the passing score. Only Bids
that are determined to contain all the bid requirements for both components shall
be rated passed and shall immediately be considered for evaluation and
comparison.
26.4 In the opening and examination of the Financial Envelope, the BAC shall
announce and tabulate the Total Bid Price as calculated. Arithmetical errors will be
rectified on the following basis: If there is a discrepancy between words and figures,
the amount in words will prevail. If there is a discrepancy between the unit price
and the total price that is obtained by multiplying the unit price and the quantity,
the unit price shall prevail and the total price shall be corrected accordingly. If there
is a discrepancy between the Total Bid Price and the sum of the total prices, the
sum of the total prices prevail and the Total Bid Price shall be corrected accordingly.
26.5 Financial Proposals which do not clearly state the Total Bid Price shall be
rejected. Also, Total Bid Price as calculated that exceeds the approved budget for
the contract shall also be rejected.
27. Comparison of Bids
27.1 The bid price shall be deemed to embrace all costs, charges and fees
associated with carrying out all the elements of the proposed Contract, including
but not limited to, license fees, freight charges and taxes.
27.2 The BAC shall establish the calculated prices of all Bids rated passed and rank
the same in ascending order.
xxxxxxxxx
29. Postqualification
29.1 The BAC will determine to its satisfaction whether the Bidder selected as
having submitted the lowest calculated bid is qualified to satisfactorily perform the
Contract.
29.2 The determination will take into account the Bidders financial, technical and
production capabilities/resources. It will be based upon an examination of the
documentary evidence of the Bidders qualification submitted by the Bidder as well
as such other information as the BAC deems necessary and appropriate.
29.3 A bid determined as not substantially responsive will be rejected by the BAC
and may not subsequently be made responsive by the Bidder by correction of the
non-conformity.
29.4 The BAC may waive any informality or non-conformity or irregularity in a bid
which does not constitute a material deviation, provided such waiver does not
prejudice or affect the relative ranking of any Bidder.
 29.5 Should the BAC find that the Bidder complies with the legal, financial and
technical requirements, it shall make an affirmative determination which shall be a
prerequisite for award of the Contract to the Bidder. Otherwise, it will make a
negative determination which will result in rejection of the Bidders bid, in which
event the BAC will proceed to the next lowest calculated bid to make a similar
determination of that Bidders capabilities to perform satisfactorily. [12]
Out of the 57 bidders, [13] the BAC found MPC and the Total Information Management
Corporation (TIMC) eligible. For technical evaluation, they were referred to the BACs
Technical Working Group (TWG) and the Department of Science and Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that
both MPC and TIMC had obtained a number of failed marks in the technical
evaluation. Notwithstanding these failures, Comelec en banc, on April 15, 2003, promulgated
Resolution No. 6074 awarding the project to MPC. The Commission publicized this Resolution
and the award of the project to MPC on May 16, 2003.
On May 29, 2003, five individuals and entities (including the herein Petitioners
Information Technology Foundation of the Philippines, represented by its president, Alfredo
M. Torres; and Ma. Corazon Akol) wrote a letter[14] to Comelec Chairman Benjamin Abalos
Sr. They protested the award of the Contract to Respondent MPC due to glaring irregularities
in the manner in which the bidding process had been conducted. Citing therein the
noncompliance with eligibility as well as technical and procedural requirements (many of
which have been discussed at length in the Petition), they sought a re-bidding.
In a letter-reply dated June 6, 2003,[15] the Comelec chairman -- speaking through Atty.
Jaime Paz, his head executive assistant -- rejected the protest and declared that the award
would stand up to the strictest scrutiny.
Hence, the present Petition.[16]
The Issues
In their Memorandum, petitioners raise the following issues for our consideration:
1. The COMELEC awarded and contracted with a non-eligible entity; x x x
2. Private respondents failed to pass the Technical Test as required in the RFP.
Notwithstanding, such failure was ignored. In effect, the COMELEC changed
the rules after the bidding in effect changing the nature of the contract bidded
upon.
3. Petitioners have locus standi.
4. Instant Petition is not premature. Direct resort to the Supreme Court is justified. [17]
In the main, the substantive issue is whether the Commission on Elections, the agency
vested with the exclusive constitutional mandate to oversee elections, gravely abused its
discretion when, in the exercise of its administrative functions, it awarded to MPC the
contract for the second phase of the comprehensive Automated Election System.
Before discussing the validity of the award to MPC, however, we deem it proper to first
pass upon the procedural issues: the legal standing of petitioners and the alleged
prematurity of the Petition.
This Courts Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi, inasmuch as they are
not challenging the validity or constitutionality of RA 8436. Moreover, petitioners supposedly
admitted during the Oral Argument that no law had been violated by the award of the
Contract. Furthermore, they allegedly have no actual and material interest in the Contract
and, hence, do not stand to be injured or prejudiced on account of the award.
On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters
and concerned citizens -- respond that the issues central to this case are of transcendental
importance and of national interest. Allegedly, Comelecs flawed bidding and questionable
award of the Contract to an unqualified entity would impact directly on the success or the
failure of the electoral process. Thus, any taint on the sanctity of the ballot as the expression
of the will of the people would inevitably affect their faith in the democratic system of
government. Petitioners further argue that the award of any contract for automation
involves disbursement of public funds in gargantuan amounts; therefore, public interest
requires that the laws governing the transaction must be followed strictly.
We agree with petitioners. Our nations political and economic future virtually hangs in
the balance, pending the outcome of the 2004 elections. Hence, there can be no serious
doubt that the subject matter of this case is a matter of public concern and imbued with
public interest;[18] in other words, it is of paramount public interest [19] and transcendental
importance.[20] This fact alone would justify relaxing the rule on legal standing, following the
liberal policy of this Court whenever a case involves an issue of overarching significance to
our society.[21] Petitioners legal standing should therefore be recognized and upheld.
Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of
illegal disbursement of public funds, [22] or if public money is being deflected to any improper
purpose;[23] or when petitioners seek to restrain respondent from wasting public funds
through the enforcement of an invalid or unconstitutional law. [24] In the instant case,
individual petitioners, suing as taxpayers, assert a material interest in seeing to it that public
funds are properly and lawfully used. In the Petition, they claim that the bidding was
defective, the winning bidder not a qualified entity, and the award of the Contract contrary
to law and regulation. Accordingly, they seek to restrain respondents from implementing the
Contract and, necessarily, from making any unwarranted expenditure of public funds
pursuant thereto. Thus, we hold that petitioners possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion
of Administrative Remedies
Respondents claim that petitioners acted prematurely, since they had not first utilized
the protest mechanism available to them under RA 9184, the Government Procurement
Reform Act, for the settlement of disputes pertaining to procurement contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards
Committee in all stages of procurement may be lodged with the head of the procuring entity
by filing a verified position paper and paying a protest fee. Section 57 of the same law
mandates that in no case shall any such protest stay or delay the bidding process, but it
must first be resolved before any award is made.
On the other hand, Section 58 provides that court action may be resorted to only after
the protests contemplated by the statute shall have been completed. Cases filed in violation
of this process are to be dismissed for lack of jurisdiction. Regional trial courts shall have
jurisdiction over final decisions of the head of the procuring entity, and court actions shall be
instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure.
Respondents assert that throughout the bidding process, petitioners never questioned
the BAC Report finding MPC eligible to bid and recommending the award of the Contract to it
(MPC). According to respondents, the Report should have been appealed to the Comelec en
banc, pursuant to the aforementioned sections of RA 9184. In the absence of such appeal,
the determination and recommendation of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15,
2003, awarding the project to Respondent MPC even before the BAC managed to issue its
written report and recommendation on April 21, 2003. Thus, how could petitioners have
appealed the BACs recommendation or report to the head of the procuring entity (the
chairman of Comelec), when the Comelec en banc had already approved the award of the
contract to MPC even before petitioners learned of the BAC recommendation?
It is claimed[25] by Comelec that during its April 15, 2003 session, it received and
approved the verbal report and recommendation of the BAC for the award of the Contract to
MPC, and that the BAC subsequently re-affirmed its verbal report and recommendation by
submitting it in writing on April 21, 2003. Respondents insist that the law does not require
that the BAC Report be in writing before Comelec can act thereon; therefore, there is
allegedly nothing irregular about the Report as well as the en banc Resolution.
 However, it is obvious that petitioners could have appealed the BACs report and
recommendation to the head of the procuring entity (the Comelec chair) only upon
their discovery thereof, which at the very earliest would have been on April 21, 2003, when
the BAC actually put its report in writing and finally released it. Even then, what would have
been the use of protesting/appealing the report to the Comelec chair, when by that time the
Commission en banc (including the chairman himself) had already approved the BAC Report
and awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten wind of the verbal
BAC report on April 15, 2003 (immediately after the en banc session), at that point the
Commission en banc had already given its approval to the BAC Report along with the award
to MPC. To put it bluntly, the Comelec en banc itself made it legally impossible for
petitioners to avail themselves of the administrative remedy that the Commission is so
impiously harping on. There is no doubt that they had not been accorded the opportunity to
avail themselves of the process provided under Section 55 of RA 9184, according to which a
protest against a decision of the BAC may be filed with the head of the procuring
entity. Nemo tenetur ad impossible,[26] to borrow private respondents favorite Latin excuse.
[27]

Some Observations on the

BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this interstice, we
would just want to put forward a few observations regarding the BAC Report and the
Comelec en bancs approval thereof.
First, Comelec contends that there was nothing unusual about the fact that the Report
submitted by the BAC came only after the former had already awarded the Contract,
because the latter had been asked to render its report and recommendation orally during
the Commissions en banc session on April 15, 2003. Accordingly, Comelec supposedly acted
upon such oral recommendation and approved the award to MPC on the same day, following
which the recommendation was subsequently reduced into writing on April 21, 2003. While
not entirely outside the realm of the possible, this interesting and unique spiel does not
speak well of the process that Comelec supposedly went through in making a critical
decision with respect to a multi-billion-peso contract.
We can imagine that anyone else standing in the shoes of the Honorable Commissioners
would have been extremely conscious of the overarching need for utter transparency. They
would have scrupulously avoided the slightest hint of impropriety, preferring to maintain an
exacting regularity in the performance of their duties, instead of trying to break a speed
record in the award of multi-billion-peso contracts. After all, between April 15 and April 21
were a mere six (6) days. Could Comelec not have waited out six more days for the written
report of the BAC, instead of rushing pell-mell into the arms of MPC? Certainly, respondents
never cared to explain the nature of the Commissions dire need to act immediately without
awaiting the formal, written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch with which
Comelec acted to approve the multi-billion-peso deal, with its claim of having been impelled
by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to
lend negative credence to Comelecs tale.
Second, without necessarily ascribing any premature malice or premeditation on the
part of the Comelec officials involved, it should nevertheless be conceded that this cart-
before-the-horse maneuver (awarding of the Contract ahead of the BACs written report)
would definitely serve as a clever and effective way of averting and frustrating any
impending protest under Section 55.
Having made the foregoing observations, we now go back to the question of exhausting
administrative remedies. Respondents may not have realized it, but the letter addressed to
Chairman Benjamin Abalos Sr. dated May 29, 2003 [28] serves to eliminate the prematurity
issue as it was an actual written protest against the decision of the poll body to award the
Contract. The letter was signed by/for, inter alia, two of herein petitioners: the Information
Technology Foundation of the Philippines, represented by its president, Alfredo M. Torres; and
Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to exhaust
administrative remedies particularly because it hews closely to the procedure outlined in
Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that petitioners
need not exhaust administrative remedies in the light of Paat v. Court of Appeals.
[29]
Paat enumerates the instances when the rule on exhaustion of administrative remedies
may be disregarded, as follows:
(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or excess of
jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego of
the President bears the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of judicial intervention. [30]
The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and
11: (7) when to require exhaustion of administrative remedies would be unreasonable; (10)
when the rule does not provide a plain, speedy and adequate remedy, and (11) when there
are circumstances indicating the urgency of judicial intervention. As already stated, Comelec
itself made the exhaustion of administrative remedies legally impossible or, at the very
least, unreasonable.
In any event, the peculiar circumstances surrounding the unconventional rendition of
the BAC Report and the precipitate awarding of the Contract by the Comelec en banc -- plus
the fact that it was racing to have its Contract with MPC implemented in time for the
elections in May 2004 (barely four months away) -- have combined to bring about the urgent
need for judicial intervention, thus prompting this Court to dispense with the procedural
exhaustion of administrative remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners contend that the award
is invalid, since Comelec gravely abused its discretion when it did the following:
1. Awarded the Contract to MPC though it did not even participate in the bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory
eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the
issuance by the BAC of its Report, which formed the basis of the assailed Resolution, only on
April 21, 2003[31]
4. Awarded the Contract, notwithstanding the fact that during the bidding process, there
were violations of the mandatory requirements of RA 8436 as well as those set forth in
Comelecs own Request for Proposal on the automated election system
5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of
the bidders to pass the technical tests conducted by the Department of Science and
Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for the
automated counting machines
After reviewing the slew of pleadings as well as the matters raised during the Oral
Argument, the Court deems it sufficient to focus discussion on the following major areas of
concern that impinge on the issue of grave abuse of discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder
B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST after the award,
and their effect on the present controversy
A.
Failure to Establish the Identity,
Existence and Eligibility of the
Alleged Consortium as a Bidder
On the question of the identity and the existence of the real bidder, respondents insist
that, contrary to petitioners allegations, the bidder was not Mega Pacific eSolutions, Inc.
(MPEI), which was incorporated only on February 27, 2003, or 11 days prior to the bidding
itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI was but a
part. As proof thereof, they point to the March 7, 2003 letter of intent to bid, signed by the
president of MPEI allegedly for and on behalf of MPC. They also call attention to the official
receipt issued to MPC, acknowledging payment for the bidding documents, as proof that it
was the consortium that participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed by only one signatory -- Willy U. Yu,
President, Mega Pacific eSolutions, Inc., (Lead Company/ Proponent) For: Mega Pacific
Consortium -- and without any further proof, does not by itself prove the existence of the
consortium. It does not show that MPEI or its president have been duly pre-authorized by the
other members of the putative consortium to represent them, to bid on their collective
behalf and, more important, to commit them jointly and severally to the bid
undertakings. The letter is purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC, acknowledging payment for the bidding
documents, constitute proof that it was the purported consortium that participated in the
bidding. Such receipts are issued by cashiers without any legally sufficient inquiry as to the
real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and qualification) of
the putative consortium, Comelecs BAC should have examined the bidding documents
submitted on behalf of MPC. They would have easily discovered the following fatal flaws.
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public bidding system designed by
Comelec under its RFP (Request for Proposal for the Automation of the 2004 Election)
mandated the use of a two-envelope, two-stage system. A bidders first envelope (Eligibility
Envelope) was meant to establish its eligibility to bid and its qualifications and capacity to
perform the contract if its bid was accepted, while the second envelope would be the Bid
Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of incorporation,
business registrations, licenses and permits, mayors permit, VAT certification, and so
forth; technical documents containing documentary evidence to establish the track record of
the bidder and its technical and production capabilities to perform the contract;
and financial documents, including audited financial statements for the last three years, to
establish the bidders financial capacity.
In the case of a consortium or joint venture desirous of participating in the bidding, it
goes without saying that the Eligibility Envelope would necessarily have to include a copy of
the joint venture agreement, the consortium agreement or memorandum of agreement -- or
a business plan or some other instrument of similar import -- establishing the due existence,
composition and scope of such aggrupation. Otherwise, how would Comelec know who it
was dealing with, and whether these parties are qualified and capable of delivering the
products and services being offered for bidding?[32]
In the instant case, no such instrument was submitted to Comelec during the bidding
process. This fact can be conclusively ascertained by scrutinizing the two-inch thick
Eligibility Requirements file submitted by Comelec last October 9, 2003, in partial
compliance with this Courts instructions given during the Oral Argument. This file purports to
replicate the eligibility documents originally submitted to Comelec by MPEI allegedly on
behalf of MPC, in connection with the bidding conducted in March 2003. Included in the file
are the incorporation papers and financial statements of the members of the supposed
consortium and certain certificates, licenses and permits issued to them.
However, there is no sign whatsoever of any joint venture agreement, consortium
agreement, memorandum of agreement, or business plan executed among the members of
the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to the
Comelec for its consideration, as part of the bidding process.
It thus follows that, prior the award of the Contract, there was no documentary or other
basis for Comelec to conclude that a consortium had actually been formed amongst MPEI, SK
C&C and WeSolv, along with Election.com and ePLDT. [33] Neither was there anything to
indicate the exact relationships between and among these firms; their diverse roles,
undertakings and prestations, if any, relative to the prosecution of the project, the extent of
their respective investments (if any) in the supposed consortium or in the project; and the
precise nature and extent of their respective liabilities with respect to the contract being
offered for bidding. And apart from the self-serving letter of March 7, 2003, there was not
even any indication that MPEI was the lead company duly authorized to act on behalf of the
others.
So, it necessarily follows that, during the bidding process, Comelec had no basis at all
for determining that the alleged consortium really existed and was eligible and qualified; and
that the arrangements among the members were satisfactory and sufficient to ensure
delivery on the Contract and to protect the governments interest.
Notwithstanding such deficiencies, Comelec still deemed the consortium eligible to
participate in the bidding, proceeded to open its Second Envelope, and eventually awarded
the bid to it, even though -- per the Comelecs own RFP -- the BAC should have declared the
MPC ineligible to bid and returned the Second (Bid) Envelope unopened.
Inasmuch as Comelec should not have considered MPEI et al. as comprising a
consortium or joint venture, it should not have allowed them to avail themselves of the
provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer Law), as
amended by RA 7718. This provision states in part that a joint venture/consortium proponent
shall be evaluated based on the individual or collective experience of the member-firms of
the joint venture or consortium and of the contractor(s) that it has engaged for the
project. Parenthetically, respondents have uniformly argued that the said IRR of RA 6957, as
amended, have suppletory application to the instant case.
Hence, had the proponent MPEI been evaluated based solely on its own experience,
financial and operational track record or lack thereof, it would surely not have qualified and
would have been immediately considered ineligible to bid, as respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to
observe its own rules, policies and guidelines with respect to the bidding process, thereby
negating a fair, honest and competitive bidding.
Commissioners Not
Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner Florentino
Tuason Jr., given in open court during the Oral Argument last October 7, 2003. The good
commissioner affirmed that he was aware, of his own personal knowledge, that there had
indeed been a written agreement among the consortium members, [34] although it was an
internal matter among them,[35] and of the fact that it would be presented by counsel for
private respondent.[36]
However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C.
Vitug, Commissioner Tuason in effect admitted that, while he was the commissioner-in-
charge of Comelecs Legal Department, he had never seen, even up to that late date, the
agreement he spoke of.[37] Under further questioning, he was likewise unable to provide any
information regarding the amounts invested into the project by several members of the
claimed consortium.[38] A short while later, he admitted that the Commission had not taken a
look at the agreement (if any).[39]
He tried to justify his position by claiming that he was not a member of the BAC. Neither
was he the commissioner-in-charge of the Phase II Modernization project (the automated
election system); but that, in any case, the BAC and the Phase II Modernization Project Team
did look into the aspect of the composition of the consortium.
It seems to the Court, though, that even if the BAC or the Phase II Team had taken
charge of evaluating the eligibility, qualifications and credentials of the consortium-bidder,
still, in all probability, the former would have referred the task to Commissioner Tuason,
head of Comelecs Legal Department. That task was the appreciation and evaluation of the
legal effects and consequences of the terms, conditions, stipulations and covenants
contained in any joint venture agreement, consortium agreement or a similar document --
assuming of course that any of these was available at the time. The fact that Commissioner
Tuason was barely aware of the situation bespeaks the complete absence of such document,
or the utter failure or neglect of the Comelec to examine it -- assuming it was available at all
-- at the time the award was made on April 15, 2003.
In any event, the Court notes for the record that Commissioner Tuason basically
contradicted his statements in open court about there being one written agreement among
all the consortium members, when he subsequently referred [40] to the four (4) Memoranda of
Agreement (MOAs) executed by them.[41]
At this juncture, one might ask: What, then, if there are four MOAs instead of one or
none at all? Isnt it enough that there are these corporations coming together to carry out the
automation project? Isnt it true, as respondent aver, that nowhere in the RFP issued by
Comelec is it required that the members of the joint venture execute a single written
agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and
severally liable may be evidenced not only by a single joint venture agreement, but also by
supplementary documents executed by the parties signifying such intention. What then is
the big deal?
The problem is not that there are four agreements instead of only one. The problem is
that Comelec never bothered to check. It never based its decision on documents or other
proof that would concretely establish the existence of the claimed consortium or joint
venture or agglomeration. It relied merely on the self-serving representation in an
uncorroborated letter signed by only one individual, claiming that his company represented
a consortium of several different corporations. It concluded forthwith that a consortium
indeed existed, composed of such and such members, and thereafter declared that the
entity was eligible to bid.
True, copies of financial statements and incorporation papers of the alleged consortium
members were submitted. But these papers did not establish the existence of a consortium,
as they could have been provided by the companies concerned for purposes other than to
prove that they were part of a consortium or joint venture. For instance, the papers may
have been intended to show that those companies were each qualified to be a sub-
contractor (and nothing more) in a major project. Those documents did not by themselves
support the assumption that a consortium or joint venture existed among the companies.
In brief, despite the absence of competent proof as to the existence and eligibility of the
alleged consortium (MPC), its capacity to deliver on the Contract, and the members joint and
several liability therefor, Comelec nevertheless assumed that such consortium existed and
was eligible. It then went ahead and considered the bid of MPC, to which the Contract was
eventually awarded, in gross violation of the formers own bidding rules and procedures
contained in its RFP. Therein lies Comelecs grave abuse of discretion.
Sufficiency of the
Four Agreements
Instead of one multilateral agreement executed by, and effective and binding on, all the
five consortium members -- as earlier claimed by Commissioner Tuason in open court -- it
turns out that what was actually executed were four (4) separate and distinct bilateral
Agreements.[42] Obviously, Comelec was furnished copies of these Agreements only after the
bidding process had been terminated, as these were not included in the Eligibility
Documents. These Agreements are as follows:
A Memorandum of Agreement between MPEI and SK C&C
A Memorandum of Agreement between MPEI and WeSolv
A Teaming Agreement between MPEI and Election.com Ltd.
A Teaming Agreement between MPEI and ePLDT.
In sum, each of the four different and separate bilateral Agreements is valid and binding
only between MPEI and the other contracting party, leaving the other consortium members
total strangers thereto. Under this setup, MPEI dealt separately with each of the members,
and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had nothing to do with one
another, each dealing only with MPEI.
Respondents assert that these four Agreements were sufficient for the purpose of
enabling the corporations to still qualify (even at that late stage) as a consortium or joint
venture, since the first two Agreements had allegedly set forth the joint and several
undertakings among the parties, whereas the latter two clarified the parties respective roles
with regard to the Project, with MPEI being the independent contractor and Election.com and
ePLDT the subcontractors.
Additionally, the use of the phrase particular contract in the Comelecs Request for
Proposal (RFP), in connection with the joint and several liabilities of companies in a joint
venture, is taken by them to mean that all the members of the joint venture need not be
solidarily liable for the entire project or joint venture, because it is sufficient that the lead
company and the member in charge of a particular contract or aspect of the joint venture
agree to be solidarily liable.
At this point, it must be stressed most vigorously that the submission of the four
bilateral Agreements to Comelec after the end of the bidding process did nothing to
eliminate the grave abuse of discretion it had alreadycommitted on April 15, 2003.
Deficiencies Have
Not Been Cured
In any event, it is also claimed that the automation Contract awarded by Comelec
incorporates all documents executed by the consortium members, even if these documents
are not referred to therein. The basis of this assertion appears to be the passages from
Section 1.4 of the Contract, which is reproduced as follows:
All Contract Documents shall form part of the Contract even if they or any one of them is not
referred to or mentioned in the Contract as forming a part thereof. Each of the Contract
Documents shall be mutually complementary and explanatory of each other such that what
is noted in one although not shown in the other shall be considered contained in all, and
what is required by any one shall be as binding as if required by all, unless one item is a
correction of the other.
The intent of the Contract Documents is the proper, satisfactory and timely execution and
completion of the Project, in accordance with the Contract Documents. Consequently, all
items necessary for the proper and timely execution and completion of the Project shall be
deemed included in the Contract.
Thus, it is argued that whatever perceived deficiencies there were in the supplementary
contracts -- those entered into by MPEI and the other members of the consortium as regards
their joint and several undertakings -- have been cured. Better still, such deficiencies have
supposedly been prevented from arising as a result of the above-quoted provisions, from
which it can be immediately established that each of the members of MPC assumes the
same joint and several liability as the other members.
The foregoing argument is unpersuasive. First, the contract being referred to, entitled
The Automated Counting and Canvassing Project Contract, is between Comelec and MPEI,
not the alleged consortium, MPC. To repeat, it is MPEI -- not MPC -- that is a party to the
Contract. Nowhere in that Contract is there any mention of a consortium or joint venture, of
members thereof, much less of joint and several liability. Supposedly executed sometime in
May 2003,[43] the Contract bears a notarization date of June 30, 2003, and contains the
signature of Willy U. Yu signing as president of MPEI (not for and on behalf of MPC), along
with that of the Comelec chair. It provides in Section 3.2 that MPEI (not MPC) is to supply the
Equipment and perform the Services under the Contract, in accordance with the appendices
thereof; nothing whatsoever is said about any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above do not have the
effect of curing (much less preventing) deficiencies in the bilateral agreements entered into
by MPEI with the other members of the consortium, with respect to their joint and several
liabilities. The term Contract Documents, as used in the quoted passages of Section 1.4, has
a well-defined meaning and actually refers only to the following documents:
The Contract itself along with its appendices
The Request for Proposal (also known as Terms of Reference) issued by the
Comelec, including the Tender Inquiries and Bid Bulletins
The Tender Proposal submitted by MPEI
In other words, the term Contract Documents cannot be understood as referring to or
including the MOAs and the Teaming Agreements entered into by MPEI with SK C&C, WeSolv,
Election.com and ePLDT. This much is very clear and admits of no debate. The attempt to
use the provisions of Section 1.4 to shore up the MOAs and the Teaming Agreements is
simply unwarranted.
Third and last, we fail to see how respondents can arrive at the conclusion that, from the
above-quoted provisions, it can be immediately established that each of the members of
MPC assumes the same joint and several liability as the other members. Earlier, respondents
claimed exactly the opposite -- that the two MOAs (between MPEI and SK C&C, and between
MPEI and WeSolv) had set forth the joint and several undertakings among the
parties; whereas the two Teaming Agreements clarified the parties respective roles with
regard to the Project, with MPEI being the independent contractor and Election.com and
ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective liabilities cannot
be the same. Precisely, the very clear terms and stipulations contained in the MOAs and the
Teaming Agreements -- entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT
-- negate the idea that these members are on a par with one another and are, as such,
assuming the same joint and several liability.
Moreover, respondents have earlier seized upon the use of the term particular contract
in the Comelecs Request for Proposal (RFP), in order to argue that all the members of the
joint venture did not need to be solidarily liable for the entire project or joint venture. It was
sufficient that the lead company and the member in charge of a particular contract or aspect
of the joint venture would agree to be solidarily liable. The glaring lack of consistency leaves
us at a loss. Are respondents trying to establish the same joint and solidary liability among
all the members or not?
Enforcement of
Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec and the
MPEI confirms the solidary undertaking of the lead company and the consortium member
concerned for each particular Contract, inasmuch as the position of MPEI and anyone else
performing the services contemplated under the Contract is described therein as that of an
independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the first place,
the contractual provision being relied upon by respondents is Article 14, Independent
Contractors, which states: Nothing contained herein shall be construed as establishing or
creating between the COMELEC and MEGA the relationship of employee and employer or
principal and agent, it being understood that the position of MEGA and of anyone performing
the Services contemplated under this Contract, is that of an independent contractor.
Obviously, the intent behind the provision was simply to avoid the creation of an
employer-employee or a principal-agent relationship and the complications that it would
produce. Hence, the Article states that the role or position of MPEI, or anyone else
performing on its behalf, is that of an independent contractor. It is obvious to the Court that
respondents are stretching matters too far when they claim that, because of this provision,
the Contract in effect confirms the solidary undertaking of the lead company and the
consortium member concerned for the particular phase of the project. This assertion is an
absolute non sequitur.
Enforcement of Liabilities
Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the liability of the consortium
members under the Civil Code provisions on partnership, reasoning that MPEI et
al. represented themselves as partners and members of MPC for purposes of bidding for the
Project. They are, therefore, liable to the Comelec to the extent that the latter relied upon
such representation. Their liability as partners is solidary with respect to everything
chargeable to the partnership under certain conditions.
The Court has two points to make with respect to this argument. First, it must be
recalled that SK C&C, WeSolv, Election.com and ePLDT never represented themselves as
partners and members of MPC, whether for purposes of bidding or for something else. It was
MPEI alone that represented them to be members of a consortium it supposedly
headed. Thus, its acts may not necessarily be held against the other members.
Second, this argument of the OSG in its Memorandum [44] might possibly apply in the
absence of a joint venture agreement or some other writing that discloses the relationship of
the members with one another. But precisely, this case does not deal with a situation in
which there is nothing in writing to serve as reference, leaving Comelec to rely on mere
representations and therefore justifying a falling back on the rules on partnership.For, again,
the terms and stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv, as
well as the Teaming Agreements of MPEI with Election.com and ePLDT (copies of which have
been furnished the Comelec) are very clear with respect to the extent and the limitations of
the firms respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and
several with MPEI, are limited only to the particular areas of work wherein their services are
engaged or their products utilized.As for Election.com and ePLDT, their separate Teaming
Agreements specifically ascribe to them the role of subcontractor vis--vis MPEI as contractor
and, based on the terms of their particular agreements, neither Election.com nor ePLDT is,
with MPEI, jointly and severally liable to Comelec.[45] It follows then that in the instant case,
there is no justification for anyone, much less Comelec, to resort to the rules on partnership
and partners liabilities.
Eligibility of a Consortium
Based on the Collective
Qualifications of Its Members
Respondents declare that, for purposes of assessing the eligibility of the bidder, the
members of MPC should be evaluated on a collective basis. Therefore, they contend, the
failure of MPEI to submit financial statements (on account of its recent incorporation) should
not by itself disqualify MPC, since the other members of the consortium could meet the
criteria set out in the RFP.
Thus, according to respondents, the collective nature of the undertaking of the
members of MPC, their contribution of assets and sharing of risks, and the community of
their interest in the performance of the Contract lead to these reasonable conclusions: (1)
that their collective qualifications should be the basis for evaluating their eligibility; (2) that
the sheer enormity of the project renders it improbable to expect any single entity to be able
to comply with all the eligibility requirements and undertake the project by itself; and (3)
that, as argued by the OSG, the RFP allows bids from manufacturers, suppliers and/or
distributors that have formed themselves into a joint venture, in recognition of the virtual
impossibility of a single entitys ability to respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957
(the Build-Operate-Transfer Law) as amended by RA 7718 would be applicable, as
proponents of BOT projects usually form joint ventures or consortiums. Under the IRR, a joint
venture/consortium proponent shall be evaluated based on the individual or the collective
experience of the member-firms of the joint venture/consortium and of the contractors the
proponent has engaged for the project.
Unfortunately, this argument seems to assume that the collective nature of the
undertaking of the members of MPC, their contribution of assets and sharing of risks, and
the community of their interest in the performance of the Contract entitle MPC to be treated
as a joint venture or consortium; and to be evaluated accordingly on the basis of the
members collective qualifications when, in fact, the evidence before the Court suggest
otherwise.
This Court in Kilosbayan v. Guingona[46] defined joint venture as an association of
persons or companies jointly undertaking some commercial enterprise; generally, all
contribute assets and share risks. It requires a community of interest in the performance of
the subject matter, a right to direct and govern the policy in connection therewith, and [a]
duty, which may be altered by agreement to share both in profit and losses.
Going back to the instant case, it should be recalled that the automation Contract with
Comelec was not executed by the consortium MPC -- or by MPEI for and on behalf of MPC --
but by MPEI, period. The said Contract contains no mention whatsoever of any consortium or
members thereof. This fact alone seems to contradict all the suppositions about a joint
undertaking that would normally apply to a joint venture or consortium: that it is a
commercial enterprise involving a community of interest, a sharing of risks, profits and
losses, and so on.
Now let us consider the four bilateral Agreements, starting with the Memorandum of
Agreement between MPEI and WeSolv Open Computing, Inc., dated March 5, 2003. The body
of the MOA consists of just seven (7) short paragraphs that would easily fit in one page. It
reads as follows:
1. The parties agree to cooperate in successfully implementing the Project in the substance
and form as may be most beneficial to both parties and other subcontractors involved in the
Project.
2. Mega Pacific shall be responsible for any contract negotiations and signing with the
COMELEC and, subject to the latters approval, agrees to give WeSolv an opportunity to be
present at meetings with the COMELEC concerning WeSolvs portion of the Project.
3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular
products and/or services supplied by the former for the Project.
4. Each party shall bear its own costs and expenses relative to this agreement unless
otherwise agreed upon by the parties.
5. The parties undertake to do all acts and such other things incidental to, necessary or
desirable or the attainment of the objectives and purposes of this Agreement.
6. In the event that the parties fail to agree on the terms and conditions of the supply of the
products and services including but not limited to the scope of the products and services to
be supplied and payment terms, WeSolv shall cease to be bound by its obligations stated in
the aforementioned paragraphs.
7. Any dispute arising from this Agreement shall be settled amicably by the parties
whenever possible. Should the parties be unable to do so, the parties hereby agree to settle
their dispute through arbitration in accordance with the existing laws of the Republic of the
Philippines. (Underscoring supplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd.,
dated March 9, 2003, the body of which consists of only six (6) paragraphs, which we quote:
1. All parties agree to cooperate in achieving the Consortiums objective of successfully
implementing the Project in the substance and form as may be most beneficial to the
Consortium members and in accordance w/ the demand of the RFP.
2. Mega Pacific shall have full powers and authority to represent the Consortium with the
Comelec, and to enter and sign, for and in behalf of its members any and all agreement/s
which maybe required in the implementation of the Project.
3. Each of the individual members of the Consortium shall be jointly and severally liable with
the Lead Firm for the particular products and/or services supplied by such individual member
for the project, in accordance with their respective undertaking or sphere of responsibility.
4. Each party shall bear its own costs and expenses relative to this agreement unless
otherwise agreed upon by the parties.
5. The parties undertake to do all acts and such other things incidental to, necessary or
desirable for the attainment of the objectives and purposes of this Agreement.
6. Any dispute arising from this Agreement shall be settled amicably by the parties
whenever possible. Should the parties be unable to do so, the parties hereby agree to settle
their dispute through arbitration in accordance with the existing laws of the Republic of the
Philippines. (Underscoring supplied.)
It will be noted that the two Agreements quoted above are very similar in
wording. Neither of them contains any specifics or details as to the exact nature and scope
of the parties respective undertakings, performances and deliverables under the Agreement
with respect to the automation project. Likewise, the two Agreements are quite bereft of
pesos-and-centavos data as to the amount of investments each party contributes, its
respective share in the revenues and/or profit from the Contract with Comelec, and so forth
-- all of which are normal for agreements of this nature. Yet, according to public and private
respondents, the participation of MPEI, WeSolv and SK C&C comprises fully 90 percent of the
entire undertaking with respect to the election automation project, which is worth about P1.3
billion.
As for Election.com and ePLDT, the separate Teaming Agreements they entered into
with MPEI for the remaining 10 percent of the entire project undertaking are ironically much
longer and more detailed than the MOAs discussed earlier. Although specifically ascribing to
them the role of subcontractor vis--vis MPEI as contractor, these Agreements are, however,
completely devoid of any pricing data or payment terms. Even the appended Schedules
supposedly containing prices of goods and services are shorn of any price data. Again, as
mentioned earlier, based on the terms of their particular Agreements, neither Election.com
nor ePLDT -- with MPEI -- is jointly and severally liable to Comelec.
It is difficult to imagine how these bare Agreements -- especially the first two -- could be
implemented in practice; and how a dispute between the parties or a claim by Comelec
against them, for instance, could be resolved without lengthy and debilitating
litigations. Absent any clear-cut statement as to the exact nature and scope of the parties
respective undertakings, commitments, deliverables and covenants, one party or another
can easily dodge its obligation and deny or contest its liability under the Agreement; or
claim that it is the other party that should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of investments to be
contributed by each party, disbursements for expenses, the parties respective shares in the
profits and the like, it seems to the Court that this situation could readily give rise to all
kinds of misunderstandings and disagreements over money matters.
Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed
joint and several liabilities of the members of the consortium. The Court is not even
mentioning the possibility of a situation arising from a failure of WeSolv and MPEI to agree
on the scope, the terms and the conditions for the supply of the products and services under
the Agreement. In that situation, by virtue of paragraph 6 of its MOA, WeSolv would perforce
cease to be bound by its obligations -- including its joint and solidary liability with MPEI
under the MOA -- and could forthwith disengage from the project. Effectively, WeSolv could
at any time unilaterally exit from its MOA with MPEI by simply failing to agree. Where would
that outcome leave MPEI and Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the other companies
does not qualify them to be treated as a consortium or joint venture, at least of the type that
government agencies like the Comelec should be dealing with. With more reason is it unable
to agree to the proposal to evaluate the members of MPC on a collective basis.
In any event, the MPC members claim to be a joint venture/consortium; and respondents
have consistently been arguing that the IRR for RA 6957, as amended, should be applied to
the instant case in order to allow a collective evaluation of consortium
members. Surprisingly, considering these facts, respondents have not deemed it necessary
for MPC members to comply with Section 5.4 (a) (iii) of the IRR for RA 6957 as amended.
 According to the aforementioned provision, if the project proponent is a joint venture or
consortium, the members or participants thereof are required to submit a sworn statement
that, if awarded the contract, they shall bind themselves to be jointly, severally and
solidarily liable for the project proponents obligations thereunder. This provision was
supposed to mirror Section 5 of RA 6957, as amended, which states: In all cases, a
consortium that participates in a bid must present proof that the members of the consortium
have bound themselves jointly and severally to assume responsibility for any project. The
withdrawal of any member of the consortium prior to the implementation of the project
could be a ground for the cancellation of the contract.
The Court has certainly not seen any joint and several undertaking by the MPC members
that even approximates the tenor of that which is described above. We fail to see why
respondents should invoke the IRR if it is for their benefit, but refuse to comply with it
otherwise.
B.
DOST Technical Tests Flunked by the
Automated Counting Machines
Let us now move to the second subtopic, which deals with the substantive issue: the
ACMs failure to pass the tests of the Department of Science and Technology (DOST).
After respondent consortium and the other bidder, TIM, had submitted their respective
bids on March 10, 2003, the Comelecs BAC -- through its Technical Working Group (TWG) and
the DOST -- evaluated their technical proposals. Requirements that were highly technical in
nature and that required the use of certain equipment in the evaluation process were
referred to the DOST for testing. The Department reported thus:
TEST RESULTS MATRIX[47]
[Technical Evaluation of Automated Counting Machine]

KEY REQUIREMENTS MEGA-PACIFIC TOTAL INFORMATION

[QUESTIONS] CONSORTIUM MANAGEMENT

YES NO YES NO

1. Does the machine

have an accuracy rating
of at least 99.995
percent
At COLD environmental

condition
At NORMAL

environmental conditio
ns

At HARSH
environmental
conditions

2. Accurately records
and reports the date
and time of the start
and end of counting of
 ballots per precinct?

3. Prints election
returns without any loss
of date during
generation of such
reports?

4. Uninterruptible back-
up power system, that
will engage
immediately to allow
operation of at least 10
minutes after outage,
power surge or
abnormal electrical
occurrences?

Note: This
5. Machine reads two-
particular
sided ballots in one
requirement
pass?
needs further
verification

6. Machine can detect

previously counted
ballots and prevent
previously counted
ballots from being
counted more than
once?

7. Stores results of
Note: This
counted votes by
particular
precinct in external
requirement
(removable) storage
needs further
device?
verification

8. Data stored in
external media is Note: This
encrypted? particular
requirement
needs further
 verification

9. Physical key or
similar device allows,
limits, or restricts
operation of the
machine?

Note: This
10. CPU speed is at least particular

400mHz? requirement
needs further
verification

11. Port to allow use of

dot-matrix printers?

12. Generates printouts of

the election returns in a
format specified by the
COMELEC?
Generates printouts
In format specified by

COMELEC

13. Prints election returns

without any loss of data

during generation of
such report?

14. Generates an audit

trail of the counting
machine, both hard
copy and soft copy?

Hard copy


Soft copy Note: This
particular
requirement
needs further
verification
15. Does the
City/Municipal
Canvassing System
consolidate results from
all precincts within it Note: This
using the encrypted particular

soft copy of the data requirement
generated by the needs further
counting machine and verification
stored on the
removable data storage
device?

16. Does the

City/Municipal
Canvassing System
consolidate results from
all precincts within it Note: This Note: This
using the encrypted particular particular
soft copy of the data requirement requirement
generated by the needs further needs further
counting machine and verification verification
transmitted through an
electronic transmission
media?

17. Does the system

output a Zero
City/Municipal Canvass
Report, which is printed

on election day prior to
Note: This
the conduct of the
particular
actual canvass
requirement
operation, that shows
needs further
that all totals for all the
verification
votes for all the
candidates and other
information, are indeed
zero or null?

18. Does the system

consolidate results from
Note: This
all precincts in the
particular
city/municipality using
requirement
the data storage device
needs further
coming from the
verification
counting machine?

Note: This
19. Is the machine 100% particular

accurate? requirement
needs further
verification

20. Is the Program able to

detect previously
Note: This
downloaded precinct
particular
results and prevent
requirement
these from being
needs further
inputted again into the
verification
System?

21. The System is able to

print the specified
reports and the audit
trail without any loss of
data during generation
of the above-mentioned

reports?

Prints specified

reports
Note: This
Audit Trail
particular
requirement
needs further
verification

22. Can the result of the
Note: This
city/municipal
particular
consolidation be stored
requirement
in a data storage
needs further
device?
verification

23. Does the system

consolidate results from
all precincts in the Note: This
provincial/district/ particular
national using the data requirement
storage device from needs further
different levels of verification
consolidation?
 24. Is the system 100%

accurate? Note: This
particular
requirement
needs further
verification

25. Is the Program able to

detect previously
Note: This
downloaded precinct
particular
results and prevent
requirement
these from being
needs further
inputted again into the
verification
System?

26. The System is able to

print the specified
reports and the audit
trail without any loss of
data during generation
of the abovementioned
reports?

Prints specified reports

Audit Trail Note: This
particular
requirement
needs further
verification

27. Can the results of the
Note: This
provincial/district/nation
particular
al consolidation be
requirement
stored in a data storage
needs further
device?
verification

According to respondents, it was only after the TWG and the DOST had conducted their
separate tests and submitted their respective reports that the BAC, on the basis of these
reports formulated its comments/recommendations on the bids of the consortium and TIM.
The BAC, in its Report dated April 21, 2003, recommended that the Phase II project
involving the acquisition of automated counting machines be awarded to MPEI. It said:
After incisive analysis of the technical reports of the DOST and the Technical Working Group
for Phase II Automated Counting Machine, the BAC considers adaptability to advances in
modern technology to ensure an effective and efficient method, as well as the security and
integrity of the system.
The results of the evaluation conducted by the TWG and that of the DOST (14 April 2003
report), would show the apparent advantage of Mega-Pacific over the other competitor, TIM.
The BAC further noted that both Mega-Pacific and TIM obtained some failed marks in the
technical evaluation. In general, the failed marks of Total Information Management as
enumerated above affect the counting machine itself which are material in nature,
constituting non-compliance to the RFP. On the other hand, the failed marks of Mega-Pacific
are mere formalities on certain documentary requirements which the BAC may waive as
clearly indicated in the Invitation to Bid.
In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting
machine itself as stated earlier. These are requirements of the RFP and therefore the BAC
cannot disregard the same.
Mega-Pacific failed in 8 items however these are mostly on the software which can be
corrected by reprogramming the software and therefore can be readily corrected.
The BAC verbally inquired from DOST on the status of the retest of the counting machines of
the TIM and was informed that the report will be forthcoming after the holy week. The BAC
was informed that the retest is on a different parameters theyre being two different
machines being tested. One purposely to test if previously read ballots will be read again
and the other for the other features such as two sided ballots.
The said machine and the software therefore may not be considered the same machine and
program as submitted in the Technical proposal and therefore may be considered an
enhancement of the original proposal.
Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive Director
Ronaldo T. Viloria of DOST is that the result of the test in the two counting machines of TIM
contains substantial errors that may lead to the failure of these machines based on the
specific items of the RFP that DOST has to certify.
OPENING OF FINANCIAL BIDS
The BAC on 15 April 2003, after notifying the concerned bidders opened the financial bids in
their presence and the results were as follows:
Mega-Pacific:
Option 1 Outright purchase: Bid Price of Php1,248,949,088.00
Option 2 Lease option:
70% Down payment of cost of hardware or Php642,755,757.07
Remainder payable over 50 months or a total of Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.
Total Number of Automated Counting Machine 1,769 ACMs (Nationwide)
TIM:
Total Bid Price Php1,297,860,560.00
Total Number of Automated Counting Machine 2,272 ACMs (Mindanao and NCR only)
Premises considered, it appears that the bid of Mega Pacific is the lowest calculated
responsive bid, and therefore, the Bids and Awards Committee (BAC) recommends that the
Phase II project re Automated Counting Machine be awarded to Mega Pacific eSolutions, Inc.
[48]

The BAC, however, also stated on page 4 of its Report: Based on the 14 April 2003
report (Table 6) of the DOST, it appears that both Mega-Pacific and TIM (Total Information
Management Corporation) failed to meet some of the requirements. Below is a comparative
presentation of the requirements wherein Mega-Pacific or TIM or both of them failed: x x
x. What followed was a list of key requirements, referring to technical requirements, and an
indication of which of the two bidders had failed to meet them.
Failure to Meet the
Required Accuracy Rating
The first of the key requirements was that the counting machines were to have
an accuracy rating of at least 99.9995 percent. The BAC Report indicates that both
Mega Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be part and parcel of the Comelecs
Request for Proposal (RFP). The RFP, on page 26, even states that the ballot counting
machines and ballot counting softwaremust have an accuracy rating of 99.9995% (not
merely 99.995%) or better as certified by a reliable independent testing agency.
 When questioned on this matter during the Oral Argument, Commissioner Borra tried to
wash his hands by claiming that the required accuracy rating of 99.9995 percent had been
set by a private sector group in tandem with Comelec. He added that the Commission had
merely adopted the accuracy rating as part of the groups recommended bid requirements,
which it had not bothered to amend even after being advised by DOST that such standard
was unachievable. This excuse, however, does not in any way lessen Comelecs responsibility
to adhere to its own published bidding rules, as well as to see to it that the consortium
indeed meets the accuracy standard. Whichever accuracy rating is the right standard --
whether 99.995 or 99.9995 percent -- the fact remains that the machines of the so-called
consortium failed to even reach the lesser of the two. On this basis alone, it ought to have
been disqualified and its bid rejected outright.
At this point, the Court stresses that the essence of public bidding is violated by the
practice of requiring very high standards or unrealistic specifications that cannot be met --
like the 99.9995 percent accuracy rating in this case -- only to water them down after the
bid has been award. Such scheme, which discourages the entry of prospective bona
fide bidders, is in fact a sure indication of fraud in the bidding, designed to eliminate fair
competition. Certainly, if no bidder meets the mandatory requirements, standards or
specifications, then no award should be made and a failed bidding declared.
Failure of Software to Detect
Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the consortium as well as TIM
failed to meet another key requirement -- for the counting machines software program to
be able to detect previously downloaded precinct results and to prevent these
from being entered again into the counting machine. This same deficiency on the part
of both bidders reappears on page 7 of the BAC Report, as a result of the recurrence of their
failure to meet the said key requirement.
That the ability to detect previously downloaded data at different canvassing or
consolidation levels is deemed of utmost importance can be seen from the fact that it is
repeated three times in the RFP. On page 30 thereof, we find the requirement that
the city/municipal canvassing system software must be able to detect previously
downloaded precinct results and prevent these from being inputted again into the
system. Again, on page 32 of the RFP, we read that the provincial/district canvassing system
software must be able to detect previously downloaded city/municipal results and prevent
these from being inputted again into the system. And once more, on page 35 of the RFP, we
find the requirement that the national canvassing system software must be able to detect
previously downloaded provincial/district results and prevent these from being inputted
again into the system.
Once again, though, Comelec chose to ignore this crucial deficiency, which should have
been a cause for the gravest concern. Come May 2004, unscrupulous persons may take
advantage of and exploit such deficiency by repeatedly downloading and feeding into the
computers results favorable to a particular candidate or candidates. We are thus
confronted with the grim prospect of election fraud on a massive scale by means
of just a few key strokes. The marvels and woes of the electronic age!
Inability to Print
the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the
ACMs of both bidders were unable to print the audit trail without any loss of data. In the
case of MPC, the audit trail system was not yet incorporated into its ACMs.
This particular deficiency is significant, not only to this bidding but to the cause of free
and credible elections. The purpose of requiring audit trails is to enable Comelec to trace
and verify the identities of the ACM operators responsible for data entry and downloading, as
well as the times when the various data were downloaded into the canvassing system, in
order to forestall fraud and to identify the perpetrators.
Thus, the RFP on page 27 states that the ballot counting machines and ballot counting
software must print an audit trail of all machine operations for documentation and
verification purposes. Furthermore, the audit trail must be stored on the internal storage
device and be available on demand for future printing and verifying. On pages 30-31, the
RFP also requires that the city/municipal canvassing system software be able to print an
audit trail of the canvassing operations, including therein such data as the date and time the
canvassing program was started, the log-in of the authorized users (the identity of the
machine operators), the date and time the canvass data were downloaded into the
canvassing system, and so on and so forth. On page 33 of the RFP, we find the same audit
trail requirement with respect to the provincial/district canvassing system software; and
again on pages 35-36 thereof, the same audit trail requirement with respect to
the national canvassing system software.
That this requirement for printing audit trails is not to be lightly brushed aside by the
BAC or Comelec itself as a mere formality or technicality can be readily gleaned from the
provisions of Section 7 of RA 8436, which authorizes the Commission to use an automated
system for elections.
The said provision which respondents have quoted several times, provides that ACMs
are to possess certain features divided into two classes: those that the statute itself
considers mandatory and other features or capabilities that the law deems optional. Among
those considered mandatory are provisions for audit trails! Section 7 reads as follows: The
System shall contain the following features: (a) use of appropriate ballots; (b) stand-alone
machine which can count votes and an automated system which can consolidate the results
immediately; (c) with provisions for audit trails; (d) minimum human intervention; and
(e) adequate safeguard/security measures. (Italics and emphases supplied.)
In brief, respondents cannot deny that the provision requiring audit trails is indeed
mandatory, considering the wording of Section 7 of RA 8436. Neither can Respondent
Comelec deny that it has relied on the BAC Report, which indicates that the machines or the
software was deficient in that respect. And yet, the Commission simply disregarded this
shortcoming and awarded the Contract to private respondent, thereby violating the very law
it was supposed to implement.
C.
Inadequacy of Post Facto
Remedial Measures
Respondents argue that the deficiencies relating to the detection of previously
downloaded data, as well as provisions for audit trails, are mere shortcomings or minor
deficiencies in software or programming, which can be rectified. Perhaps Comelec simply
relied upon the BAC Report, which states on page 8 thereof that Mega Pacific failed in 8
items[;] however these are mostly on the software which can be corrected by re-
programming x x x and therefore can be readily corrected.
The undersigned ponentes questions, some of which were addressed to Commissioner
Borra during the Oral Argument, remain unanswered to this day. First of all, who made the
determination that the eight fail marks of Mega Pacific were on account of the software --
was it DOST or TWG? How can we be sure these failures were not the results of machine
defects? How was it determined that the software could actually be re-programmed and
thereby rectified? Did a qualifi ed technical expert read and analyze the source
code [ 4 9 ] for the programs and conclude that these could be saved and remedied? (Such
determination cannot be done by any other means save by the examination and analysis of
the source code.)
Who was this qualified technical expert? When did he carry out the study? Did he
prepare a written report on his findings? Or did the Comelec just make a wild guess? It does
not follow that all defects in software programs can be rectified, and the programs saved. In
the information technology sector, it is common knowledge that there are many badly
written programs, with significant programming errors written into them; hence it does not
make economic sense to try to correct the programs; instead, programmers simply abandon
them and just start from scratch. Theres no telling if any of these programs is unrectifiable,
unless a qualified programmer reads the source code.
 And if indeed a qualified expert reviewed the source code, did he also determine how
much work would be needed to rectify the programs? And how much time and money would
be spent for that effort? Who would carry out the work? After the rectification process, who
would ascertain and how would it be ascertained that the programs have indeed been
properly rectified, and that they would work properly thereafter? And of course, the most
important question to ask: could the rectification be done in time for the elections in 2004?
Clearly, none of the respondents bothered to think the matter through. Comelec simply
took the word of the BAC as gospel truth, without even bothering to inquire from DOST
whether it was true that the deficiencies noted could possibly be remedied by re-
programming the software. Apparently, Comelec did not care about the software, but
focused only on purchasing the machines.
What really adds to the Courts dismay is the admission made by Commissioner Borra
during the Oral Argument that the software currently being used by Comelec was merely the
demo version, inasmuch as the final version that would actually be used in the elections was
still being developed and had not yet been finalized.
It is not clear when the final version of the software would be ready for testing and
deployment. It seems to the Court that Comelec is just keeping its fingers crossed and
hoping the final product would work. Is there a Plan B in case it does not? Who knows? But
all these software programs are part and parcel of the bidding and the Contract awarded to
the Consortium. Why is it that the machines are already being brought in and paid for, when
there is as yet no way of knowing if the final version of the software would be able to run
them properly, as well as canvass and consolidate the results in the manner required?
The counting machines, as well as the canvassing system, will never work
properly without the correct software programs. There is an old adage that is still valid to
this day: Garbage in, garbage out. No matter how powerful, advanced and sophisticated the
computers and the servers are, if the software being utilized is defective or has been
compromised, the results will be no better than garbage. And to think that what is at stake
here is the 2004 national elections -- the very basis of our democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19 Certifications issued by
DOST declaring that some 285 counting machines had been tested and had passed the
acceptance testing conducted by the Department on October 8-18, 2003. Among those
tested were some machines that had failed previous tests, but had undergone adjustments
and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what manner and by what
standards or criteria the condition, performance and/or readiness of the machines were re-
evaluated and re-appraised and thereafter given the passing mark. Apart from that fact, the
remedial efforts of respondents were, not surprisingly, apparently focused again on the
machines -- the hardware. Nothing was said or done about the software -- the deficiencies as
to detection and prevention of downloading and entering previously downloaded data, as
well as the capability to print an audit trail. No matter how many times the machines were
tested and re-tested, if nothing was done about the programming defects and deficiencies,
the same danger of massive electoral fraud remains. As anyone who has a modicum of
knowledge of computers would say, Thats elementary!
And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as
saying that the new automated poll system would be used nationwide in May 2004, even as
the software for the system remained unfinished. It also reported that a certain Titus Manuel
of the Philippine Computer Society, which was helping Comelec test the hardware and
software, said that the software for the counting still had to be submitted on December 15,
while the software for the canvassing was due in early January.
Even as Comelec continues making payments for the ACMs, we keep asking ourselves:
who is going to ensure that the software would be tested and would work properly?
At any rate, the re-testing of the machines and/or the 100 percent testing of all
machines (testing of every single unit) would not serve to eradicate the grave abuse of
discretion already committed by Comelec when it awarded the Contract on April 15, 2003,
despite the obvious and admitted flaws in the bidding process, the failure of the winning
bidder to qualify, and the inability of the ACMs and the intended software to meet the bid
requirements and rules.
Comelecs Latest
Assurances Are
Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our
apprehensions. They merely affirm and compound the serious violations of law and gravely
abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9, 2003 required respondents to
inform it as to the number of ACMs delivered and paid for, as well as the total payment
made to date for the purchase thereof. They were likewise instructed to submit a
certification from the DOST attesting to the number of ACMs tested, the number found to be
defective; and whether the reprogrammed software has been tested and found to have
complied with the requirements under Republic Act No. 8436. [50]
In its Partial Compliance and Manifestation dated December 29, 2003, Comelec
informed the Court that 1,991 ACMs had already been delivered to the Commission as of
that date. It further certified that it had already paid the supplier the sum
of P849,167,697.41, which corresponded to 1,973 ACM units that had passed the
acceptance testing procedures conducted by the MIRDC-DOST [51] and which had therefore
been accepted by the poll body.
In the same submission, for the very first time, Comelec also disclosed to the Court the
following:
The Automated Counting and Canvassing Project involves not only the manufacturing of the
ACM hardware but also the development of three (3) types of software, which are intended
for use in the following:
1. Evaluation of Technical Bids
2. Testing and Acceptance Procedures
3. Election Day Use.
Purchase of the First Type of
Software Without Evaluation
In other words, the first type of software was to be developed solely for the purpose of
enabling the evaluation of the bidders technical bid. Comelec explained thus: In addition to
the presentation of the ACM hardware, the bidders were required to develop a base
software program that will enable the ACM to function properly. Since the software program
utilized during the evaluation of bids is not the actual software program to be employed on
election day, there being two (2) other types of software program that will still have to be
developed and thoroughly tested prior to actual election day use, defects in the base
software that can be readily corrected by reprogramming are considered minor in nature,
and may therefore be waived.
In short, Comelec claims that it evaluated the bids and made the decision to award the
Contract to the winning bidder partly on the basis of the operation of the ACMs running a
base software. That software was therefore nothing but a sample or demo software, which
would not be the actual one that would be used on election day. Keeping in mind that the
Contract involves the acquisition of not just the ACMs or the hardware, but also the software
that would run them, it is now even clearer that the Contract was awarded without Comelec
having seen, much less evaluated, the final product -- the software that would finally be
utilized come election day. (Not even the near-final product, for that matter).
What then was the point of conducting the bidding, when the software that was the
subject of the Contract was still to be created and could conceivably undergo innumerable
changes before being considered as being in final form? And that is not all!
No Explanation for Lapses
in the Second Type of Software
The second phase, allegedly involving the second type of software, is simply
denominated Testing and Acceptance Procedures. As best as we can construe, Comelec is
claiming that this second type of software is alsoto be developed and delivered by the
supplier in connection with the testing and acceptance phase of the acquisition process. The
previous pleadings, though -- including the DOST reports submitted to this Court -- have not
heretofore mentioned any statement, allegation or representation to the effect that a
particular set of software was to be developed and/or delivered by the supplier in connection
with the testing and acceptance of delivered ACMs.
What the records do show is that the imported ACMs were subjected to the testing and
acceptance process conducted by the DOST. Since the initial batch delivered included a high
percentage of machines that had failed the tests, Comelec asked the DOST to conduct a 100
percent testing; that is, to test every single one of the ACMs delivered. Among the machines
tested on October 8 to 18, 2003, were some units that had failed previous tests but had
subsequently been re-tested and had passed. To repeat, however, until now, there has never
been any mention of a second set or type of software pertaining to the testing and
acceptance process.
In any event, apart from making that misplaced and uncorroborated claim, Comelec in
the same submission also professes (in response to the concerns expressed by this Court)
that the reprogrammed software has been tested and found to have complied with
the requirements of RA 8436. It reasoned thus: Since the software program is an
inherent element in the automated counting system, the certification issued by the MIRDC-
DOST that one thousand nine hundred seventy-three (1,973) units passed the acceptance
test procedures is an official recognition by the MIRDC-DOST that the software component of
the automated election system, which has been reprogrammed to comply with the
provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical Evaluation
Committees ACM Testing and Acceptance Manual, has passed the MIRDC-DOST tests.
The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC-
DOST letter dated December 15, 2003, [52] which it relied upon, does not justify its grand
conclusion. For claritys sake, we quote in full the letter-certification, as follows:
15 December 2003
HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.
Project Director
Dear Commissioner Borra:
We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering 158
units of automated counting machines (ACMs) that we have tested from 02-12 December
2003.
To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)
1st batch - 30 units 4th batch - 438 units
2nd batch - 288 units 5th batch - 438 units
3rd batch - 414 units 6th batch - 383 units
It should be noted that a total of 18 units have failed the test. Out of these 18 units, only one
(1) unit has failed the retest.
Thank you and we hope you will find everything in order.
Very truly yours,
ROLANDO T. VILORIA, CESO III
Executive Director cum
Chairman, DOST-Technical Evaluation Committee
Even a cursory glance at the foregoing letter shows that it is completely bereft of
anything that would remotely support Comelecs contention that the software component of
the automated election system x x x has been reprogrammed to comply with RA 8436, and
has passed the MIRDC-DOST tests. There is no mention at all of any software
reprogramming. If the MIRDC-DOST had indeed undertaken the supposed reprogramming
and the process turned out to be successful, that agency would have proudly trumpeted its
singular achievement.
How Comelec came to believe that such reprogramming had been undertaken is
unclear. In any event, the Commission is not forthright and candid with the factual details. If
reprogramming has been done, who performed it and when? What exactly did the process
involve? How can we be assured that it was properly performed? Since the facts attendant to
the alleged reprogramming are still shrouded in mystery, the Court cannot give any weight
to Comelecs bare allegations.
The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-DOST
tests does not by itself serve as an endorsement of the soundness of the software program,
much less as a proof that it has been reprogrammed. In the first place, nothing on record
shows that the tests and re-tests conducted on the machines were intended to address the
serious deficiencies noted earlier. As a matter of fact, the MIRDC-DOST letter does not even
indicate what kinds of tests or re-tests were conducted, their exact nature and scope, and
the specific objectives thereof. [53] The absence of relevant supporting documents, combined
with the utter vagueness of the letter, certainly fails to inspire belief or to justify the
expansive confidence displayed by Comelec. In any event, it goes without saying that
remedial measures such as the alleged reprogramming cannot in any way mitigate the
grave abuse of discretion already committed as early as April 15, 2003.
Rationale of Public Bidding Negated
by the Third Type of Software
Respondent Comelec tries to assuage this Courts anxiety in these words: The
reprogrammed software that has already passed the requirements of Republic Act No. 8436
during the MIRDC-DOST testing and acceptance procedures will require further
customization since the following additional elements, among other things, will have to be
considered before the final software can be used on election day: 1. Final Certified List of
Candidates x x x 2. Project of Precincts x x x 3. Official Ballot Design and Security Features x
x x 4. Encryption, digital certificates and digital signatures x x x. The certified list of
candidates for national elective positions will be finalized on or before 23 January 2004 while
the final list of projects of precincts will be prepared also on the same date. Once all the
above elements are incorporated in the software program, the Test Certification Group
created by the Ad Hoc Technical Evaluation Committee will conduct meticulous testing of
the final software before the same can be used on election day. In addition to the testing to
be conducted by said Test Certification Group, the Comelec will conduct mock elections in
selected areas nationwide not only for purposes of public information but also to further test
the final election day program. Public respondent Comelec, therefore, requests that it be
given up to 16 February 2004 to comply with this requirement.
The foregoing passage shows the imprudent approach adopted by Comelec in the
bidding and acquisition process. The Commission says that before the software can be
utilized on election day, it will require customization through addition of data -- like the list of
candidates, project of precincts, and so on. And inasmuch as such data will become
available only in January 2004 anyway, there is therefore no perceived need on Comelecs
part to rush the supplier into producing the final (or near-final) version of the software before
that time. In any case, Comelec argues that the software needed for the electoral exercise
can be continuously developed, tested, adjusted and perfected, practically all the way up to
election day, at the same time that the Commission is undertaking all the other distinct and
diverse activities pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid little attention to the
counting and canvassing software during the entire bidding process, which took place in
February-March 2003. Granted that the software was defective, could not detect and prevent
the re-use of previously downloaded data or produce the audit trail -- aside from its other
shortcomings -- nevertheless, all those deficiencies could still be corrected down the road. At
any rate, the software used for bidding purposes would not be the same one that will be
used on election day, so why pay any attention to its defects? Or to the Comelecs own
bidding rules for that matter?
 Clearly, such jumbled ratiocinations completely negate the rationale underlying the
bidding process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly violated the public
policy on public biddings (1) by allowing MPC/MPEI to participate in the bidding even though
it was not qualified to do so; and (2) by eventually awarding the Contract to MPC/MPEI. Now,
with the latest explanation given by Comelec, it is clear that the Commission further
desecrated the law on public bidding by permitting the winning bidder to change and alter
the subject of the Contract (the software), in effect allowing a substantive amendment
without public bidding.
This stance is contrary to settled jurisprudence requiring the strict application of
pertinent rules, regulations and guidelines for public bidding for the purpose of placing each
bidder, actual or potential, on the same footing. The essence of public bidding is, after all, an
opportunity for fair competition, and a fair basis for the precise comparison of bids. In
common parlance, public bidding aims to level the playing field. That means each bidder
must bid under the same conditions; and be subject to the same guidelines, requirements
and limitations, so that the best offer or lowest bid may be determined, all other things
being equal.
Thus, it is contrary to the very concept of public bidding to permit a variance between
the conditions under which bids are invited and those under which proposals are submitted
and approved; or, as in this case, the conditions under which the bid is won and those under
which the awarded Contract will be complied with. The substantive amendment of the
contract bidded out, without any public bidding -- after the bidding process had been
concluded -- is violative of the public policy on public biddings, as well as the spirit and
intent of RA 8436. The whole point in going through the public bidding exercise was
completely lost. The very rationale of public bidding was totally subverted by the
Commission.
From another perspective, the Comelec approach also fails to make sense. Granted that,
before election day, the software would still have to be customized to each precinct,
municipality, city, district, and so on, there still was nothing at all to prevent Comelec from
requiring prospective suppliers/bidders to produce, at the very start of the bidding
process, the next-to-final versions of the software (the best software the suppliers had) --
pre-tested and ready to be customized to the final list of candidates and project of precincts,
among others, and ready to be deployed thereafter. The satisfaction of such requirement
would probably have provided far better bases for evaluation and selection, as between
suppliers, than the so-called demo software.
Respondents contend that the bidding suppliers counting machines were previously
used in at least one political exercise with no less than 20 million voters. If so, it stands to
reason that the software used in that past electoral exercise would probably still be available
and, in all likelihood, could have been adopted for use in this instance. Paying for machines
and software of that category (already tried and proven in actual elections and ready to be
adopted for use) would definitely make more sense than paying the same hundreds of
millions of pesos for demo software and empty promises of usable programs in the future.
But there is still another gut-level reason why the approach taken by Comelec is
reprehensible. It rides on the perilous assumption that nothing would go wrong; and that,
come election day, the Commission and the supplier would have developed, adjusted and
re-programmed the software to the point where the automated system could function as
envisioned. But what if such optimistic projection does not materialize? What if, despite all
their herculean efforts, the software now being hurriedly developed and tested for the
automated system performs dismally and inaccurately or, worse, is hacked and/or
manipulated?[54] What then will we do with all the machines and defective software already
paid for in the amount of P849 million of our tax money? Even more important, what will
happen to our country in case of failure of the automation?
The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to
be able to submit a certification relative to the additional elements of the software that will
be customized, because for us to do so would unnecessarily delay the resolution of this case
and would just give the poll body an unwarranted excuse to postpone the 2004 elections. On
the other hand, because such certification will not cure the gravely abusive actions
complained of by petitioners, it will be utterly useless.
Is this Court being overly pessimistic and perhaps even engaging in
speculation? Hardly. Rather, the Court holds that Comelec should not have gambled on the
unrealistic optimism that the suppliers software development efforts would turn out well.
The Commission should have adopted a much more prudent and judicious approach to
ensure the delivery of tried and tested software, and readied alternative courses of action in
case of failure. Considering that the nations future is at stake here, it should have done no
less.
Epilogue
Once again, the Court finds itself at the crossroads of our nations history. At stake in this
controversy is not just the business of a computer supplier, or a questionable proclamation
by Comelec of one or more public officials. Neither is it about whether this country should
switch from the manual to the automated system of counting and canvassing votes. At its
core is the ability and capacity of the Commission on Elections to perform properly, legally
and prudently its legal mandate to implement the transition from manual to automated
elections.
Unfortunately, Comelec has failed to measure up to this historic task. As stated at the
start of this Decision, Comelec has not merely gravely abused its discretion in awarding the
Contract for the automation of the counting and canvassing of the ballots. It has also put at
grave risk the holding of credible and peaceful elections by shoddily accepting electronic
hardware and software that admittedly failed to pass legally mandated technical
requirements. Inadequate as they are, the remedies it proffers post facto do not cure the
grave abuse of discretion it already committed (1) on April 15, 2003, when it illegally made
the award; and (2) sometime in May 2003 when it executed the Contract for the purchase of
defective machines and non-existent software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable and unconscionable to place
its imprimatur on this void and illegal transaction that seriously endangers the breakdown of
our electoral system. For this Court to cop-out and to close its eyes to these illegal
transactions, while convenient, would be to abandon its constitutional duty of safeguarding
public interest.
As a necessary consequence of such nullity and illegality, the purchase of the machines
and all appurtenances thereto including the still-to-be-produced (or in Comelecs words, to be
reprogrammed) software, as well as all the payments made therefor, have no basis
whatsoever in law. The public funds expended pursuant to the void Resolution and Contract
must therefore be recovered from the payees and/or from the persons who made possible
the illegal disbursements, without prejudice to possible criminal prosecutions against them.
Furthermore, Comelec and its officials concerned must bear full responsibility for the
failed bidding and award, and held accountable for the electoral mess wrought by their
grave abuse of discretion in the performance of their functions. The State, of course, is not
bound by the mistakes and illegalities of its agents and servants.
True, our country needs to transcend our slow, manual and archaic electoral
process. But before it can do so, it must first have a diligent and competent electoral agency
that can properly and prudently implement a well-conceived automated election system.
At bottom, before the country can hope to have a speedy and fraud-free automated
election, it must first be able to procure the proper computerized hardware and software
legally, based on a transparent and valid system of public bidding. As in any democratic
system, the ultimate goal of automating elections must be achieved by a legal, valid and
above-board process of acquiring the necessary tools and skills therefor. Though the
Philippines needs an automated electoral process, it cannot accept just any system shoved
into its bosom through improper and illegal methods. As the saying goes, the end never
justifies the means. Penumbral contracting will not produce enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby
declares NULL and VOID Comelec Resolution No. 6074 awarding the contract for Phase II of
the CAES to Mega Pacific Consortium (MPC). Also declared null and void is the subject
Contract executed between Comelec and Mega Pacific eSolutions (MPEI). [55] Comelec is
further ORDERED to refrain from implementing any other contract or agreement entered into
with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman which shall
determine the criminal liability, if any, of the public officials (and conspiring private
individuals, if any) involved in the subject Resolution and Contract. Let the Office of the
Solicitor General also take measures to protect the government and vindicate public interest
from the ill effects of the illegal disbursements of public funds made by reason of the void
Resolution and Contract.
SO ORDERED.
Carpio, Austria-Martinez, Carpio-Morales, and Callejo, Sr., JJ., concur.
Davide, Jr., C.J., Vitug, and Ynares-Santiago, JJ., see separate opinion.
Puno, J., concur, and also joins the opinion of J. Ynares-Santiago.
Quisumbing, J., in the result.
Sandoval-Gutierrez, J., see concurring opinion.
Corona, and Azcuna, JJ., joins the dissent of J. Tinga.
Tinga, J., pls. see dissenting opinion.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-23127 April 29, 1971

FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee,
vs.
PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF PANGASINAN,
defendants, PHILIPPINE NATIONAL BANK, defendant-appellant.
Dionisio E. Moya for plaintiff-appellee.
Ramon B. de los Reyes for defendant-appellant.

FERNANDO, J.:
A correct appreciation of the controlling doctrine as to the effect, if any, to be attached to a
statute subsequently adjudged invalid, is decisive of this appeal from a lower court decision.
Plaintiff Francisco Serrano de Agbayani, now appellee, was able to obtain a favorable
judgment in her suit against defendant, now appellant Philippine National Bank,
permanently enjoining the other defendant, the Provincial Sheriff of Pangasinan, from
proceeding with an extra-judicial foreclosure sale of land belonging to plaintiff mortgaged to
appellant Bank to secure a loan declared no longer enforceable, the prescriptive period
having lapsed. There was thus a failure to sustain the defense raised by appellant that if the
moratorium under an Executive Order and later an Act subsequently found unconstitutional
were to be counted in the computation, then the right to foreclose the mortgage was still
subsisting. In arriving at such a conclusion, the lower court manifested a tenacious
adherence to the inflexible view that an unconstitutional act is not a law, creating no rights
and imposing no duties, and thus as inoperative as if it had never been. It was oblivious to
the force of the principle adopted by this Court that while a statute's repugnancy to the
fundamental law deprives it of its character as a juridical norm, its having been operative
prior to its being nullified is a fact that is not devoid of legal consequences. As will hereafter
be explained, such a failing of the lower court resulted in an erroneous decision. We find for
appellant Philippine National Bank, and we reverse.
There is no dispute as to the facts. Plaintiff obtained the loan in the amount of P450.00 from
defendant Bank dated July 19, 1939, maturing on July 19, 1944, secured by real estate
mortgage duly registered covering property described in T.C.T. No. 11275 of the province of
Pangasinan. As of November 27, 1959, the balance due on said loan was in the amount of
P1,294.00. As early as July 13 of the same year, defendant instituted extra-judicial
foreclosure proceedings in the office of defendant Provincial Sheriff of Pangasinan for the
recovery of the balance of the loan remaining unpaid. Plaintiff countered with his suit against
both defendants on August 10, 1959, her main allegation being that the mortgage sought to
be foreclosed had long prescribed, fifteen years having elapsed from the date of maturity,
July 19, 1944. She sought and was able to obtain a writ of preliminary injunction against
defendant Provincial Sheriff, which was made permanent in the decision now on appeal.
Defendant Bank in its answer prayed for the dismissal of the suit as even on plaintiff's own
theory the defense of prescription would not be available if the period from March 10, 1945,
when Executive Order No. 32 1 was issued, to July 26, 1948, when the subsequent legislative
act 2 extending the period of moratorium was declared invalid, were to be deducted from the
computation of the time during which the bank took no legal steps for the recovery of the
loan. As noted, the lower court did not find such contention persuasive and decided the suit
in favor of plaintiff.
Hence this appeal, which, as made clear at the outset, possesses merit, there being a failure
on the part of the lower court to adhere to the applicable constitutional doctrine as to the
effect to be given to a statute subsequently declared invalid.
1. The decision now on appeal reflects the orthodox view that an unconstitutional act, for
that matter an executive order or a municipal ordinance likewise suffering from that
infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act
taken under it. Its repugnancy to the fundamental law once judicially declared results in its
being to all intents and purposes a mere scrap of paper. As the new Civil Code puts it: "When
the courts declare a law to be inconsistent with the Constitution, the former shall be void
and the latter shall govern. Administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws of the Constitution. 3 It is understandable
why it should be so, the Constitution being supreme and paramount. Any legislative or
executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not however
be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such
challenged legislative or executive act must have been in force and had to be complied with.
This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is
entitled to obedience and respect. Parties may have acted under it and may have changed
their positions. What could be more fitting than that in a subsequent litigation regard be had
to what has been done while such legislative or executive act was in operation and
presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being
nullified, its existence as a fact must be reckoned with. This is merely to reflect awareness
that precisely because the judiciary is the governmental organ which has the final say on
whether or not a legislative or executive measure is valid, a period of time may have
elapsed before it can exercise the power of judicial review that may lead to a declaration of
nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no
recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: "The actual existence of a statute,
prior to such a determination [of unconstitutionality], is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects, with respect to particular relations, individual and corporate,
and particular conduct, private and official." 4 This language has been quoted with approval
in a resolution inAraneta v. Hill 5 and the decision in Manila Motor Co., Inc. v. Flores. 6 An even
more recent instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v.
Cuerva and Co. 7
2. Such an approach all the more commends itself whenever police power legislation
intended to promote public welfare but adversely affecting property rights is involved. While
subject to be assailed on due process, equal protection and non-impairment grounds, all that
is required to avoid the corrosion of invalidity is that the rational basis or reasonableness
test is satisfied. The legislature on the whole is not likely to allow an enactment suffering, to
paraphrase Cardozo, from the infirmity of out running the bounds of reason and resulting in
sheer oppression. It may be of course that if challenged, an adverse judgment could be the
result, as its running counter to the Constitution could still be shown. In the meanwhile
though, in the normal course of things, it has been acted upon by the public and accepted as
valid. To ignore such a fact would indeed be the fruitful parent of injustice. Moreover, as its
constitutionality is conditioned on its being fair or reasonable, which in turn is dependent on
the actual situation, never static but subject to change, a measure valid when enacted may
subsequently, due to altered circumstances, be stricken down.
That is precisely what happened in connection with Republic Act No. 342, the moratorium
legislation, which continued Executive Order No. 32, issued by the then President Osmea,
suspending the enforcement of payment of all debts and other monetary obligations payable
by war sufferers. So it was explicitly held in Rutter v. Esteban 8 where such enactment was
considered in 1953 "unreasonable and oppressive, and should not be prolonged a minute
longer, and, therefore, the same should be declared null and void and without effect." 9 At
the time of the issuance of the above Executive Order in 1945 and of the passage of such
Act in 1948, there was a factual justification for the moratorium. The Philippines was
confronted with an emergency of impressive magnitude at the time of her liberation from
the Japanese military forces in 1945. Business was at a standstill. Her economy lay
prostrate. Measures, radical measures, were then devised to tide her over until some
semblance of normalcy could be restored and an improvement in her economy noted. No
wonder then that the suspension of enforcement of payment of the obligations then existing
was declared first by executive order and then by legislation. The Supreme Court was right
therefore in rejecting the contention that on its face, the Moratorium Law was
unconstitutional, amounting as it did to the impairment of the obligation of contracts.
Considering the circumstances confronting the legitimate government upon its return to the
Philippines, some such remedial device was needed and badly so. An unyielding insistence
then on the rights to property on the part of the creditors was not likely to meet with judicial
sympathy. Time passed however, and conditions did change.
When the legislation was before this Court in 1953, the question before it was its satisfying
the rational basis test, not as of the time of its enactment but as of such date. Clearly, if
then it were found unreasonable, the right to non-impairment of contractual obligations
must prevail over the assertion of community power to remedy an existing evil. The
Supreme Court was convinced that such indeed was the case. As stated in the opinion of
Justice Bautista Angelo: "But we should not lose sight of the fact that these obligations had
been pending since 1945 as a result of the issuance of Executive Orders Nos. 25 and 32 and
at present their enforcement is still inhibited because of the enactment of Republic Act No.
342 and would continue to be unenforceable during the eight-year period granted to prewar
debtors to afford them an opportunity to rehabilitate themselves, which in plain language
means that the creditors would have to observe a vigil of at least twelve (12) years before
they could affect a liquidation of their investment dating as far back as 1941. This period
seems to us unreasonable, if not oppressive. While the purpose of Congress is plausible, and
should be commended, the relief accorded works injustice to creditors who are practically
left at the mercy of the debtors. Their hope to effect collection becomes extremely remote,
more so if the credits are unsecured. And the injustice is more patent when, under the law
the debtor is not even required to pay interest during the operation of the relief, unlike
similar statutes in the United States. 10 The conclusion to which the foregoing considerations
inevitably led was that as of the time of adjudication, it was apparent that Republic Act No.
342 could not survive the test of validity. Executive Order No. 32 should likewise be nullified.
That before the decision they were not constitutionally infirm was admitted expressly. There
is all the more reason then to yield assent to the now prevailing principle that the existence
of a statute or executive order prior to its being adjudged void is an operative fact to which
legal consequences are attached.
3. Precisely though because of the judicial recognition that moratorium was a valid
governmental response to the plight of the debtors who were war sufferers, this Court has
made clear its view in a series of cases impressive in their number and unanimity that
during the eight-year period that Executive Order No. 32 and Republic Act No. 342 were in
force, prescription did not run. So it has been held from Day v. Court of First
Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last year. What is
deplorable is that as of the time of the lower court decision on January 27, 1960, at least
eight decisions had left no doubt as to the prescriptive period being tolled in the meanwhile
prior to such adjudication of invalidity. 13 Speaking of the opposite view entertained by the
lower court, the present Chief Justice, in Liboro v. Finance and Mining Investments
Corp. 14 has categorized it as having been "explicitly and consistently rejected by this
Court." 15
The error of the lower court in sustaining plaintiff's suit is thus manifest. From July 19, 1944,
when her loan matured, to July 13, 1959, when extra-judicial foreclosure proceedings were
started by appellant Bank, the time consumed is six days short of fifteen years. The
prescriptive period was tolled however, from March 10, 1945, the effectivity of Executive
Order No. 32, to May 18, 1953, when the decision of Rutter v. Esteban was promulgated,
covering eight years, two months and eight days. Obviously then, when resort was had
extra-judicially to the foreclosure of the mortgage obligation, there was time to spare before
prescription could be availed of as a defense.
WHEREFORE, the decision of January 27, 1960 is reversed and the suit of plaintiff filed
August 10, 1959 dismissed. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee, Barredo,
Villamor, and Makasiar, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 81510 March 14, 1990
HORTENCIA SALAZAR, petitioner,
vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine
Overseas Employment Administration, and FERDIE MARQUEZ, respondents.
Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest
and seizure under Article 38 of the Labor Code, prohibiting illegal recruitment.
The facts are as follows:
xxx xxx xxx
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay
City, in a sworn statement filed with the Philippine Overseas Employment
Administration (POEA for brevity) charged petitioner Hortencia Salazar, viz:
04. T: Ano ba ang dahilan at ikaw ngayon ay
narito at
nagbibigay ng salaysay.
S: Upang ireklamo sa dahilan ang aking PECC Card ay
ayaw ibigay sa akin ng dati kong manager. Horty
Salazar 615 R.O. Santos, Mandaluyong, Mla.
 05. T: Kailan at saan naganap and ginawang
panloloko sa
iyo ng tao/mga taong inireklamo mo?
S. Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang pangyayari?
S. Pagkagaling ko sa Japan ipinatawag niya ako.
Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils.
ay
hindi pa niya ako napa-alis. So lumipat ako ng
ibang
company pero ayaw niyang ibigay and PECC
Card
ko.
2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom
said complaint was assigned, sent to the petitioner the following telegram:
YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE
MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON
NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU. FAIL
NOT UNDER PENALTY OF LAW.
4. On the same day, having ascertained that the petitioner had no license to
operate a recruitment agency, public respondent Administrator Tomas D.
Achacoso issued his challenged CLOSURE AND SEIZURE ORDER NO. 1205
which reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment
agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila
and the seizure of the documents and paraphernalia being used or intended to
be used as the means of committing illegal recruitment, it having verified that
you have
(1) No valid license or authority from the Department of Labor
and Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34
of the New Labor Code in relation to Article 38 of the same
code.
This ORDER is without prejudice to your criminal prosecution
under existing laws.
Done in the City of Manila, this 3th day of November, 1987.
5. On January 26, 1988 POEA Director on Licensing and Regulation Atty.
Estelita B. Espiritu issued an office order designating respondents Atty.
Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro as members of a team
tasked to implement Closure and Seizure Order No. 1205. Doing so, the group
assisted by Mandaluyong policemen and mediamen Lito Castillo of the
People's Journal and Ernie Baluyot of News Today proceeded to the residence
of the petitioner at 615 R.O. Santos St., Mandaluyong, Metro Manila. There it
was found that petitioner was operating Hannalie Dance Studio. Before
 entering the place, the team served said Closure and Seizure order on a
certain Mrs. Flora Salazar who voluntarily allowed them entry into the
premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio
was accredited with Moreman Development (Phil.). However, when required to
show credentials, she was unable to produce any. Inside the studio, the team
chanced upon twelve talent performers practicing a dance number and saw
about twenty more waiting outside, The team confiscated assorted costumes
which were duly receipted for by Mrs. Asuncion Maguelan and witnessed by
Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following letter:
Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro
Manila, we respectfully request that the personal properties seized at her
residence last January 26, 1988 be immediately returned on the ground that
said seizure was contrary to law and against the will of the owner thereof.
Among our reasons are the following:
1. Our client has not been given any prior notice or hearing,
hence the Closure and Seizure Order No. 1205 dated November
3, 1987 violates "due process of law" guaranteed under Sec. 1,
Art. III, of the Philippine Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine
Constitution which guarantees right of the people "to be secure
in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for
any purpose."
3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of
the personal properties belonging to our client were without her
consent and were done with unreasonable force and
intimidation, together with grave abuse of the color of authority,
and constitute robbery and violation of domicile under Arts. 293
and 128 of the Revised Penal Code.
Unless said personal properties worth around TEN THOUSAND
PESOS (P10,000.00) in all (and which were already due for
shipment to Japan) are returned within twenty-four (24) hours
from your receipt hereof, we shall feel free to take all legal
action, civil and criminal, to protect our client's interests.
We trust that you will give due attention to these important
matters.
7. On February 2, 1988, before POEA could answer the letter, petitioner filed
the instant petition; on even date, POEA filed a criminal complaint against her
with the Pasig Provincial Fiscal, docketed as IS-88-836. 1
On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to
be barred are alreadyfait accompli, thereby making prohibition too late, we consider the
petition as one for certiorari in view of the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas Employment
Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or
arrest) under Article 38 of the Labor Code? It is also an issue squarely raised by the
petitioner for the Court's resolution.
Under the new Constitution, which states:
 . . . no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized. 2
it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared
that mayors may not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that what has just been described is
the state of the law as it was in September, 1985. The law has since been
altered. No longer does the mayor have at this time the power to conduct
preliminary investigations, much less issue orders of arrest. Section 143 of the
Local Government Code, conferring this power on the mayor has been
abrogated, renderedfunctus officio by the 1987 Constitution which took effect
on February 2, 1987, the date of its ratification by the Filipino people. Section
2, Article III of the 1987 Constitution pertinently provides that "no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the person or things to be
seized." The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on the
basis thereof, warrants of arrest or search warrants, may be validly exercised
only by judges, this being evidenced by the elimination in the present
Constitution of the phrase, "such other responsible officer as may be
authorized by law" found in the counterpart provision of said 1973
Constitution, who, aside from judges, might conduct preliminary investigations
and issue warrants of arrest or search warrants. 4
Neither may it be done by a mere prosecuting body:
We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said
to be a neutral and detached "judge" to determine the existence of probable
cause for purposes of arrest or search. Unlike a magistrate, a prosecutor is
naturally interested in the success of his case. Although his office "is to see
that justice is done and not necessarily to secure the conviction of the person
accused," he stands, invariably, as the accused's adversary and his accuser.
To permit him to issue search warrants and indeed, warrants of arrest, is to
make him both judge and jury in his own right, when he is neither. That
makes, to our mind and to that extent, Presidential Decree No. 1936 as
amended by Presidential Decree No. 2002, unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment
by Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to
Presidential Decree No. 1693, in the exercise of his legislative powers under Amendment No.
6 of the 1973 Constitution. Under the latter, the then Minister of Labor merely exercised
recommendatory powers:
(c) The Minister of Labor or his duly authorized representative shall have the
power to recommend the arrest and detention of any person engaged in
illegal recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed
purpose of giving more teeth to the campaign against illegal recruitment. The Decree gave
the Minister of Labor arrest and closure powers:
 (b) The Minister of Labor and Employment shall have the power to cause the
arrest and detention of such non-licensee or non-holder of authority if after
proper investigation it is determined that his activities constitute a danger to
national security and public order or will lead to further exploitation of job-
seekers. The Minister shall order the closure of companies, establishment and
entities found to be engaged in the recruitment of workers for overseas
employment, without having been licensed or authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the
Labor Minister search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly authorized
representatives shall have the power to cause the arrest and detention of
such non-licensee or non-holder of authority if after investigation it is
determined that his activities constitute a danger to national security and
public order or will lead to further exploitation of job-seekers. The Minister
shall order the search of the office or premises and seizure of documents,
paraphernalia, properties and other implements used in illegal recruitment
activities and the closure of companies, establishment and entities found to
be engaged in the recruitment of workers for overseas employment, without
having been licensed or authorized to do so. 8
The above has now been etched as Article 38, paragraph (c) of the Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in
its twilight moments.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or
arrest warrants. Hence, the authorities must go through the judicial process. To that extent,
we declare Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and
effect.
The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-
taken. Vivo involved a deportation case, governed by Section 69 of the defunct Revised
Administrative Code and by Section 37 of the Immigration Law. We have ruled that in
deportation cases, an arrest (of an undesirable alien) ordered by the President or his duly
authorized representatives, in order to carry out a final decision of deportation is valid. 10 It
is valid, however, because of the recognized supremacy of the Executive in matters
involving foreign affairs. We have held: 11
xxx xxx xxx
The State has the inherent power to deport undesirable aliens (Chuoco Tiaco
vs. Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may
be exercised by the Chief Executive "when he deems such action necessary
for the peace and domestic tranquility of the nation." Justice Johnson's opinion
is that when the Chief Executive finds that there are aliens whose continued
presence in the country is injurious to the public interest, "he may, even in the
absence of express law, deport them". (Forbes vs. Chuoco Tiaco and
Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41).
The right of a country to expel or deport aliens because their continued
presence is detrimental to public welfare is absolute and unqualified (Tiu Chun
Hai and Go Tam vs. Commissioner of Immigration and the Director of NBI, 104
Phil. 949, 956). 12
The power of the President to order the arrest of aliens for deportation is, obviously,
exceptional. It (the power to order arrests) can not be made to extend to other cases, like
the one at bar. Under the Constitution, it is the sole domain of the courts.
Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it
was validly issued, is clearly in the nature of a general warrant:
 Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment
agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila
and the seizure of the documents and paraphernalia being used or intended to
be used as the means of committing illegal recruitment, it having verified that
you have
(1) No valid license or authority from the Department of Labor
and Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34
of the New Labor Code in relation to Article 38 of the same
code.
This ORDER is without prejudice to your criminal prosecution under existing
laws. 13
We have held that a warrant must identify clearly the things to be seized, otherwise, it is null
and void, thus:
xxx xxx xxx
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general
warrants. The search warrants describe the articles sought to be seized in this
wise:
1) All printing equipment, paraphernalia, paper, ink, photo
equipment, typewriters, cabinets, tables, communications/
recording equipment, tape recorders, dictaphone and the like
used and/or connected in the printing of the "WE FORUM"
newspaper and any and all documents/communications, letters
and facsimile of prints related to the "WE FORUM" newspaper.
2) Subversive documents, pamphlets, leaflets, books, and other
publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free
Philippines, Light-a-Fire Movement and April 6 Movement; and
3) Motor vehicles used in the distribution/circulation of the "WE
FORUM" and other subversive materials and propaganda, more
particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN, pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking "Bagong Silang."
In Stanford v. State of Texas, the search warrant which authorized the search
for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures,
recordings and other written instruments concerning the Communist Parties of
Texas, and the operations of the Community Party in Texas," was declared void
by the U.S. Supreme Court for being too general. In like manner, directions to
"seize any evidence in connection with the violation of SDC 13-3703 or
otherwise" have been held too general, and that portion of a search warrant
which authorized the seizure of any "paraphernalia which could be used to
violate Sec. 54-197 of the Connecticut General Statutes (the statute dealing
with the crime of conspiracy)" was held to be a general warrant, and therefore
invalid. The description of the articles sought to be seized under the search
warrants in question cannot be characterized differently.
 In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in
English history; the era of disaccord between the Tudor Government and the
English Press, when "Officers of the Crown were given roving commissions to
search where they pleased in order to suppress and destroy the literature of
dissent both Catholic and Puritan." Reference herein to such historical episode
would not be relevant for it is not the policy of our government to suppress
any newspaper or publication that speaks with "the voice of non-conformity"
but poses no clear and imminent danger to state security.14
For the guidance of the bench and the bar, we reaffirm the following principles:
1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no
other, who may issue warrants of arrest and search:
2. The exception is in cases of deportation of illegal and undesirable aliens,
whom the President or the Commissioner of Immigration may order arrested,
following a final order of deportation, for the purpose of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is
declared UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all
materials seized as a result of the implementation of Search and Seizure Order No. 1205.
No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

U.S. Supreme Court

Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)

Marbury v. Madison
5 U.S. (1 Cranch) 137
Syllabus
The clerks of the Department of State of the United States may be called upon to give
evidence of transactions in the Department which are not of a confidential character.
The Secretary of State cannot be called upon as a witness to state transactions of a
confidential nature which may have occurred in his Department. But he may be called upon
to give testimony of circumstances which were not of that character.
Clerks in the Department of State were directed to be sworn, subject to objections to
questions upon confidential matters.
Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional power
of appointment has been exercised. And the power has been exercised when the last act
required from the person possessing the power has been performed. This last act is the
signature of the commission.
If the act of livery be necessary to give validity to the commission of an officer, it has been
delivered when executed, and given to the Secretary of State for the purpose of being
sealed, recorded, and transmitted to the party.
In cases of commissions to public officers, the law orders the Secretary of State to record
them. When, therefore, they are signed and sealed, the order for their being recorded is
given, and, whether inserted inserted into the book or not, they are recorded.
When the heads of the departments of the Government are the political or confidential
officers of the Executive, merely to execute the will of the President, or rather to act in cases
in which the Executive possesses a constitutional or legal discretion, nothing can be more
perfectly clear than that their acts are only politically examinable. But where a specific duty
is assigned by law, and individual rights depend upon the performance of that duty, it seems
equally clear that the individual who considers himself injured has a right to resort to the
laws of his country for a remedy.
The President of the United States, by signing the commission, appointed Mr. Marbury a
justice of the peace for the County of Washington, in the District of Columbia, and the seal of
the United States, affixed thereto by the Secretary of State, is conclusive testimony of the
verity of the signature, and of the completion of the appointment; and the appointment
conferred on him a legal right to the office for the space of five years. Having this legal right
to the office, he has a consequent right to the commission, a refusal to deliver which is a
plain violation of that right for which the laws of the country afford him a remedy.
To render a mandamus a proper remedy, the officer to whom it is directed must be one to
whom, on legal principles, such writ must be directed, and the person applying for it must be
without any other specific remedy.
Where a commission to a public officer has been made out, signed, and sealed, and is
withheld from the person entitled to it, an action of detinue for the commission against the
Secretary of State who refuses to deliver it is not the proper remedy, as the judgment in
detinue is for the thing itself, or its value. The value of a public office, not to be sold, is
incapable of being ascertained. It is a plain case for a mandamus, either to deliver the
commission or a copy of it from the record.
To enable the Court to issue a mandamus to compel the delivery of the commission of a
public office by the Secretary of State, it must be shown that it is an exercise of appellate
jurisdiction, or that it be necessary to enable them to exercise appellate jurisdiction.
It is the essential criterion of appellate jurisdiction that it revises and corrects the
proceedings in a cause already instituted, and does not create the cause.
The authority given to the Supreme Court by the act establishing the judicial system of the
United States to issue writs of mandamus to public officers appears not to be warranted by
the Constitution.
It is emphatically the duty of the Judicial Department to say what the law is. Those who
apply the rule to particular cases must, of necessity, expound and interpret the rule. If two
laws conflict with each other, the Court must decide on the operation of each.
If courts are to regard the Constitution, and the Constitution is superior to any ordinary act
of the legislature, the Constitution, and not such ordinary act, must govern the case to which
they both apply.
At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and
William Harper, by their counsel,
Page 5 U. S. 138
severally moved the court for a rule to James Madison, Secretary of State of the United
States, to show cause why a mandamus should not issue commanding him to cause to be
delivered to them respectively their several commissions as justices of the peace in the
District of Columbia. This motion was supported by affidavits of the following facts: that
notice of this motion had been given to Mr. Madison; that Mr. Adams, the late President of
the United States, nominated the applicants to the Senate for their advice and consent to be
appointed justices of the peace of the District of Columbia; that the Senate advised and
consented to the appointments; that commissions in due form were signed by the said
President appointing them justices, &c., and that the seal of the United States was in due
form affixed to the said commissions by the Secretary of State; that the applicants have
requested Mr. Madison to deliver them their said commissions, who has not complied with
that request; and that their said commissions are withheld from them; that the applicants
have made application to Mr. Madison as Secretary of State of the United States at his office,
for information whether the commissions were signed and sealed as aforesaid; that explicit
and satisfactory information has not been given in answer to that inquiry, either by the
Secretary of State or any officer in the Department of State; that application has been made
to the secretary of the Senate for a certificate of the nomination of the applicants, and of the
advice and consent of the Senate, who has declined giving such a certificate; whereupon a
rule was made to show cause on the fourth day of this term. This rule having been duly
served,
Page 5 U. S. 139
Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court and
were required to give evidence, objected to be sworn, alleging that they were clerks in the
Department of State, and not bound to disclose any facts relating to the business or
transactions of the office.
The court ordered the witnesses to be sworn, and their answers taken in writing, but
informed them that, when the questions were asked, they might state their objections to
answering each particular question, if they had any.
Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in
the affidavits occurred, was called upon to give testimony. He objected to answering. The
questions were put in writing.
The court said there was nothing confidential required to be disclosed. If there had been, he
was not obliged to answer it, and if he thought anything was communicated to him
confidentially, he was not bound to disclose, nor was he obliged to state anything which
would criminate himself.
The questions argued by the counsel for the relators were, 1. Whether the Supreme Court
can award the writ of mandamus in any case. 2. Whether it will lie to a Secretary of State, in
any case whatever. 3. Whether, in the present case, the Court may award a mandamus to
James Madison, Secretary of State.
Page 5 U. S. 153
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
At the last term, on the affidavits then read and filed with the clerk, a rule was granted in
this case requiring the Secretary of State to show cause why a mandamus
Page 5 U. S. 154
should not issue directing him to deliver to William Marbury his commission as a justice of
the peace for the county of Washington, in the District of Columbia.
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy
of this case, the novelty of some of its circumstances, and the real difficulty attending the
points which occur in it require a complete exposition of the principles on which the opinion
to be given by the Court is founded.
These principles have been, on the side of the applicant, very ably argued at the bar. In
rendering the opinion of the Court, there will be some departure in form, though not in
substance, from the points stated in that argument.
In the order in which the Court has viewed this subject, the following questions have been
considered and decided.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of his country afford him a
remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is:
1. Has the applicant a right to the commission he demands?
His right originates in an act of Congress passed in February, 1801, concerning the District of
Columbia.
After dividing the district into two counties, the eleventh section of this law enacts,
"that there shall be appointed in and for each of the said counties such number of discreet
persons to be justices of the peace as the President of the United States shall, from time to
time, think expedient, to continue in office for five years. "
Page 5 U. S. 155
It appears from the affidavits that, in compliance with this law, a commission for William
Marbury as a justice of peace for the County of Washington was signed by John Adams, then
President of the United States, after which the seal of the United States was affixed to it, but
the commission has never reached the person for whom it was made out.
In order to determine whether he is entitled to this commission, it becomes necessary to
inquire whether he has been appointed to the office. For if he has been appointed, the law
continues him in office for five years, and he is entitled to the possession of those evidences
of office, which, being completed, became his property.
The second section of the second article of the Constitution declares,
"The President shall nominate, and, by and with the advice and consent of the Senate, shall
appoint ambassadors, other public ministers and consuls, and all other officers of the United
States, whose appointments are not otherwise provided for."
The third section declares, that "He shall commission all the officers of the United States."
An act of Congress directs the Secretary of State to keep the seal of the United States,
"to make out and record, and affix the said seal to all civil commissions to officers of the
United States to be appointed by the President, by and with the consent of the Senate, or by
the President alone; provided that the said seal shall not be affixed to any commission
before the same shall have been signed by the President of the United States."
These are the clauses of the Constitution and laws of the United States which affect this part
of the case. They seem to contemplate three distinct operations:
1. The nomination. This is the sole act of the President, and is completely voluntary.
2. The appointment. This is also the act of the President, and is also a voluntary act, though
it can only be performed by and with the advice and consent of the Senate.
Page 5 U. S. 156
3. The commission. To grant a commission to a person appointed might perhaps be deemed
a duty enjoined by the Constitution. "He shall," says that instrument, "commission all the
officers of the United States."
The acts of appointing to office and commissioning the person appointed can scarcely be
considered as one and the same, since the power to perform them is given in two separate
and distinct sections of the Constitution. The distinction between the appointment and the
commission will be rendered more apparent by adverting to that provision in the second
section of the second article of the Constitution which authorises Congress
"to vest by law the appointment of such inferior officers as they think proper in the President
alone, in the Courts of law, or in the heads of departments;"
thus contemplating cases where the law may direct the President to commission an officer
appointed by the Courts or by the heads of departments. In such a case, to issue a
commission would be apparently a duty distinct from the appointment, the performance of
which perhaps could not legally be refused.
Although that clause of the Constitution which requires the President to commission all the
officers of the United States may never have been applied to officers appointed otherwise
than by himself, yet it would be difficult to deny the legislative power to apply it to such
cases. Of consequence, the constitutional distinction between the appointment to an office
and the commission of an officer who has been appointed remains the same as if in practice
the President had commissioned officers appointed by an authority other than his own.
It follows too from the existence of this distinction that, if an appointment was to be
evidenced by any public act other than the commission, the performance of such public act
would create the officer, and if he was not removable at the will of the President, would
either give him a right to his commission or enable him to perform the duties without it.
These observations are premised solely for the purpose of rendering more intelligible those
which apply more directly to the particular case under consideration.
Page 5 U. S. 157
This is an appointment made by the President, by and with the advice and consent of the
Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the
commission and the appointment seem inseparable, it being almost impossible to show an
appointment otherwise than by proving the existence of a commission; still, the commission
is not necessarily the appointment; though conclusive evidence of it.
But at what stage does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment, being the sole act of
the President, must be completely evidenced when it is shown that he has done everything
to be performed by him.
Should the commission, instead of being evidence of an appointment, even be considered as
constituting the appointment itself, still it would be made when the last act to be done by
the President was performed, or, at furthest, when the commission was complete.
The last act to be done by the President is the signature of the commission. He has then
acted on the advice and consent of the Senate to his own nomination. The time for
deliberation has then passed. He has decided. His judgment, on the advice and consent of
the Senate concurring with his nomination, has been made, and the officer is appointed. This
appointment is evidenced by an open, unequivocal act, and, being the last act required from
the person making it, necessarily excludes the idea of its being, so far as it respects the
appointment, an inchoate and incomplete transaction.
Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional power
of appointment has been exercised. And this power has been exercised when the last act
required from the person possessing the power has been performed. This last act is the
signature of the commission. This idea seems to have prevailed with the Legislature when
the act passed converting the Department
Page 5 U. S. 158
of Foreign Affairs into the Department of State. By that act, it is enacted that the Secretary
of State shall keep the seal of the United States,
"and shall make out and record, and shall affix the said seal to all civil commissions to
officers of the United States, to be appointed by the President: . . . provided that the said
seal shall not be affixed to any commission before the same shall have been signed by the
President of the United States, nor to any other instrument or act without the special warrant
of the President therefor."
The signature is a warrant for affixing the great seal to the commission, and the great seal is
only to be affixed to an instrument which is complete. It attests, by an act supposed to be of
public notoriety, the verity of the Presidential signature.
It is never to be affixed till the commission is signed, because the signature, which gives
force and effect to the commission, is conclusive evidence that the appointment is made.
The commission being signed, the subsequent duty of the Secretary of State is prescribed by
law, and not to be guided by the will of the President. He is to affix the seal of the United
States to the commission, and is to record it.
This is not a proceeding which may be varied if the judgment of the Executive shall suggest
one more eligible, but is a precise course accurately marked out by law, and is to be strictly
pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an
officer of the United States, bound to obey the laws. He acts, in this respect, as has been
very properly stated at the bar, under the authority of law, and not by the instructions of the
President. It is a ministerial act which the law enjoins on a particular officer for a particular
purpose.
If it should be supposed that the solemnity of affixing the seal is necessary not only to the
validity of the commission, but even to the completion of an appointment, still, when the
seal is affixed, the appointment is made, and
Page 5 U. S. 159
the commission is valid. No other solemnity is required by law; no other act is to be
performed on the part of government. All that the Executive can do to invest the person with
his office is done, and unless the appointment be then made, the Executive cannot make
one without the cooperation of others.
After searching anxiously for the principles on which a contrary opinion may be supported,
none has been found which appear of sufficient force to maintain the opposite doctrine.
Such as the imagination of the Court could suggest have been very deliberately examined,
and after allowing them all the weight which it appears possible to give them, they do not
shake the opinion which has been formed.
In considering this question, it has been conjectured that the commission may have been
assimilated to a deed to the validity of which delivery is essential.
This idea is founded on the supposition that the commission is not merely evidence of an
appointment, but is itself the actual appointment -- a supposition by no means
unquestionable. But, for the purpose of examining this objection fairly, let it be conceded
that the principle claimed for its support is established.
The appointment being, under the Constitution, to be made by the President personally, the
delivery of the deed of appointment, if necessary to its completion, must be made by the
President also. It is not necessary that the livery should be made personally to the grantee
of the office; it never is so made. The law would seem to contemplate that it should be made
to the Secretary of State, since it directs the secretary to affix the seal to the commission
after it shall have been signed by the President. If then the act of livery be necessary to give
validity to the commission, it has been delivered when executed and given to the Secretary
for the purpose of being sealed, recorded, and transmitted to the party.
But in all cases of letters patent, certain solemnities are required by law, which solemnities
are the evidences
Page 5 U. S. 160
of the validity of the instrument. A formal delivery to the person is not among them. In cases
of commissions, the sign manual of the President and the seal of the United States are those
solemnities. This objection therefore does not touch the case.
It has also occurred as possible, and barely possible, that the transmission of the
commission and the acceptance thereof might be deemed necessary to complete the right
of the plaintiff.
The transmission of the commission is a practice directed by convenience, but not by law. It
cannot therefore be necessary to constitute the appointment, which must precede it and
which is the mere act of the President. If the Executive required that every person appointed
to an office should himself take means to procure his commission, the appointment would
not be the less valid on that account. The appointment is the sole act of the President; the
transmission of the commission is the sole act of the officer to whom that duty is assigned,
and may be accelerated or retarded by circumstances which can have no influence on the
appointment. A commission is transmitted to a person already appointed, not to a person to
be appointed or not, as the letter enclosing the commission should happen to get into the
post office and reach him in safety, or to miscarry.
It may have some tendency to elucidate this point to inquire whether the possession of the
original commission be indispensably necessary to authorize a person appointed to any
office to perform the duties of that office. If it was necessary, then a loss of the commission
would lose the office. Not only negligence, but accident or fraud, fire or theft might deprive
an individual of his office. In such a case, I presume it could not be doubted but that a copy
from the record of the Office of the Secretary of State would be, to every intent and purpose,
equal to the original. The act of Congress has expressly made it so. To give that copy
validity, it would not be necessary to prove that the original had been transmitted and
afterwards lost. The copy would be complete evidence that the original had existed, and that
the appointment had been made, but not that the original had been transmitted. If indeed it
should appear that
Page 5 U. S. 161
the original had been mislaid in the Office of State, that circumstance would not affect the
operation of the copy. When all the requisites have been performed which authorize a
recording officer to record any instrument whatever, and the order for that purpose has been
given, the instrument is in law considered as recorded, although the manual labour of
inserting it in a book kept for that purpose may not have been performed.
In the case of commissions, the law orders the Secretary of State to record them. When,
therefore, they are signed and sealed, the order for their being recorded is given, and,
whether inserted in the book or not, they are in law recorded.
A copy of this record is declared equal to the original, and the fees to be paid by a person
requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a
commission which has been recorded? Or can he refuse a copy thereof to a person
demanding it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of peace to proceed in the
performance of his duty, because it would, equally with the original, attest his appointment.
If the transmission of a commission be not considered as necessary to give validity to an
appointment, still less is its acceptance. The appointment is the sole act of the President; the
acceptance is the sole act of the officer, and is, in plain common sense, posterior to the
appointment. As he may resign, so may he refuse to accept; but neither the one nor the
other is capable of rendering the appointment a nonentity.
That this is the understanding of the government is apparent from the whole tenor of its
conduct.
A commission bears date, and the salary of the officer commences from his appointment,
not from the transmission or acceptance of his commission. When a person appointed to any
office refuses to accept that office, the successor is nominated in the place of the person
who
Page 5 U. S. 162
has declined to accept, and not in the place of the person who had been previously in office
and had created the original vacancy.
It is therefore decidedly the opinion of the Court that, when a commission has been signed
by the President, the appointment is made, and that the commission is complete when the
seal of the United States has been affixed to it by the Secretary of State.
Where an officer is removable at the will of the Executive, the circumstance which completes
his appointment is of no concern, because the act is at any time revocable, and the
commission may be arrested if still in the office. But when the officer is not removable at the
will of the Executive, the appointment is not revocable, and cannot be annulled. It has
conferred legal rights which cannot be resumed.
The discretion of the Executive is to be exercised until the appointment has been made. But
having once made the appointment, his power over the office is terminated in all cases,
where by law the officer is not removable by him. The right to the office is then in the person
appointed, and he has the absolute, unconditional power of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the President and sealed by the
Secretary of State, was appointed, and as the law creating the office gave the officer a right
to hold for five years independent of the Executive, the appointment was not revocable, but
vested in the officer legal rights which are protected by the laws of his country.
To withhold the commission, therefore, is an act deemed by the Court not warranted by law,
but violative of a vested legal right.
This brings us to the second inquiry, which is:
2. If he has a right, and that right has been violated, do the laws of his country afford him a
remedy?
Page 5 U. S. 163
The very essence of civil liberty certainly consists in the right of every individual to claim the
protection of the laws whenever he receives an injury. One of the first duties of government
is to afford that protection. In Great Britain, the King himself is sued in the respectful form of
a petition, and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a
remedy is afforded by mere operation of law.
"In all other cases," he says,
"it is a general and indisputable rule that where there is a legal right, there is also a legal
remedy by suit or action at law whenever that right is invaded."
And afterwards, page 109 of the same volume, he says,
"I am next to consider such injuries as are cognizable by the Courts of common law. And
herein I shall for the present only remark that all possible injuries whatsoever that did not
fall within the exclusive cognizance of either the ecclesiastical, military, or maritime
tribunals are, for that very reason, within the cognizance of the common law courts of
justice, for it is a settled and invariable principle in the laws of England that every right,
when withheld, must have a remedy, and every injury its proper redress."
The Government of the United States has been emphatically termed a government of laws,
and not of men. It will certainly cease to deserve this high appellation if the laws furnish no
remedy for the violation of a vested legal right.
If this obloquy is to be cast on the jurisprudence of our country, it must arise from the
peculiar character of the case.
It behooves us, then, to inquire whether there be in its composition any ingredient which
shall exempt from legal investigation or exclude the injured party from legal redress. In
pursuing this inquiry, the first question which presents itself is whether this can be arranged
Page 5 U. S. 164
with that class of cases which come under the description of damnum absque injuria -- a loss
without an injury.
This description of cases never has been considered, and, it is believed, never can be
considered, as comprehending offices of trust, of honour or of profit. The office of justice of
peace in the District of Columbia is such an office; it is therefore worthy of the attention and
guardianship of the laws. It has received that attention and guardianship. It has been
created by special act of Congress, and has been secured, so far as the laws can give
security to the person appointed to fill it, for five years. It is not then on account of the
worthlessness of the thing pursued that the injured party can be alleged to be without
remedy.
Is it in the nature of the transaction? Is the act of delivering or withholding a commission to
be considered as a mere political act belonging to the Executive department alone, for the
performance of which entire confidence is placed by our Constitution in the Supreme
Executive, and for any misconduct respecting which the injured individual has no remedy?
That there may be such cases is not to be questioned. but that every act of duty to be
performed in any of the great departments of government constitutes such a case is not to
be admitted.
By the act concerning invalids, passed in June, 1794, the Secretary at War is ordered to
place on the pension list all persons whose names are contained in a report previously made
by him to Congress. If he should refuse to do so, would the wounded veteran be without
remedy? Is it to be contended that where the law, in precise terms, directs the performance
of an act in which an individual is interested, the law is incapable of securing obedience to
its mandate? Is it on account of the character of the person against whom the complaint is
made? Is it to be contended that the heads of departments are not amenable to the laws of
their country?
Whatever the practice on particular occasions may be, the theory of this principle will
certainly never be maintained.
Page 5 U. S. 165
No act of the Legislature confers so extraordinary a privilege, nor can it derive countenance
from the doctrines of the common law. After stating that personal injury from the King to a
subject is presumed to be impossible, Blackstone, Vol. III. p. 255, says,
"but injuries to the rights of property can scarcely be committed by the Crown without the
intervention of its officers, for whom, the law, in matters of right, entertains no respect or
delicacy, but furnishes various methods of detecting the errors and misconduct of those
agents by whom the King has been deceived and induced to do a temporary injustice."
By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky
river, the purchaser, on paying his purchase money, becomes completely entitled to the
property purchased, and, on producing to the Secretary of State the receipt of the treasurer
upon a certificate required by the law, the President of the United States is authorized to
grant him a patent. It is further enacted that all patents shall be countersigned by the
Secretary of State, and recorded in his office. If the Secretary of State should choose to
withhold this patent, or, the patent being lost, should refuse a copy of it, can it be imagined
that the law furnishes to the injured person no remedy?
It is not believed that any person whatever would attempt to maintain such a proposition.
It follows, then, that the question whether the legality of an act of the head of a department
be examinable in a court of justice or not must always depend on the nature of that act.
If some acts be examinable and others not, there must be some rule of law to guide the
Court in the exercise of its jurisdiction.
In some instances, there may be difficulty in applying the rule to particular cases; but there
cannot, it is believed, be much difficulty in laying down the rule.
By the Constitution of the United States, the President is invested with certain important
political powers, in the
Page 5 U. S. 166
exercise of which he is to use his own discretion, and is accountable only to his country in his
political character and to his own conscience. To aid him in the performance of these duties,
he is authorized to appoint certain officers, who act by his authority and in conformity with
his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the
manner in which executive discretion may be used, still there exists, and can exist, no power
to control that discretion. The subjects are political. They respect the nation, not individual
rights, and, being entrusted to the Executive, the decision of the Executive is conclusive. The
application of this remark will be perceived by adverting to the act of Congress for
establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by
that act, is to conform precisely to the will of the President. He is the mere organ by whom
that will is communicated. The acts of such an officer, as an officer, can never be
examinable by the Courts.
But when the Legislature proceeds to impose on that officer other duties; when he is
directed peremptorily to perform certain acts; when the rights of individuals are dependent
on the performance of those acts; he is so far the officer of the law, is amenable to the laws
for his conduct, and cannot at his discretion, sport away the vested rights of others.
The conclusion from this reasoning is that, where the heads of departments are the political
or confidential agents of the Executive, merely to execute the will of the President, or rather
to act in cases in which the Executive possesses a constitutional or legal discretion, nothing
can be more perfectly clear than that their acts are only politically examinable. But where a
specific duty is assigned by law, and individual rights depend upon the performance of that
duty, it seems equally clear that the individual who considers himself injured has a right to
resort to the laws of his country for a remedy.
If this be the rule, let us inquire how it applies to the case under the consideration of the
Court.
Page 5 U. S. 167
The power of nominating to the Senate, and the power of appointing the person nominated,
are political powers, to be exercised by the President according to his own discretion. When
he has made an appointment, he has exercised his whole power, and his discretion has been
completely applied to the case. If, by law, the officer be removable at the will of the
President, then a new appointment may be immediately made, and the rights of the officer
are terminated. But as a fact which has existed cannot be made never to have existed, the
appointment cannot be annihilated, and consequently, if the officer is by law not removable
at the will of the President, the rights he has acquired are protected by the law, and are not
resumable by the President. They cannot be extinguished by Executive authority, and he has
the privilege of asserting them in like manner as if they had been derived from any other
source.
The question whether a right has vested or not is, in its nature, judicial, and must be tried by
the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate and
proceeded to act as one, in consequence of which a suit had been instituted against him in
which his defence had depended on his being a magistrate; the validity of his appointment
must have been determined by judicial authority.
So, if he conceives that, by virtue of his appointment, he has a legal right either to the
commission which has been made out for him or to a copy of that commission, it is equally a
question examinable in a court, and the decision of the Court upon it must depend on the
opinion entertained of his appointment.
That question has been discussed, and the opinion is that the latest point of time which can
be taken as that at which the appointment was complete and evidenced was when, after the
signature of the President, the seal of the United States was affixed to the commission.
It is then the opinion of the Court:
1. That, by signing the commission of Mr. Marbury, the President of the United States
appointed him a justice
Page 5 U. S. 168
of peace for the County of Washington in the District of Columbia, and that the seal of the
United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity
of the signature, and of the completion of the appointment, and that the appointment
conferred on him a legal right to the office for the space of five years.
2. That, having this legal title to the office, he has a consequent right to the commission, a
refusal to deliver which is a plain violation of that right, for which the laws of his country
afford him a remedy.
It remains to be inquired whether,
3. He is entitled to the remedy for which he applies. This depends on:
1. The nature of the writ applied for, and
2. The power of this court.
1. The nature of the writ.
Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be
"a command issuing in the King's name from the Court of King's Bench, and directed to any
person, corporation, or inferior court of judicature within the King's dominions requiring them
to do some particular thing therein specified which appertains to their office and duty, and
which the Court of King's Bench has previously determined, or at least supposes, to be
consonant to right and justice."
Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with much
precision and explicitness the cases in which this writ may be used.
"Whenever," says that very able judge,
"there is a right to execute an office, perform a service, or exercise a franchise (more
especially if it be in a matter of public concern or attended with profit), and a person is kept
out of possession, or dispossessed of such right, and
Page 5 U. S. 169
has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of
justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order
and good government."
In the same case, he says,
"this writ ought to be used upon all occasions where the law has established no specific
remedy, and where in justice and good government there ought to be one."
In addition to the authorities now particularly cited, many others were relied on at the bar
which show how far the practice has conformed to the general doctrines that have been just
quoted.
This writ, if awarded, would be directed to an officer of government, and its mandate to him
would be, to use the words of Blackstone,
"to do a particular thing therein specified, which appertains to his office and duty and which
the Court has previously determined or at least supposes to be consonant to right and
justice."
Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office
of public concern, and is kept out of possession of that right.
These circumstances certainly concur in this case.
Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must
be one to whom, on legal principles, such writ may be directed, and the person applying for
it must be without any other specific and legal remedy.
1. With respect to the officer to whom it would be directed. The intimate political relation,
subsisting between the President of the United States and the heads of departments,
necessarily renders any legal investigation of the acts of one of those high officers peculiarly
irksome, as well as delicate, and excites some hesitation with respect to the propriety of
entering into such investigation. Impressions are often received without much reflection or
examination, and it is not wonderful that, in such a case as this, the assertion by an
individual of his legal claims in a court of justice, to which claims it is the duty of that court
to attend, should, at first view, be considered
Page 5 U. S. 170
by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives
of the Executive.
It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An
extravagance so absurd and excessive could not have been entertained for a moment. The
province of the Court is solely to decide on the rights of individuals, not to inquire how the
Executive or Executive officers perform duties in which they have a discretion. Questions, in
their nature political or which are, by the Constitution and laws, submitted to the Executive,
can never be made in this court.
But, if this be not such a question; if so far from being an intrusion into the secrets of the
cabinet, it respects a paper which, according to law, is upon record, and to a copy of which
the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject
over which the Executive can be considered as having exercised any control; what is there in
the exalted station of the officer which shall bar a citizen from asserting in a court of justice
his legal rights, or shall forbid a court to listen to the claim or to issue a mandamus directing
the performance of a duty not depending on Executive discretion, but on particular acts of
Congress and the general principles of law?
If one of the heads of departments commits any illegal act under colour of his office by
which an individual sustains an injury, it cannot be pretended that his office alone exempts
him from being sued in the ordinary mode of proceeding, and being compelled to obey the
judgment of the law. How then can his office exempt him from this particular mode of
deciding on the legality of his conduct if the case be such a case as would, were any other
individual the party complained of, authorize the process?
It is not by the office of the person to whom the writ is directed, but the nature of the thing
to be done, that the propriety or impropriety of issuing a mandamus is to be determined.
Where the head of a department acts in a case in which Executive discretion is to be
exercised, in which he is the mere organ of Executive will, it is
Page 5 U. S. 171
again repeated, that any application to a court to control, in any respect, his conduct, would
be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of
individuals, in the performance of which he is not placed under the particular direction of the
President, and the performance of which the President cannot lawfully forbid, and therefore
is never presumed to have forbidden -- as for example, to record a commission, or a patent
for land, which has received all the legal solemnities; or to give a copy of such record -- in
such cases, it is not perceived on what ground the Courts of the country are further excused
from the duty of giving judgment that right to be done to an injured individual than if the
same services were to be performed by a person not the head of a department.
This opinion seems not now for the first time to be taken up in this country.
It must be well recollected that, in 1792, an act passed, directing the secretary at war to
place on the pension list such disabled officers and soldiers as should be reported to him by
the Circuit Courts, which act, so far as the duty was imposed on the Courts, was deemed
unconstitutional; but some of the judges, thinking that the law might be executed by them in
the character of commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a different system
was established; but the question whether those persons who had been reported by the
judges, as commissioners, were entitled, in consequence of that report, to be placed on the
pension list was a legal question, properly determinable in the Courts, although the act of
placing such persons on the list was to be performed by the head of a department.
That this question might be properly settled, Congress passed an act in February, 1793,
making it the duty of the Secretary of War, in conjunction with the Attorney General, to take
such measures as might be necessary to obtain an adjudication of the Supreme Court of the
United
Page 5 U. S. 172
States on the validity of any such rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the Secretary of
War, commanding him to place on the pension list a person stating himself to be on the
report of the judges.
There is, therefore, much reason to believe that this mode of trying the legal right of the
complainant was deemed by the head of a department, and by the highest law officer of the
United States, the most proper which could be selected for the purpose.
When the subject was brought before the Court, the decision was not that a mandamus
would not lie to the head of a department directing him to perform an act enjoined by law, in
the performance of which an individual had a vested interest, but that a mandamus ought
not to issue in that case -- the decision necessarily to be made if the report of the
commissioners did not confer on the applicant a legal right.
The judgment in that case is understood to have decided the merits of all claims of that
description, and the persons, on the report of the commissioners, found it necessary to
pursue the mode prescribed by the law subsequent to that which had been deemed
unconstitutional in order to place themselves on the pension list.
The doctrine, therefore, now advanced is by no means a novel one.
It is true that the mandamus now moved for is not for the performance of an act expressly
enjoined by statute.
It is to deliver a commission, on which subjects the acts of Congress are silent. This
difference is not considered as affecting the case. It has already been stated that the
applicant has, to that commission, a vested legal right of which the Executive cannot
deprive him. He has been appointed to an office from which he is not removable at the will
of the Executive, and, being so
Page 5 U. S. 173
appointed, he has a right to the commission which the Secretary has received from the
President for his use. The act of Congress does not, indeed, order the Secretary of State to
send it to him, but it is placed in his hands for the person entitled to it, and cannot be more
lawfully withheld by him than by another person.
It was at first doubted whether the action of detinue was not a specific legal remedy for the
commission which has been withheld from Mr. Marbury, in which case a mandamus would be
improper. But this doubt has yielded to the consideration that the judgment in detinue is for
the thing itself, or its value. The value of a public office not to be sold is incapable of being
ascertained, and the applicant has a right to the office itself, or to nothing. He will obtain the
office by obtaining the commission or a copy of it from the record.
This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it
from the record, and it only remains to be inquired:
Whether it can issue from this Court.
The act to establish the judicial courts of the United States authorizes the Supreme Court
"to issue writs of mandamus, in cases warranted by the principles and usages of law, to any
courts appointed, or persons holding office, under the authority of the United States."
The Secretary of State, being a person, holding an office under the authority of the United
States, is precisely within the letter of the description, and if this Court is not authorized to
issue a writ of mandamus to such an officer, it must be because the law is unconstitutional,
and therefore absolutely incapable of conferring the authority and assigning the duties
which its words purport to confer and assign.
The Constitution vests the whole judicial power of the United States in one Supreme Court,
and such inferior courts as Congress shall, from time to time, ordain and establish. This
power is expressly extended to all cases arising under the laws of the United States; and
consequently, in some form, may be exercised over the present
Page 5 U. S. 174
case, because the right claimed is given by a law of the United States.
In the distribution of this power. it is declared that
"The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be a party. In all other cases,
the Supreme Court shall have appellate jurisdiction."
It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and
inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court
contains no negative or restrictive words, the power remains to the Legislature to assign
original jurisdiction to that Court in other cases than those specified in the article which has
been recited, provided those cases belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the Legislature to apportion the judicial
power between the Supreme and inferior courts according to the will of that body, it would
certainly have been useless to have proceeded further than to have defined the judicial
power and the tribunals in which it should be vested. The subsequent part of the section is
mere surplusage -- is entirely without meaning -- if such is to be the construction. If
Congress remains at liberty to give this court appellate jurisdiction where the Constitution
has declared their jurisdiction shall be original, and original jurisdiction where the
Constitution has declared it shall be appellate, the distribution of jurisdiction made in the
Constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed,
and, in this case, a negative or exclusive sense must be given to them or they have no
operation at all.
It cannot be presumed that any clause in the Constitution is intended to be without effect,
and therefore such construction is inadmissible unless the words require it.
Page 5 U. S. 175
If the solicitude of the Convention respecting our peace with foreign powers induced a
provision that the Supreme Court should take original jurisdiction in cases which might be
supposed to affect them, yet the clause would have proceeded no further than to provide for
such cases if no further restriction on the powers of Congress had been intended. That they
should have appellate jurisdiction in all other cases, with such exceptions as Congress might
make, is no restriction unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system divides it into one Supreme
and so many inferior courts as the Legislature may ordain and establish, then enumerates its
powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme
Court by declaring the cases in which it shall take original jurisdiction, and that in others it
shall take appellate jurisdiction, the plain import of the words seems to be that, in one class
of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not
original. ,If any other construction would render the clause inoperative, that is an additional
reason for rejecting such other construction, and for adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of
appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of
forms, and that, if it be the will of the Legislature that a mandamus should be used for that
purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not
original.
It is the essential criterion of appellate jurisdiction that it revises and corrects the
proceedings in a cause already instituted, and does not create that case. Although,
therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for
the delivery of a paper is, in effect, the same as to sustain an original action for that paper,
and therefore seems not to belong to
Page 5 U. S. 176
appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable
the Court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme Court by the act establishing the judicial
courts of the United States to issue writs of mandamus to public officers appears not to be
warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so
conferred can be exercised.
The question whether an act repugnant to the Constitution can become the law of the land is
a question deeply interesting to the United States, but, happily, not of an intricacy
proportioned to its interest. It seems only necessary to recognise certain principles,
supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government such
principles as, in their opinion, shall most conduce to their own happiness is the basis on
which the whole American fabric has been erected. The exercise of this original right is a
very great exertion; nor can it nor ought it to be frequently repeated. The principles,
therefore, so established are deemed fundamental. And as the authority from which they
proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different
departments their respective powers. It may either stop here or establish certain limits not
to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the
Legislature are defined and limited; and that those limits may not be mistaken or forgotten,
the Constitution is written. To what purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may at any time be passed by those intended
to be restrained? The distinction between a government with limited and unlimited powers is
abolished if those limits do not confine the persons on whom they are imposed, and if acts
prohibited
Page 5 U. S. 177
and acts allowed are of equal obligation. It is a proposition too plain to be contested that the
Constitution controls any legislative act repugnant to it, or that the Legislature may alter the
Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior,
paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative
acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the
Constitution is not law; if the latter part be true, then written Constitutions are absurd
attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of every such
government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be
considered by this Court as one of the fundamental principles of our society. It is not,
therefore, to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its
invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be
not law, does it constitute a rule as operative as if it was a law? This would be to overthrow
in fact what was established in theory, and would seem, at first view, an absurdity too gross
to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is.
Those who apply the rule to particular cases must, of necessity, expound and interpret that
rule. If two laws conflict with each other, the Courts must decide on the operation of each.
Page 5 U. S. 178
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to
a particular case, so that the Court must either decide that case conformably to the law,
disregarding the Constitution, or conformably to the Constitution, disregarding the law, the
Court must determine which of these conflicting rules governs the case. This is of the very
essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any
ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the
case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court
as a paramount law are reduced to the necessity of maintaining that courts must close their
eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare
that an act which, according to the principles and theory of our government, is entirely void,
is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do
what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality
effectual. It would be giving to the Legislature a practical and real omnipotence with the
same breath which professes to restrict their powers within narrow limits. It is prescribing
limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political
institutions -- a written Constitution, would of itself be sufficient, in America where written
Constitutions have been viewed with so much reverence, for rejecting the construction. But
the peculiar expressions of the Constitution of the United States furnish additional
arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the
Constitution.
Page 5 U. S. 179
Could it be the intention of those who gave this power to say that, in using it, the
Constitution should not be looked into? That a case arising under the Constitution should be
decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the judges. And if they can open
it at all, what part of it are they forbidden to read or to obey?
There are many other parts of the Constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose
a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it.
Ought judgment to be rendered in such a case? ought the judges to close their eyes on the
Constitution, and only see the law?
The Constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it, must
the Court condemn to death those victims whom the Constitution endeavours to preserve?
"No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of
two witnesses to the same overt act, or on confession in open court."
Here. the language of the Constitution is addressed especially to the Courts. It prescribes,
directly for them, a rule of evidence not to be departed from. If the Legislature should
change that rule, and declare one witness, or a confession out of court, sufficient for
conviction, must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is apparent that the framers
of the Constitution
Page 5 U. S. 180
contemplated that instrument as a rule for the government of courts, as well as of the
Legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly
applies in an especial manner to their conduct in their official character. How immoral to
impose it on them if they were to be used as the instruments, and the knowing instruments,
for violating what they swear to support!
The oath of office, too, imposed by the Legislature, is completely demonstrative of the
legislative opinion on this subject. It is in these words:
"I do solemnly swear that I will administer justice without respect to persons, and do equal
right to the poor and to the rich; and that I will faithfully and impartially discharge all the
duties incumbent on me as according to the best of my abilities and understanding,
agreeably to the Constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the Constitution of the United
States if that Constitution forms no rule for his government? if it is closed upon him and
cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe or to take
this oath becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme
law of the land, the Constitution itself is first mentioned, and not the laws of the United
States generally, but those only which shall be made in pursuance of the Constitution, have
that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written Constitutions, that a law
repugnant to the Constitution is void, and that courts, as well as other departments, are
bound by that instrument.
The rule must be discharged.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45081 July 15, 1936
JOSE A. ANGARA, petitioner,
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR,respondents.
Godofredo Reyes for petitioner.
Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
LAUREL, J.:
This is an original action instituted in this court by the petitioner, Jose A. Angara, for the
issuance of a writ of prohibition to restrain and prohibit the Electoral Commission, one of the
respondents, from taking further cognizance of the protest filed by Pedro Ynsua, another
respondent, against the election of said petitioner as member of the National Assembly for
the first assembly district of the Province of Tayabas.
The facts of this case as they appear in the petition and as admitted by the respondents are
as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and
the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates
voted for the position of member of the National Assembly for the first district of the
Province of Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the
petitioner as member-elect of the National Assembly for the said district, for having
received the most number of votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
(4) That on December 3, 1935, the National Assembly in session assembled, passed
the following resolution:
[No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.
Se resuelve: Que las actas de eleccion de los Diputados contra quienes
no se hubiere presentado debidamente una protesta antes de la
adopcion de la presente resolucion sean, como por la presente, son
aprobadas y confirmadas.
Adoptada, 3 de diciembre, 1935.
(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the
Electoral Commission a "Motion of Protest" against the election of the herein
petitioner, Jose A. Angara, being the only protest filed after the passage of
Resolutions No. 8 aforequoted, and praying, among other-things, that said
respondent be declared elected member of the National Assembly for the first district
of Tayabas, or that the election of said position be nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a resolution,
paragraph 6 of which provides:
6. La Comision no considerara ninguna protesta que no se haya presentado en
o antes de este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before the Electoral Commission a "Motion
to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest",
 alleging (a) that Resolution No. 8 of the National Assembly was adopted in the
legitimate exercise of its constitutional prerogative to prescribe the period during
which protests against the election of its members should be presented; (b) that the
aforesaid resolution has for its object, and is the accepted formula for, the limitation
of said period; and (c) that the protest in question was filed out of the prescribed
period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer
to the Motion of Dismissal" alleging that there is no legal or constitutional provision
barring the presentation of a protest against the election of a member of the National
Assembly after confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply"
to the aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission
promulgated a resolution on January 23, 1936, denying herein petitioner's "Motion to
Dismiss the Protest."
The application of the petitioner sets forth the following grounds for the issuance of the writ
prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission
solely as regards the merits of contested elections to the National Assembly;
(b) That the Constitution excludes from said jurisdiction the power to regulate the
proceedings of said election contests, which power has been reserved to the
Legislative Department of the Government or the National Assembly;
(c) That like the Supreme Court and other courts created in pursuance of the
Constitution, whose exclusive jurisdiction relates solely to deciding the merits of
controversies submitted to them for decision and to matters involving their internal
organization, the Electoral Commission can regulate its proceedings only if the
National Assembly has not availed of its primary power to so regulate such
proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be
respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended to the
Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the
73rd Congress of the United States) as well as under section 1 and 3 (should be
sections 1 and 2) of article VIII of the Constitution, this Supreme Court has jurisdiction
to pass upon the fundamental question herein raised because it involves an
interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the
respondent Electoral Commission interposing the following special defenses:
(a) That the Electoral Commission has been created by the Constitution as an
instrumentality of the Legislative Department invested with the jurisdiction to decide
"all contests relating to the election, returns, and qualifications of the members of the
National Assembly"; that in adopting its resolution of December 9, 1935, fixing this
date as the last day for the presentation of protests against the election of any
member of the National Assembly, it acted within its jurisdiction and in the legitimate
exercise of the implied powers granted it by the Constitution to adopt the rules and
regulations essential to carry out the power and functions conferred upon the same
by the fundamental law; that in adopting its resolution of January 23, 1936,
overruling the motion of the petitioner to dismiss the election protest in question, and
declaring itself with jurisdiction to take cognizance of said protest, it acted in the
legitimate exercise of its quasi-judicial functions a an instrumentality of the
Legislative Department of the Commonwealth Government, and hence said act is
beyond the judicial cognizance or control of the Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935, confirming the
election of the members of the National Assembly against whom no protest had thus
far been filed, could not and did not deprive the electoral Commission of its
 jurisdiction to take cognizance of election protests filed within the time that might be
set by its own rules:
(c) That the Electoral Commission is a body invested with quasi-judicial functions,
created by the Constitution as an instrumentality of the Legislative Department, and
is not an "inferior tribunal, or corporation, or board, or person" within the purview of
section 226 and 516 of the Code of Civil Procedure, against which prohibition would
lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on
March 2, 1936, setting forth the following as his special defense:
(a) That at the time of the approval of the rules of the Electoral Commission on
December 9, 1935, there was no existing law fixing the period within which protests
against the election of members of the National Assembly should be filed; that in
fixing December 9, 1935, as the last day for the filing of protests against the election
of members of the National Assembly, the Electoral Commission was exercising a
power impliedly conferred upon it by the Constitution, by reason of its quasi-judicial
attributes;
(b) That said respondent presented his motion of protest before the Electoral
Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of
the said Electoral Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the protest
filed by said respondent and over the parties thereto, and the resolution of the
Electoral Commission of January 23, 1936, denying petitioner's motion to dismiss said
protest was an act within the jurisdiction of the said commission, and is not
reviewable by means of a writ of prohibition;
(d) That neither the law nor the Constitution requires confirmation by the National
Assembly of the election of its members, and that such confirmation does not
operate to limit the period within which protests should be filed as to deprive the
Electoral Commission of jurisdiction over protest filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created by the
Constitution, endowed with quasi-judicial functions, whose decision are final and
unappealable;
( f ) That the electoral Commission, as a constitutional creation, is not an inferior
tribunal, corporation, board or person, within the terms of sections 226 and 516 of
the Code of Civil Procedure; and that neither under the provisions of sections 1 and 2
of article II (should be article VIII) of the Constitution and paragraph 13 of section 1 of
the Ordinance appended thereto could it be subject in the exercise of its quasi-
judicial functions to a writ of prohibition from the Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd
Congress of the united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for decision, the
petitioner prayed for the issuance of a preliminary writ of injunction against the respondent
Electoral Commission which petition was denied "without passing upon the merits of the
case" by resolution of this court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the following two principal
propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject
matter of the controversy upon the foregoing related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or in excess of its jurisdiction in
assuming to the cognizance of the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such election by resolution of the
National Assembly?
We could perhaps dispose of this case by passing directly upon the merits of the controversy.
However, the question of jurisdiction having been presented, we do not feel justified in
evading the issue. Being a case prim impressionis, it would hardly be consistent with our
sense of duty to overlook the broader aspect of the question and leave it undecided. Neither
would we be doing justice to the industry and vehemence of counsel were we not to pass
upon the question of jurisdiction squarely presented to our consideration.
The separation of powers is a fundamental principle in our system of government. It obtains
not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction, and is supreme
within its own sphere. But it does not follow from the fact that the three powers are to be
kept separate and distinct that the Constitution intended them to be absolutely unrestrained
and independent of each other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings of the various departments of
the government. For example, the Chief Executive under our Constitution is so far made a
check on the legislative power that this assent is required in the enactment of laws. This,
however, is subject to the further check that a bill may become a law notwithstanding the
refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case
may be, of the National Assembly. The President has also the right to convene the Assembly
in special session whenever he chooses. On the other hand, the National Assembly operates
as a check on the Executive in the sense that its consent through its Commission on
Appointments is necessary in the appointments of certain officers; and the concurrence of a
majority of all its members is essential to the conclusion of treaties. Furthermore, in its
power to determine what courts other than the Supreme Court shall be established, to
define their jurisdiction and to appropriate funds for their support, the National Assembly
controls the judicial department to a certain extent. The Assembly also exercises the judicial
power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the exercise of its power to determine
the law, and hence to declare executive and legislative acts void if violative of the
Constitution.
But in the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the several
departments, however, sometimes makes it hard to say just where the one leaves off and
the other begins. In times of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and among the
integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility,
but as much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage, the bill
of rights mere expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitation and restrictions embodied in our Constitution
are real as they should be in any living constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this moderating power of
the courts, not to speak of its historical origin and development there, has been set at rest
by popular acquiescence for a period of more than one and a half centuries. In our case, this
moderating power is granted, if not expressly, by clear implication from section 2 of article
VIII of our constitution.
The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This is
in truth all that is involved in what is termed "judicial supremacy" which properly is the
power of judicial review under the Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after full opportunity of argument
by the parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in
this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and controversies must
reflect the wisdom and justice of the people as expressed through their representatives in
the executive and legislative departments of the governments of the government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James Madison,
the system itself is not "the chief palladium of constitutional liberty . . . the people who are
authors of this blessing must also be its guardians . . . their eyes must be ever ready to
mark, their voice to pronounce . . . aggression on the authority of their constitution." In the
Last and ultimate analysis, then, must the success of our government in the unfolding years
to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and
court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner to the said body. On the other hand, the
Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the
last day for the filing of protests against the election, returns and qualifications of members
of the National Assembly, notwithstanding the previous confirmation made by the National
Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National
Assembly has the effect of cutting off the power of the Electoral Commission to entertain
protests against the election, returns and qualifications of members of the National
Assembly, submitted after December 3, 1935, then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly, then the resolution of December 9,
1935, by which the Electoral Commission fixed said date as the last day for filing protests
against the election, returns and qualifications of members of the National Assembly, should
be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave
constitutional nature between the National Assembly on the one hand, and the Electoral
Commission on the other. From the very nature of the republican government established in
our country in the light of American experience and of our own, upon the judicial department
is thrown the solemn and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission, as we shall have occasion to refer
hereafter, is a constitutional organ, created for a specific purpose, namely to determine all
contests relating to the election, returns and qualifications of the members of the National
Assembly. Although the Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not subject to constitutional
restrictions. The Electoral Commission is not a separate department of the government, and
even if it were, conflicting claims of authority under the fundamental law between
department powers and agencies of the government are necessarily determined by the
judiciary in justifiable and appropriate cases. Discarding the English type and other
European types of constitutional government, the framers of our constitution adopted the
American type where the written constitution is interpreted and given effect by the judicial
department. In some countries which have declined to follow the American example,
provisions have been inserted in their constitutions prohibiting the courts from exercising
the power to interpret the fundamental law. This is taken as a recognition of what otherwise
would be the rule that in the absence of direct prohibition courts are bound to assume what
is logically their function. For instance, the Constitution of Poland of 1921, expressly provides
that courts shall have no power to examine the validity of statutes (art. 81, chap. IV). The
former Austrian Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this power. This is true in
Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3,
Preliminary Law to constitutional Charter of the Czechoslovak Republic, February 29, 1920)
and Spain (arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of ordinary laws. In our case,
the nature of the present controversy shows the necessity of a final constitutional arbiter to
determine the conflict of authority between two agencies created by the Constitution. Were
we to decline to take cognizance of the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined, would not a void be thus created in our
constitutional system which may be in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we
avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are
clearly of the opinion that upon the admitted facts of the present case, this court has
jurisdiction over the Electoral Commission and the subject mater of the present controversy
for the purpose of determining the character, scope and extent of the constitutional grant to
the Electoral Commission as "the sole judge of all contests relating to the election, returns
and qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass upon the
second proposition and determine whether the Electoral Commission has acted without or in
excess of its jurisdiction in adopting its resolution of December 9, 1935, and in assuming to
take cognizance of the protest filed against the election of the herein petitioner
notwithstanding the previous confirmation thereof by the National Assembly on December 3,
1935. As able counsel for the petitioner has pointed out, the issue hinges on the
interpretation of section 4 of Article VI of the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme
Court designated by the Chief Justice, and of six Members chosen by the National Assembly,
three of whom shall be nominated by the party having the largest number of votes, and
three by the party having the second largest number of votes therein. The senior Justice in
the Commission shall be its Chairman. The Electoral Commission shall be the sole judge of
all contests relating to the election, returns and qualifications of the members of the
National Assembly." It is imperative, therefore, that we delve into the origin and history of
this constitutional provision and inquire into the intention of its framers and the people who
adopted it so that we may properly appreciate its full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7,
par. 5) laying down the rule that "the assembly shall be the judge of the elections, returns,
and qualifications of its members", was taken from clause 1 of section 5, Article I of the
Constitution of the United States providing that "Each House shall be the Judge of the
Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of
August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole"
as follows: "That the Senate and House of Representatives, respectively, shall be the sole
judges of the elections, returns, and qualifications of their elective members . . ." apparently
in order to emphasize the exclusive the Legislative over the particular case s therein
specified. This court has had occasion to characterize this grant of power to the Philippine
Senate and House of Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent tribunal for the purpose of deciding
contested elections to the legislature was taken by the sub-committee of five appointed by
the Committee on Constitutional Guarantees of the Constitutional Convention, which sub-
committee submitted a report on August 30, 1934, recommending the creation of a Tribunal
of Constitutional Security empowered to hear legislature but also against the election of
executive officers for whose election the vote of the whole nation is required, as well as to
initiate impeachment proceedings against specified executive and judicial officer. For the
purpose of hearing legislative protests, the tribunal was to be composed of three justices
designated by the Supreme Court and six members of the house of the legislature to which
the contest corresponds, three members to be designed by the majority party and three by
the minority, to be presided over by the Senior Justice unless the Chief Justice is also a
member in which case the latter shall preside. The foregoing proposal was submitted by the
Committee on Constitutional Guarantees to the Convention on September 15, 1934, with
slight modifications consisting in the reduction of the legislative representation to four
members, that is, two senators to be designated one each from the two major parties in the
Senate and two representatives to be designated one each from the two major parties in the
House of Representatives, and in awarding representation to the executive department in
the persons of two representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted
to the Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on
the Legislative Department, reads as follows:
The elections, returns and qualifications of the members of either house and all cases
contesting the election of any of their members shall be judged by an Electoral
Commission, constituted, as to each House, by three members elected by the
members of the party having the largest number of votes therein, three elected by
the members of the party having the second largest number of votes, and as to its
Chairman, one Justice of the Supreme Court designated by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as
proposed by the Committee on Constitutional Guarantees which was probably inspired by
the Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon
abandoned in favor of the proposition of the Committee on Legislative Power to create a
similar body with reduced powers and with specific and limited jurisdiction, to be designated
as a Electoral Commission. The Sponsorship Committee modified the proposal of the
Committee on Legislative Power with respect to the composition of the Electoral Commission
and made further changes in phraseology to suit the project of adopting a unicameral
instead of a bicameral legislature. The draft as finally submitted to the Convention on
October 26, 1934, reads as follows:
(6) The elections, returns and qualifications of the Members of the National Assembly
and all cases contesting the election of any of its Members shall be judged by an
Electoral Commission, composed of three members elected by the party having the
largest number of votes in the National Assembly, three elected by the members of
the party having the second largest number of votes, and three justices of the
Supreme Court designated by the Chief Justice, the Commission to be presided over
by one of said justices.
During the discussion of the amendment introduced by Delegates Labrador, Abordo, and
others, proposing to strike out the whole subsection of the foregoing draft and inserting in
lieu thereof the following: "The National Assembly shall be the soled and exclusive judge of
the elections, returns, and qualifications of the Members", the following illuminating remarks
were made on the floor of the Convention in its session of December 4, 1934, as to the
scope of the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of
the first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns
and qualifications of the Members of the National Assembly and all cases contesting
the election of any of its Members shall be judged by an Electoral Commission, . . ." I
should like to ask from the gentleman from Capiz whether the election and
qualification of the member whose elections is not contested shall also be judged by
the Electoral Commission.
Mr. ROXAS. If there is no question about the election of the members, there is nothing
to be judged; that is why the word "judge" is used to indicate a controversy. If there is
no question about the election of a member, there is nothing to be submitted to the
Electoral Commission and there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall
confirm also the election of those whose election is not contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of
the House of Representatives confirming the election of its members is just a matter
of the rules of the assembly. It is not constitutional. It is not necessary. After a man
files his credentials that he has been elected, that is sufficient, unless his election is
contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for
purposes of the auditor, in the matter of election of a member to a legislative body,
because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president who is
elected? What happens with regards to the councilors of a municipality? Does
anybody confirm their election? The municipal council does this: it makes a canvass
and proclaims in this case the municipal council proclaims who has been elected,
and it ends there, unless there is a contest. It is the same case; there is no need on
the part of the Electoral Commission unless there is a contest. The first clause refers
to the case referred to by the gentleman from Cavite where one person tries to be
elected in place of another who was declared elected. From example, in a case when
the residence of the man who has been elected is in question, or in case the
citizenship of the man who has been elected is in question.
However, if the assembly desires to annul the power of the commission, it may do so
by certain maneuvers upon its first meeting when the returns are submitted to the
assembly. The purpose is to give to the Electoral Commission all the powers
exercised by the assembly referring to the elections, returns and qualifications of the
members. When there is no contest, there is nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr. Delegate.
Mr. CINCO. Mr. President, I have a similar question as that propounded by the
gentleman from Ilocos Norte when I arose a while ago. However I want to ask more
questions from the delegate from Capiz. This paragraph 6 on page 11 of the draft
cites cases contesting the election as separate from the first part of the sections
which refers to elections, returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested
elections are already included in the phrase "the elections, returns and
qualifications." This phrase "and contested elections" was inserted merely for the
sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own
instance, refuse to confirm the elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is
granted to the assembly, the assembly on its own motion does not have the right to
contest the election and qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as
it is, even if two-thirds of the assembly believe that a member has not the
qualifications provided by law, they cannot remove him for that reason.
 Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral
Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of the assembly has the right to
question the eligibility of its members?
Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral
Commission and make the question before the Electoral Commission.
Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is
contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has
power and authority to pass upon the qualifications of the members of the National
Assembly even though that question has not been raised.
Mr. ROXAS. I have just said that they have no power, because they can only judge.
In the same session, the first clause of the aforesaid draft reading "The election, returns and
qualifications of the members of the National Assembly and" was eliminated by the
Sponsorship Committee in response to an amendment introduced by Delegates Francisco,
Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the difference between the
original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship
Committee said:
xxx xxx xxx
Sr. ROXAS. La diferencia, seor Presidente, consiste solamente en obviar la objecion
apuntada por varios Delegados al efecto de que la primera clausula del draft que
dice: "The elections, returns and qualifications of the members of the National
Assembly" parece que da a la Comision Electoral la facultad de determinar tambien
la eleccion de los miembros que no ha sido protestados y para obviar esa dificultad,
creemos que la enmienda tien razon en ese sentido, si enmendamos el draft, de tal
modo que se lea como sigue: "All cases contesting the election", de modo que los
jueces de la Comision Electoral se limitaran solamente a los casos en que haya
habido protesta contra las actas." Before the amendment of Delegate Labrador was
voted upon the following interpellation also took place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros
tres a la minoria y tres a la Corte Suprema, no cree Su Seoria que esto equivale
practicamente a dejar el asunto a los miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en
esa forma, tanto los miembros de la mayoria como los de la minoria asi como los
miembros de la Corte Suprema consideraran la cuestion sobre la base de sus
meritos, sabiendo que el partidismo no es suficiente para dar el triunfo.
El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos hacer que
tanto los de la mayoria como los de la minoria prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and others seeking to restore
the power to decide contests relating to the election, returns and qualifications of members
of the National Assembly to the National Assembly itself, was defeated by a vote of ninety-
eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by
reducing the representation of the minority party and the Supreme Court in the Electoral
Commission to two members each, so as to accord more representation to the majority
party. The Convention rejected this amendment by a vote of seventy-six (76) against forty-
six (46), thus maintaining the non-partisan character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the Members of
the National Assembly shall be judged by an Electoral Commission, composed of
three members elected by the party having the largest number of votes in the
National Assembly, three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court designated by the
Chief Justice, the Commission to be presided over by one of said justices.
The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. There shall be an Electoral Commission composed of three Justices of the
Supreme Court designated by the Chief Justice, and of six Members chosen by the
National Assembly, three of whom shall be nominated by the party having the largest
number of votes, and three by the party having the second largest number of votes
therein. The senior Justice in the Commission shall be its chairman. The Electoral
Commission shall be the sole judge of the election, returns, and qualifications of the
Members of the National Assembly.
When the foregoing draft was submitted for approval on February 8, 1935, the Style
Committee, through President Recto, to effectuate the original intention of the Convention,
agreed to insert the phrase "All contests relating to" between the phrase "judge of" and the
words "the elections", which was accordingly accepted by the Convention.
The transfer of the power of determining the election, returns and qualifications of the
members of the legislature long lodged in the legislative body, to an independent, impartial
and non-partisan tribunal, is by no means a mere experiment in the science of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages
57, 58), gives a vivid account of the "scandalously notorious" canvassing of votes by political
parties in the disposition of contests by the House of Commons in the following passages
which are partly quoted by the petitioner in his printed memorandum of March 14, 1936:
153. From the time when the commons established their right to be the exclusive
judges of the elections, returns, and qualifications of their members, until the year
1770, two modes of proceeding prevailed, in the determination of controverted
elections, and rights of membership. One of the standing committees appointed at
the commencement of each session, was denominated the committee of privileges
and elections, whose functions was to hear and investigate all questions of this
description which might be referred to them, and to report their proceedings, with
their opinion thereupon, to the house, from time to time. When an election petition
was referred to this committee they heard the parties and their witnesses and other
evidence, and made a report of all the evidence, together with their opinion
thereupon, in the form of resolutions, which were considered and agreed or disagreed
to by the house. The other mode of proceeding was by a hearing at the bar of the
house itself. When this court was adopted, the case was heard and decided by the
house, in substantially the same manner as by a committee. The committee of
privileges and elections although a select committee. The committee of privileges
and elections although a select committee was usually what is called an open one;
that is to say, in order to constitute the committee, a quorum of the members named
was required to be present, but all the members of the house were at liberty to
attend the committee and vote if they pleased.
154. With the growth of political parties in parliament questions relating to the right
of membership gradually assumed a political character; so that for many years
previous to the year 1770, controverted elections had been tried and determined by
the house of commons, as mere party questions, upon which the strength of
contending factions might be tested. Thus, for Example, in 1741, Sir Robert Walpole,
after repeated attacks upon his government, resigned his office in consequence of an
adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of
election cases, as conducted under this system, that "Every principle of decency and
 justice were notoriously and openly prostituted, from whence the younger part of the
house were insensibly, but too successfully, induced to adopt the same licentious
conduct in more serious matters, and in questions of higher importance to the public
welfare." Mr. George Grenville, a distinguished member of the house of commons,
undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained
the unanimous leave of the house to bring in a bill, "to regulate the trial of
controverted elections, or returns of members to serve in parliament." In his speech
to explain his plan, on the motion for leave, Mr. Grenville alluded to the existing
practice in the following terms: "Instead of trusting to the merits of their respective
causes, the principal dependence of both parties is their private interest among us;
and it is scandalously notorious that we are as earnestly canvassed to attend in favor
of the opposite sides, as if we were wholly self-elective, and not bound to act by the
principles of justice, but by the discretionary impulse of our own inclinations; nay, it is
well known, that in every contested election, many members of this house, who are
ultimately to judge in a kind of judicial capacity between the competitors, enlist
themselves as parties in the contention, and take upon themselves the partial
management of the very business, upon which they should determine with the
strictest impartiality."
155. It was to put an end to the practices thus described, that Mr. Grenville brought in
a bill which met with the approbation of both houses, and received the royal assent
on the 12th of April, 1770. This was the celebrated law since known by the name of
the Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works,
for the honor of the house of commons, and the security of the constitution, that was
ever devised by any minister or statesman." It is probable, that the magnitude of the
evil, or the apparent success of the remedy, may have led many of the
contemporaries of the measure to the information of a judgement, which was not
acquiesced in by some of the leading statesmen of the day, and has not been entirely
confirmed by subsequent experience. The bill was objected to by Lord North, Mr. De
Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had
been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of
parliament, and a total abrogation of one of the most important rights and
jurisdictions of the house of commons.
As early as 1868, the House of Commons in England solved the problem of insuring the non-
partisan settlement of the controverted elections of its members by abdicating its
prerogative to two judges of the King's Bench of the High Court of Justice selected from a
rota in accordance with rules of court made for the purpose. Having proved successful, the
practice has become imbedded in English jurisprudence (Parliamentary Elections Act, 1868
[31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act.
1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47
Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of
England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests
which were originally heard by the Committee of the House of Commons, are since 1922
tried in the courts. Likewise, in the Commonwealth of Australia, election contests which were
originally determined by each house, are since 1922 tried in the High Court. In Hungary, the
organic law provides that all protests against the election of members of the Upper House of
the Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2,
art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of
the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide contested
elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding
legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the
Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the
Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral
Commission.
The creation of an Electoral Commission whose membership is recruited both from the
legislature and the judiciary is by no means unknown in the United States. In the presidential
elections of 1876 there was a dispute as to the number of electoral votes received by each
of the two opposing candidates. As the Constitution made no adequate provision for such a
contingency, Congress passed a law on January 29, 1877 (United States Statutes at Large,
vol. 19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five
members elected by the Senate, five members elected by the House of Representatives, and
five justices of the Supreme Court, the fifth justice to be selected by the four designated in
the Act. The decision of the commission was to be binding unless rejected by the two houses
voting separately. Although there is not much of a moral lesson to be derived from the
experience of America in this regard, judging from the observations of Justice Field, who was
a member of that body on the part of the Supreme Court (Countryman, the Supreme Court
of the United States and its Appellate Power under the Constitution [Albany, 1913]
Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least
abiding historical interest.
The members of the Constitutional Convention who framed our fundamental law were in
their majority men mature in years and experience. To be sure, many of them were familiar
with the history and political development of other countries of the world. When , therefore,
they deemed it wise to create an Electoral Commission as a constitutional organ and
invested it with the exclusive function of passing upon and determining the election, returns
and qualifications of the members of the National Assembly, they must have done so not
only in the light of their own experience but also having in view the experience of other
enlightened peoples of the world. The creation of the Electoral Commission was designed to
remedy certain evils of which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of the Convention to its creation,
the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the constitutional the creation of the
Electoral Commission is the expression of the wisdom and "ultimate justice of the people".
(Abraham Lincoln, First Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it is evident that the purpose was to
transfer in its totality all the powers previously exercised by the legislature in matters
pertaining to contested elections of its members, to an independent and impartial tribunal. It
was not so much the knowledge and appreciation of contemporary constitutional
precedents, however, as the long-felt need of determining legislative contests devoid of
partisan considerations which prompted the people, acting through their delegates to the
Convention, to provide for this body known as the Electoral Commission. With this end in
view, a composite body in which both the majority and minority parties are equally
represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the Supreme
Court.
The Electoral Commission is a constitutional creation, invested with the necessary authority
in the performance and execution of the limited and specific function assigned to it by the
Constitution. Although it is not a power in our tripartite scheme of government, it is, to all
intents and purposes, when acting within the limits of its authority, an independent organ. It
is, to be sure, closer to the legislative department than to any other. The location of the
provision (section 4) creating the Electoral Commission under Article VI entitled "Legislative
Department" of our Constitution is very indicative. Its compositions is also significant in that
it is constituted by a majority of members of the legislature. But it is a body separate from
and independent of the legislature.
The grant of power to the Electoral Commission to judge all contests relating to the election,
returns and qualifications of members of the National Assembly, is intended to be as
complete and unimpaired as if it had remained originally in the legislature. The express
lodging of that power in the Electoral Commission is an implied denial of the exercise of that
power by the National Assembly. And this is as effective a restriction upon the legislative
power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1;
State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf
of the National Assembly that said body may regulate the proceedings of the Electoral
Commission and cut off the power of the commission to lay down the period within which
protests should be filed, the grant of power to the commission would be ineffective. The
Electoral Commission in such case would be invested with the power to determine contested
cases involving the election, returns and qualifications of the members of the National
Assembly but subject at all times to the regulative power of the National Assembly. Not only
would the purpose of the framers of our Constitution of totally transferring this authority
from the legislative body be frustrated, but a dual authority would be created with the
resultant inevitable clash of powers from time to time. A sad spectacle would then be
presented of the Electoral Commission retaining the bare authority of taking cognizance of
cases referred to, but in reality without the necessary means to render that authority
effective whenever and whenever the National Assembly has chosen to act, a situation
worse than that intended to be remedied by the framers of our Constitution. The power to
regulate on the part of the National Assembly in procedural matters will inevitably lead to
the ultimate control by the Assembly of the entire proceedings of the Electoral Commission,
and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that this
result should not be permitted.
We are not insensible to the impassioned argument or the learned counsel for the petitioner
regarding the importance and necessity of respecting the dignity and independence of the
national Assembly as a coordinate department of the government and of according validity
to its acts, to avoid what he characterized would be practically an unlimited power of the
commission in the admission of protests against members of the National Assembly. But as
we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex
necesitate rei the power regulative in character to limit the time with which protests
intrusted to its cognizance should be filed. It is a settled rule of construction that where a
general power is conferred or duty enjoined, every particular power necessary for the
exercise of the one or the performance of the other is also conferred (Cooley, Constitutional
Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional
provision relating to the procedure to be followed in filing protests before the Electoral
Commission, therefore, the incidental power to promulgate such rules necessary for the
proper exercise of its exclusive power to judge all contests relating to the election, returns
and qualifications of members of the National Assembly, must be deemed by necessary
implication to have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral
Commission may abuse its regulative authority by admitting protests beyond any reasonable
time, to the disturbance of the tranquillity and peace of mind of the members of the National
Assembly. But the possibility of abuse is not argument against the concession of the power
as there is no power that is not susceptible of abuse. In the second place, if any mistake has
been committed in the creation of an Electoral Commission and in investing it with exclusive
jurisdiction in all cases relating to the election, returns, and qualifications of members of the
National Assembly, the remedy is political, not judicial, and must be sought through the
ordinary processes of democracy. All the possible abuses of the government are not
intended to be corrected by the judiciary. We believe, however, that the people in creating
the Electoral Commission reposed as much confidence in this body in the exclusive
determination of the specified cases assigned to it, as they have given to the Supreme Court
in the proper cases entrusted to it for decision. All the agencies of the government were
designed by the Constitution to achieve specific purposes, and each constitutional organ
working within its own particular sphere of discretionary action must be deemed to be
animated with the same zeal and honesty in accomplishing the great ends for which they
were created by the sovereign will. That the actuations of these constitutional agencies
might leave much to be desired in given instances, is inherent in the perfection of human
institutions. In the third place, from the fact that the Electoral Commission may not be
interfered with in the exercise of its legitimate power, it does not follow that its acts,
however illegal or unconstitutional, may not be challenge in appropriate cases over which
the courts may exercise jurisdiction.
But independently of the legal and constitutional aspects of the present case, there are
considerations of equitable character that should not be overlooked in the appreciation of
the intrinsic merits of the controversy. The Commonwealth Government was inaugurated on
November 15, 1935, on which date the Constitution, except as to the provisions mentioned
in section 6 of Article XV thereof, went into effect. The new National Assembly convened on
November 25th of that year, and the resolution confirming the election of the petitioner, Jose
A. Angara was approved by that body on December 3, 1935. The protest by the herein
respondent Pedro Ynsua against the election of the petitioner was filed on December 9 of
the same year. The pleadings do not show when the Electoral Commission was formally
organized but it does appear that on December 9, 1935, the Electoral Commission met for
the first time and approved a resolution fixing said date as the last day for the filing of
election protest. When, therefore, the National Assembly passed its resolution of December
3, 1935, confirming the election of the petitioner to the National Assembly, the Electoral
Commission had not yet met; neither does it appear that said body had actually been
organized. As a mater of fact, according to certified copies of official records on file in the
archives division of the National Assembly attached to the record of this case upon the
petition of the petitioner, the three justices of the Supreme Court the six members of the
National Assembly constituting the Electoral Commission were respectively designated only
on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly confirming non-
protested elections of members of the National Assembly had the effect of limiting or tolling
the time for the presentation of protests, the result would be that the National Assembly
on the hypothesis that it still retained the incidental power of regulation in such cases had
already barred the presentation of protests before the Electoral Commission had had time to
organize itself and deliberate on the mode and method to be followed in a matter entrusted
to its exclusive jurisdiction by the Constitution. This result was not and could not have been
contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming the election of
members against whom no protests had been filed at the time of its passage on December
3, 1935, can not be construed as a limitation upon the time for the initiation of election
contests. While there might have been good reason for the legislative practice of
confirmation of the election of members of the legislature at the time when the power to
decide election contests was still lodged in the legislature, confirmation alone by the
legislature cannot be construed as depriving the Electoral Commission of the authority
incidental to its constitutional power to be "the sole judge of all contest relating to the
election, returns, and qualifications of the members of the National Assembly", to fix the
time for the filing of said election protests. Confirmation by the National Assembly of the
returns of its members against whose election no protests have been filed is, to all legal
purposes, unnecessary. As contended by the Electoral Commission in its resolution of
January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest filed
by the respondent Pedro Ynsua, confirmation of the election of any member is not required
by the Constitution before he can discharge his duties as such member. As a matter of fact,
certification by the proper provincial board of canvassers is sufficient to entitle a member-
elect to a seat in the national Assembly and to render him eligible to any office in said body
(No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).
Under the practice prevailing both in the English House of Commons and in the Congress of
the United States, confirmation is neither necessary in order to entitle a member-elect to
take his seat. The return of the proper election officers is sufficient, and the member-elect
presenting such return begins to enjoy the privileges of a member from the time that he
takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C.
A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections
where the decision is adverse to the claims of the protestant. In England, the judges'
decision or report in controverted elections is certified to the Speaker of the House of
Commons, and the House, upon being informed of such certificate or report by the Speaker,
is required to enter the same upon the Journals, and to give such directions for confirming or
altering the return, or for the issue of a writ for a new election, or for carrying into execution
the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the
United States, it is believed, the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alternation or amendment of the return (Cushing,
Law and Practice of Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still in force, each house of the
Philippine Legislature fixed the time when protests against the election of any of its
members should be filed. This was expressly authorized by section 18 of the Jones Law
making each house the sole judge of the election, return and qualifications of its members,
as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively
prescribe by resolution the time and manner of filing contest in the election of member of
said bodies. As a matter of formality, after the time fixed by its rules for the filing of protests
had already expired, each house passed a resolution confirming or approving the returns of
such members against whose election no protests had been filed within the prescribed time.
This was interpreted as cutting off the filing of further protests against the election of those
members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine
Legislature, Record First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth
Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record
First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine
Legislature, Record First Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth
Philippine Legislature, Record First Period, vol. III, No. 56, pp. 892, 893). The Constitution
has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to
have been impliedly abrogated also, for the reason that with the power to determine all
contest relating to the election, returns and qualifications of members of the National
Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that
power. There was thus no law nor constitutional provisions which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of
contests against the election of its members. And what the National Assembly could not do
directly, it could not do by indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally the
theory of separation of power into the legislative, the executive and the judicial.
(b) That the system of checks and balances and the overlapping of functions and
duties often makes difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the
agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the
only constitutional mechanism devised finally to resolve the conflict and allocate
constitutional boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and
appropriate cases and controversies, and is the power and duty to see that no one
branch or agency of the government transcends the Constitution, which is the source
of all authority.
(e) That the Electoral Commission is an independent constitutional creation with
specific powers and functions to execute and perform, closer for purposes of
classification to the legislative than to any of the other two departments of the
governments.
(f ) That the Electoral Commission is the sole judge of all contests relating to the
election, returns and qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution went into
effect, each house of the legislature was respectively the sole judge of the elections,
returns, and qualifications of their elective members.
(h) That the present Constitution has transferred all the powers previously exercised
by the legislature with respect to contests relating to the elections, returns and
qualifications of its members, to the Electoral Commission.
 (i) That such transfer of power from the legislature to the Electoral Commission was
full, clear and complete, and carried with it ex necesitate rei the implied power inter
alia to prescribe the rules and regulations as to the time and manner of filing
protests.
( j) That the avowed purpose in creating the Electoral Commission was to have an
independent constitutional organ pass upon all contests relating to the election,
returns and qualifications of members of the National Assembly, devoid of partisan
influence or consideration, which object would be frustrated if the National Assembly
were to retain the power to prescribe rules and regulations regarding the manner of
conducting said contests.
(k) That section 4 of article VI of the Constitution repealed not only section 18 of the
Jones Law making each house of the Philippine Legislature respectively the sole judge
of the elections, returns and qualifications of its elective members, but also section
478 of Act No. 3387 empowering each house to prescribe by resolution the time and
manner of filing contests against the election of its members, the time and manner of
notifying the adverse party, and bond or bonds, to be required, if any, and to fix the
costs and expenses of contest.
(l) That confirmation by the National Assembly of the election is contested or not, is
not essential before such member-elect may discharge the duties and enjoy the
privileges of a member of the National Assembly.
(m) That confirmation by the National Assembly of the election of any member
against whom no protest had been filed prior to said confirmation, does not and
cannot deprive the Electoral Commission of its incidental power to prescribe the time
within which protests against the election of any member of the National Assembly
should be filed.
We hold, therefore, that the Electoral Commission was acting within the legitimate exercise
of its constitutional prerogative in assuming to take cognizance of the protest filed by the
respondent Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that
the resolution of the National Assembly of December 3, 1935 can not in any manner toll the
time for filing protests against the elections, returns and qualifications of members of the
National Assembly, nor prevent the filing of a protest within such time as the rules of the
Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the character of the Electoral Commission
as a constitutional creation and as to the scope and extent of its authority under the facts of
the present controversy, we deem it unnecessary to determine whether the Electoral
Commission is an inferior tribunal, corporation, board or person within the purview of
sections 226 and 516 of the Code of Civil Procedure.
The petition for a writ of prohibition against the Electoral Commission is hereby denied, with
costs against the petitioner. So ordered.
Avancea, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Separate Opinions
ABAD SANTOS, J., concurring:
I concur in the result and in most of the views so ably expressed in the preceding opinion. I
am, however, constrained to withhold my assent to certain conclusions therein advanced.
The power vested in the Electoral Commission by the Constitution of judging of all contests
relating to the election, returns, and qualifications of the members of the National Assembly,
is judicial in nature. (Thomas vs.Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other
hand, the power to regulate the time in which notice of a contested election may be given, is
legislative in character. (M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs.
Illinois, 200 U. S. 496; 50 Law. ed., 572.)
It has been correctly stated that the government established by the Constitution follows
fundamentally the theory of the separation of powers into legislative, executive, and judicial.
Legislative power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of
any clear constitutional provision to the contrary, the power to regulate the time in which
notice of a contested election may be given, must be deemed to be included in the grant of
legislative power to the National Assembly.
The Constitution of the United States contains a provision similar to the that found in Article
VI, section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of
the United States provides that each house of the Congress shall be the judge of the
elections, returns, and qualifications of its own members. Notwithstanding this provision, the
Congress has assumed the power to regulate the time in which notice of a contested
election may be given. Thus section 201, Title 2, of the United States Code Annotated
prescribes:
Whenever any person intends to contest an election of any Member of the House of
Representatives of the United States, he shall, within thirty days after the result of
such election shall have been determined by the officer or board of canvassers
authorized by law to determine the same, give notice, in writing, to the Member
whose seat he designs to contest, of his intention to contest the same, and, in such
notice, shall specify particularly the grounds upon which he relies in the contest. (R.
S., par. 105.)
The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision
to the effect that the Senate and House of Representatives, respectively, shall be the sole
judges of the elections, returns, and qualifications of their elective members.
Notwithstanding this provision, the Philippine Legislature passed the Election Law, section
478 of which reads as follows:
The Senate and the House of Representatives shall by resolution respectively
prescribe the time and manner of filing contest in the election of members of said
bodies, the time and manner of notifying the adverse party, and bond or bonds, to be
required, if any, and shall fix the costs and expenses of contest which may be paid
from their respective funds.
The purpose sought to be attained by the creation of the Electoral Commission was not to
erect a body that would be above the law, but to raise legislative elections contests from the
category of political to that of justiciable questions. The purpose was not to place the
commission beyond the reach of the law, but to insure the determination of such contests
with the due process of law.
Section 478 of the Election Law was in force at the time of the adoption of the Constitution,
Article XV, section 2, of which provides that
All laws of the Philippine Islands shall continue in force until the inauguration of the
Commonwealth of the Philippines; thereafter, such laws shall remain operative,
unless inconsistent with this Constitution, until amended, altered, modified, or
repealed by the National Assembly, and all references in such laws to the
Government or officials of the Philippine Islands shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under this
Constitution.
The manifest purpose of this constitutional provision was to insure the orderly processes of
government, and to prevent any hiatus in its operations after the inauguration of the
Commonwealth of the Philippines. It was thus provided that all laws of the Philippine Islands
shall remain operative even after the inauguration of the Commonwealth of the Philippines,
unless inconsistent with the Constitution, and that all references in such laws to the
government or officials of the Philippine Islands shall be construed, in so far as applicable, to
refer to the government and corresponding officials under the Constitution. It would seem to
be consistent not only with the spirit but the letter of the Constitution to hold that section
478 of the Election Law remains operative and should now be construed to refer to the
Electoral Commission, which, in so far as the power to judge election contests is concerned,
corresponds to either the Senate or the House of Representative under the former regime. It
is important to observe in this connection that said section 478 of the Election Law vested
the power to regulate the time and manner in which notice of a contested election may be
given, not in the Philippine Legislature but in the Senate and House of Representatives
singly. In other words, the authority to prescribe the time and manner of filing contests in
the elections of members of the Philippine Legislature was by statute lodged separately in
the bodies clothed with power to decide such contests. Construing section 478 of the
Election Law to refer to the National Assembly, as required by Article XV, section 2, of the
Constitution, it seems reasonable to conclude that the authority to prescribe the time and
manner of filing contests in the election of members of the National Assembly is vested in
the Electoral Commission, which is now the body clothed with power to decide such
contests.
In the light of what has been said, the resolution of the National Assembly of December 3,
1935, could not have the effect of barring the right of the respondent Pedro Ynsua to contest
the election of the petitioner. By the same token, the Electoral Commission was authorized
by law to adopt its resolution of December 9, 1935, which fixed the time with in which
written contests must be filed with the commission.
Having been filed within the time fixed by its resolutions, the Electoral Commission has
jurisdiction to hear and determine the contest filed by the respondent Pedro Ynsua against
the petitioner Jose A. Angara.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 118577 March 7, 1995

JUANITO MARIANO, JR. et al., petitioners,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.
G.R. No. 118627 March 7, 1995
JOHN R. OSMEA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.

PUNO, J.:
At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as
unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act
Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City of
Makati." 1
G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by
petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie
Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and
Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others are
residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as
unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds:
1. Section 2 of R.A. No. 7854 did not properly identify the land area or
territorial jurisdiction of Makati by metes and bounds, with technical
descriptions, in violation of Section 10, Article X of the Constitution, in relation
to Sections 7 and 450 of the Local Government Code;
2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three
consecutive term" limit for local elective officials, in violation of Section 8,
Article X and Section 7, Article VI of the Constitution.
3. Section 52 of R.A. No. 7854 is unconstitutional for:
(a) it increased the legislative district of Makati only by special
law (the Charter in violation of the constitutional provision
requiring a general reapportionment law to be passed by
Congress within three (3) years following the return of every
census;
(b) the increase in legislative district was not expressed in the
title of the bill; and
(c) the addition of another legislative district in Makati is not in
accord with Section 5 (3), Article VI of the Constitution for as of
the latest survey (1990 census), the population of Makati stands
at only 450,000.
G.R. No. 118627 was filed by the petitioner John H. Osmea as senator, taxpayer, and
concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the
same grounds as aforestated.
We find no merit in the petitions.
I
Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of Makati,
thus:
Sec. 2. The City of Makati. The Municipality of Makati shall be converted
into a highly urbanized city to be known as the City of Makati, hereinafter
referred to as the City, which shall comprise the present territory of the
Municipality of Makati in Metropolitan Manila Area over which it has
jurisdiction bounded on the northeast by Pasig River and beyond by the City of
Mandaluyong and the Municipality of Pasig; on the southeast by the
municipalities of Pateros and Taguig; on the southwest by the City of Pasay
and the Municipality of Taguig; and, on the northwest, by the City of Manila.
The foregoing provision shall be without prejudice to the resolution by the
appropriate agency or forum of existing boundary disputes or cases involving
questions of territorial jurisdiction between the City of Makati and the
adjoining local government units. (Emphasis supplied)
In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the
Local Government Code which require that the area of a local government unit should be
made by metes and bounds with technical descriptions. 2
The importance of drawing with precise strokes the territorial boundaries of a local unit of
government cannot be overemphasized. The boundaries must be clear for they define the
limits of the territorial jurisdiction of a local government unit. It can legitimately exercise
powers of government only within the limits, its acts are ultra vires. Needless to state, any
uncertainty in the boundaries of local government units will sow costly conflicts in the
exercise of governmental powers which ultimately will prejudice the people's welfare. This is
the evil sought to avoided by the Local Government Code in requiring that the land area of a
local government unit must be spelled out in metes and bounds, with technical descriptions.
Given the facts of the cases at bench, we cannot perceive how this evil can be brought
about by the description made in section 2 of R.A. No. 7854, Petitioners have not
demonstrated that the delineation of the land area of the proposed City of Makati will cause
confusion as to its boundaries. We note that said delineation did not change even by an inch
the land area previously covered by Makati as a municipality. Section 2 did not add, subtract,
divide, or multiply the established land area of Makati. In language that cannot be any
clearer, section 2 stated that, the city's land area "shall comprise the present territory of the
municipality."
The deliberations of Congress will reveal that there is a legitimate reason why the land area
of the proposed City of Makati was not defined by metes and bounds, with technical
descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute
between the municipalities of Makati and Taguig over Fort Bonifacio was under court
litigation. Out of a becoming sense of respect to co-equal department of government,
legislators felt that the dispute should be left to the courts to decide. They did not want to
foreclose the dispute by making a legislative finding of fact which could decide the issue.
This would have ensued if they defined the land area of the proposed city by its exact metes
and bounds, with technical descriptions. 3 We take judicial notice of the fact that Congress
has also refrained from using the metes and bounds description of land areas of other local
government units with unsettled boundary disputes. 4
We hold that the existence of a boundary dispute does not per se present an insurmountable
difficulty which will prevent Congress from defining with reasonable certitude the territorial
jurisdiction of a local government unit. In the cases at bench, Congress maintained the
existing boundaries of the proposed City of Makati but as an act of fairness, made them
subject to the ultimate resolution by the courts. Considering these peculiar circumstances,
we are not prepared to hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain
the submission of the Solicitor General in this regard, viz.:
Going now to Sections 7 and 450 of the Local Government Code, it is beyond
cavil that the requirement stated therein, viz.: "the territorial jurisdiction of
newly created or converted cities should be described by meted and bounds,
with technical descriptions" was made in order to provide a means by which
the area of said cities may be reasonably ascertained. In other words, the
requirement on metes and bounds was meant merely as tool in the
establishment of local government units. It is not an end in itself. Ergo, so long
as the territorial jurisdiction of a city may be reasonably ascertained, i.e., by
referring to common boundaries with neighboring municipalities, as in this
case, then, it may be concluded that the legislative intent behind the law has
been sufficiently served.
Certainly, Congress did not intends that laws creating new cities must contain
therein detailed technical descriptions similar to those appearing in Torrens
titles, as petitioners seem to imply. To require such description in the law as a
condition sine qua non for its validity would be to defeat the very purpose
 which the Local Government Code to seeks to serve. The manifest intent of
the Code is to empower local government units and to give them their rightful
due. It seeks to make local governments more responsive to the needs of their
constituents while at the same time serving as a vital cog in national
development. To invalidate R.A. No. 7854 on the mere ground that no
cadastral type of description was used in the law would serve the letter but
defeat the spirit of the Code. It then becomes a case of the master serving the
slave, instead of the other way around. This could not be the intendment of
the law.
Too well settled is the rule that laws must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute. Courts
will not follow the letter of the statute when to do so would depart from the
true intent of the legislature or would otherwise yield conclusions inconsistent
with the general purpose of the act. (Torres v. Limjap, 56 Phil., 141; Taada v.
Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an
active instrument of government, which, for purposes of interpretation, means
that laws have ends to achieve, and statutes should be so construed as not to
defeat but to carry out such ends and purposes (Bocolbo v. Estanislao, 72
SCRA 520). The same rule must indubitably apply to the case at bar.
II
Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A.
No. 7854. Section 51 states:
Sec. 51. Officials of the City of Makati. The represent elective officials of the
Municipality of Makati shall continue as the officials of the City of Makati and
shall exercise their powers and functions until such time that a new election is
held and the duly elected officials shall have already qualified and assume
their offices: Provided, The new city will acquire a new corporate existence.
The appointive officials and employees of the City shall likewise continues
exercising their functions and duties and they shall be automatically absorbed
by the city government of the City of Makati.
They contend that this section collides with section 8, Article X and section 7, Article VI of
the Constitution which provide:
Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official
shall serve for more than three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an interruption in
the continuity of his service for the full term for which he was elected.
xxx xxx xxx
Sec. 7. The Members of the House of Representatives shall be elected for a
term of three years which shall begin, unless otherwise provided by law, at
noon on the thirtieth day of June next following their election.
No Member of the House of Representatives shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.
Petitioners stress that under these provisions, elective local officials, including Members of
the House of Representative, have a term of three (3) years and are prohibited from serving
for more than three (3)consecutive terms. They argue that by providing that the new city
shall acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the
present municipal elective officials of Makati and disregards the terms previously served by
them. In particular, petitioners point that section 51 favors the incumbent Makati Mayor,
respondent Jejomar Binay, who has already served for two (2) consecutive terms. They
further argue that should Mayor Binay decide to run and eventually win as city mayor in the
coming elections, he can still run for the same position in 1998 and seek another three-year
consecutive term since his previous three-year consecutive term asmunicipal mayor would
not be counted. Thus, petitioners conclude that said section 51 has been conveniently
crafted to suit the political ambitions of respondent Mayor Binay.
We cannot entertain this challenge to the constitutionality of section 51. The requirements
before a litigant can challenge the constitutionality of a law are well delineated. They are: 1)
there must be an actual case or controversy; (2) the question of constitutionality must be
raised by the proper party; (3) the constitutional question must be raised at the earliest
possible opportunity; and (4) the decision on the constitutional question must be necessary
to the determination of the case itself. 5
Petitioners have far from complied with these requirements. The petition is premised on the
occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming
mayoralty elections; that he would be re-elected in said elections; and that he would seek
re-election for the same position in the 1998 elections. Considering that these contingencies
may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen
to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano) are
not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic issue
in a petition for declaratory relief over which this Court has no jurisdiction.
III
Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52,
Article X of R.A. No. 7854. Section 52 of the Charter provides:
Sec. 52. Legislative Districts. Upon its conversion into a highly-urbanized
city, Makati shall thereafter have at least two (2) legislative districts that shall
initially correspond to the two (2) existing districts created under Section 3(a)
of Republic Act. No. 7166 as implemented by the Commission on Elections to
commence at the next national elections to be held after the effectivity of this
Act. Henceforth, barangays Magallanes, Dasmarias and Forbes shall be with
the first district, in lieu of Barangay Guadalupe-Viejo which shall form part of
the second district. (emphasis supplied)
They contend. that the addition of another legislative district in Makati is unconstitutional
for: (1) reapportionment6 cannot made by a special law, (2) the addition of a legislative
district is not expressed in the title of the bill 7 and (3) Makati's population, as per the 1990
census, stands at only four hundred fifty thousand (450,000).
These issues have been laid to rest in the recent case of Tobias v. Abalos. 8 In said case, we
ruled that reapportionment of legislative districts may be made through a special law, such
as in the charter of a new city. The Constitution 9 clearly provides that Congress shall be
composed of not more than two hundred fifty (250) members, unless otherwise fixed by law.
As thus worded, the Constitution did not preclude Congress from increasing its membership
by passing a law, other than a general reapportionment of the law. This is its exactly what
was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's
legislative district. Moreover, to hold that reapportionment can only be made through a
general apportionment law, with a review of all the legislative districts allotted to each local
government unit nationwide, would create an inequitable situation where a new city or
province created by Congress will be denied legislative representation for an indeterminate
period of time. 10 The intolerable situations will deprive the people of a new city or province
a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is
indivisible. It must be forever whole or it is not sovereignty.
Petitioners cannot insist that the addition of another legislative district in Makati is not in
accord with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty thousand
(450,000). 13 Said section provides, inter alia, that a city with a population of at least two
hundred fifty thousand (250,000) shall have at least one representative. Even granting that
the population of Makati as of the 1990 census stood at four hundred fifty thousand
(450,000), its legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the
Ordinance appended to the Constitution provides that a city whose population has increased
to more than two hundred fifty thousand (250,000) shall be entitled to at least one
congressional representative. 14
Finally, we do not find merit in petitioners' contention that the creation of an additional
legislative district in Makati should have been expressly stated in the title of the bill. In the
same case of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring a liberal
construction of the "one title-one subject" rule so as not to impede legislation. To be sure,
with Constitution does not command that the title of a law should exactly mirror, fully index,
or completely catalogue all its details. Hence, we ruled that "it should be sufficient
compliance if the title expresses the general subject and all the provisions are germane to
such general subject."
WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.

Separate Opinions

DAVIDE, JR., J., concurring:

I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a
few observations.
I.
Section 10, Article X of the Constitution provides that "[n]o 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 the approval by a majority of the votes cast in a plebiscite in the political units directly
affected." These criteria are now set forth in Section 7 of the Local Government Code of
1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government
unit to be created or converted should be properly identified by metes and bounds with
technical descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly
Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of
the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes and bounds as a condition sine qua
non for the creation of a local government unit or its conversion from one level to another.
The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of
fact, the section starts with the clause "as a general rule." The petitioners' reliance on
Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a
municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It
pertinently reads as follows:
Sec. 450. Requisite for creation. (a) A municipality or a cluster of barangays
may be converted into a component city if it has an average annual income,
as certified by the Department of Finance, of at least Twenty million pesos
(P20,000,000.00) for the last two (2) consecutive years based on 1991
constant prices, and if it has either of the following requisites:
xxx xxx xxx
 (b) The territorial jurisdiction of a newly created city shall be properly
identified by metes and bounds. . . .
The constitution classifies cities as either highly urbanized or component. Section 12 of
Article X thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The voters of
component cities within a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote for elective provincial
officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. A city may either be component or highly
urbanized: Provided, however, That the criteria established in this Code shall
not affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose charters
prohibit their voters from voting for provincial elective officials. Independent
component cities shall be independent of the province.
II.
Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed
by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of
the reapportionment mentioned in the succeeding paragraph (4) of the said Section which
reads in full as follows:
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.
In short, the clause refers to a general reapportionment law.
The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:
Sec. 1. For purposes of the election of Members of the House of
Representatives of the First Congress of the Philippines under the Constitution
proposed by the 1986 Constitutional Commissionand subsequent elections,
and until otherwise provided by law, the Members thereof shall be elected
from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila Areaas follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member
or such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
created, or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission
on Elections but such adjustment shall not be made within one hundred and
twenty days before the election. (Emphases supplied)

Separate Opinions
DAVIDE, JR., J., concurring:
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a
few observations.
I.
Section 10, Article X of the Constitution provides that "[n]o 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 the approval by a majority of the votes cast in a plebiscite in the political units directly
affected." These criteria are now set forth in Section 7 of the Local Government Code of
1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government
unit to be created or converted should be properly identified by metes and bounds with
technical descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly
Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of
the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes and bounds as a condition sine qua
non for the creation of a local government unit or its conversion from one level to another.
The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of
fact, the section starts with the clause "as a general rule." The petitioners' reliance on
Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a
municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It
pertinently reads as follows:
Sec. 450. Requisite for creation. (a) A municipality or a cluster of barangays
may be converted into a component city if it has an average annual income,
as certified by the Department of Finance, of at least Twenty million pesos
(P20,000,000.00) for the last two (2) consecutive years based on 1991
constant prices, and if it has either of the following requisites:
xxx xxx xxx
(b) The territorial jurisdiction of a newly created city shall be properly
identified by metes and bounds. . . .
The constitution classifies cities as either highly urbanized or component. Section 12 of
Article X thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The voters of
component cities within a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote for elective provincial
officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. A city may either be component or highly
urbanized: Provided, however, That the criteria established in this Code shall
not affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose charters
prohibit their voters from voting for provincial elective officials. Independent
component cities shall be independent of the province.
II.
Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed
by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of
the reapportionment mentioned in the succeeding paragraph (4) of the said Section which
reads in full as follows:
 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.
In short, the clause refers to a general reapportionment law.
The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:
Sec. 1. For purposes of the election of Members of the House of
Representatives of the First Congress of the Philippines under the Constitution
proposed by the 1986 Constitutional Commissionand subsequent elections,
and until otherwise provided by law, the Members thereof shall be elected
from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila Areaas follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member
or such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
created, or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission
on Elections but such adjustment shall not be made within one hundred and
twenty days before the election. (Emphases supplied)
Footnotes
1 R.A. No. 7854 is a consolidation of House Bill No. 12240 sponsored by
Congressman Joker Arroyo and Senate Bill No. 1244 sponsored by Senator
Vicente Sotto III.
2 Sec. 7. Creation and Conversion. As a general rule, the creation of a local
government unit or its conversion from one level to another level shall be
based on verifiable indicators of viability and projected capacity to provide
services, to wit:
xxx xxx xxx
(c) Land Area. It must be contiguous, unless it comprises two (2) or more
islands or is separated by a local government unit independent of the others;
properly identified by metes and bounds with technical descriptions and
sufficient to provide for such basic services and facilities to meet the
requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the
Department of Finance the National Statistics Office (NSO), and the Lands
Management Bureau (LMB) of the Department of Environment and Natural
Resources (DENR).
xxx xxx xxx
Sec. 450. Requisites for Creation. . . .
(b) The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. . . .
3 August 18, 1994, Senate Deliberations on H.B. No. 12240, pp. 23-28.
4 Ibid, citing as example the City of Mandaluyong.
5 Dumlao v. COMELEC, 95 SCRA 392 (19180); Cruz, Constitutional Law, 1991
ed., p. 24.
6 Section 5(4), Article VI of the Constitution provides:
(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.
7 Section 26(1), Article VI of the Constitution provides:
Sec. 26 (1) Every bill passed by the Congress shall, embrace only one subject
which shall be expressed in the title thereof.
8 G.R. No. 114783, December 8, 1994.
9 Section 5(1), Article VI.
10 In this connection, we take judicial notice of the fact that since 1986 up to
this time, Congress has yet to pass a general reapportionment law.
11 Section 1, Article II provides that "the Philippines is a democratic and
republican state. Sovereignty resides in the people and all government
authority from them."
12 Sec. 5. . . .
(3) Each legislative district shall comprise, as far as practicable, contiguous,
compact, and adjacent territory. Each city with a population of at least two
hundred fifty thousand, or each province, shall have at least one
representative.
xxx xxx xxx
13 As per the certificate issued by Administration Tomas Africa of the National
Census and Statistics Office, the population of Makati as of 1994 stood at
508,174; August 4, 1994, Senate Deliberations on House Bill No. 12240
(converting Makati into a highly urbanized city), p. 15.
14 Sec. 3 provides: "Any province that may hereafter be created, or any city
whose population may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election to at least one
Member or such number of Members as it may be entitled to on the basis of
the number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission
on Elections but such adjustment shall not be made within one hundred, and
twenty days before the election."
 EN BANC

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

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

RONALD ATANGAN and CLARIZA DECENA, and OTHER YOUTH OF THE LAND
SIMILARLY SITUATED, petitioners, vs. COMMISSION ON ELECTIONS,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, DEPARTMENT OF
BUDGET AND MANAGEMENT, EXECUTIVE SECRETARY of the OFFICE OF THE
PRESIDENT, SENATOR FRANKLIN DRILON in his capacity as Senate President
and SENATOR AQUILINO PIMENTEL in his capacity as Minority Leader of the
Senate of the Philippines, CONGRESSMAN JOSE DE VENECIA in his capacity
as Speaker, CONGRESSMAN AGUSTO L. SYJOCO in his capacity as Chairman
of the Committee on Suffrage and Electoral Reforms, and CONGRESSMAN
EMILIO C. MACIAS II in his capacity as Chairman of the Committee on Local
Government of the House of Representatives, THE PRESIDENT OF THE
PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG KABATAAN, AND ALL
THEIR AGENTS AND REPRESENTATIVES, respondents.

DECISION

CARPIO, J.:

The Case

Before us is a petition for certiorari, prohibition and mandamus with prayer for a
temporary restraining order or preliminary injunction. The petition seeks to prevent the
postponement of the Sangguniang Kabataan (SK for brevity) elections originally scheduled
last May 6, 2002. The petition also seeks to prevent the reduction of the age requirement for
membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayers and class suit, on
their own behalf and on behalf of other youths similarly situated. Petitioners claim that they
are in danger of being disqualified to vote and be voted for in the SK elections should the SK
elections on May 6, 2002 be postponed to a later date. Under the Local Government Code of
1991 (R.A. No. 7160), membership in the SK is limited to youths at least 15 but not more
than 21 years old.
Petitioners allege that public respondents connived, confederated and conspired to
postpone the May 6, 2002 SK elections and to lower the membership age in the SK to at
least 15 but less than 18 years of age.Petitioners assail the alleged conspiracy because
youths at least 18 but not more than 21 years old will be summarily and unduly
dismembered, unfairly discriminated, unnecessarily disenfranchised, unjustly disassociated
and obnoxiously disqualified from the SK organization.[1]
Thus, petitioners pray for the issuance of a temporary restraining order or preliminary
injunction -
a) To prevent, annul or declare unconstitutional any law, decree, Comelec
resolution/directive and other respondents issuances, orders and actions and the like in
postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002 SK elections set by the present
law and in accordance with Comelec Resolutions No. 4713 and 4714 and to expedite the
funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for whatever reason, there must
be a definite date for said elections, for example, July 15, 2002, and the present SK
membership, except those incumbent SK officers who were elected on May 6, 1996, shall be
allowed to run for any SK elective position even if they are more than 21 years old.
d) To direct the incumbent SK officers who are presently representing the SK in every
sanggunian and the NYC to vacate their post after the barangay elections. [2]

The Facts

The SK is a youth organization originally established by Presidential Decree No. 684 as

the Kabataang Barangay (KB for brevity). The KB was composed of all barangay residents
who were less than 18 years old, without specifying the minimum age. The KB was
organized to provide its members with the opportunity to express their views and opinions
on issues of transcendental importance.[3]
The Local Government Code of 1991 renamed the KB to SK and limited SK membership
to those youths at least 15 but not more than 21 years of age. [4] The SK remains as a youth
organization in every barangay tasked to initiate programs to enhance the social, political,
economic, cultural, intellectual, moral, spiritual, and physical development of the youth.
[5]
The SK in every barangay is composed of a chairperson and seven members, all elected
by the Katipunan ng Kabataan. The Katipunan ng Kabataan in every barangay is composed
of all citizens actually residing in the barangay for at least six months and who meet the
membership age requirement.
The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK
elections to the first Monday of May of 1996 and every three years thereafter. RA No. 7808
mandated the Comelec to supervise the conduct of the SK elections under rules the Comelec
shall promulgate. Accordingly, the Comelec on December 4, 2001 issued Resolution Nos.
4713[6] and 4714[7] to govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros for brevity)
sent a letter[8] to the Comelec, demanding that the SK elections be held as scheduled on May
6, 2002. Montesclaros also urged the Comelec to respond to her letter within 10 days upon
receipt of the letter, otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity), then
Comelec Chairman, wrote identical letters to the Speaker of the House [9] and the Senate
President[10] about the status of pending bills on the SK and Barangay elections. In his
letters, the Comelec Chairman intimated that it was operationally very difficult to hold both
elections simultaneously in May 2002. Instead, the Comelec Chairman expressed support for
the bill of Senator Franklin Drilon that proposed to hold the Barangay elections in May 2002
and postpone the SK elections to November 2002.
Ten days lapsed without the Comelec responding to the letter of
Montesclaros. Subsequently, petitioners received a copy of Comelec En Banc Resolution No.
4763[11] dated February 5, 2002 recommending to Congress the postponement of the SK
elections to November 2002 but holding the Barangay elections in May 2002 as scheduled.
[12]

On March 6, 2002, the Senate and the House of Representatives passed their respective
bills postponing the SK elections. On March 11, 2002, the Bicameral Conference Committee
(Bicameral Committee for brevity) of the Senate and the House came out with a
Report[13] recommending approval of the reconciled bill consolidating Senate Bill No.
2050[14] and House Bill No. 4456.[15] The Bicameral Committees consolidated bill reset the SK
and Barangay elections to July 15, 2002 and lowered the membership age in the SK to at
least 15 but not more than 18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committees consolidated bill
and on March 13, 2002, the House of Representatives approved the same. The President
signed the approved bill into law on March 19, 2002.

The Issues

Petitioners[16] raise the following grounds in support of their petition:

I.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS

CONSTITUTED (SIC) WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK ELECTIONS.

II.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS

CONSTITUTED (SIC) WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE, DISENFRANCHISE, SINGLE OUT
AND DISMEMBER THE SK MEMBERS WHO ARE 18 BUT NOT LESS[17] (SIC) THAN 21 YEARS
OLD COMPOSED OF ABOUT 7 MILLION YOUTH.

III.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS

CONSTITUTED (SIC) WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE SK ELECTION PURPORTEDLY
TO POSTPONE THE SAME IN ORDER TO IMPLEMENT THEIR ILLEGAL SCHEME AND
MACHINATION IN SPITE OF THE FACT THAT THERE ARE AVAILABLE FUNDS FOR THE PURPOSE.

IV.

THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON THEIR RESPECTIVE OFFICES

CONTRARY TO THE ENVISION (SIC) OF THE CREATION OF THE SK ORGANIZATION, HENCE, IN
VIOLATION OF LAW AND CONSTITUTION.[18]

The Courts Ruling

The petition is bereft of merit.

At the outset, the Court takes judicial notice of the following events that have transpired
since petitioners filed this petition:

1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not
held as scheduled.
 2. Congress enacted RA No. 9164[19] which provides that voters and candidates for
the SK elections must be at least 15 but less than 18 years of age on the day of
the election.[20] RA No. 9164 also provides that there shall be a synchronized SK
and Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations for the
conduct of the July 15, 2002 synchronized SK and Barangay elections.

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

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis
supplied)

Thus, there can be no justiciable controversy involving the constitutionality of a proposed

bill. The Court can exercise its power of judicial review only after a law is enacted, not
before.
 Under the separation of powers, the Court cannot restrain Congress from passing any
law, or from setting into motion the legislative mill according to its internal rules. Thus, the
following acts of Congress in the exercise of its legislative powers are not subject to judicial
restraint: the filing of bills by members of Congress, the approval of bills by each chamber of
Congress, the reconciliation by the Bicameral Committee of approved bills, and the eventual
approval into law of the reconciled bills by each chamber of Congress. Absent a clear
violation of specific constitutional limitations or of constitutional rights of private parties, the
Court cannot exercise its power of judicial review over the internal processes or procedures
of Congress.[23]
The Court has also no power to dictate to Congress the object or subject of bills that
Congress should enact into law. The judicial power to review the constitutionality of laws
does not include the power to prescribe to Congress what laws to enact. The Court has no
power to compel Congress by mandamus to enact a law allowing petitioners, regardless of
their age, to vote and be voted for in the July 15, 2002 SK elections. To do so would destroy
the delicate system of checks and balances finely crafted by the Constitution for the three
co-equal, coordinate and independent branches of government.
Under RA No. 9164, Congress merely restored the age requirement in PD No. 684, the
original charter of the SK, which fixed the maximum age for membership in the SK to youths
less than 18 years old. Petitioners do not have a vested right to the permanence of the age
requirement under Section 424 of the Local Government Code of 1991. Every law passed by
Congress is always subject to amendment or repeal by Congress. The Court cannot restrain
Congress from amending or repealing laws, for the power to make laws includes the power
to change the laws.[24]
The Court cannot also direct the Comelec to allow over-aged voters to vote or be voted
for in an election that is limited under RA No. 9164 to youths at least 15 but less than 18
years old. A law is needed to allow all those who have turned more than 21 years old on or
after May 6, 2002 to participate in the July 15, 2002 SK elections. Youths from 18 to 21 years
old as of May 6, 2002 are also no longer SK members, and cannot participate in the July 15,
2002 SK elections. Congress will have to decide whether to enact an amendatory
law. Petitioners remedy is legislation, not judicial intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A party
must show that he has been, or is about to be denied some personal right or privilege to
which he is lawfully entitled. [25] A party must also show that he has a real interest in the
suit. By real interest is meant a present substantial interest, as distinguished from a mere
expectancy or future, contingent, subordinate, or inconsequential interest. [26]
In the instant case, petitioners seek to enforce a right originally conferred by law on
those who were at least 15 but not more than 21 years old. Now, with the passage of RA No.
9164, this right is limited to those who on the date of the SK elections are at least 15 but
less than 18 years old. The new law restricts membership in the SK to this specific age
group. Not falling within this classification, petitioners have ceased to be members of the SK
and are no longer qualified to participate in the July 15, 2002 SK elections. Plainly,
petitioners no longer have a personal and substantial interest in the SK elections.
This petition does not raise any constitutional issue. At the time petitioners filed this
petition, RA No. 9164, which reset the SK elections and reduced the age requirement for SK
membership, was not yet enacted into law. After the passage of RA No. 9164, petitioners
failed to assail any provision in RA No. 9164 that could be unconstitutional. To grant
petitioners prayer to be allowed to vote and be voted for in the July 15, 2002 SK elections
necessitates assailing the constitutionality of RA No. 9164. This, petitioners have not done.
The Court will not strike down a law unless its constitutionality is properly raised in an
appropriate action and adequately argued.[27]
The only semblance of a constitutional issue, albeit erroneous, that petitioners raise is
their claim that SK membership is a property right within the meaning of the Constitution.
[28]
Since certain public offices are reserved for SK officers, petitioners also claim a
constitutionally protected opportunity to occupy these public offices. In petitioners own
words, they and others similarly situated stand to lose their opportunity to work in the
government positions reserved for SK members or officers. [29] Under the Local Government
Code of 1991, the president of the federation of SK organizations in a municipality, city or
province is an ex-officio member of the municipal council, city council or provincial board,
respectively.[30] The chairperson of the SK in the barangay is an ex-officio member of the
Sangguniang Barangay.[31] The president of the national federation of SK organizations is
an ex-officio member of the National Youth Commission, with rank of a Department Assistant
Secretary.[32]
Congress exercises the power to prescribe the qualifications for SK membership. One
who is no longer qualified because of an amendment in the law cannot complain of being
deprived of a proprietary right to SK membership. Only those who qualify as SK members
can contest, based on a statutory right, any act disqualifying them from SK membership or
from voting in the SK elections. SK membership is not a property right protected by the
Constitution because it is a mere statutory right conferred by law. Congress may amend at
any time the law to change or even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a [P]ublic
office is a public trust.[33] No one has a vested right to any public office, much less a vested
right to an expectancy of holding a public office. In Cornejo v. Gabriel,[34] decided in 1920,
the Court already ruled:

Again, for this petition to come under the due process of law prohibition, it would be
necessary to consider an office a property. It is, however, well settled x x x that a public
office is not property within the sense of the constitutional guaranties of due
process of law, but is a public trust or agency. x x x The basic idea of the government x x x
is that of a popular representative government, the officers being mere agents and not
rulers of the people, one where no one man or set of men has a proprietary or contractual
right to an office, but where every officer accepts office pursuant to the provisions of the law
and holds the office as a trust for the people he represents. (Emphasis supplied)

Petitioners, who apparently desire to hold public office, should realize from the very start
that no one has a proprietary right to public office. While the law makes an SK officer an ex-
officio member of a local government legislative council, the law does not confer on
petitioners a proprietary right or even a proprietary expectancy to sit in local legislative
councils. The constitutional principle of a public office as a public trust precludes any
proprietary claim to public office. Even the State policy directing equal access to
opportunities for public service[35] cannot bestow on petitioners a proprietary right to SK
membership or a proprietary expectancy to ex-officiopublic offices.
Moreover, while the State policy is to encourage the youths involvement in public
affairs,[36] this policy refers to those who belong to the class of people defined as the
youth. Congress has the power to define who are the youth qualified to join the SK, which
itself is a creation of Congress. Those who do not qualify because they are past the age
group defined as the youth cannot insist on being part of the youth. In government service,
once an employee reaches mandatory retirement age, he cannot invoke any property right
to cling to his office. In the same manner, since petitioners are now past the maximum age
for membership in the SK, they cannot invoke any property right to cling to their SK
membership.
The petition must also fail because no grave abuse of discretion attended the
postponement of the SK elections. RA No. 9164 is now the law that prescribes the
qualifications of candidates and voters for the SK elections. This law also fixes the date of
the SK elections. Petitioners are not even assailing the constitutionality of RA No. 9164. RA
No. 9164 enjoys the presumption of constitutionality and will apply to the July 15, 2002 SK
elections.
Petitioners have not shown that the Comelec acted illegally or with grave abuse of
discretion in recommending to Congress the postponement of the SK elections. The very
evidence relied upon by petitioners contradict their allegation of illegality. The evidence
consist of the following: (1) Comelec en banc Resolution No. 4763 dated February 5, 2002
that recommended the postponement of the SK elections to 2003; (2) the letter of then
Comelec Chairman Benipayo addressed to the Speaker of the House of Representatives and
the President of the Senate; and (3) the Conference Committee Report consolidating Senate
Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and
recall[37] and to recommend to Congress effective measures to minimize election spending.
[38]
The Comelecs acts enjoy the presumption of regularity in the performance of official
duties.[39] These acts cannot constitute proof, as claimed by petitioners, that there exists a
connivance and conspiracy (among) respondents in contravention of the present law. As the
Court held in Pangkat Laguna v. Comelec,[40] the Comelec, as the government agency
tasked with the enforcement and administration of elections laws, is entitled to the
presumption of regularity of official acts with respect to the elections.
The 1987 Constitution imposes upon the Comelec the duty of enforcing and
administering all laws and regulations relative to the conduct of elections. Petitioners failed
to prove that the Comelec committed grave abuse of discretion in recommending to
Congress the postponement of the May 6, 2002 SK elections. The evidence cited by
petitioners even establish that the Comelec has demonstrated an earnest effort to address
the practical problems in holding the SK elections on May 6, 2002. The presumption remains
that the decision of the Comelec to recommend to Congress the postponement of the
elections was made in good faith in the regular course of its official duties.
Grave abuse of discretion is such capricious and whimsical exercise of judgment that is
patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform
a duty enjoined by law.[41] Public respondents having acted strictly pursuant to their
constitutional powers and duties, we find no grave abuse of discretion in their assailed acts.
Petitioners contend that the postponement of the SK elections would allow the
incumbent SK officers to perpetuate themselves in power, depriving other youths of the
opportunity to serve in elective SK positions. This argument deserves scant
consideration. While RA No. 9164 contains a hold-over provision, incumbent SK officials can
remain in office only until their successors have been elected or qualified. On July 15, 2002,
when the SK elections are held, the hold-over period expires and all incumbent SK officials
automatically cease to hold their SK offices and their ex-officio public offices.
In sum, petitioners have no personal and substantial interest in maintaining this
suit. This petition presents no actual justiciable controversy. Petitioners do not cite any
provision of law that is alleged to be unconstitutional. Lastly, we find no grave abuse of
discretion on the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter lack of merit.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, and Corona, JJ., concur.
 EN BANC

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

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

vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and
P/SR. SUPT. REYNALDO BERROYA, respondents.

[G.R. No. 147781. May 10, 2001]

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

National Defense, et al., respondents.

[G.R. No. 147799. May 10, 2001]

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL

DIOMEDIO VILLANUEVA, P/DIR. LEANDRO MENDOZA and P/SR. SUPT.
REYNALDO BERROYA, respondents.

[G.R. No. 147810. May 10, 2001]

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF

JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE
PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL
POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents.

RESOLUTION

MELO, J.:

On May 1, 2001, President Macapagal-Arroyo, faced by an angry and violent mob armed
with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons
assaulting and attempting to break into Malacaang, issued Proclamation No. 38 declaring
that there was a state of rebellion in the National Capital Region. She likewise issued General
Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police
to suppress the rebellion in the National Capital Region. Warrantless arrests of several
alleged leaders and promoters of the rebellion were thereafter effected.
Aggrieved by the warrantless arrests, and the declaration of a state of rebellion, which
allegedly gave a semblance of legality to the arrests, the following four related petitions
were filed before the Court-
(1) G.R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an
urgent application for the issuance of temporary restraining order and/or writ of preliminary
injunction) filed by Panfilo M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G.R.
No. 147781 for mandamus and/or review of the factual basis for the suspension of the
privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by
Miriam Defensor-Santiago; (3) G.R. No. 147799 for prohibition and injunction with prayer for
a writ of preliminary injunction and/or restraining order filed by Rolando A. Lumbao; and (4)
G.R. No. 147810 for certiorari and prohibition filed by the political partyLaban ng
Demokratikong Pilipino.
All the foregoing petitions assail the declaration of a state of rebellion by President
Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as
having no basis both in fact an in law. Significantly, on May 6, 2001, President Macapagal-
Arroyo ordered the lifting of the declaration of a state of rebellion in Metro
Manila. Accordingly, the instant petitions have been rendered moot and academic. As to
petitioners claim that the proclamation of a state of rebellion is being used by the authorities
to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular
order to arrest specific persons in connection with the rebellion. He states that what is
extant are general instructions to law enforcement officers and military agencies to
implement Proclamation No. 38. Indeed, as stated in respondents Joint Comments:

[I]t is already the declared intention of the Justice Department and police
authorities to obtain regular warrants of arrests from the courts for all acts
committed prior to and until May 1, 2001 which means that preliminary
investigators will henceforth be conducted.
(Comment, G.R. No. 147780, p. 28; G.R. No.
147781, p. 18; G.R. No. 147799, p. 16; G.R. No.
147810, p. 24)

With this declaration, petitioners apprehensions as to warrantless arrests should be laid

to rest.
In quelling or suppressing the rebellion, the authorities may only resort to warrantless
arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules
of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is,
thus, not based on the declaration of a state of rebellion.
Moreover, petitioners contention in G.R. No. 147780 (Lacson Petition), 147781
(Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent
danger of being arrested without warrant do not justify their resort to the extraordinary
remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is
not without adequate remedies in the ordinary course of law. Such an individual may ask for
a preliminary investigation under Rule 112 of the Rules of court, where he may adduce
evidence in his defense, or he may submit himself to inquest proceedings to determine
whether or not he should remain under custody and correspondingly be charged in
court. Further, a person subject of a warrantless arrest must be delivered to the proper
judicial authorities within the periods provided in Article 125 of the Revised Penal Code,
otherwise the arresting officer could be held liable for delay in the delivery of detained
persons. Should the detention be without legal ground, the person arrested can charge the
arresting officer with arbitrary detention. All this is without prejudice to his filing an action
for damages against the arresting officer under Article 32 of the Civil Code. Verily,
petitioners have a surfeit of other remedies which they can avail themselves of, thereby
making the prayer for prohibition and mandamus improper at this time (Sections 2 and 3,
Rule 65, Rules of Court).
Aside from the foregoing reasons, several considerations likewise inevitably call for the
dismissal of the petitions at bar.

G.R. No. 147780

In connection with their alleged impending warrantless arrest, petitioners Lacson,

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

G.R. No. 147781

The petition herein is denominated by petitioner Defensor-Santiago as one

for mandamus. It is basic in matters relating to petitions for mandamus that the legal right
of the petitioner to the performance of a particular act which is sought to be compelled must
be clear and complete. Mandamus will not issue the right to relief is clear at the time of the
award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor-
Santiago has not shown that she is in imminent danger of being arrested without a
warrant. In point of fact, the authorities have categorically stated that petitioner will not be
arrested without a warrant.

G.R. No. 147799

Petitioner Lumbao, leader of the Peoples Movement against Poverty (PMAP), for his part,
argues that the declaration of a state of rebellion is violative of the doctrine of separation of
powers, being an encroachment on the domain of the judiciary which has the constitutional
prerogative to determine or interpret what took place on May 1, 2001, and that the
declaration of a state of rebellion cannot be an exception to the general rule on the
allocation of the governmental powers.
We disagree. To be sure, section 18, Article VII of the Constitution expressly provides
that [t]he President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion thus, we held in Integrated Bar of the
Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000):

xxx The factual necessity of calling out the armed forces is not easily quantifiable and
cannot be objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts. Besides the
absence of testual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the courts. Certain
pertinent information necessary to arrive at such judgment might also prove unmanageable
for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable
to the courts. In many instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not constituting technical
proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and mass
destruction of property. xxx
(at pp. 22-23)

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

G.R. No. 147810

Petitioner Laban ng Demoktratikong Pilipino is not a real party-in-interest. The rule

requires that a party must show a personal stake in the outcome of the case or an injury to
himself that can be redressed by a favorable decision so as to warrant an invocation of the
courts jurisdiction and to justify the exercise of the courts remedial powers in his behalf
(KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not
demonstrated any injury to itself which would justify resort to the Court. Petitioner is a
juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless
arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with
warrantless arrest and detention for the crime of rebellion. Every action must be brought in
the name of the party whose legal right has been invaded or infringed, or whose legal right
is under imminent threat of invasion or infringement.
At best, the instant petition may be considered as an action for declaratory relief,
petitioner claiming that its right to freedom of expression and freedom of assembly is
affected by the declaration of a state of rebellion and that said proclamation is invalid for
being contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords little comfort to
petitioner, this Court not having jurisdiction in the first instance over such a petition. Section
5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases
affecting ambassadors, other public ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.
WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in
G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their
undertaking earlier adverted to, together with their agents, representatives, and all persons
acting for and in their behalf, are hereby enjoined from arresting petitioners therein without
the required judicial warrant for all acts committed in relation to or in connection with the
May 1, 2001 siege of Malacaang.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, and Gonzaga-Reyes, JJ., concur.
Vitug, J., see separate opinion.
Kapunan, and Sandoval-Gutierrez, JJ., see dissenting opinion.
Pardo, J., join the dissent of J. Kapunan.
Quisumbing, Buena, Ynares-Santiago, and De Leon, Jr., JJ., on leave.

U.S. Supreme Court

DeFunis v. Odegaard, 416 U.S. 312 (1974)

DeFunis v. Odegaard
No. 73-235
Argued February 26, 1974
Decided April 23, 1974
416 U.S. 312
Syllabus
After being denied admission to a state-operated law school, petitioner brought this suit on
behalf of himself alone for injunctive relief, claiming that the school's admissions policy
racially discriminated against him in violation of the Equal Protection Clause of the
Fourteenth Amendment. The trial court agreed and ordered the school to admit him in the
fall of 1971. The Washington Supreme Court reversed, holding that the school's admissions
policy was not unconstitutional. MR. JUSTICE DOUGLAS, as Circuit Justice, stayed that
judgment pending this Court's final disposition of the case, with the result that petitioner
was in his final school year when this Court considered his petition for certiorari. After oral
argument, the Court was informed that petitioner had registered for his final quarter.
Respondents have assured the Court that this registration is fully effective regardless of the
ultimate disposition of the case.
Held: Because petitioner will complete law school at the end of the term for which he has
registered regardless of any decision this Court might reach on the merits, the Court cannot,
consistently with the limitations of Art. III of the Constitution, consider the substantive
constitutional issues, and the case is moot.
(a) Mootness here does not depend upon a "voluntary cessation" of the school's admissions
practices, but upon the simple fact that petitioner is in his final term, and the school's fixed
policy to permit him to complete the term.
(b) The case presents no question that is "capable of repetition, yet evading review," since
petitioner will never again have to go through the school's admissions process, and since it
does not follow that the issue petitioner raises will in the future evade review merely
because this case did not reach the Court until the eve of petitioner's graduation.
82 Wash.2d 11, 507 P.2d 1169, vacated and remanded.
Page 416 U. S. 314

Primary Holding

Mootness ends a case when the parties no longer have opposing legal interests or any
concrete or definite controversy between them.

Facts

DeFunis was denied admission at the University of Washington Law School, a state-operated
institution. He sued a state education official, Odegaard, as well as the law school
admissions committee on the basis that it had violated the Equal Protection Clause because
its policies and procedures had resulted in discrimination against him because of his race.
He sought a mandatory injunction from the trial court that would compel Odegaard to grant
him admission into the first-year law school class because his application had been
unconstitutionally denied. He prevailed in the lower court and was admitted to the law
school, pending Odegaard's appeal. The state Supreme Court eventually ruled that the law
school admissions policy was constitutional.

DeFunis received a writ of certiorari from the U.S. Supreme Court, which stayed the
judgment of the Washington Supreme Court until the U.S. Supreme Court had resolved the
case. DeFunis was already in his third and final year of law school when the Court granted
his petition.

Opinions
Per Curiam

No matter the decision that the Court might eventually reach on the constitutionality of the
admissions policy, the student will complete his law school program at the end of the current
term, for which he has already registered. This factual situation makes the case moot, and
Article III prevents the Court from reviewing the substantive constitutional questions
associated with it.

Dissent

William Orville Douglas (Author)

It is important to resolve these issues on their merits, so the case should not be deemed to
be moot.

Dissent

William Joseph Brennan, Jr. (Author)

It is possible that the student might not graduate after this term because of illness or
another unforeseen development. The case thus should not be deemed moot. Moreover, the
voluntary cessation of illegal conduct does not allow a party to cite this doctrine. The same
issue could arise again with another applicant of the same race to whom the school applies
the same policy, and the public interest would be served by a judicial resolution of these
issues that forestalls duplicative litigation. It is inevitable that another similar case will arise
in the future, and the record does not require a finding of mootness. The principle of
avoiding constitutional questions when possible does not equate to avoidance of all
potentially challenging issues.

Case Commentary
Mootness is the opposite of ripeness in a sense, since it applies to dismiss a case when the
issues have been resolved rather than when they are not yet ready to be resolved.

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