Anda di halaman 1dari 414

Republic of the Philippines This case defines the extent that our people may shape

SUPREME COURT the debates during elections. It is significant and of first


Manila impression. We are asked to decide whether the
Commission on Elections (COMELEC) has the
EN BANC competence to limit expressions made by the citizens
who are not candidates during elections.
G.R. No. 205728 January 21, 2015
Before us is a special civil action for certiorari and
THE DIOCESE OF BACOLOD, REPRESENTED BY THE prohibition with application for preliminary injunction and
MOST REV. BISHOP VICENTE M. NAVARRA and THE temporary restraining order1 under Rule 65 of the Rules of
BISHOP HIMSELF IN HIS PERSONAL Court seeking to nullify COMELECs Notice to Remove
CAPACITY, Petitioners, Campaign Materials2 dated February 22, 2013 and
vs. letter3 issued on February 27, 2013.
COMMISSION ON ELECTIONS AND THE ELECTION
OFFICER OF BACOLOD CITY, ATTY. MAVIL V. The facts are not disputed.
MAJARUCON, Respondents.
On February 21, 2013, petitioners posted two (2)
DECISION tarpaulins within a private compound housing the San
Sebastian Cathedral of Bacolod. Each tarpaulin was
LEONEN, J.: approximately six feet (6') by ten feet (10') in size. They
were posted on the front walls of the cathedral within public
"The Philippines is a democratic and republican State. view. The first tarpaulin contains the message "IBASURA
Sovereignty resides in the people and all government RH Law" referring to the Reproductive Health Law of 2012
authority emanates from them." Article II, Section 1, or Republic Act No. 10354. The second tarpaulin is the
Constitution subject of the present case.4 This tarpaulin contains the
heading "Conscience Vote" and lists candidates as either
All governmental authority emanates from our people. No "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH)
unreasonable restrictions of the fundamental and Team Patay" with an "X" mark.5 The electoral candidates
preferred right to expression of the electorate during were classified according to their vote on the adoption of
political contests no matter how seemingly benign will be Republic Act No. 10354, otherwise known as the RH
tolerated. Law.6Those who voted for the passing of the law were
classified by petitioners as comprising "Team Patay,"
while those who voted against it form "Team Buhay":7
TEAM BUHAY TEAM PATAY being oversized. COMELEC Resolution No. 9615 provides
for the size requirement of two feet (2) by three feet (3).9
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casio, Teddy On February 25, 2013, petitioners replied10 requesting,
among others, that (1) petitioner Bishop be given a definite
Magsaysay, Mitos Cayetano, Alan Peter ruling by COMELEC Law Department regarding the
Pimentel, Koko Enrile, Jackie tarpaulin; and (2) pending this opinion and the availment
of legal remedies, the tarpaulin be allowed to remain.11
Trillanes, Antonio Escudero, Francis
On February 27, 2013, COMELEC Law Department
Villar, Cynthia Hontiveros, Risa
issued a letter12 ordering the immediate removal of the
Party List Buhay Legarda, Loren tarpaulin; otherwise, it will be constrained to file an election
offense against petitioners. The letter of COMELEC Law
Party List Ang Pamilya Party List Gabriela Department was silenton the remedies available to
Party List Akbayan petitioners. The letter provides as follows:
Party List Bayan Muna Dear Bishop Navarra:
Party List Anak Pawis
It has reached this Office that our Election Officer for this
City, Atty. Mavil Majarucon, had already given you notice
During oral arguments, respondents conceded that the
on February 22, 2013 as regards the election propaganda
tarpaulin was neither sponsored nor paid for by any
material posted on the church vicinity promoting for or
candidate. Petitioners also conceded that the tarpaulin
against the candidates and party-list groups with the
contains names ofcandidates for the 2013 elections, but
following names and messages, particularly described as
not of politicians who helped in the passage of the RH Law
follows:
but were not candidates for that election.
Material size : six feet (6) by ten feet (10)
On February 22, 2013, respondent Atty. Mavil V.
Majarucon, in her capacity as Election Officer of Bacolod
Description : FULL COLOR TARPAULIN
City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop
Image of : SEE ATTACHED PICTURES
Vicente M. Navarra. The election officer ordered the
tarpaulins removal within three (3) days from receipt for
Message : CONSCIENCE VOTE (ANTI RH) Concerned about the imminent threatof prosecution for
TEAM their exercise of free speech, petitioners initiated this case
through this petition for certiorari and prohibition with
BUHAY; (PRO RH) TEAM PATAY application for preliminary injunction and temporary
restraining order.14 They question respondents notice
Location : POSTED ON THE CHURCH dated February 22, 2013 and letter issued on February 27,
VICINITY 2013. They pray that: (1) the petition be given due course;
OF THE DIOCESE OF BACOLOD CITY (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents
The three (3) day notice expired on February 25, 2013. from further proceeding in enforcing their orders for the
removal of the Team Patay tarpaulin; and (3) after notice
Considering that the above-mentioned material is found to and hearing, a decision be rendered declaring the
be in violation of Comelec Resolution No. 9615 questioned orders of respondents as unconstitutional and
promulgated on January 15, 2013 particularly on the size void, and permanently restraining respondents from
(even with the subsequent division of the said tarpaulin enforcing them or any other similar order.15
into two), as the lawful size for election propaganda
material is only two feet (2) by three feet (3), please After due deliberation, this court, on March 5, 2013, issued
order/cause the immediate removal of said election a temporary restraining order enjoining respondents from
propaganda material, otherwise, we shall be constrained enforcing the assailed notice and letter, and set oral
to file an election offense case against you. arguments on March 19, 2013.16

We pray that the Catholic Church will be the first institution On March 13, 2013, respondents filed their
to help the Commission on Elections inensuring the comment17 arguing that (1) a petition for certiorari and
conduct of peaceful, orderly, honest and credible prohibition under Rule 65 of the Rules of Court filed before
elections. this court is not the proper remedy to question the notice
and letter of respondents; and (2) the tarpaulin is an
Thank you and God Bless! election propaganda subject to regulation by COMELEC
pursuant to its mandate under Article IX-C, Section 4 of
[signed] the Constitution. Hence, respondents claim that the
ATTY. ESMERALDA AMORA-LADRA issuances ordering its removal for being oversized are
Director IV13 valid and constitutional.18
During the hearing held on March 19, 2013, the parties II.
were directed to file their respective memoranda within 10
days or by April 1, 2013, taking into consideration the WHETHER IT IS RELEVANT TODETERMINE
intervening holidays.19 WHETHER THE TARPAULINS ARE "POLITICAL
ADVERTISEMENT" OR "ELECTION PROPAGANDA"
The issues, which also served as guide for the oral CONSIDERING THAT PETITIONER IS NOT A
arguments, are:20 POLITICAL CANDIDATE[;]

I. III.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER WHETHER THE TARPAULINS ARE A FORM OR
BY ELECTION OFFICER MAJARUCON AND THE 27 EXPRESSION (PROTECTED SPEECH), OR ELECTION
FEBRUARY 2013 ORDER BY THE COMELEC LAW PROPAGANDA/POLITICAL ADVERTISEMENT[;]
DEPARTMENT ARE CONSIDERED
JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE A. ASSUMING ARGUENDO THAT THE
COMELEC WHICH WOULD WARRANT A REVIEW OF TARPAULINS ARE A FORM OF
THIS COURT VIA RULE 65 PETITION[;] EXPRESSION, WHETHER THE COMELEC
POSSESSES THE AUTHORITY TO
A. WHETHER PETITIONERS VIOLATED REGULATE THE SAME[;]
THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL B. WHETHER THIS FORM OF
RULES GOVERNING APPEALS FROM EXPRESSION MAY BE REGULATED[;]
COMELEC DECISIONS;
IV.
B. ASSUMING ARGUENDO THAT THE
AFOREMENTIONED ORDERS ARE NOT WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER
CONSIDERED JUDGMENTS/FINAL BY ELECTION OFFICER MAJARUCON AND THE 27
ORDERS/RESOLUTIONS OF THE FEBRUARY 2013 ORDER BY THE COMELEC LAW
COMELEC, WHETHER THERE ARE DEPARTMENT VIOLATES THE PRINCIPLE OF
EXCEPTIONAL CIRCUMSTANCES SEPARATION OF CHURCH AND STATE[;] [AND]
WHICH WOULD ALLOW THIS COURT TO
TAKE COGNIZANCE OF THE CASE[;] V.
WHETHER THE ACTION OF THE PETITIONERS IN power to decide all questions affecting
POSTING ITS TARPAULIN VIOLATES THE 25
elections. Respondents invoke the cases of Ambil, Jr. v.
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
CHURCH AND STATE. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is
I limited to final decisions, orders, rulings and judgments of
PROCEDURAL ISSUES the COMELEC En Banc.31

I.A These cases are not applicable.

This courts jurisdiction over COMELEC cases In Ambil, Jr. v. COMELEC, the losing party in the
gubernatorial race of Eastern Samar filed the election
Respondents ask that this petition be dismissed on the protest.32 At issue was the validity of the promulgation of a
ground that the notice and letter are not final orders, COMELEC Division resolution.33 No motion for
decisions, rulings, or judgments of the COMELEC En reconsideration was filed to raise this issue before the
Banc issued in the exercise of its adjudicatory powers, COMELEC En Banc. This court declared that it did not
reviewable via Rule 64 of the Rules of Court.21 have jurisdiction and clarified:

Rule 64 is not the exclusive remedy for all acts of the We have interpreted [Section 7, Article IX-A of the
COMELEC. Rule 65 is applicable especially to raise Constitution]34 to mean final orders, rulings and
objections relating to a grave abuse of discretion resulting decisionsof the COMELEC rendered in the exercise of its
in the ouster of jurisdiction.22 As a special civil action, there adjudicatory or quasi-judicial powers." This decision must
must also be a showing that there be no plain, speedy, and be a final decision or resolution of the Comelec en banc,
adequate remedy in the ordinary course of the law. not of a division, certainly not an interlocutory order of a
division.The Supreme Court has no power to review
Respondents contend that the assailed notice and letter viacertiorari, an interlocutory order or even a final
are not subject to review by this court, whose power to resolution of a Division of the Commission on
review is "limited only to final decisions, rulings and orders Elections.35 (Emphasis in the original, citations omitted)
of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, However, in the next case cited by respondents, Repol v.
respondents claim that the assailed notice and letter are COMELEC, this court provided exceptions to this general
reviewable only by COMELEC itself pursuant to Article IX- rule. Repolwas another election protest case, involving the
C, Section 2(3) of the Constitution24 on COMELECs mayoralty elections in Pagsanghan, Samar.36 This time,
the case was brought to this court because the COMELEC 5) The need for relief is extremely urgent and
First Division issued a status quo ante order against the certiorari is the only adequate and speedy remedy
Regional Trial Court executing its decision pending available.
appeal.37 This courts ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to Ultimately, this court took jurisdiction in Repoland decided
review interlocutory orders of a COMELEC that the status quo anteorder issued by the COMELEC
Division.38However, consistent with ABS-CBN Division was unconstitutional.
Broadcasting Corporation v. COMELEC,39 it clarified the
exception: Respondents also cite Soriano, Jr. v. COMELEC.This
case was also an election protest case involving
This Court, however, has ruled in the past that this candidates for the city council of Muntinlupa
procedural requirement [of filing a motion for City.41 Petitioners in Soriano, Jr.filed before this court a
reconsideration] may be glossed over to prevent petition for certiorari against an interlocutory order of the
miscarriage of justice, when the issue involves the COMELEC First
principle of social justice or the protection of labor, when
the decision or resolution sought to be set aside is a nullity, Division.42 While the petition was pending in this court, the
or when the need for relief is extremely urgent and COMELEC First Division dismissed the main election
certiorari is the only adequate and speedy remedy protest case.43 Sorianoapplied the general rule that only
available.40 final orders should be questioned with this court. The
ponencia for this court, however, acknowledged the
Based on ABS-CBN, this court could review orders and exceptions to the general rule in ABS-CBN.44
decisions of COMELEC in electoral contests despite
not being reviewed by the COMELEC En Banc, if: Blanco v. COMELEC, another case cited by respondents,
was a disqualification case of one of the mayoralty
1) It will prevent the miscarriage of justice; candidates of Meycauayan, Bulacan.45 The COMELEC
Second Division ruled that petitioner could not qualify for
2) The issue involves a principle of social justice; the 2007 elections due to the findings in an administrative
case that he engaged in vote buying in the 1995
3) The issue involves the protection of labor; elections.46No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took
4) The decision or resolution sought tobe set aside cognizance of this case applying one of the exceptions in
is a nullity; or ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a and limitations on political speech
recent election protest case involving the mayoralty
candidates of Taguig City.48 Petitioner assailed a The main subject of thiscase is an alleged constitutional
resolution of the COMELEC denying her motion for violation: the infringement on speech and the "chilling
reconsideration to dismiss the election protest petition for effect" caused by respondent COMELECs notice and
lack of form and substance.49 This court clarified the letter.
general rule and refused to take cognizance of the review
of the COMELEC order. While recognizing the exceptions Petitioners allege that respondents committed grave
in ABS-CBN, this court ruled that these exceptions did not abuse of discretion amounting to lack or excess of
apply.50 jurisdiction in issuing the notice51 dated February 22,2013
and letter52 dated February 27, 2013 ordering the removal
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited of the tarpaulin.53 It is their position that these infringe on
by respondents do not operate as precedents to oust this their fundamental right to freedom of expression and
court from taking jurisdiction over this case. All these violate the principle of separation of church and state and,
cases cited involve election protests or disqualification thus, are unconstitutional.54
cases filed by the losing candidate against the winning
candidate. The jurisdiction of this court over the subject matter is
determined from the allegations in the petition. Subject
In the present case, petitioners are not candidates seeking matter jurisdiction is defined as the authority "to hear and
for public office. Their petition is filed to assert their determine cases of the general class to which the
fundamental right to expression. proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines
Furthermore, all these cases cited by respondents its powers."55Definitely, the subject matter in this case is
pertained to COMELECs exercise of its adjudicatory or different from the cases cited by respondents.
quasi-judicial power. This case pertains to acts of
COMELEC in the implementation of its regulatory powers. Nothing less than the electorates political speech will be
When it issued the notice and letter, the COMELEC was affected by the restrictions imposed by COMELEC.
allegedly enforcingelection laws. Political speech is motivated by the desire to be heard and
understood, to move people to action. It is concerned with
I.B the sovereign right to change the contours of power
whether through the election of representatives in a
Rule 65, grave abuse of discretion, republican government or the revision of the basic text of
the Constitution. The zeal with which we protect this kind
of speech does not depend on our evaluation of the On the other hand, respondents relied on its constitutional
cogency of the message. Neither do we assess whether mandate to decide all questions affectingelections. Article
we should protect speech based on the motives of IX-C, Section 2(3) of the Constitution, provides:
COMELEC. We evaluate restrictions on freedom of
expression from their effects. We protect both speech and Sec. 2. The Commission on Elections shall exercise the
medium because the quality of this freedom in practice will following powers and functions:
define the quality of deliberation in our democratic society.
....
COMELECs notice and letter affect preferred speech.
Respondents acts are capable of repetition. Under the (3) Decide, except those involving the right to vote, all
conditions in which it was issued and in view of the novelty questions affecting elections, including determination of
of this case,it could result in a "chilling effect" that would the number and location of polling places, appointment of
affect other citizens who want their voices heard on issues election officials and inspectors, and registration of voters.
during the elections. Other citizens who wish to express
their views regarding the election and other related issues Respondents reliance on this provision is misplaced.
may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid We are not confronted here with the question of whether
such proscribed conditions. Rule 65 is also the procedural the COMELEC, in its exercise of jurisdiction, gravely
platform for raising grave abuse of discretion. abused it. We are confronted with the question as to
whether the COMELEC had any jurisdiction at all with its
Both parties point to constitutional provisions on acts threatening imminent criminal action effectively
jurisdiction. For petitioners, it referred to this courts abridging meaningful political speech.
expanded exercise of certiorari as provided by the
Constitution as follows: It is clear that the subject matter of the controversy is the
effect of COMELECs notice and letter on free speech.
Judicial power includes the duty of the courts of justice to This does not fall under Article IX-C, Section 2(3) of the
settle actual controversies involving rights which are Constitution. The use of the word "affecting" in this
legally demandable and enforceable, and to determine provision cannot be interpreted to mean that COMELEC
whether ornot there has been a grave abuse of discretion has the exclusive power to decide any and allquestions
amounting to lack or excess of jurisdiction on the part of that arise during elections. COMELECs constitutional
any branch or instrumentality of the competencies during elections should not operate to
Government.56(Emphasis supplied) divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Respondents contend that petitioners failure to file the
Article VIII, Section 5(1) of the Constitution.This provision proper suit with a lower court of concurrent jurisdiction is
provides for this courts original jurisdiction over petitions sufficient ground for the dismissal of their petition.57 They
for certiorari and prohibition. This should be read add that observation of the hierarchy of courts is
alongside the expanded jurisdiction of the court in Article compulsory, citing Heirs of Bertuldo Hinog v.
VIII, Section 1 of the Constitution. Melicor.58 While respondents claim that while there are
exceptions to the general rule on hierarchy of courts, none
Certainly, a breach of the fundamental right of expression of these are present in this case.59
by COMELEC is grave abuse of discretion. Thus, the
constitutionality of the notice and letter coming from On the other hand, petitioners cite Fortich v. Corona 60 on
COMELEC is within this courts power to review. this courts discretionary power to take cognizance of a
petition filed directly to it if warranted by "compelling
During elections, we have the power and the duty to reasons, or [by] the nature and importance of the issues
correct any grave abuse of discretion or any act tainted raised. . . ."61 Petitioners submit that there are "exceptional
with unconstitutionality on the part of any government and compelling reasons to justify a direct resort [with] this
branch or instrumentality. This includes actions by the Court."62
COMELEC. Furthermore, it is this courts constitutional
mandate to protect the people against governments In Baez, Jr. v. Concepcion,63 we explained the necessity
infringement of their fundamental rights. This constitutional of the application of the hierarchy of courts:
mandate out weighs the jurisdiction vested with the
COMELEC. The Court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not
It will, thus, be manifest injustice if the court does not take to be ignored without serious consequences. The
jurisdiction over this case. strictness of the policy is designed to shield the Court from
having to deal with causes that are also well within the
I.C competence of the lower courts, and thus leave time to the
Court to deal with the more fundamental and more
Hierarchy of courts essential tasks that the Constitution has assigned to it. The
Court may act on petitions for the extraordinary writs of
This brings us to the issue of whether petitioners violated certiorari, prohibition and mandamus only when absolutely
the doctrine of hierarchy of courts in directly filing their necessary or when serious and important reasons exist to
petition before this court. justify an exception to the policy.64
In Baez, we also elaborated on the reasons why lower relation to the Constitution.67 To effectively perform these
courts are allowed to issue writs of certiorari, prohibition, functions, they are territorially organized into regions and
and mandamus, citing Vergara v. Suelto:65 then into branches. Their writs generally reach within
those territorial boundaries. Necessarily, they mostly
The Supreme Court is a court of lastresort, and must so perform the all-important task of inferring the facts from the
remain if it is to satisfactorily perform the functions evidence as these are physically presented before them.
assigned to it by the fundamental charter and immemorial In many instances, the facts occur within their territorial
tradition. It cannot and should not be burdened with the jurisdiction, which properly present the actual case that
task of dealing with causes in the first instance. Its original makes ripe a determination of the constitutionality of such
jurisdiction to issue the so-called extraordinary writs action. The consequences, of course, would be national in
should be exercised only where absolutely necessary or scope. There are, however, some cases where resort to
where serious and important reasons exist therefore. courts at their level would not be practical considering their
Hence, that jurisdiction should generally be exercised decisions could still be appealed before the higher courts,
relative to actions or proceedings before the Court of such as the Court of Appeals.
Appeals, or before constitutional or other tribunals, bodies
or agencies whose acts for some reason or another are The Court of Appeals is primarily designed as an appellate
not controllable by the Court of Appeals. Where the court that reviews the determination of facts and law made
issuance of an extraordinary writ is also within the by the trial courts. It is collegiate in nature. This nature
competence of the Court of Appeals or a Regional Trial ensures more standpoints in the review of the actions of
Court, it is in either of these courts that the specific action the trial court. But the Court of Appeals also has original
for the writs procurement must be presented. This is and jurisdiction over most special civil actions. Unlike the trial
should continue to be the policy in this regard, a policy that courts, its writs can have a nationwide scope. It is
courts and lawyers must strictly observe.66 (Emphasis competent to determine facts and, ideally, should act on
omitted) constitutional issues thatmay not necessarily be novel
unless there are factual questions to determine.
The doctrine that requires respect for the hierarchy of
courts was created by this court to ensure that every level This court, on the other hand, leads the judiciary by
of the judiciary performs its designated roles in an effective breaking new ground or further reiterating in the light of
and efficient manner. Trial courts do not only determine new circumstances or in the light of some confusions of
the facts from the evaluation of the evidence presented bench or bar existing precedents. Rather than a court
before them. They are likewise competent to determine of first instance or as a repetition of the actions of the Court
issues of law which may include the validity of an of Appeals, this court promulgates these doctrinal devices
ordinance, statute, or even an executive issuance in in order that it truly performs that role.
In other words, the Supreme Courts role to interpret the democratic procedures. It comprehends a vision of
Constitution and act in order to protect constitutional rights society, a faith and a whole way of life. The theory grew
when these become exigent should not be emasculated out of an age that was awakened and invigorated by the
by the doctrine in respect of the hierarchy of courts. That idea of new society in which man's mind was free, his fate
has never been the purpose of such doctrine. determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization
Thus, the doctrine of hierarchy of courts is not an iron-clad virtually unlimited. It is put forward as a prescription for
rule.68 This court has "full discretionary power to take attaining a creative, progressive, exciting and intellectually
cognizance and assume jurisdiction [over] special civil robust community. It contemplates a mode of life that,
actions for certiorari . . .filed directly with it for exceptionally through encouraging toleration, skepticism, reason and
compelling reasons69 or if warranted by the nature of the initiative, will allow man to realize his full potentialities.It
issues clearly and specifically raised in the petition."70 As spurns the alternative of a society that is tyrannical,
correctly pointed out by petitioners,71 we have provided conformist, irrational and stagnant.73
exceptions to this doctrine:
In a democracy, the citizens right tofreely participate in the
First, a direct resort to this court is allowed when there are exchange of ideas in furtherance of political decision-
genuine issues of constitutionality that must be addressed making is recognized. It deserves the highest protection
at the most immediate time. A direct resort to this court the courts may provide, as public participation in nation-
includes availing of the remedies of certiorari and building isa fundamental principle in our Constitution. As
prohibition toassail the constitutionality of actions of both such, their right to engage in free expression of ideas must
legislative and executive branches of the government.72 be given immediate protection by this court.

In this case, the assailed issuances of respondents A second exception is when the issuesinvolved are of
prejudice not only petitioners right to freedom of transcendental importance.74 In these cases, the
expression in the present case, but also of others in future imminence and clarity of the threat to fundamental
similar cases. The case before this court involves an active constitutional rights outweigh the necessity for prudence.
effort on the part of the electorate to reform the political The doctrine relating to constitutional issues of
landscape. This has become a rare occasion when private transcendental importance prevents courts from the
citizens actively engage the public in political discourse. paralysis of procedural niceties when clearly faced with the
To quote an eminent political theorist: need for substantial protection.

[T]he theory of freedom of expression involves more than In the case before this court, there is a clear threat to the
a technique for arriving at better social judgments through paramount right of freedom of speech and freedom of
expression which warrants invocation of relief from this Fourth, the constitutional issues raisedare better decided
court. The principles laid down in this decision will likely by this court. In Drilon v. Lim,78 this court held that:
influence the discourse of freedom of speech in the future,
especially in the context of elections. The right to suffrage . . . it will be prudent for such courts, if only out of a
not only includes the right to vote for ones chosen becoming modesty, to defer to the higher judgmentof this
candidate, but also the right to vocalize that choice to the Court in the consideration of its validity, which is better
public in general, in the hope of influencing their votes. It determined after a thorough deliberation by a collegiate
may be said that in an election year, the right to vote body and with the concurrence of the majority of those who
necessarily includes the right to free speech and participated in its discussion.79 (Citation omitted)
expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate In this case, it is this court, with its constitutionally
resort to this court. enshrined judicial power, that can rule with finality on
whether COMELEC committed grave abuse of discretion
Third, cases of first impression75 warrant a direct resort to or performed acts contrary to the Constitution through the
this court. In cases of first impression, no jurisprudence yet assailed issuances.
exists that will guide the lower courts on this matter. In
Government of the United States v. Purganan,76 this court Fifth, the time element presented in this case cannot be
took cognizance of the case as a matter of first impression ignored. This case was filed during the 2013 election
that may guide the lower courts: period. Although the elections have already been
concluded, future cases may be filed that necessitate
In the interest of justice and to settle once and for all the urgency in its resolution. Exigency in certain situations
important issue of bail in extradition proceedings, we deem would qualify as an exception for direct resort to this court.
it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over Sixth, the filed petition reviews the act of a constitutional
which there is, as yet, no local jurisprudence to guide lower organ. COMELEC is a constitutional body. In Albano v.
courts.77 Arranz,80 cited by petitioners, this court held that "[i]t is
easy to realize the chaos that would ensue if the Court of
This court finds that this is indeed a case of first impression First Instance ofeach and every province were [to]
involving as it does the issue of whether the right of arrogate itself the power to disregard, suspend, or
suffrage includes the right of freedom of expression. This contradict any order of the Commission on Elections: that
is a question which this court has yet to provide substantial constitutional body would be speedily reduced to
answers to, through jurisprudence. Thus, direct resort to impotence."81
this court is allowed.
In this case, if petitioners sought to annul the actions of This case also poses a question of similar, if not greater
COMELEC through pursuing remedies with the lower import. Hence, a direct action to this court is permitted.
courts, any ruling on their part would not have been
binding for other citizens whom respondents may place in It is not, however, necessary that all of these exceptions
the same situation. Besides, thiscourt affords great must occur at the same time to justify a direct resort to this
respect to the Constitution and the powers and duties court. While generally, the hierarchy of courts is respected,
imposed upon COMELEC. Hence, a ruling by this court the present case falls under the recognized exceptions
would be in the best interest of respondents, in order that and, as such, may be resolved by this court directly.
their actions may be guided accordingly in the future.
I.D
Seventh, petitioners rightly claim that they had no other
plain, speedy, and adequate remedy in the ordinary The concept of a political question
course of law that could free them from the injurious effects
of respondents acts in violation of their right to freedom of Respondents argue further that the size limitation and its
expression. reasonableness is a political question, hence not within the
ambit of this courts power of review. They cite Justice
In this case, the repercussions of the assailed issuances Vitugs separate opinion in Osmea v. COMELEC86 to
on this basic right constitute an exceptionally compelling support their position:
reason to justify the direct resort to this court. The lack of
other sufficient remedies in the course of law alone is It might be worth mentioning that Section 26, Article II, of
sufficient ground to allow direct resort to this court. the Constitution also states that the "State shall guarantee
equal access to opportunities for public service, and
Eighth, the petition includes questionsthat are "dictated by prohibit political dynasties as may be defined by law." I see
public welfare and the advancement of public policy, or neither Article IX (C)(4) nor Section 26, Article II, of the
demanded by the broader interest of justice, or the orders Constitution to be all that adversarial or irreconcilably
complained of were found to be patent nullities, or the inconsistent with the right of free expression. In any event,
appeal was consideredas clearly an inappropriate the latter, being one of general application, must yield to
remedy."82 In the past, questions similar to these which the specific demands of the Constitution. The freedom of
this court ruled on immediately despite the doctrine of expression concededly holds, it is true, a vantage point in
hierarchy of courts included citizens right to bear hierarchy of constitutionally-enshrined rights but, like all
arms,83 government contracts involving modernization of fundamental rights, it is not without limitations.
voters registration lists,84 and the status and existence of
a public office.85
The case is not about a fight between the "rich" and the or that it has been specifically delegated to some other
"poor" or between the "powerful" and the "weak" in our department or particular officer of the government,
society but it is to me a genuine attempt on the part of withdiscretionary power to act.89 (Emphasis omitted)
Congress and the Commission on Elections to ensure that
all candidates are given an equal chance to media It is not for this court to rehearse and re-enact political
coverage and thereby be equally perceived as giving real debates on what the text of the law should be. In political
life to the candidates right of free expression rather than forums, particularly the legislature, the creation of the
being viewed as an undue restriction of that freedom. The textof the law is based on a general discussion of factual
wisdom in the enactment of the law, i.e., that which the circumstances, broadly construed in order to allow for
legislature deems to be best in giving life to the general application by the executive branch. Thus, the
Constitutional mandate, is not for the Court to question; it creation of the law is not limited by particular and specific
is a matter that lies beyond the normal prerogatives of the facts that affect the rights of certain individuals, per se.
Court to pass upon.87
Courts, on the other hand, rule on adversarial positions
This separate opinion is cogent for the purpose it was said. based on existing facts established on a specific case-to-
But it is not in point in this case. case basis, where parties affected by the legal provision
seek the courts understanding of the law.
The present petition does not involve a dispute between
the rich and poor, or the powerful and weak, on their equal The complementary nature of the political and judicial
opportunities for media coverage of candidates and their branches of government is essential in order to ensure that
right to freedom of expression. This case concerns the the rights of the general public are upheld at all times. In
right of petitioners, who are non-candidates, to post the order to preserve this balance, branches of government
tarpaulin in their private property, asan exercise of their must afford due respectand deference for the duties and
right of free expression. Despite the invocation of the functions constitutionally delegated to the other. Courts
political question doctrine by respondents, this court is not cannot rush to invalidate a law or rule. Prudence dictates
proscribed from deciding on the merits of this case. that we are careful not to veto political acts unless we can
craft doctrine narrowly tailored to the circumstances of the
In Taada v. Cuenco,88 this court previously elaborated on case.
the concept of what constitutes a political question:
The case before this court does not call for the exercise of
What is generally meant, when it is said that a question is prudence or modesty. There is no political question. It can
political, and not judicial, is that it is a matter which is to be be acted upon by this court through the expanded
exercised by the people in their primary political capacity,
jurisdiction granted to this court through Article VIII, concerned and decide a matter which by its nature or by
Section 1 of the Constitution. law is for the latter alone to decide.91

A political question arises in constitutional issues relating How this court has chosen to address the political question
to the powers or competence of different agencies and doctrine has undergone an evolution since the timethat it
departments of the executive or those of the legislature. had been first invoked in Marcos v. Manglapus.
The political question doctrine is used as a defense when Increasingly, this court has taken the historical and social
the petition asks this court to nullify certain acts that are context of the case and the relevance of pronouncements
exclusively within the domain of their respective of carefully and narrowly tailored constitutional doctrines.
competencies, as provided by the Constitution or the law. This trend was followed in cases such as Daza v.
In such situation, presumptively, this court should act with Singson92 and Coseteng v. Mitra Jr.93
deference. It will decline to void an act unless the exercise
of that power was so capricious and arbitrary so as to Daza and Coseteng involved a question as to the
amount to grave abuse of discretion. application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the
The concept of a political question, however, never Commission on Appointments. In times past, this would
precludes judicial review when the act of a constitutional have involved a quint essentially political question as it
organ infringes upon a fundamental individual or collective related to the dominance of political parties in Congress.
right. Even assuming arguendo that the COMELEC did However, in these cases, this court exercised its power of
have the discretion to choose the manner of regulation of judicial review noting that the requirement of interpreting
the tarpaulin in question, it cannot do so by abridging the the constitutional provision involved the legality and not
fundamental right to expression. the wisdom of a manner by which a constitutional duty or
power was exercised. This approach was again reiterated
Marcos v. Manglapus90 limited the use of the political in Defensor Santiago v. Guingona, Jr.94
question doctrine:
In Integrated Bar of the Philippines v. Zamora,95 this court
When political questions are involved, the Constitution declared again that the possible existence ofa political
limits the determination to whether or not there has been question did not bar an examination of whether the
a grave abuse of discretion amounting to lack or excess of exercise of discretion was done with grave abuse of
jurisdiction on the part of the official whose action is being discretion. In that case, this court ruled on the question of
questioned. If grave abuse is not established, the Court whether there was grave abuse of discretion in the
will not substitute its judgment for that of the official Presidents use of his power to call out the armed forces
to prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal the second impeachment complaint that was filed against
question as to whether a former President resigned was former Chief Justice Hilario Davide was a political question
not a political question even if the consequences would be beyond the ambit of this court. Former Chief Justice
to ascertain the political legitimacy of a successor Reynato Puno elaborated on this concept in his concurring
President. and dissenting opinion:

Many constitutional cases arise from political crises. The To be sure, the force to impugn the jurisdiction of this Court
actors in such crises may use the resolution of becomes more feeble in light of the new Constitution which
constitutional issues as leverage. But the expanded expanded the definition of judicial power as including "the
jurisdiction of this court now mandates a duty for it to duty of the courts of justice to settle actual controversies
exercise its power of judicial review expanding on involving rights which are legally demandable and
principles that may avert catastrophe or resolve social enforceable, and to determine whether or not there has
conflict. been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
This courts understanding of the political question has not instrumentality of the Government." As well observed by
been static or unbending. In Llamas v. Executive retired Justice Isagani Cruz, this expanded definition of
Secretary Oscar Orbos,97 this court held: judicial power considerably constricted the scope of
political question. He opined that the language luminously
While it is true that courts cannot inquire into the manner suggests that this duty (and power) is available even
in which the President's discretionary powers are against the executive and legislative departments
exercised or into the wisdom for its exercise, it is also a including the President and the Congress, in the exercise
settled rule that when the issue involved concerns the of their discretionary powers.100 (Emphasis in the original,
validity of such discretionary powers or whether said citations omitted)
powers are within the limits prescribed by the Constitution,
We will not decline to exercise our power of judicial review. Francisco also provides the cases which show the
And such review does not constitute a modification or evolution of the political question, as applied in the
correction of the act of the President, nor does it constitute following cases:
interference with the functions of the President.98
In Marcos v. Manglapus, this Court, speaking through
The concept of judicial power in relation to the concept of Madame Justice Irene Cortes, held: The present
the political question was discussed most extensively in Constitution limits resort to the political question doctrine
Francisco v. HRET.99 In this case, the House of and broadens the scope of judicial inquiry into areas which
Representatives arguedthat the question of the validity of
the Court,under previous constitutions, would have constitutionally imposed limits on powers or functions
normally left to the political departments to decide. x x x conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or
In Bengzon v. Senate Blue Ribbon Committee, through instrumentality of the government properly acted within
Justice Teodoro Padilla, this Court declared: such limits.101 (Citations omitted)

The "allocation of constitutional boundaries" is a task that As stated in Francisco, a political question will not be
this Court must perform under the Constitution. Moreover, considered justiciable if there are no constitutionally
as held in a recent case, "(t)he political question doctrine imposed limits on powers or functions conferred upon
neither interposes an obstacle to judicial determination of political bodies. Hence, the existence of constitutionally
the rival claims. The jurisdiction to delimit constitutional imposed limits justifies subjecting the official actions of the
boundaries has been given to this Court. It cannot body to the scrutiny and review of this court.
abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does In this case, the Bill of Rights gives the utmost deference
away with the applicability of the principle in appropriate to the right to free speech. Any instance that this right may
cases." (Emphasis and italics supplied) be abridged demands judicial scrutiny. It does not fall
squarely into any doubt that a political question brings.
And in Daza v. Singson, speaking through Justice Isagani
Cruz, this Court ruled: I.E

In the case now before us, the jurisdictional objection Exhaustion of administrative remedies
becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue presented Respondents allege that petitioners violated the principle
before us was political in nature, we would still not be of exhaustion of administrative remedies. Respondents
precluded from resolving it under the expanded jurisdiction insist that petitioners should have first brought the matter
conferred upon us that now covers, in proper cases, even to the COMELEC En Banc or any of its divisions.102
the political question.x x x (Emphasis and italics supplied.)
Respondents point out that petitioners failed to comply
.... with the requirement in Rule 65 that "there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary
In our jurisdiction, the determination of whether an issue course of law."103 They add that the proper venue to assail
involves a truly political and non-justiciable question lies in the validity of the assailed issuances was in the course of
the answer to the question of whether there are an administrative hearing to be conducted by
COMELEC.104 In the event that an election offense is filed of political expression, the subject of fair and honest
against petitioners for posting the tarpaulin, they claim that elections would be at the top."108 Sovereignty resides in
petitioners should resort to the remedies prescribed in the people.109 Political speech is a direct exercise of the
Rule 34 of the COMELEC Rules of Procedure.105 sovereignty. The principle of exhaustion of administrative
remedies yields in order to protect this fundamental right.
The argument on exhaustion of administrative remedies is
not proper in this case. Even assuming that the principle of exhaustion of
administrative remedies is applicable, the current
Despite the alleged non-exhaustion of administrative controversy is within the exceptions to the principle. In
remedies, it is clear that the controversy is already ripe for Chua v. Ang,110 this court held:
adjudication. Ripeness is the "prerequisite that something
had by then been accomplished or performed by either On the other hand, prior exhaustion of administrative
branch [or in this case, organ of government] before a remedies may be dispensed with and judicial action may
court may come into the picture."106 be validly resorted to immediately: (a) when there is a
violation of due process; (b) when the issue involved is
Petitioners exercise of their rightto speech, given the purely a legal question; (c) when the administrative action
message and their medium, had understandable is patently illegal amounting to lack or excess of
relevance especially during the elections. COMELECs jurisdiction; (d) when there is estoppel on the part ofthe
letter threatening the filing of the election offense against administrative agency concerned; (e) when there is
petitioners is already an actionable infringement of this irreparable injury; (f) when the respondent is a department
right. The impending threat of criminal litigation is enough secretary whose acts as analter ego of the President bear
to curtail petitioners speech. the implied and assumed approval of the latter; (g) when
to require exhaustion of administrative remedies would be
In the context of this case, exhaustion of their unreasonable; (h) when it would amount to a nullification
administrative remedies as COMELEC suggested in their of a claim; (i) when the subject matter is a private land in
pleadings prolongs the violation of their freedom of land case proceedings; (j) whenthe rule does not provide
speech. a plain, speedy and adequate remedy; or (k) when there
are circumstances indicating the urgency of judicial
Political speech enjoys preferred protection within our intervention."111 (Emphasis supplied, citation omitted)
constitutional order. In Chavez v. Gonzales,107 Justice
Carpio in a separate opinion emphasized: "[i]f everthere is The circumstances emphasized are squarely applicable
a hierarchy of protected expressions, political expression with the present case. First, petitioners allegethat the
would occupy the highest rank, and among different kinds assailed issuances violated their right to freedom of
expression and the principle of separation of church and any political party. COMELEC does not have the authority
state. This is a purely legal question. Second, the to regulate the enjoyment of the preferred right to freedom
circumstances of the present case indicate the urgency of of expression exercised by a non-candidate in this case.
judicial intervention considering the issue then on the RH
Law as well as the upcoming elections. Thus, to require II.A.1
the exhaustion of administrative remedies in this case
would be unreasonable. First, respondents cite Article IX-C, Section 4 of the
Constitution, which provides:
Time and again, we have held that this court "has the
power to relax or suspend the rules or to except a case Section 4. The Commission may,during the election
from their operation when compelling reasons so warrant, period, supervise or regulate the enjoyment or utilization
or whenthe purpose of justice requires it, [and when] of all franchises or permits for the operation of
[w]hat constitutes [as] good and sufficient cause that will transportation and other public utilities, media of
merit suspension of the rules is discretionary upon the communication or information, all grants, special
court".112Certainly, this case of first impression where privileges, or concessions granted by the Government or
COMELEC has threatenedto prosecute private parties any subdivision, agency, or instrumentality thereof,
who seek to participate in the elections by calling attention including any government-owned or controlled corporation
to issues they want debated by the publicin the manner or its subsidiary. Such supervision or regulation shall aim
they feel would be effective is one of those cases. to ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor, for
II public information campaigns and forums among
SUBSTANTIVE ISSUES candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible
II.A 114
elections. (Emphasis supplied)

COMELEC had no legal basis to regulate expressions Sanidad v. COMELEC115 involved the rules promulgated
made by private citizens by COMELEC during the plebiscite for the creation of the
Cordillera Autonomous Region.116 Columnist Pablito V.
Respondents cite the Constitution, laws, and Sanidad questioned the provision prohibiting journalists
jurisprudence to support their position that they had the from covering plebiscite issues on the day before and on
power to regulate the tarpaulin.113 However, all of these plebiscite day.117 Sanidad argued that the prohibition was
provisions pertain to candidates and political parties. a violation of the "constitutional guarantees of the freedom
Petitioners are not candidates. Neither do theybelong to of expression and of the press. . . ."118 We held that the
"evil sought to be prevented by this provision is the posted on the church vicinity promoting for or against the
possibility that a franchise holder may favor or give any candidates and party-list groups. . . ."123
undue advantage to a candidate in terms of advertising
space or radio or television time."119 This court found that Section 9 of the Fair Election Act124 on the posting of
"[m]edia practitioners exercising their freedom of campaign materials only mentions "parties" and
expression during plebiscite periods are neither the "candidates":
franchise holders nor the candidates[,]"120 thus, their right
to expression during this period may not be regulated by Sec. 9. Posting of Campaign Materials. - The COMELEC
COMELEC.121 may authorize political parties and party-list groups to
erect common poster areas for their candidates in not
Similar to the media, petitioners in the case at bar are more than ten (10) public places such as plazas, markets,
neither franchise holders nor candidates. II.A.2 barangay centers and the like, wherein candidates can
post, display or exhibit election propaganda: Provided,
Respondents likewise cite Article IX-C, Section 2(7) of the That the size ofthe poster areas shall not exceed twelve
Constitution as follows:122 (12) by sixteen (16) feet or its equivalent. Independent
candidates with no political parties may likewise be
Sec. 2. The Commission on Elections shall exercise the authorized to erect common poster areas in not more than
following powers and functions: ten (10) public places, the size of which shall not exceed
four (4) by six (6) feet or its equivalent. Candidates may
.... post any lawful propaganda material in private places with
the consent of the owner thereof, and in public places or
(7) Recommend to the Congress effective measures to property which shall be allocated equitably and impartially
minimize election spending, including limitation of places among the candidates. (Emphasis supplied)
where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, Similarly, Section 17 of COMELEC Resolution No. 9615,
malpractices, and nuisance candidates. (Emphasis the rules and regulations implementing the Fair Election
supplied) Based on the enumeration made on actsthat Act, provides as follows:
may be penalized, it will be inferred that this provision only
affects candidates. SECTION 17. Posting of Campaign Materials. - Parties
and candidates may post any lawful campaign material in:
Petitioners assail the "Notice to Remove Campaign
Materials" issued by COMELEC. This was followed bythe
assailed letter regarding the "election propaganda material
a. Authorized common poster areasin public places Section 3 of Republic Act No. 9006on "Lawful Election
subject to the requirements and/or limitations set Propaganda" also states that these are "allowed for all
forth in the next following section; and registered political parties, national, regional, sectoral
parties or organizations participating under the party-list
b. Private places provided it has the consent of the elections and for all bona fide candidates seeking national
owner thereof. and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . .
The posting of campaign materials in public places outside ." Section 6 of COMELEC Resolution No. 9615 provides
of the designated common poster areas and those for a similar wording. These provisions show that election
enumerated under Section 7 (g) of these Rules and the propaganda refers to matter done by or on behalf of and
like is prohibited. Persons posting the same shall be liable in coordination with candidates and political parties. Some
together with the candidates and other persons who level of coordination with the candidates and political
caused the posting. It will be presumed that the candidates parties for whom the election propaganda are released
and parties caused the posting of campaign materials would ensure that these candidates and political parties
outside the common poster areas if they do not remove maintain within the authorized expenses limitation.
the same within three (3) days from notice which shall be
issued by the Election Officer of the city or municipality The tarpaulin was not paid for byany candidate or political
where the unlawful election propaganda are posted or party.125 There was no allegation that petitioners
displayed. coordinated with any of the persons named in the tarpaulin
regarding its posting. On the other hand, petitioners
Members of the PNP and other law enforcement agencies posted the tarpaulin as part of their advocacy against the
called upon by the Election Officeror other officials of the RH Law. Respondents also cite National Press Club v.
COMELEC shall apprehend the violators caught in the act, COMELEC126 in arguing that its regulatory power under
and file the appropriate charges against them. (Emphasis the Constitution, to some extent, set a limit on the right to
supplied) free speech during election period.127

Respondents considered the tarpaulin as a campaign National Press Club involved the prohibition on the sale
material in their issuances. The above provisions and donation of space and time for political
regulating the posting of campaign materials only apply to advertisements, limiting political advertisements to
candidates and political parties, and petitioners are neither COMELEC-designated space and time. This case was
of the two. brought by representatives of mass media and two
candidates for office in the 1992 elections. They argued
that the prohibition on the sale and donation of space and
time for political advertisements is tantamount to (b) The term "election campaign" or "partisan political
censorship, which necessarily infringes on the freedom of activity" refers to an act designed to promote the election
speech of the candidates.128 or defeat of a particular candidate or candidates to a public
office which shall include:
This court upheld the constitutionality of the COMELEC
prohibition in National Press Club. However, this case (1) Forming organizations, associations, clubs,
does not apply as most of the petitioners were electoral committees or other groups of persons for the
candidates, unlike petitioners in the instant case. purpose of soliciting votes and/or undertaking any
Moreover, the subject matter of National Press Club, campaign for or against a candidate;
Section 11(b) of Republic Act No. 6646,129 only refers to a
particular kind of media such as newspapers, radio (2) Holding political caucuses, conferences,
broadcasting, or television.130 Justice Feliciano meetings, rallies, parades, or other similar
emphasized that the provision did not infringe upon the assemblies, for the purpose of soliciting votes
right of reporters or broadcasters to air their commentaries and/or undertaking any campaign or propaganda
and opinions regarding the candidates, their qualifications, for or against a candidate;
and program for government. Compared to
Sanidadwherein the columnists lost their ability to give (3) Making speeches, announcements or
their commentary on the issues involving the plebiscite, commentaries, or holding interviews for or against
National Press Clubdoes not involve the same the election of any candidate for public office;
infringement.
(4) Publishing or distributing campaign literature or
In the case at bar, petitioners lost their ability to give a materials designed to support or oppose the
commentary on the candidates for the 2013 national election of any candidate; or
elections because of the COMELEC notice and letter. It
was not merelya regulation on the campaigns of (5) Directly or indirectly soliciting votes, pledges or
candidates vying for public office. Thus, National Press support for or against a candidate.
Clubdoes not apply to this case.
The foregoing enumerated acts ifperformed for the
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise purpose of enhancing the chances of aspirants for
known as the Omnibus Election Code, defines an"election nomination for candidacy to a public office by a political
campaign" as follows: party, aggroupment, or coalition of parties shall not be
considered as election campaign or partisan election
.... activity. Public expressions or opinions or discussions of
probable issues in a forthcoming electionor on attributes of ordering itsremoval for being oversized are valid and
or criticisms against probable candidates proposed to be constitutional.131
nominated in a forthcoming political party convention shall
not be construed as part of any election campaign or II.B.1
partisan political activity contemplated under this Article.
(Emphasis supplied) Fundamental to the consideration of this issue is Article III,
Section 4 of the Constitution:
True, there is no mention whether election campaign is
limited only to the candidates and political parties Section 4. No law shall be passed abridging the freedom
themselves. The focus of the definition is that the act must of speech, of expression, or of the press, or the right of the
be "designed to promote the election or defeat of a people peaceably to assemble and petition the
particular candidate or candidates to a public office." government for redress of grievances.132

In this case, the tarpaulin contains speech on a matter of No law. . .


public concern, that is, a statement of either appreciation
or criticism on votes made in the passing of the RH law. While it is true that the present petition assails not a law
Thus, petitioners invoke their right to freedom of but an opinion by the COMELEC Law Department, this
expression. court has applied Article III, Section 4 of the Constitution
even to governmental acts.
II.B
In Primicias v. Fugoso,133 respondent Mayor applied by
The violation of the constitutional right analogy Section 1119 of the Revised Ordinances of 1927
of Manila for the public meeting and assembly organized
to freedom of speech and expression by petitioner Primicias.134 Section 1119 requires a Mayors
permit for the use of streets and public places for purposes
Petitioners contend that the assailed notice and letter for such as athletic games, sports, or celebration of national
the removal of the tarpaulin violate their fundamental right holidays.135 What was questioned was not a law but the
to freedom of expression. Mayors refusal to issue a permit for the holding of
petitioners public meeting.136 Nevertheless, this court
On the other hand, respondents contend that the tarpaulin recognized the constitutional right to freedom of speech,
is an election propaganda subject to their regulation to peaceful assembly and to petition for redress of
pursuant to their mandate under Article IX-C, Section 4 of grievances, albeit not absolute,137 and the petition for
the Constitution. Thus, the assailed notice and letter
mandamus to compel respondent Mayor to issue the I would like to recommend to the Committee the change of
permit was granted.138 the word "speech" to EXPRESSION; or if not, add the
words AND EXPRESSION after the word "speech,"
In ABS-CBN v. COMELEC, what was assailed was not a because it is more expansive, it has a wider scope, and it
law but COMELEC En Banc Resolution No. 98-1419 would refer to means of expression other than speech.
where the COMELEC resolved to approve the issuance of
a restraining order to stop ABS-CBN from conducting exit THE PRESIDING OFFICER (Mr.Bengzon): What does the
surveys.139 The right to freedom of expression was Committee say?
similarly upheld in this case and, consequently, the
assailed resolution was nullified and set aside.140 FR. BERNAS: "Expression" is more broad than speech.
We accept it.
. . . shall be passed abridging. . .
MR. BROCKA: Thank you.
All regulations will have an impact directly or indirectly on
expression. The prohibition against the abridgment of THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
speech should not mean an absolute prohibition against
regulation. The primary and incidental burden on speech FR. BERNAS: Yes.
must be weighed against a compelling state interest
clearly allowed in the Constitution. The test depends on THE PRESIDING OFFICER (Mr.Bengzon): Is there any
the relevant theory of speech implicit in the kind of society objection? (Silence) The Chair hears none; the
framed by our Constitution. amendment is approved.

. . . of expression. . . FR. BERNAS: So, that provision will now read: "No law
shall be passed abridging the freedom of speech,
Our Constitution has also explicitly included the freedom expression or of the press . . . ."141 Speech may be said to
of expression, separate and in addition to the freedom of be inextricably linked to freedom itself as "[t]he right to
speech and of the press provided in the US Constitution. think is the beginning of freedom, and speech must be
The word "expression" was added in the 1987 Constitution protected from the government because speech is the
by Commissioner Brocka for having a wider scope: beginning of thought."142

MR. BROCKA: This is a very minor amendment, Mr. II.B.2


Presiding Officer. On Section 9, page 2, line 29, it says:
"No law shall be passed abridging the freedom of speech."
Communication is an essential outcome of protected Freedom of speech includes the right to be silent. Aptly
speech.143 Communication exists when "(1) a speaker, has it been said that the Bill of Rights that guarantees to
seeking to signal others, uses conventional actions the individual the liberty to utter what is in his mind also
because he orshe reasonably believes that such actions guarantees to him the liberty not to utter what is not in his
will be taken by the audience in the manner intended; and mind. The salute is a symbolic manner of communication
(2) the audience so takes the actions." 144 "[I]n that conveys its messageas clearly as the written or
communicative action[,] the hearer may respond to the spoken word. As a valid form of expression, it cannot be
claims by . . . either accepting the speech acts claims or compelled any more than it can be prohibited in the face
opposing them with criticism or requests for of valid religious objections like those raised in this
justification."145 petition. To impose it on the petitioners is to deny them the
right not to speak when their religion bids them to be silent.
Speech is not limited to vocal communication. "[C]onduct This coercion of conscience has no place in the free
is treated as a form of speech sometimes referred to as society.
symbolic speech[,]"146 such that "when speech and
nonspeech elements are combined in the same course of The democratic system provides for the accommodation
conduct, the communicative element of the conduct may of diverse ideas, including the unconventional and even
be sufficient to bring into play the [right to freedom of the bizarre or eccentric. The will of the majority prevails,
expression]."147 but it cannot regiment thought by prescribing the recitation
by rote of its opinions or proscribing the assertion of
The right to freedom of expression, thus, applies to the unorthodox or unpopular views as inthis case. The
entire continuum of speech from utterances made to conscientious objections of the petitioners, no less than
conduct enacted, and even to inaction itself as a symbolic the impatience of those who disagree with them, are
manner of communication. protected by the Constitution. The State cannot make the
individual speak when the soul within rebels.151
In Ebralinag v. The Division Superintendent of Schools of
Cebu,148 students who were members of the religious sect Even before freedom "of expression" was included in
Jehovahs Witnesses were to be expelled from school for Article III, Section 4 of the present Constitution,this court
refusing to salute the flag, sing the national anthem, and has applied its precedent version to expressions other
recite the patriotic pledge.149 In his concurring opinion, than verbal utterances.
Justice Cruz discussed how the salute is a symbolic
manner of communication and a valid form of In the 1985 case of Gonzalez v. Chairman
expression.150 He adds that freedom of speech includes Katigbak,152 petitioners objected to the classification of the
even the right to be silent: motion picture "Kapit sa Patalim" as "For Adults Only."
They contend that the classification "is without legal and catch their attention and, thus, the greater the possibility
factual basis and is exercised as impermissible restraint of that they will understand its message.
artistic expression."153 This court recognized that "[m]otion
pictures are important both as a medium for the Second, the size of the tarpaulin may underscore the
communication of ideas and the expression of the artistic importance of the message to the reader. From an
impulse."154 It adds that "every writer,actor, or producer, ordinary persons perspective, those who post their
no matter what medium of expression he may use, should messages in larger fonts care more about their message
be freed from the censor."155 This court found that "[the than those who carry their messages in smaller media.
Boards] perception of what constitutes obscenity appears The perceived importance given by the speakers, in this
to be unduly restrictive."156 However, the petition was case petitioners, to their cause is also part of the message.
dismissed solely on the ground that there were not enough The effectivity of communication sometimes relies on the
votes for a ruling of grave abuse of discretion in the emphasis put by the speakers and onthe credibility of the
classification made by the Board.157 speakers themselves. Certainly, larger segments of the
public may tend to be more convinced of the point made
II.B.3 by authoritative figures when they make the effort to
emphasize their messages.
Size does matter
Third, larger spaces allow for more messages. Larger
The form of expression is just as important as the spaces, therefore, may translate to more opportunities to
information conveyed that it forms part of the expression. amplify, explain, and argue points which the speakers
The present case is in point. might want to communicate. Rather than simply placing
the names and images of political candidates and an
It is easy to discern why size matters. expression of support, larger spaces can allow for brief but
memorable presentations of the candidates platforms for
First, it enhances efficiency in communication. A larger governance. Larger spaces allow for more precise
tarpaulin allows larger fonts which make it easier to view inceptions of ideas, catalyze reactions to advocacies, and
its messages from greater distances. Furthermore, a contribute more to a more educated and reasoned
larger tarpaulin makes it easier for passengers inside electorate. A more educated electorate will increase the
moving vehicles to read its content. Compared with the possibilities of both good governance and accountability in
pedestrians, the passengers inside moving vehicles have our government.
lesser time to view the content of a tarpaulin. The larger
the fonts and images, the greater the probability that it will These points become more salient when it is the
electorate, not the candidates or the political parties, that
speaks. Too often, the terms of public discussion during anchors on the principle that the cornerstone of every
elections are framed and kept hostage by brief and catchy democracy is that sovereignty resides in the people.161 To
but meaningless sound bites extolling the character of the ensure order in running the states affairs, sovereign
candidate. Worse, elections sideline political arguments powers were delegated and individuals would be elected
and privilege the endorsement by celebrities. Rather than or nominated in key government positions to represent the
provide obstacles to their speech, government should in people. On this note, the theory on deliberative democracy
fact encourage it. Between the candidates and the may evolve to the right of the people to make government
electorate, the latter have the better incentive to demand accountable. Necessarily, this includes the right of the
discussion of the more important issues. Between the people to criticize acts made pursuant to governmental
candidates and the electorate, the former have better functions.
incentives to avoid difficult political standpoints and
instead focus on appearances and empty promises. Speech that promotes dialogue on publicaffairs, or airs out
grievances and political discontent, should thus be
Large tarpaulins, therefore, are not analogous to time and protected and encouraged.
place.158 They are fundamentally part of expression
protected under Article III, Section 4 of the Constitution. Borrowing the words of Justice Brandeis, "it is hazardous
to discourage thought, hope and imagination; that fear
II.B.4 breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in
There are several theories and schools of thought that the opportunity to discuss freely supposed grievances and
strengthen the need to protect the basic right to freedom proposed remedies."162
of expression.
In this jurisdiction, this court held that "[t]he interest of
First, this relates to the right ofthe people to participate in society and the maintenance of good government demand
public affairs, including the right to criticize government a full discussion of public affairs."163 This court has, thus,
actions. adopted the principle that "debate on public issues should
be uninhibited, robust,and wide open . . . [including even]
Proponents of the political theory on "deliberative unpleasantly sharp attacks on government and public
democracy" submit that "substantial, open, [and] ethical officials."164
dialogue isa critical, and indeed defining, feature of a good
polity."159 This theory may be considered broad, but it Second, free speech should be encouraged under the
definitely "includes [a] collective decision making with the concept of a market place of ideas. This theory was
participation of all who will beaffected by the decision." 160 It
articulated by Justice Holmes in that "the ultimate good Mills Employees Organization v. Philippine Blooming Mills
desired is better reached by [the] free trade in ideas:" 165 Co., Inc,171 this court discussed as follows:

When men have realized that time has upset many fighting The rights of free expression, free assembly and petition,
faiths, they may come to believe even more than they are not only civil rights but also political rights essential to
believe the very foundations of their own conduct that the man's enjoyment of his life, to his happiness and to his full
ultimate good desired is better reached by free trade in and complete fulfillment.Thru these freedoms the citizens
ideas - that the best test of truth is the power of the thought can participate not merely in the periodic establishment of
to get itself accepted in the competition of the market, and the government through their suffrage but also in the
that truth is the only ground upon which their wishes safely administration of public affairs as well as in the discipline
can be carried out.166 of abusive public officers. The citizen is accorded these
rights so that he can appeal to the appropriate
The way it works, the exposure to the ideas of others governmental officers or agencies for redress and
allows one to "consider, test, and develop their own protection as well as for the imposition of the lawful
conclusions."167 A free, open, and dynamic market place sanctions on erring public officers and
of ideas is constantly shaping new ones. This promotes employees.172 (Emphasis supplied)
both stability and change where recurring points may
crystallize and weak ones may develop. Of course, free Fourth, expression is a marker for group identity. For one,
speech is more than the right to approve existing political "[v]oluntary associations perform [an] important
beliefs and economic arrangements as it includes, "[t]o democratic role [in providing] forums for the development
paraphrase Justice Holmes, [the] freedom for the thought of civil skills, for deliberation, and for the formation of
that we hate, no less than for the thought that agrees with identity and community spirit[,] [and] are largely immune
us."168 In fact, free speech may "best serve its high from [any] governmental interference."173 They also
purpose when it induces a condition of unrest, creates "provide a buffer between individuals and the state - a free
dissatisfaction with conditions as they are, or even stirs space for the development of individual personality,
people to anger."169 It is in this context that we should distinct group identity, and dissident ideas - and a potential
guard against any curtailment of the peoples right to source of opposition to the state."174 Free speech must be
participate in the free trade of ideas. protected as the vehicle to find those who have similar and
shared values and ideals, to join together and forward
Third, free speech involves self-expression that enhances common goals.
human dignity. This right is "a means of assuring individual
self-fulfillment,"170 among others. In Philippine Blooming Fifth, the Bill of Rights, free speech included, is supposed
to "protect individuals and minorities against majoritarian
abuses perpetrated through [the] framework [of the possibility that repression of nonviolent dissent may
democratic governance]."175 Federalist framers led by spill over to violent means just to drive a point.
James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who II.B.5
might be tyrannized or plundered by despotic federal
officials"176 and the minorities who may be oppressed by Every citizens expression with political consequences
"dominant factions of the electorate [that] capture [the] enjoys a high degree of protection. Respondents argue
government for their own selfish ends[.]" 177 According to that the tarpaulinis election propaganda, being petitioners
Madison, "[i]t is of great importance in a republic not only way of endorsing candidates who voted against the RH
to guard the society against the oppression of its rulers, Law and rejecting those who voted for it.186 As such, it is
but to guard one part of the society against the injustice of subject to regulation by COMELEC under its constitutional
the other part."178 We should strive to ensure that free mandate.187 Election propaganda is defined under Section
speech is protected especially in light of any potential 1(4) of COMELEC Resolution No. 9615 as follows:
oppression against those who find themselves in the SECTION 1. Definitions . . .
fringes on public issues.
....
Lastly, free speech must be protected under the safety
valve theory.179 This provides that "nonviolent 4. The term "political advertisement" or "election
manifestations of dissent reduce the likelihood of propaganda" refers to any matter broadcasted, published,
violence[.]"180 "[A] dam about to burst . . . resulting in the printed, displayed or exhibited, in any medium, which
banking up of a menacing flood of sullen anger behind the contain the name, image, logo, brand, insignia, color motif,
walls of restriction"181 has been used to describe the effect initials, and other symbol or graphic representation that is
of repressing nonviolent outlets.182 In order to avoid this capable of being associated with a candidate or party, and
situation and prevent people from resorting to violence, is intended to draw the attention of the public or a segment
there is a need for peaceful methods in making passionate thereof to promote or oppose, directly or indirectly, the
dissent. This includes "free expression and political election of the said candidate or candidates to a public
participation"183 in that they can "vote for candidates who office. In broadcast media, political advertisements may
share their views, petition their legislatures to [make or] take the form of spots, appearances on TV shows and
change laws, . . . distribute literature alerting other citizens radio programs, live or taped announcements, teasers,
of their concerns[,]"184 and conduct peaceful rallies and and other forms of advertising messages or
other similar acts.185 Free speech must, thus, be protected announcements used by commercial advertisers. Political
as a peaceful means of achieving ones goal, considering advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website,
including, but not limited to, social networks, blogging In the hierarchy of civil liberties, the rights of free
sites, and micro-blogging sites, in return for consideration, expression and of assembly occupy a preferred position
or otherwise capable of pecuniary estimation. as they are essential to the preservation and vitality of our
civil and political institutions; and such priority "gives these
On the other hand, petitioners invoke their "constitutional liberties the sanctity and the sanction not permitting
right to communicate their opinions, views and beliefs dubious intrusions."195 (Citations omitted)
about issues and candidates."188 They argue that the
tarpaulin was their statement of approval and appreciation This primordial right calls for utmost respect, more so
of the named public officials act of voting against the RH "when what may be curtailed is the dissemination of
Law, and their criticism toward those who voted in its information to make more meaningful the equally vital right
favor.189 It was "part of their advocacy campaign against of suffrage."196 A similar idea appeared in our
the RH Law,"190 which was not paid for by any candidate jurisprudence as early as 1969, which was Justice
or political party.191 Thus, "the questioned orders which . . Barredos concurring and dissenting opinion in Gonzales
. effectively restrain[ed] and curtail[ed] [their] freedom of v. COMELEC:197
expression should be declared unconstitutional and
void."192 I like to reiterate over and over, for it seems this is the
fundamental point others miss, that genuine democracy
This court has held free speech and other intellectual thrives only where the power and right of the people toelect
freedoms as "highly ranked in our scheme of constitutional the men to whom they would entrust the privilege to run
values."193 These rights enjoy precedence and the affairs of the state exist. In the language of the
primacy.194 In Philippine Blooming Mills, this court declaration of principles of our Constitution, "The
discussed the preferred position occupied by freedom of Philippines is a republican state. Sovereignty resides in
expression: the people and all government authority emanates from
them" (Section 1, Article II). Translating this declaration
Property and property rights can belost thru prescription; into actuality, the Philippines is a republic because and
but human rights are imprescriptible. If human rights are solely because the people in it can be governed only by
extinguished by the passage of time, then the Bill of Rights officials whom they themselves have placed in office by
is a useless attempt to limit the power of government and their votes. And in it is on this cornerstone that I hold it tobe
ceases to be an efficacious shield against the tyranny of self-evident that when the freedoms of speech, press and
officials, of majorities, ofthe influential and powerful, and of peaceful assembly and redress of grievances are being
oligarchs - political, economic or otherwise. exercised in relation to suffrage or asa means to enjoy the
inalienable right of the qualified citizen to vote, they are
absolute and timeless. If our democracy and
republicanism are to be worthwhile, the conduct of public that in our jurisdiction slander or libel, lewd and obscene
affairs by our officials must be allowed to suffer incessant speech, as well as "fighting words" are not entitled to
and unabating scrutiny, favorable or unfavorable, constitutional protection and may be
everyday and at all times. Every holder of power in our 199
penalized. (Citations omitted)
government must be ready to undergo exposure any
moment of the day or night, from January to December We distinguish between politicaland commercial speech.
every year, as it is only in this way that he can rightfully Political speech refers to speech "both intended and
gain the confidence of the people. I have no patience for received as a contribution to public deliberation about
those who would regard public dissection of the some issue,"200 "foster[ing] informed and civicminded
establishment as an attribute to be indulged by the people deliberation."201 On the other hand, commercial speech
only at certain periods of time. I consider the freedoms of has been defined as speech that does "no more than
speech, press and peaceful assembly and redress of propose a commercial transaction."202 The expression
grievances, when exercised in the name of suffrage, as resulting from the content of the tarpaulin is, however,
the very means by which the right itself to vote can only be definitely political speech. In Justice Brions dissenting
properly enjoyed.It stands to reason therefore, that opinion, he discussed that "[t]he content of the tarpaulin,
suffrage itself would be next to useless if these liberties as well as the timing of its posting, makes it subject of the
cannot be untrammelled [sic] whether as to degree or regulations in RA 9006 and Comelec Resolution No.
time.198 (Emphasis supplied) 9615."203 He adds that "[w]hile indeed the RH issue, by
itself,is not an electoralmatter, the slant that the petitioners
Not all speech are treated the same. In Chavez v. gave the issue converted the non-election issue into a live
Gonzales, this court discussed that some types of speech election one hence, Team Buhay and Team Patay and the
may be subject to regulation: plea to support one and oppose the other."204

Some types of speech may be subjected to some While the tarpaulin may influence the success or failure of
regulation by the State under its pervasive police power, the named candidates and political parties, this does not
in order that it may not be injurious to the equal right of necessarily mean it is election propaganda. The tarpaulin
others or those of the community or society. The difference was not paid for or posted "in return for consideration" by
in treatment is expected because the relevant interests of any candidate, political party, or party-list group.
one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctionshave The second paragraph of Section 1(4) of COMELEC
therefore been made in the treatment, analysis, and Resolution No. 9615, or the rules and regulations
evaluation ofthe permissible scope of restrictions on implementing Republic Act No. 9006 as an aid to interpret
various categories of speech. We have ruled, for example, the law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election or defeat of a particular candidate or candidates to a public
propaganda" refers to any matter broadcasted, published, office, and shall include any of the following:
printed, displayed or exhibited, in any medium, which
contain the name, image, logo, brand, insignia, color motif, ....
initials, and other symbol or graphic representation that is
capable of being associated with a candidate or party, and Personal opinions, views, and preferences for candidates,
is intended to draw the attention of the public or a segment contained in blogs shall not be considered acts of election
thereof to promote or oppose, directly or indirectly, the campaigning or partisan politicalactivity unless expressed
election of the said candidate or candidates to a public by government officials in the Executive Department, the
office. In broadcast media, political advertisements may Legislative Department, the Judiciary, the Constitutional
take the form of spots, appearances on TV shows and Commissions, and members of the Civil Service.
radio programs, live or taped announcements, teasers,
and other forms of advertising messages or In any event, this case does not refer to speech in
announcements used by commercial advertisers. Political cyberspace, and its effects and parameters should be
advertising includes matters, not falling within the scope of deemed narrowly tailored only in relation to the facts and
personal opinion, that appear on any Internet website, issues in this case. It also appears that such wording in
including, but not limited to, social networks, blogging COMELEC Resolution No. 9615 does not similarly appear
sites, and micro-blogging sites, in return for consideration, in Republic Act No. 9006, the law it implements.
or otherwise capable of pecuniary estimation. (Emphasis
supplied) We should interpret in this manner because of the value of
political speech.
It is clear that this paragraph suggests that personal
opinions are not included, while sponsored messages are As early as 1918, in United States v. Bustos,205 this court
covered. recognized the need for full discussion of public affairs. We
acknowledged that free speech includes the right to
Thus, the last paragraph of Section 1(1) of COMELEC criticize the conduct of public men:
Resolution No. 9615 states:
The interest of society and the maintenance of good
SECTION 1. Definitions - As used in this Resolution: government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men
1. The term "election campaign" or "partisan political is a scalpel in the case of free speech. The sharp incision
activity" refers to an act designed to promote the election of its probe relieves the abscesses of official dom. Men in
public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of may be changed for the better and ideas that may be
a clear conscience. A public officer must not be too thin- deliberated on to attain that purpose. Necessarily, it also
skinned with reference to comment upon his official acts. makes the government accountable for acts that violate
Only thus can the intelligence and dignity of the individual constitutionally protected rights.
be exalted.206
In 1998, Osmea v. COMELEC found Section 11(b) of
Subsequent jurisprudence developed the right to petition Republic Act No. 6646, which prohibits mass media from
the government for redress of grievances, allowing for selling print space and air time for campaign except to the
criticism, save for some exceptions.207 In the 1951 case of COMELEC, to be a democracy-enhancing
Espuelas v. People,208 this court noted every citizens measure.216This court mentioned how "discussion of
privilege to criticize his or her government, provided it is public issues and debate on the qualifications of
"specific and therefore constructive, reasoned or candidates in an election are essential to the proper
tempered, and not a contemptuous condemnation of the functioning of the government established by our
entire government set-up."209 Constitution."217

The 1927 case of People v. Titular210 involved an alleged As pointed out by petitioners, "speech serves one of its
violation of the Election Law provision "penaliz[ing] the greatest public purposes in the context of elections when
anonymous criticism of a candidate by means of posters the free exercise thereof informs the people what the
or circulars."211 This court explained that it is the posters issues are, and who are supporting what issues."218 At the
anonymous character that is being penalized.212 The heart of democracy is every advocates right to make
ponente adds that he would "dislike very muchto see this known what the people need to know,219 while the
decision made the vehicle for the suppression of public meaningful exercise of ones right of suffrage includes the
opinion."213 right of every voter to know what they need to know in
order to make their choice.
In 1983, Reyes v. Bagatsing214 discussed the importance
of allowing individuals to vent their views. According to this Thus, in Adiong v. COMELEC,220 this court discussed the
court, "[i]ts value may lie in the fact that there may be importance of debate on public issues, and the freedom of
something worth hearing from the dissenter [and] [t]hat is expression especially in relation to information that
to ensurea true ferment of ideas."215 ensures the meaningful exercise of the right of suffrage:

Allowing citizens to air grievances and speak constructive We have adopted the principle that debate on public
criticisms against their government contributes to every issues should be uninhibited, robust, and wide open and
societys goal for development. It puts forward matters that that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public made simply because petitioners failed to comply with the
officials. Too many restrictions will deny to people the maximum size limitation for lawful election propaganda.224
robust, uninhibited, and wide open debate, the generating
of interest essential if our elections will truly be free, clean On the other hand, petitioners argue that the present size
and honest. regulation is content-based as it applies only to political
speech and not to other forms of speech such as
We have also ruled that the preferred freedom of commercial speech.225 "[A]ssuming arguendo that the size
expression calls all the more for the utmost respect when restriction sought to be applied . . . is a mere time, place,
what may be curtailed is the dissemination of information and manner regulation, its still unconstitutional for lack of
to make more meaningful the equally vital right of a clear and reasonable nexus with a constitutionally
suffrage.221(Emphasis supplied, citations omitted) sanctioned objective."226

Speech with political consequences isat the core of the The regulation may reasonably be considered as either
freedom of expression and must be protected by this court. content-neutral or content-based.227 Regardless, the
disposition of this case will be the same. Generally,
Justice Brion pointed out that freedomof expression "is not compared with other forms of speech, the proposed
the god of rights to which all other rights and even speech is content-based.
government protection of state interest must bow." 222
As pointed out by petitioners, the interpretation of
The right to freedom of expression isindeed not absolute. COMELEC contained in the questioned order applies only
Even some forms of protected speech are still subjectto to posters and tarpaulins that may affect the elections
some restrictions. The degree of restriction may depend because they deliver opinions that shape both their
on whether the regulation is content-based or content- choices. It does not cover, for instance, commercial
neutral.223 Content-based regulations can either be based speech.
on the viewpoint of the speaker or the subject of the
expression. Worse, COMELEC does not point to a definite view of what
kind of expression of non-candidates will be adjudged as
II.B.6 "election paraphernalia." There are no existing bright lines
to categorize speech as election-related and those that are
Content-based regulation not. This is especially true when citizens will want to use
their resources to be able to raise public issues that should
COMELEC contends that the order for removal of the be tackled by the candidates as what has happened in this
tarpaulin is a content-neutral regulation. The order was
case. COMELECs discretion to limit speech in this case is in their private property. The size of the tarpaulin does not
fundamentally unbridled. affect anyone elses constitutional rights.

Size limitations during elections hit ata core part of Content-based restraint or censorship refers to restrictions
expression. The content of the tarpaulin is not easily "based on the subject matter of the utterance or
divorced from the size of its medium. speech."232 In contrast, content-neutral regulation includes
controls merely on the incidents of the speech such as
Content-based regulation bears a heavy presumption of time, place, or manner of the speech.233
invalidity, and this court has used the clear and present
danger rule as measure.228 Thus, in Chavez v. Gonzales: This court has attempted to define "content-neutral"
restraints starting with the 1948 case of Primicias v.
A content-based regulation, however, bears a heavy Fugoso.234The ordinance in this case was construed to
presumption of invalidity and is measured against the clear grant the Mayor discretion only to determine the public
and present danger rule. The latter will pass constitutional places that may be used for the procession ormeeting, but
muster only if justified by a compelling reason, and the not the power to refuse the issuance of a permit for such
restrictions imposedare neither overbroad nor procession or meeting.235 This court explained that free
229
vague. (Citations omitted) speech and peaceful assembly are "not absolute for it may
be so regulated that it shall not beinjurious to the equal
Under this rule, "the evil consequences sought to be enjoyment of others having equal rights, nor injurious to
prevented must be substantive, extremely serious and the the rights of the community or society."236
degree of imminence extremely high."230 "Only when the
challenged act has overcome the clear and present The earlier case of Calalang v. Williams237 involved the
danger rule will it pass constitutional muster, with the National Traffic Commission resolution that prohibited the
government having the burden of overcoming the passing of animal-drawn vehicles along certain roads at
presumed unconstitutionality."231 specific hours.238 This court similarly discussed police
power in that the assailed rules carry outthe legislative
Even with the clear and present danger test, respondents policy that "aims to promote safe transit upon and avoid
failed to justify the regulation. There is no compelling and obstructions on national roads, in the interest and
substantial state interest endangered by the posting of the convenience of the public."239
tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize As early as 1907, United States v. Apurado240 recognized
the right of non-candidate petitioners to post the tarpaulin that "more or less disorder will mark the public assembly
of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always II.B.7
wrought to a high pitch of excitement. . . ."241 It is with this
backdrop that the state is justified in imposing restrictions Justice Carpio and Justice Perlas-Bernabe suggest that
on incidental matters as time, place, and manner of the the provisions imposing a size limit for tarpaulins are
speech. content-neutral regulations as these "restrict the
mannerby which speech is relayed but not the content of
In the landmark case of Reyes v. Bagatsing, this court what is conveyed."248
summarized the steps that permit applicants must follow
which include informing the licensing authority ahead of If we apply the test for content-neutral regulation, the
time as regards the date, public place, and time of the questioned acts of COMELEC will not pass the three
assembly.242 This would afford the public official time to requirements for evaluating such restraints on freedom of
inform applicants if there would be valid objections, speech.249 "When the speech restraints take the form of a
provided that the clear and present danger test is the content-neutral regulation, only a substantial
standard used for his decision and the applicants are given governmental interest is required for its validity,"250 and it
the opportunity to be heard.243 This ruling was practically is subject only to the intermediate approach.251
codified in Batas Pambansa No. 880, otherwise known as
the Public Assembly Act of 1985. This intermediate approach is based on the test that we
have prescribed in several cases.252 A content-neutral
Subsequent jurisprudence have upheld Batas Pambansa government regulation is sufficiently justified:
No. 880 as a valid content-neutral regulation. In the 2006
case of Bayan v. Ermita,244 this court discussed how Batas [1] if it is within the constitutional power of the Government;
Pambansa No. 880 does not prohibit assemblies but [2] if it furthers an important or substantial governmental
simply regulates their time, place, and manner.245 In 2010, interest; [3] if the governmental interest is unrelated to the
this court found in Integrated Bar of the Philippines v. suppression of free expression; and [4] if the incident
Atienza246 that respondent Mayor Atienza committed restriction on alleged [freedom of speech & expression] is
grave abuse of discretion when he modified the rally permit no greater than is essential to the furtherance of that
by changing the venue from Mendiola Bridge to Plaza interest.253
Miranda without first affording petitioners the opportunity
to be heard.247 On the first requisite, it is not within the constitutional
powers of the COMELEC to regulate the tarpaulin. As
We reiterate that the regulation involved at bar is content- discussed earlier, this is protected speech by petitioners
based. The tarpaulin content is not easily divorced from who are non-candidates. On the second requirement, not
the size of its medium. only must the governmental interest be important or
substantial, it must also be compelling as to justify the Second, the pertinent election lawsrelated to private
restrictions made. property only require that the private property owners
consent be obtained when posting election propaganda in
Compelling governmental interest would include the property.260 This is consistent with the fundamental
constitutionally declared principles. We have held, for right against deprivation of property without due process
example, that "the welfare of children and the States of law.261 The present facts do not involve such posting of
mandate to protect and care for them, as parens election propaganda absent consent from the property
patriae,254 constitute a substantial and compelling owner. Thus, this regulation does not apply in this case.
government interest in regulating . . . utterances in TV
broadcast."255 Respondents likewise cite the Constitution262 on their
authority to recommend effective measures to minimize
Respondent invokes its constitutional mandate to ensure election spending. Specifically, Article IX-C, Section 2(7)
equal opportunity for public information campaigns among provides:
candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256 Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
Justice Brion in his dissenting opinion discussed that
"[s]ize limits to posters are necessary to ensure equality of ....
public information campaigns among candidates, as
allowing posters with different sizes gives candidates and (7) Recommend to the Congress effective measures to
their supporters the incentive to post larger posters[,] [and] minimize election spending, including limitation of places
[t]his places candidates with more money and/or with where propaganda materials shall be posted, and to
deep-pocket supporters at an undue advantage against prevent and penalize all forms of election frauds, offenses,
candidates with more humble financial capabilities."257 malpractices, and nuisance candidates. (Emphasis
supplied) This does not qualify as a compelling and
First, Adiong v. COMELEC has held that this interest is substantial government interest to justify regulation of the
"not as important as the right of [a private citizen] to freely preferred right to freedom of expression.
express his choice and exercise his right of free
speech."258 In any case, faced with both rights to freedom The assailed issuances for the removal of the tarpaulin are
of speech and equality, a prudent course would be to "try based on the two feet (2) by three feet (3) size limitation
to resolve the tension in a way that protects the right of under Section 6(c) of COMELEC Resolution No. 9615.
participation."259 This resolution implements the Fair Election Act that
provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared The action of the COMELEC in thiscase is a strong
to the paramount interest of the State in guaranteeing deterrent to further speech by the electorate. Given the
freedom of expression, any financial considerations stature of petitioners and their message, there are
behind the regulation are of marginal significance." 264 In indicators that this will cause a "chilling effect" on robust
fact, speech with political consequences, as in this case, discussion during elections.
should be encouraged and not curtailed. As petitioners
pointed out, the size limitation will not serve the objective The form of expression is just as important as the message
of minimizing election spending considering there is no itself. In the words of Marshall McLuhan, "the medium is
limit on the number of tarpaulins that may be posted.265 the message."266 McLuhans colleague and mentor Harold
Innis has earlier asserted that "the materials on which
The third requisite is likewise lacking. We look not only at words were written down have often counted for more than
the legislative intent or motive in imposing the restriction, the words themselves."267
but more so at the effects of such restriction, if
implemented. The restriction must not be narrowly tailored III
to achieve the purpose. It must be demonstrable. It must Freedom of expression and equality
allow alternative avenues for the actor to make speech.
III.A
In this case, the size regulation is not unrelated to the
suppression of speech. Limiting the maximum sizeof the The possibility of abuse
tarpaulin would render ineffective petitioners message
and violate their right to exercise freedom of expression. Of course, candidates and political parties do solicit the
help of private individuals for the endorsement of their
The COMELECs act of requiring the removal of the electoral campaigns.
tarpaulin has the effect of dissuading expressions with
political consequences. These should be encouraged, On the one extreme, this can take illicit forms such as
more so when exercised to make more meaningful the when endorsement materials in the form of tarpaulins,
equally important right to suffrage. posters, or media advertisements are made ostensibly by
"friends" but in reality are really paid for by the candidate
The restriction in the present case does not pass even the or political party. This skirts the constitutional value that
lower test of intermediate scrutiny for content-neutral provides for equal opportunities for all candidates.
regulations.
However, as agreed by the parties during the oral
arguments in this case, this is not the situation that
confronts us. In such cases, it will simply be a matter for deeply believes. Through rhetorical devices, it
investigation and proof of fraud on the part of the communicates the desire of Diocese that the positions of
COMELEC. those who run for a political position on this social issue be
determinative of how the public will vote. It primarily
The guarantee of freedom of expression to individuals advocates a stand on a social issue; only secondarily
without any relationship to any political candidate should even almost incidentally will cause the election or non-
not be held hostage by the possibility of abuse by those election of a candidate.
seeking to be elected. It is true that there can be
underhanded, covert, or illicit dealings so as to hide the The twin tarpaulins consist of satire of political parties.
candidates real levels of expenditures. However, labelling Satire is a "literary form that employs such devices as
all expressions of private parties that tend to have an effect sarcasm, irony and ridicule to deride prevailing vices or
on the debate in the elections as election paraphernalia follies,"268 and this may target any individual or group in
would be too broad a remedy that can stifle genuine society, private and government alike. It seeks to
speech like in this case. Instead, to address this evil, better effectively communicate a greater purpose, often used for
and more effective enforcement will be the least restrictive "political and social criticism"269 "because it tears down
means to the fundamental freedom. facades, deflates stuffed shirts, and unmasks hypocrisy. .
. . Nothing is more thoroughly democratic than to have the
On the other extreme, moved by the credentials and the high-and-mighty lampooned and spoofed."270 Northrop
message of a candidate, others will spend their own Frye, wellknown in this literary field, claimed that satire had
resources in order to lend support for the campaigns. This two defining features: "one is wit or humor founded on
may be without agreement between the speaker and the fantasy or a sense of the grotesque and absurd, the other
candidate or his or her political party. In lieu of donating is an object of attack."271 Thus, satire frequently uses
funds to the campaign, they will instead use their exaggeration, analogy, and other rhetorical devices.
resources directly in a way that the candidate or political
party would have doneso. This may effectively skirt the The tarpaulins exaggerate. Surely, "Team Patay" does not
constitutional and statutory limits of campaign spending. refer to a list of dead individuals nor could the Archbishop
of the Diocese of Bacolod have intended it to mean that
Again, this is not the situation in this case. the entire plan of the candidates in his list was to cause
death intentionally. The tarpaulin caricatures political
The message of petitioners in thiscase will certainly not be parties and parodies the intention of those in the list.
what candidates and political parties will carry in their Furthermore, the list of "Team Patay" is juxtaposed with
election posters or media ads. The message of petitioner, the list of "Team Buhay" that further emphasizes the theme
taken as a whole, is an advocacy of a social issue that it
of its author: Reproductive health is an important marker upon reality that may soon evolve into creative solutions
for the church of petitioners to endorse. to grave social problems. This is the utilitarian version. It
could also be that it is just part of human necessity to
The messages in the tarpaulins are different from the usual evolve through being able to express or communicate.
messages of candidates. Election paraphernalia from
candidates and political parties are more declarative and However, the Constitution we interpret is not a theoretical
descriptive and contain no sophisticated literary allusion to document. It contains other provisions which, taken
any social objective. Thus, they usually simply exhort the together with the guarantee of free expression, enhances
public to vote for a person with a brief description of the each others value. Among these are the provisions that
attributes of the candidate. For example "Vote for [x], acknowledge the idea of equality. In shaping doctrine
Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for construing these constitutional values, this court needs to
[z], Iba kami sa Makati." exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to
This courts construction of the guarantee of freedom of unwittingly cause the undesired effect of diluting freedoms
expression has always been wary of censorship or as exercised in reality and, thus, render them
subsequent punishment that entails evaluation of the meaningless.
speakers viewpoint or the content of ones speech. This is
especially true when the expression involved has political III.B.
consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming Speech and equality:
humility on the part of any human institution no matter how
endowed with the secular ability to decide legal Some considerations We first establish that there are two
controversies with finality entails that we are not the paradigms of free speech that separate at the point of
keepers of all wisdom. giving priority to equality vis--vis liberty.272

Humanitys lack of omniscience, even acting collectively, In an equality-based approach, "politically disadvantaged
provides space for the weakest dissent. Tolerance has speech prevails over regulation[,] but regulation promoting
always been a libertarian virtue whose version is political equality prevails over speech."273 This view allows
embedded in our Billof Rights. There are occasional the government leeway to redistribute or equalize
heretics of yesterday that have become our visionaries. speaking power, such as protecting, even implicitly
Heterodoxies have always given us pause. The subsidizing, unpopular or dissenting voices often
unforgiving but insistent nuance that the majority surely systematically subdued within societys ideological
and comfortably disregards provides us with the checks ladder.274 This view acknowledges that there are dominant
political actors who, through authority, power, resources, subject of this autonomy is never the contingent, private
identity, or status, have capabilities that may drown out the individual as that which he actually is or happens to be; it
messages of others. This is especially true in a developing is rather the individual as a human being who is capable
or emerging economy that is part of the majoritarian world of being free with the others. And the problem of making
like ours. possible such a harmony between every individual liberty
and the other is not that of finding a compromise between
The question of libertarian tolerance competitors, or between freedom and law, between
general and individual interest, common and private
This balance between equality and the ability to express welfare in an established society, but of creating the
so as to find ones authentic self or to participate in the self society in which man is no longer enslaved by institutions
determination of ones communities is not new only to law. which vitiate self-determination from the beginning. In
It has always been a philosophical problematique. other words, freedom is still to be created even for the
freest of the existing societies.277 (Emphasis in the
In his seminal work, Repressive Tolerance, philosopher original)
and social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background Marcuse suggests that the democratic argument with
limitation, rendering freedoms exercised within such all opinions presented to and deliberated by the people
limitation as merely "protect[ing] the already established "implies a necessary condition, namely, that the people
machinery of discrimination."275 In his view, any must be capable of deliberating and choosing on the basis
improvement "in the normal course of events" within an of knowledge, that they must have access to authentic
unequal society, without subversion, only strengthens information, and that, on this basis, their evaluation must
existing interests of those in power and control.276 be the result of autonomous thought."278 He submits that
"[d]ifferent opinions and philosophies can no longer
In other words, abstract guarantees of fundamental rights compete peacefully for adherence and persuasion on
like freedom of expression may become meaningless if not rational grounds: the marketplace of ideas is organized
taken in a real context. This tendency to tackle rights in the and delimited by those who determine the national and the
abstract compromises liberties. In his words: individual interest."279 A slant toward left manifests from
his belief that "there is a natural right of resistance for
Liberty is self-determination, autonomythis is almost a oppressed and overpowered minorities to use extralegal
tautology, but a tautology which results from a whole means if the legal ones have proved to be
series of synthetic judgments. It stipulates the ability to inadequate."280 Marcuse, thus, stands for an equality that
determine ones own life: to be able to determine what to breaks away and transcends from established hierarchies,
do and what not to do, what to suffer and what not. But the
power structures, and indoctrinations. The tolerance of speech."289 This view moves away from playing down the
libertarian society he refers to as "repressive tolerance." danger as merely exaggerated, toward "tak[ing] the costs
seriously and embrac[ing] expression as the preferred
Legal scholars strategy for addressing them."290 However, in some cases,
the idea of more speech may not be enough. Professor
The 20th century also bears witness to strong support from Laurence Tribe observed the need for context and "the
legal scholars for "stringent protections of expressive specification of substantive values before [equality] has full
liberty,"281 especially by political egalitarians. meaning."291 Professor Catherine A. MacKinnon adds that
Considerations such as "expressive, deliberative, and "equality continues to be viewed in a formal rather than a
informational interests,"282 costs or the price of substantive sense."292 Thus, more speech can only mean
expression, and background facts, when taken together, more speech from the few who are dominant rather than
produce bases for a system of stringent protections for those who are not.
expressive liberties.283
Our jurisprudence
Many legal scholars discuss the interest and value of
expressive liberties. Justice Brandeis proposed that This court has tackled these issues.
"public discussion is a political duty."284 Cass Sustein
placed political speech on the upper tier of his twotier Osmea v. COMELEC affirmed National Press Club v.
model for freedom of expression, thus, warranting COMELEC on the validity of Section 11(b) ofthe Electoral
stringent protection.285 He defined political speech as Reforms Law of 1987.293 This section "prohibits mass
"both intended and received as a contribution to public media from selling or giving free of charge print space or
deliberation about some issue."286 air time for campaign or other political purposes, except to
the Commission on Elections."294 This court explained that
But this is usually related also tofair access to this provision only regulates the time and manner of
opportunities for such liberties.287 Fair access to advertising in order to ensure media equality among
opportunity is suggested to mean substantive equality and candidates.295 This court grounded this measure on
not mere formal equalitysince "favorable conditions for constitutional provisions mandating political
296
equality: Article IX-C, Section 4
realizing the expressive interest will include some
assurance of the resources required for expression and
some guarantee that efforts to express views on matters Section 4. The Commission may, during the election
of common concern will not be drowned out by the speech period, supervise or regulate the enjoyment or utilization
of betterendowed citizens."288 Justice Brandeis solution is of all franchises or permits for the operation of
to "remedy the harms of speech with more transportation and other public utilities, media of
communication or information, all grants, special freedoms that take equality of opportunities into
privileges, or concessions granted by the Government or consideration during elections.
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation The other view
or its subsidiary. Such supervision or regulation shall aim
to ensure equal opportunity, time, and space, and the right However, there is also the other view. This is that
to reply, including reasonable, equal rates therefor, for considerations of equality of opportunity or equality inthe
public information campaigns and forums among ability of citizens as speakers should not have a bearing in
candidates in connection with the objective of holding free, free speech doctrine. Under this view, "members of the
orderly, honest, peaceful, and credible elections. public are trusted to make their own individual evaluations
(Emphasis supplied) of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are
Article XIII, Section 1 best left to a freely competitive ideological market."297 This
is consistent with the libertarian suspicion on the use of
Section 1. The Congress shall give highest priorityto the viewpoint as well as content to evaluate the constitutional
enactment of measures that protect and enhance the right validity or invalidity of speech.
of all the people to human dignity, reducesocial, economic,
and political inequalities, and remove cultural inequities by The textual basis of this view is that the constitutional
equitably diffusing wealth and political power for the provision uses negative rather than affirmative language.
common good. It uses speech as its subject and not
speakers.298 Consequently, the Constitution protects free
To this end, the State shall regulate the acquisition, speech per se, indifferent to the types, status, or
ownership, use, and disposition of property and its associations of its speakers.299 Pursuant to this,
increments. (Emphasis supplied) "government must leave speakers and listeners in the
private order to their own devices in sorting out the relative
Article II, Section 26 influence of speech."300

Section 26. The State shall guarantee equal access to Justice Romeros dissenting opinion in Osmea v.
opportunities for public service, and prohibit political COMELEC formulates this view that freedom of speech
dynasties as may be defined by law. (Emphasis supplied) includes "not only the right to express ones views, but also
other cognate rights relevant to the free communication
Thus, in these cases, we have acknowledged the [of] ideas, not excluding the right to be informed on matters
Constitutions guarantee for more substantive expressive of public concern."301 She adds:
And since so many imponderables may affect the outcome expressive liberty imposed in the name of enhanc[ing] the
of elections qualifications of voters and candidates, relative voice of others and thereby equaliz[ing] access to
education, means of transportation, health, public the political arena."306 The majority did not use the
discussion, private animosities, the weather, the threshold equality-based paradigm.
of a voters resistance to pressure the utmost ventilation
of opinion of men and issues, through assembly, One flaw of campaign expenditurelimits is that "any limit
association and organizations, both by the candidate and placed on the amount which a person can speak, which
the voter, becomes a sine qua non for elections to truly takes out of his exclusive judgment the decision of when
reflect the will of the electorate.302 (Emphasis supplied) enough is enough, deprives him of his free speech."307

Justice Romeros dissenting opinion cited an American Another flaw is how "[a]ny quantitative limitation on
case, if only to emphasize free speech primacy such political campaigning inherently constricts the sum of
that"courts, as a rule are wary to impose greater public information and runs counter to our profound
restrictions as to any attempt to curtail speeches with national commitment that debate on public issues should
political content,"303 thus: be uninhibited, robust, and wide-open."308

the concept that the government may restrict the speech In fact, "[c]onstraining those who have funds or have been
of some elements in our society in order to enhance the able to raise funds does not ease the plight of those
relative voice of the others is wholly foreign to the First without funds in the first place . . . [and] even if ones main
Amendment which was designed to "secure the widest concern isslowing the increase in political costs, it may be
possible dissemination of information from diverse and more effective torely on market forces toachieve that result
antagonistic sources" and "to assure unfettered than on active legal intervention."309 According to Herbert
interchange of ideas for the bringing about of political and Alexander, "[t]o oppose limitations is not necessarily to
social changes desired by the people."304 argue that the skys the limit [because in] any campaign
there are saturation levels and a point where spending no
This echoes Justice Oliver Wendell Holmes submission longer pays off in votes per dollar."310
"that the market place of ideas is still the best alternative
to censorship."305 III. C.

Parenthetically and just to provide the whole detail of the When private speech amounts
argument, the majority of the US Supreme Court in the
campaign expenditures case of Buckley v. Valeo to election paraphernalia
"condemned restrictions (even if content-neutral) on
The scope of the guarantee of free expression takes into regulated as to time, place, and manner. This is the effect
consideration the constitutional respect for human of our rulings in Osmea v. COMELEC and National Press
potentiality and the effect of speech. It valorizes the ability Club v. COMELEC.
of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take Regulation of speech in the context of electoral campaigns
into consideration the effects it will have in a deliberative made by persons who are not candidates or who do not
democracy. Skewed distribution of resources as well as speak as members of a political party which are, taken as
the cultural hegemony of the majority may have the effect a whole, principally advocacies of a social issue that the
of drowning out the speech and the messages of those in public must consider during elections is unconstitutional.
the minority. In a sense, social inequality does have its Such regulation is inconsistent with the guarantee of
effect on the exercise and effect of the guarantee of free according the fullest possible range of opinions coming
speech. Those who have more will have better access to from the electorate including those that can catalyze
media that reaches a wider audience than those who have candid, uninhibited, and robust debate in the criteria for the
less. Those who espouse the more popular ideas will have choice of a candidate.
better reception than the subversive and the dissenters of
society.To be really heard and understood, the This does not mean that there cannot be a specie of
marginalized view normally undergoes its own degree of speech by a private citizen which will not amount toan
struggle. election paraphernalia to be validly regulated by law.

The traditional view has been to tolerate the viewpoint of Regulation of election paraphernalia will still be
the speaker and the content of his or her expression. This constitutionally valid if it reaches into speech of persons
view, thus, restricts laws or regulation that allows public who are not candidates or who do not speak as members
officials to make judgments of the value of such viewpoint of a political party if they are not candidates, only if what is
or message content. This should still be the principal regulated is declarative speech that, taken as a whole, has
approach. for its principal object the endorsement of a candidate
only. The regulation (a) should be provided by law, (b)
However, the requirements of the Constitution regarding reasonable, (c) narrowly tailored to meet the objective of
equality in opportunity must provide limits to some enhancing the opportunity of all candidates to be heard
expression during electoral campaigns. and considering the primacy of the guarantee of free
expression, and (d) demonstrably the least restrictive
Thus clearly, regulation of speech in the context of means to achieve that object. The regulation must only be
electoral campaigns made by candidates or the members with respect to the time, place, and manner of the rendition
of their political parties or their political parties may be of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this question belongs to petitioners. Respondents have also
purpose, it will notmatter whether the speech is made with agreed, during the oral arguments, that petitioners were
or on private property. neither commissioned nor paid by any candidate or
political party to post the material on their walls.
This is not the situation, however, in this case for two
reasons. First, as discussed, the principal message in the Even though the tarpaulin is readily seen by the public, the
twin tarpaulins of petitioners consists of a social advocacy. tarpaulin remains the private property of petitioners. Their
right to use their property is likewise protected by the
Second, as pointed out in the concurring opinion of Justice Constitution.
Antonio Carpio, the present law Section 3.3 of Republic
Act No. 9006 and Section 6(c) of COMELEC Resolution In Philippine Communications Satellite Corporation v.
No. 9615 if applied to this case, will not pass the test of Alcuaz:315
reasonability. A fixed size for election posters or tarpaulins
without any relation to the distance from the intended Any regulation, therefore, which operates as an effective
average audience will be arbitrary. At certain distances, confiscation of private property or constitutes an arbitrary
posters measuring 2 by 3 feet could no longer be read by or unreasonable infringement of property rights is void,
the general public and, hence, would render speech because it is repugnant to the constitutional guaranties of
meaningless. It will amount to the abridgement of speech due process and equal protection of the laws.316 (Citation
with political consequences. omitted)

IV This court in Adiong held that a restriction that regulates


Right to property where decals and stickers should be posted is "so broad
that it encompasses even the citizens private
Other than the right to freedom of expression311 and the property."317 Consequently, it violates Article III, Section 1
meaningful exercise of the right to suffrage,312 the present of the Constitution which provides thatno person shall be
case also involves ones right to property.313 deprived of his property without due process of law. This
court explained:
Respondents argue that it is the right of the state to
prevent the circumvention of regulations relating to Property is more than the mere thing which a person owns,
election propaganda by applying such regulations to it includes the right to acquire, use, and dispose of it; and
private individuals.314 Certainly, any provision or regulation the Constitution, in the 14th Amendment, protects these
can be circumvented. But we are not confronted with this essential attributes.
possibility. Respondents agree that the tarpaulin in
Property is more than the mere thing which a person owns. Freedom of expression can be intimately related with the
It is elementary that it includes the right to acquire, use, right to property. There may be no expression when there
and dispose of it. The Constitution protects these essential is no place where the expression may be made.
attributes of property. Holden v. Hardy, 169 U.S. 366, 391, COMELECs infringement upon petitioners property rights
41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists as in the present case also reaches out to infringement on
of the free use, enjoyment, and disposal of a persons their fundamental right to speech.
acquisitions without control or diminution save by the law
of the land. 1 Cooleys Bl. Com. 127. (Buchanan v. Warley Respondents have not demonstrated thatthe present state
245 US 60 [1917])318 interest they seek to promote justifies the intrusion into
petitioners property rights. Election laws and regulations
This court ruled that the regulation in Adiong violates must be reasonable. It must also acknowledge a private
private property rights: individuals right to exercise property rights. Otherwise, the
due process clause will be violated.
The right to property may be subject to a greater degree
of regulation but when this right is joined by a "liberty" COMELEC Resolution No. 9615 and the Fair Election Act
interest, the burden of justification on the part of the intend to prevent the posting of election propaganda in
Government must be exceptionally convincing and private property without the consent of the owners of such
irrefutable. The burden is not met in this case. private property. COMELEC has incorrectly implemented
these regulations. Consistent with our ruling in Adiong, we
Section 11 of Rep. Act 6646 is so encompassing and find that the act of respondents in seeking to restrain
invasive that it prohibits the posting or display of election petitioners from posting the tarpaulin in their own private
propaganda in any place, whether public or private, except property is an impermissible encroachments on the right
inthe common poster areas sanctioned by COMELEC. to property.
This means that a private person cannot post his own
crudely prepared personal poster on his own front dooror V
on a post in his yard. While the COMELEC will certainly Tarpaulin and its message are not religious speech
never require the absurd, there are no limits to what
overzealous and partisan police officers, armed with a We proceed to the last issues pertaining to whether the
copy of the statute or regulation, may do.319 Respondents COMELEC in issuing the questioned notice and letter
ordered petitioners, who are private citizens, to remove the violated the right of petitioners to the free exercise of their
tarpaulin from their own property. The absurdity of the religion.
situation is in itself an indication of the unconstitutionality
of COMELECs interpretation of its powers.
At the outset, the Constitution mandates the separation of ethical, and religious considerations. In terms of their
church and state.320 This takes many forms. Article III, effect on the corporeal world, these acts range from belief,
Section 5 of the Constitution, for instance provides: to expressions of these faiths, to religious ceremonies, and
then to acts of a secular character that may, from the point
Section 5. No law shall be made respecting an of view of others who do not share the same faith or may
establishment of religion, or prohibiting the free exercise not subscribe to any religion, may not have any religious
thereof. The free exercise and enjoyment of religious bearing.
profession and worship, without discrimination or
preference, shall forever be allowed. Noreligious test shall Definitely, the characterizations ofthe religious of their acts
be required for the exercise of civil or political rights. are not conclusive on this court. Certainly, our powers of
adjudication cannot be blinded by bare claims that acts are
There are two aspects of this provision.321 The first is the religious in nature.
none stablishment clause.322 Second is the free exercise
and enjoyment of religious profession and worship.323 Petitioners erroneously relied on the case of Ebralinag v.
The Division Superintendent of Schools of Cebu 326 in
The second aspect is atissue in this case. claiming that the court "emphatically" held that the
adherents ofa particular religion shall be the ones to
Clearly, not all acts done by those who are priests, determine whether a particular matter shall be considered
bishops, ustadz, imams, or any other religious make such ecclesiastical in nature.327 This court in
act immune from any secular regulation.324 The religious Ebralinagexempted Jehovahs Witnesses from
also have a secular existence. They exist within a society participating in the flag ceremony "out of respect for their
that is regulated by law. religious beliefs, [no matter how] "bizarre" those
beliefsmay seem to others."328 This court found a balance
The Bishop of Bacolod caused the posting of the tarpaulin. between the assertion of a religious practice and the
But not all acts of a bishop amounts to religious compelling necessities of a secular command. It was an
expression. This notwithstanding petitioners claim that early attempt at accommodation of religious beliefs.
"the views and position of the petitioners, the Bishop and
the Diocese of Bacolod, on the RH Bill is inextricably In Estrada v. Escritor,329 this court adopted a policy of
connected to its Catholic dogma, faith, and moral benevolent neutrality:
teachings. . . ."325
With religion looked upon with benevolence and not
The difficulty that often presents itself in these cases stems hostility, benevolent neutrality allows accommodation of
from the reality that every act can be motivated by moral, religion under certain circumstances. Accommodations
are government policies that take religion specifically to the Catholic faithful, the church doctrines relied upon by
intoaccount not to promote the governments favored form petitioners are not binding upon this court. The position of
of religion, but to allow individuals and groups to exercise the Catholic religion in the Philippines as regards the RH
their religion without hindrance. Their purpose or effect Law does not suffice to qualify the posting by one of its
therefore is to remove a burden on, or facilitate the members of a tarpaulin as religious speech solely on such
exercise of, a persons or institutions religion. As Justice basis. The enumeration of candidates on the face of the
Brennan explained, the "government [may] take religion tarpaulin precludes any doubtas to its nature as speech
into account . . . to exempt, when possible, from generally with political consequences and not religious speech.
applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be Furthermore, the definition of an "ecclesiastical affair" in
infringed, or to create without state involvement an Austria v. National Labor Relations Commission333 cited
atmosphere in which voluntary religious exercise may by petitioners finds no application in the present case. The
flourish."330 posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as
This court also discussed the Lemon test in that case, such enumerated in the Austriacase such as "proceedings for
that a regulation is constitutional when: (1) it has a secular excommunication, ordinations of religious ministers,
legislative purpose; (2) it neither advances nor inhibits administration of sacraments and other activities
religion; and (3) it does not foster an excessive withattached religious significance."334
entanglement with religion.331
A FINAL NOTE
As aptly argued by COMELEC, however, the tarpaulin, on
its face, "does not convey any religious doctrine of the We maintain sympathies for the COMELEC in attempting
Catholic church."332 That the position of the Catholic to do what it thought was its duty in this case. However, it
church appears to coincide with the message of the was misdirected.
tarpaulin regarding the RH Law does not, by itself, bring
the expression within the ambit of religious speech. On the COMELECs general role includes a mandate to ensure
contrary, the tarpaulin clearly refers to candidates equal opportunities and reduce spending among
classified under "Team Patay" and "Team Buhay" candidates and their registered political parties. It is not to
according to their respective votes on the RH Law. regulate or limit the speech of the electorate as it strives to
participate inthe electoral exercise.
The same may be said of petitioners reliance on papal
encyclicals to support their claim that the expression onthe The tarpaulin in question may be viewed as producing a
tarpaulin is an ecclesiastical matter. With all due respect caricature of those who are running for public office.Their
message may be construed generalizations of very expressed by dominant institutions, even religious ones.
complex individuals and party-list organizations. That they made their point dramatically and in a large way
does not necessarily mean that their statements are true,
They are classified into black and white: as belonging to or that they have basis, or that they have been expressed
"Team Patay" or "Team Buhay." in good taste.

But this caricature, though not agreeable to some, is still Embedded in the tarpaulin, however, are opinions
protected speech. expressed by petitioners. It is a specie of expression
protected by our fundamental law. It is an expression
That petitioners chose to categorize them as purveyors of designed to invite attention, cause debate, and hopefully,
death or of life on the basis of a single issue and a persuade. It may be motivated by the interpretation of
complex piece of legislation at that can easily be petitioners of their ecclesiastical duty, but their
interpreted as anattempt to stereo type the candidates and parishioners actions will have very real secular
party-list organizations. Not all may agree to the way their consequences. Certainly, provocative messages do
thoughts were expressed, as in fact there are other matter for the elections.
Catholic dioceses that chose not to follow the example of
petitioners. What is involved in this case is the most sacred of speech
forms: expression by the electorate that tends to rouse the
Some may have thought that there should be more room public to debate contemporary issues. This is not
to consider being more broad-minded and non- speechby candidates or political parties to entice votes. It
judgmental. Some may have expected that the authors is a portion of the electorate telling candidates the
would give more space to practice forgiveness and conditions for their election. It is the substantive content of
humility. the right to suffrage.

But, the Bill of Rights enumerated in our Constitution is an This. is a form of speech hopeful of a quality of democracy
enumeration of our fundamental liberties. It is not a that we should all deserve. It is protected as a fundamental
detailed code that prescribes good conduct. It provides and primordial right by our Constitution. The expression in
space for all to be guided by their conscience, not only in the medium chosen by petitioners deserves our protection.
the act that they do to others but also in judgment of the
acts of others. WHEREFORE, the instant petition is GRANTED. The
temporary restraining order previously issued is hereby
Freedom for the thought we can disagree with can be made permanent. The act of the COMELEC in issuing the
wielded not only by those in the minority. This can often be
assailed notice dated February 22, 2013 and letter dated jurisdiction; and (2) a Petition-in-Intervention3 filed by
February 27, 2013 is declared unconstitutional. Alfredo S. Lim (Lim), wherein he prays to be declared the
2013 winning candidate for Mayor of the City of Manila in
SO ORDERED. view of private respondent former President Joseph
Ejercito Estradas (former President Estrada)
Republic of the Philippines disqualification to run for and hold public office.
SUPREME COURT
Manila The Facts

EN BANC The salient facts of the case are as follows:

G.R. No. 206666 January 21, 2015 On September 12, 2007, the Sandiganbayan convicted
former President Estrada, a former President of the
ATTY. ALICIA RISOS-VIDAL, Petitioner, Republic of the Philippines, for the crime of plunder in
ALFREDO S. LIM Petitioner-Intervenor, Criminal Case No. 26558, entitled "People of the
vs. Philippines v. Joseph Ejercito Estrada, et al." The
COMMISSION ON ELECTIONS and JOSEPH dispositive part of the graft courts decision reads:
EJERCITO ESTRADA, Respondents.
WHEREFORE, in view of all the foregoing, judgment is
DECISION hereby rendered in Criminal Case No. 26558 finding the
accused, Former President Joseph Ejercito Estrada,
LEONARDO-DE CASTRO, J.: GUILTY beyond reasonable doubt of the crime of
PLUNDER, defined in and penalized by Republic Act No.
Before the Court are (1) a Petition for Certiorari filed under 7080, as amended. On the other hand, for failure of the
Rule 64, in relation to Rule 65, both of the Revised Rules prosecution to prove and establish their guilt beyond
of Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which reasonable doubt, the Court finds the accused Jose
essentially prays for the issuance of the writ of certiorari "Jinggoy" Estrada and Atty. Edward S. Serapio NOT
annulling and setting aside the April 1, 20131 and April 23, GUILTY of the crime of plunder, and accordingly, the Court
20132 Resolutions of the Commission on Elections hereby orders their ACQUITTAL.
(COMELEC), Second Division and En bane, respectively,
in SPA No. 13-211 (DC), entitled "Atty. Alicia Risos-Vidal The penalty imposable for the crime of plunder under
v. Joseph Ejercito Estrada" for having been rendered with Republic Act No. 7080, as amended by Republic Act No.
grave abuse of discretion amounting to lack or excess of 7659, is Reclusion Perpetua to Death. There being no
aggravating or mitigating circumstances, however, the (3) The real property consisting of a house and lot
lesser penalty shall be applied in accordance with Article dubbed as "Boracay Mansion" located at #100 11th
63 of the Revised Penal Code. Accordingly, the accused Street, New Manila, Quezon City.
Former President Joseph Ejercito Estrada is hereby
sentenced to suffer the penalty of Reclusion Perpetua and The cash bonds posted by accused Jose "Jinggoy"
the accessory penalties of civil interdiction during the Estrada and Atty. Edward S. Serapio are hereby ordered
period of sentence and perpetual absolute disqualification. cancelled and released to the said accused or their duly
authorized representatives upon presentation of the
The period within which accused Former President Joseph original receipt evidencing payment thereof and subject to
Ejercito Estrada has been under detention shall be the usual accounting and auditing procedures. Likewise,
credited to him in full as long as he agrees voluntarily in the hold-departure orders issued against the said accused
writing to abide by the same disciplinary rules imposed are hereby recalled and declared functus oficio.4
upon convicted prisoners.
On October 25, 2007, however, former President Gloria
Moreover, in accordance with Section 2 of Republic Act Macapagal Arroyo (former President Arroyo) extended
No. 7080, as amended by Republic Act No. 7659, the executive clemency, by way of pardon, to former President
Court hereby declares the forfeiture in favor of the Estrada. The full text of said pardon states:
government of the following:
MALACAAN PALACE
(1) The total amount of Five Hundred Forty[-]Two MANILA
Million Seven Hundred Ninety[-]One Thousand
Pesos (P545,291,000.00), with interest and income By the President of the Philippines
earned, inclusive of the amount of Two Hundred
Million Pesos (P200,000,000.00), deposited in the PARDON
name and account of the Erap Muslim Youth
Foundation. WHEREAS, this Administration has a policy of releasing
inmates who have reached the age of seventy (70),
(2) The amount of One Hundred Eighty[-]Nine
Million Pesos (P189,000,000.00), inclusive of WHEREAS, Joseph Ejercito Estrada has been under
interests and income earned, deposited in the Jose detention for six and a half years,
Velarde account.
WHEREAS, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to
upon me by the Constitution, I hereby grant executive Deny Due Course and Cancel Certificate of Candidacy"
clemency to JOSEPH EJERCITO ESTRADA, convicted filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA
by the Sandiganbayan of Plunder and imposed a penalty No. 09-028 (DC), a petition for "Disqualification as
of Reclusion Perpetua. He is hereby restored to his civil Presidential Candidate" filed by Evilio C. Pormento
and political rights. (Pormento); and (3) SPA No. 09-104 (DC), a "Petition to
Disqualify Estrada Ejercito, Joseph M.from Running as
The forfeitures imposed by the Sandiganbayan remain in President due to Constitutional Disqualification and
force and in full, including all writs and processes issued Creating Confusion to the Prejudice of Estrada, Mary Lou
by the Sandiganbayan in pursuance hereof, except for the B" filed by Mary Lou Estrada. In separate
bank account(s) he owned before his tenure as President. Resolutions8 dated January 20, 2010 by the COMELEC,
Second Division, however, all three petitions were
Upon acceptance of this pardon by JOSEPH EJERCITO effectively dismissed on the uniform grounds that (i) the
ESTRADA, this pardon shall take effect. Constitutional proscription on reelection applies to a sitting
president; and (ii) the pardon granted to former President
Given under my hand at the City of Manila, this 25th Day Estrada by former President Arroyo restored the formers
of October, in the year of Our Lord, two thousand and right to vote and be voted for a public office. The
seven. subsequent motions for reconsideration thereto were
denied by the COMELEC En banc.
Gloria M. Arroyo (sgd.)
After the conduct of the May 10, 2010 synchronized
By the President: elections, however, former President Estrada only
managed to garner the second highest number of votes.
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5 Of the three petitioners above-mentioned, only Pormento
sought recourse to this Court and filed a petition for
On October 26, 2007, at 3:35 p.m., former President certiorari, which was docketed as G.R. No. 191988,
Estrada "received and accepted"6 the pardon by affixing entitled "Atty. Evilio C. Pormento v. Joseph ERAP Ejercito
his signature beside his handwritten notation thereon. Estrada and Commission on Elections." But in a
Resolution9 dated August 31, 2010, the Court dismissed
On November 30, 2009, former President Estrada filed a the aforementioned petition on the ground of mootness
Certificate of Candidacy7 for the position of President. considering that former President Estrada lost his
During that time, his candidacy earned three oppositions presidential bid.
On October 2, 2012, former President Estrada once more (c) Those convicted by final judgment for violating
ventured into the political arena, and filed a Certificate of the oath of allegiance to the Republic;
Candidacy,10 this time vying for a local elective post, that
ofthe Mayor of the City of Manila. (d) Those with dual citizenship;

On January 24, 2013, Risos-Vidal, the petitioner in this (e) Fugitives from justice in criminal or nonpolitical
case, filed a Petition for Disqualification against former cases here or abroad;
President Estrada before the COMELEC. The petition was
docketed as SPA No. 13-211 (DC). Risos Vidal anchored (f) Permanent residents in a foreign country or
her petition on the theory that "[Former President Estrada] those who have acquired the right to reside abroad
is Disqualified to Run for Public Office because of his and continue to avail of the same right after the
Conviction for Plunder by the Sandiganbayan in Criminal effectivity of this Code; and
Case No. 26558 entitled People of the Philippines vs.
Joseph Ejercito Estrada Sentencing Him to Suffer the (g) The insane or feeble minded. (Emphasis
Penalty of Reclusion Perpetuawith Perpetual Absolute supplied.)
Disqualification."11 She relied on Section 40 of the Local
Government Code (LGC), in relation to Section 12 of the Sec. 12, Omnibus Election Code:
Omnibus Election Code (OEC), which state respectively,
that: Section 12. Disqualifications. - Any person who has been
declared by competent authority insane or incompetent, or
Sec. 40, Local Government Code: has been sentenced by final judgmentfor subversion,
insurrection, rebellion, or for any offense for which he has
SECTION 40. Disqualifications.- The following persons been sentenced to a penalty of more than eighteen
are disqualified from running for any elective local position: months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any public office,
(a) Those sentenced by final judgment for an unless he has been given plenary pardon or granted
offense involving moral turpitude or for an offense amnesty. (Emphases supplied.)
punishable by one (1) year or more of
imprisonment, within two (2) years after serving In a Resolution dated April 1, 2013,the COMELEC,
sentence; (b) Those removed from office as a result Second Division, dismissed the petition for disqualification,
of an administrative case; the fallo of which reads:
WHEREFORE, premises considered, the instant petition TO LACK OR EXCESS OF JURISDICTION IN
is hereby DISMISSED for utter lack of merit.12 NOT FINDING THAT RESPONDENT ESTRADA IS
DISQUALIFIED TO RUN AS MAYOR OF MANILA
The COMELEC, Second Division, opined that "[h]aving UNDER SEC. 40 OF THE LOCAL
taken judicial cognizance of the consolidated resolution for GOVERNMENTCODE OF 1991 FOR HAVING
SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the BEEN CONVICTED OF PLUNDER, AN OFFENSE
10 May 2010 En Banc resolution affirming it, this INVOLVING MORAL TURPITUDE;
Commission will not be labor the controversy further.
Moreso, [Risos-Vidal] failed to present cogent proof III. RESPONDENT COMELEC COMMITTED
sufficient to reverse the standing pronouncement of this GRAVE ABUSE OF DISCRETION AMOUNTING
Commission declaring categorically that [former President TO LACK OR EXCESS OF JURISDICTION IN
Estradas] right to seek public office has been effectively DISMISSING THE PETITION FOR
restored by the pardon vested upon him by former DISQUALIFICATION ON THE GROUND THAT
President Gloria M. Arroyo. Since this Commission has THE CASE INVOLVES THE SAME OR SIMILAR
already spoken, it will no longer engage in disquisitions of ISSUES IT ALREADY RESOLVED IN THE CASES
a settled matter lest indulged in wastage of government OF "PORMENTO VS. ESTRADA", SPA NO. 09-
resources."13 028 (DC) AND IN "RE: PETITION TO DISQUALIFY
ESTRADA EJERCITO, JOSEPH M. FROM
The subsequent motion for reconsideration filed by Risos- RUNNING AS PRESIDENT, ETC.," SPA NO. 09-
Vidal was denied in a Resolution dated April 23, 2013. 104 (DC);

On April 30, 2013, Risos-Vidal invoked the Courts IV. RESPONDENT COMELEC COMMITTED
jurisdiction by filing the present petition. She presented GRAVE ABUSE OF DISCRETION AMOUNTING
five issues for the Courts resolution, to wit: TO LACK OR EXCESS OF JURISDICTION IN
NOT RULING THAT RESPONDENT ESTRADAS
I. RESPONDENT COMELEC COMMITTED PARDON NEITHER RESTORED HIS RIGHT OF
GRAVE ABUSE OF DISCRETION AMOUNTING SUFFRAGE NOR REMITTED HIS PERPETUAL
TO LACK OR EXCESS OF JURISDICTION IN ABSOLUTE DISQUALIFICATION FROM
HOLDING THAT RESPONDENT ESTRADAS SEEKING PUBLIC OFFICE; and
PARDON WAS NOT CONDITIONAL;
V. RESPONDENT COMELEC COMMITTED
II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
NOT HAVING EXERCISED ITS POWER TO Though raising five seemingly separate issues for
MOTU PROPRIO DISQUALIFY RESPONDENT resolution, the petition filed by Risos-Vidal actually
ESTRADA IN THE FACE OF HIS PATENT presents only one essential question for resolution by the
DISQUALIFICATION TO RUN FOR PUBLIC Court, that is, whether or not the COMELEC committed
OFFICE BECAUSE OF HIS PERPETUAL AND grave abuse of discretion amounting to lack or excess of
ABSOLUTE DISQUALIFICATION TO SEEK jurisdiction in ruling that former President Estrada is
PUBLIC OFFICE AND TO VOTE RESULTING qualified to vote and be voted for in public office as a result
FROM HIS CRIMINAL CONVICTION FOR of the pardon granted to him by former President Arroyo.
PLUNDER.14
In her petition, Risos-Vidal starts her discussion by
While this case was pending beforethe Court, or on May pointing out that the pardon granted to former President
13, 2013, the elections were conducted as scheduled and Estrada was conditional as evidenced by the latters
former President Estrada was voted into office with express acceptance thereof. The "acceptance," she
349,770 votes cast in his favor. The next day, the local claims, is an indication of the conditional natureof the
board of canvassers proclaimed him as the duly elected pardon, with the condition being embodied in the third
Mayor of the City of Manila. Whereas Clause of the pardon, i.e., "WHEREAS, Joseph
Ejercito Estrada has publicly committed to no longer seek
On June 7, 2013, Lim, one of former President Estradas any elective position or office." She explains that the
opponents for the position of Mayor, moved for leave to aforementioned commitment was what impelled former
intervene in this case. His motion was granted by the Court President Arroyo to pardon former President Estrada,
in a Resolution15 dated June 25, 2013. Lim subscribed to without it, the clemency would not have been extended.
Risos-Vidals theory that former President Estrada is And any breach thereof, that is, whenformer President
disqualified to run for and hold public office as the pardon Estrada filed his Certificate of Candidacy for President and
granted to the latter failed to expressly remit his perpetual Mayor of the City of Manila, he breached the condition of
disqualification. Further, given that former President the pardon; hence, "he ought to be recommitted to prison
Estrada is disqualified to run for and hold public office, all to serve the unexpired portion of his sentence x x x and
the votes obtained by the latter should be declared stray, disqualifies him as a candidate for the mayoralty [position]
and, being the second placer with 313,764 votes to his of Manila."16
name, he (Lim) should be declared the rightful winning
candidate for the position of Mayor of the City of Manila. Nonetheless, Risos-Vidal clarifies that the fundamental
basis upon which former President Estrada mustbe
The Issue disqualified from running for and holding public elective
office is actually the proscription found in Section 40 of the
LGC, in relation to Section 12 ofthe OEC. She argues that the same shall have been expressly remitted in the
the crime of plunder is both an offense punishable by pardon. (Emphases supplied.)
imprisonment of one year or more and involving moral
turpitude; such that former President Estrada must be She avers that in view of the foregoing provisions of law, it
disqualified to run for and hold public elective office. is not enough that a pardon makes a general statement
that such pardon carries with it the restoration of civil and
Even with the pardon granted to former President Estrada, political rights. By virtue of Articles 36 and 41, a pardon
however, Risos-Vidal insists that the same did not operate restoring civil and political rights without categorically
to make available to former President Estrada the making mention what specific civil and political rights are
exception provided under Section 12 of the OEC, the restored "shall not work to restore the right to hold public
pardon being merely conditional and not absolute or office, or the right of suffrage; nor shall it remit the
plenary. Moreover, Risos-Vidal puts a premium on the accessory penalties of civil interdiction and perpetual
ostensible requirements provided under Articles 36 and 41 absolute disqualification for the principal penalties of
of the Revised Penal Code, to wit: reclusion perpetua and reclusion temporal."17 In other
words, she considers the above constraints as mandatory
ART. 36. Pardon; its effects. A pardon shall not work the requirements that shun a general or implied restoration of
restoration of the right to hold publicoffice, or the right of civil and political rights in pardons.
suffrage, unless such rights be expressly restored by the
terms of the pardon. Risos-Vidal cites the concurring opinions of Associate
Justices Teodoro R. Padilla and Florentino P. Feliciano in
A pardon shall in no case exempt the culprit from the Monsanto v. Factoran, Jr.18 to endorse her position that
payment of the civil indemnity imposed upon him by the "[t]he restoration of the right to hold public office to one
sentence. who has lost such right by reason of conviction in a
criminal case, but subsequently pardoned, cannot be left
xxxx to inference, no matter how intensely arguable, but must
be statedin express, explicit, positive and specific
ART. 41. Reclusion perpetua and reclusion temporal language."
Their accessory penalties. The penalties of reclusion
perpetua and reclusion temporal shall carry with them that Applying Monsantoto former President Estradas case,
of civil interdiction for life or during the period of the Risos-Vidal reckons that "such express restoration is
sentence as the case may be, and that of perpetual further demanded by the existence of the condition in the
absolute disqualification which the offender shall suffer [third] [W]hereas [C]lause of the pardon x x x indubitably
even though pardoned as to the principal penalty, unless
indicating that the privilege to hold public office was not 36 and 41 of the Revised Penal Code, i.e., the express
restored to him."19 restoration/remission of a particular right to be stated in the
pardon, the OSG asserts that "an airtight and rigid
On the other hand, the Office ofthe Solicitor General interpretation of Article 36 and Article 41 of the [RPC] x x
(OSG) for public respondent COMELEC, maintains that x would be stretching too much the clear and plain
"the issue of whether or not the pardon extended to [former meaning of the aforesaid provisions."22 Lastly, taking into
President Estrada] restored his right to run for public office consideration the third Whereas Clause of the pardon
had already been passed upon by public respondent granted to former President Estrada, the OSG supports
COMELEC way back in 2010 via its rulings in SPA Nos. the position that it "is not an integral part of the decree of
09-024, 09-028 and 09-104, there is no cogent reason for the pardon and cannot therefore serve to restrict its
it to reverse its standing pronouncement and declare effectivity."23
[former President Estrada] disqualified to run and be voted
as mayor of the City of Manila in the absence of any new Thus, the OSG concludes that the "COMELEC did not
argument that would warrant its reversal. To be sure, commit grave abuse of discretion amounting to lack or
public respondent COMELEC correctly exercised its excess of jurisdiction in issuing the assailed
discretion in taking judicial cognizance of the aforesaid Resolutions."24
rulings which are known toit and which can be verified from
its own records, in accordance with Section 2, Rule 129 of For his part, former President Estrada presents the
the Rules of Court on the courts discretionary power to following significant arguments to defend his stay in office:
take judicial notice of matters which are of public that "the factual findings of public respondent COMELEC,
knowledge, orare capable of unquestionable the Constitutional body mandated to administer and
demonstration, or ought to be known to them because of enforce all laws relative to the conduct of the elections,
their judicial functions."20 [relative to the absoluteness of the pardon, the effects
thereof, and the eligibility of former President Estrada to
Further, the OSG contends that "[w]hile at first glance, it is seek public elective office] are binding [and conclusive] on
apparent that [former President Estradas] conviction for this Honorable Supreme Court;" that he "was granted an
plunder disqualifies him from running as mayor of Manila absolute pardon and thereby restored to his full civil and
under Section 40 of the [LGC], the subsequent grant of political rights, including the right to seek public elective
pardon to him, however, effectively restored his right to run office such as the mayoral (sic) position in the City of
for any public office."21 The restoration of his right to run Manila;" that "the majority decision in the case of Salvacion
for any public office is the exception to the prohibition A. Monsanto v. Fulgencio S. Factoran, Jr.,which was
under Section 40 of the LGC, as provided under Section erroneously cited by both Vidal and Lim as authority for
12 of the OEC. As to the seeming requirement of Articles their respective claims, x x x reveal that there was no
discussion whatsoever in the ratio decidendi of the office, the focal point of this controversy. The wording of
Monsanto case as to the alleged necessity for an the pardon extended to former President Estrada is
expressed restoration of the right to hold public office in complete, unambiguous, and unqualified. It is likewise
the pardon as a legal prerequisite to remove the subject unfettered by Articles 36 and 41 of the Revised Penal
perpetual special disqualification;" that moreover, the Code. The only reasonable, objective, and constitutional
"principal question raised in this Monsanto case is whether interpretation of the language of the pardon is that the
or not a public officer, who has been granted an absolute same in fact conforms to Articles 36 and 41 of the Revised
pardon by the Chief Executive, is entitled to reinstatement Penal Code. Recall that the petition for disqualification
toher former position without need of a new appointment;" filed by Risos-Vidal against former President Estrada,
that his "expressed acceptance [of the pardon] is not proof docketed as SPA No. 13-211 (DC), was anchored on
that the pardon extended to [him] is conditional and not Section 40 of the LGC, in relation to Section 12 of the
absolute;" that this case is a mere rehash of the casesfiled OEC, that is, having been convicted of a crime punishable
against him during his candidacy for President back in by imprisonment of one year or more, and involving moral
2009-2010; that Articles 36 and 41 of the Revised Penal turpitude, former President Estrada must be disqualified to
Code "cannot abridge or diminish the pardoning power of run for and hold public elective office notwithstanding the
the President expressly granted by the Constitution;" that fact that he is a grantee of a pardon that includes a
the text of the pardon granted to him substantially, if not statement expressing "[h]e is hereby restored to his civil
fully, complied with the requirement posed by Article 36 of and political rights." Risos-Vidal theorizes that former
the Revised Penal Code as it was categorically stated in President Estrada is disqualified from running for Mayor of
the said document that he was "restored to his civil and Manila inthe May 13, 2013 Elections, and remains
political rights;" that since pardon is an act of grace, it must disqualified to hold any local elective post despite the
be construed favorably in favor of the grantee;25 and that presidential pardon extended to him in 2007 by former
his disqualification will result in massive President Arroyo for the reason that it (pardon) did not
disenfranchisement of the hundreds of thousands of expressly provide for the remission of the penalty of
Manileos who voted for him.26 perpetual absolute disqualification, particularly the
restoration of his (former President Estrada) right to vote
The Court's Ruling and bevoted upon for public office. She invokes Articles 36
and 41 of the Revised Penal Code as the foundations of
The petition for certiorari lacks merit. her theory.

Former President Estrada was granted an absolute It is insisted that, since a textual examination of the pardon
pardon that fully restored allhis civil and political rights, given to and accepted by former President Estrada does
which naturally includes the right to seek public elective not actually specify which political right is restored, it could
be inferred that former President Arroyo did not extend pardon remain to be in: (1) impeachment cases; (2)
deliberately intend to restore former President Estradas cases that have not yet resulted in a final conviction; and
rights of suffrage and to hold public office, orto otherwise (3) cases involving violations of election laws, rules and
remit the penalty of perpetual absolute disqualification. regulations in which there was no favorable
Even if her intention was the contrary, the same cannot be recommendation coming from the COMELEC. Therefore,
upheld based on the pardons text. it can be argued that any act of Congress by way of statute
cannot operate to delimit the pardoning power of the
The pardoning power of the President cannot be limited by President.
legislative action.
In Cristobal v. Labrador27 and Pelobello v.
28
Palatino, which were decided under the 1935
The 1987 Constitution, specifically Section 19 of Article VII
and Section 5 of Article IX-C, provides that the President Constitution,wherein the provision granting pardoning
of the Philippines possesses the power to grant pardons, power to the President shared similar phraseology with
along with other acts of executive clemency, to wit: what is found in the present 1987 Constitution, the Court
then unequivocally declared that "subject to the limitations
Section 19. Except in cases of impeachment, or as imposed by the Constitution, the pardoning power cannot
otherwise provided in this Constitution, the President may be restricted or controlled by legislative action." The Court
grant reprieves, commutations, and pardons, and remit reiterated this pronouncement in Monsanto v. Factoran,
fines and forfeitures, after conviction by final judgment. Jr.29 thereby establishing that, under the present
Constitution, "a pardon, being a presidential prerogative,
He shall also have the power to grant amnesty with the should not be circumscribed by legislative action." Thus, it
concurrence of a majority of all the Members of the is unmistakably the long-standing position of this Court
Congress. that the exercise of the pardoning power is discretionary in
the President and may not be interfered with by Congress
xxxx or the Court, except only when it exceeds the limits
provided for by the Constitution.
Section 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and This doctrine of non-diminution or non-impairment of the
regulations shall be granted by the President without the Presidents power of pardon by acts of Congress,
favorable recommendation of the Commission. specifically through legislation, was strongly adhered to by
an overwhelming majority of the framers of the 1987
It is apparent from the foregoing constitutional provisions Constitution when they flatly rejected a proposal to carve
that the only instances in which the President may not out an exception from the pardoning power of the
President in the form of "offenses involving graft and THE PRESIDENT. Yes, please.
corruption" that would be enumerated and defined by
Congress through the enactment of a law. The following is MR. REGALADO. This was inserted here on the resolution
the pertinent portion lifted from the Record of the of Commissioner Davide because of the fact that similar to
Commission (Vol. II): the provisions on the Commission on Elections, the
recommendation of that Commission is required before
MR. ROMULO. I ask that Commissioner Tan be executive clemency isgranted because violations of the
recognized to introduce an amendment on the same election laws go into the very political life of the country.
section.
With respect to violations of our Corrupt Practices Law, we
THE PRESIDENT. Commissioner Tan is recognized. felt that it is also necessary to have that subjected to the
same condition because violation of our Corrupt Practices
SR. TAN. Madam President, lines 7 to 9 state: Law may be of such magnitude as to affect the very
economic systemof the country. Nevertheless, as a
However, the power to grant executive clemency for compromise, we provided here that it will be the Congress
violations of corrupt practices laws may be limited by that will provide for the classification as to which
legislation. convictions will still require prior recommendation; after all,
the Congress could take into account whether or not the
I suggest that this be deletedon the grounds that, first, violation of the Corrupt Practices Law is of such magnitude
violations of corrupt practices may include a very little as to affect the economic life of the country, if it is in the
offense like stealing P10; second, which I think is more millions or billions of dollars. But I assume the Congress in
important, I get the impression, rightly or wrongly, that its collective wisdom will exclude those petty crimes of
subconsciously we are drafting a constitution on the corruption as not to require any further stricture on the
premise that all our future Presidents will bebad and exercise of executive clemency because, of course, there
dishonest and, consequently, their acts will be lacking in is a whale of a difference if we consider a lowly clerk
wisdom. Therefore, this Article seems to contribute committing malversation of government property or funds
towards the creation of an anti-President Constitution or a involving one hundred pesos. But then, we also anticipate
President with vast responsibilities but no corresponding the possibility that the corrupt practice of a public officer is
power except to declare martial law. Therefore, I request of such magnitude as to have virtually drained a
that these lines be deleted. substantial portion of the treasury, and then he goes
through all the judicial processes and later on, a President
MR. REGALADO. Madam President,may the Committee who may have close connections with him or out of
react to that? improvident compassion may grant clemency under such
conditions. That is why we left it to Congress to provide Aside from the fact that it is a derogation of the power of
and make a classification based on substantial distinctions the President to grant executive clemency, it is also
between a minor act of corruption or an act of substantial defective in that it singles out just one kind of crime. There
proportions. SR. TAN. So, why do we not just insert the are far more serious crimes which are not included.
word GROSS or GRAVE before the word "violations"?
MR. REGALADO. I will just make one observation on that.
MR. REGALADO. We feel that Congress can make a We admit that the pardoning power is anexecutive power.
better distinction because "GRAVE" or "GROSS" can be But even in the provisions on the COMELEC, one will
misconstrued by putting it purely as a policy. notice that constitutionally, it is required that there be a
favorable recommendation by the Commission on
MR. RODRIGO. Madam President. Elections for any violation of election laws.

THE PRESIDENT. Commissioner Rodrigo is recognized. At any rate, Commissioner Davide, as the principal
proponent of that and as a member of the Committee, has
MR. RODRIGO. May I speak in favor of the proposed explained in the committee meetings we had why he
amendment? sought the inclusion of this particular provision. May we
call on Commissioner Davide to state his position.
THE PRESIDENT. Please proceed.
MR. DAVIDE. Madam President.
MR. RODRIGO. The power to grant executive clemency is
essentially an executive power, and that is precisely why THE PRESIDENT. Commissioner Davide is recognized.
it is called executive clemency. In this sentence, which the
amendment seeks to delete, an exception is being made. MR. DAVIDE. I am constrained to rise to object to the
Congress, which is the legislative arm, is allowed to intrude proposal. We have just approved the Article on
into this prerogative of the executive. Then it limits the Accountability of Public Officers. Under it, it is mandated
power of Congress to subtract from this prerogative of the that a public office is a public trust, and all government
President to grant executive clemency by limiting the officers are under obligation to observe the utmost of
power of Congress to only corrupt practices laws. There responsibility, integrity, loyalty and efficiency, to lead
are many other crimes more serious than these. Under this modest lives and to act with patriotism and justice.
amendment, Congress cannot limit the power of executive
clemency in cases of drug addiction and drug pushing In all cases, therefore, which would go into the verycore of
which are very, very serious crimes that can endanger the the concept that a public office is a public trust, the
State; also, rape with murder, kidnapping and treason. violation is itself a violation not only of the economy but the
moral fabric of public officials. And that is the reason we I am supporting the amendment by deletion of
now want that if there is any conviction for the violation of Commissioner Tan.
the Anti-Graft and Corrupt Practices Act, which, in effect,
is a violation of the public trust character of the public MR. ROMULO. Commissioner Tingson would like to be
office, no pardon shall be extended to the offender, unless recognized.
some limitations are imposed.
THE PRESIDENT. Commissioner Tingson is recognized.
Originally, my limitation was, it should be with the
concurrence of the convicting court, but the Committee left MR. TINGSON. Madam President, I am also in favor of the
it entirely to the legislature to formulate the mechanics at amendment by deletion because I am in sympathy with the
trying, probably, to distinguish between grave and less stand of Commissioner Francisco "Soc" Rodrigo. I do
grave or serious cases of violation of the Anti-Graft and believe and we should remember that above all the
Corrupt Practices Act. Perhaps this is now the best time, elected or appointed officers of our Republic, the leader is
since we have strengthened the Article on Accountability the President. I believe that the country will be as the
of Public Officers, to accompany it with a mandate that the President is, and if we systematically emasculate the
Presidents right to grant executive clemency for offenders power of this presidency, the time may come whenhe will
or violators of laws relating to the concept of a public office be also handcuffed that he will no longer be able to act like
may be limited by Congress itself. he should be acting.

MR. SARMIENTO. Madam President. So, Madam President, I am in favor of the deletion of this
particular line.
THE PRESIDENT. Commissioner Sarmiento is
recognized. MR. ROMULO. Commissioner Colayco would like to be
recognized.
MR. SARMIENTO. May I briefly speak in favor of the
amendment by deletion. THE PRESIDENT. Commissioner Colayco is recognized.

Madam President, over and over again, we have been MR. COLAYCO. Thank you very much, Madam President.
saying and arguing before this Constitutional Commission
that we are emasculating the powers of the presidency, I seldom rise here to object to or to commend or to
and this provision to me is another clear example of that. recommend the approval of proposals, but now I find that
So, I speak against this provision. Even the 1935 and the the proposal of Commissioner Tan is worthy of approval of
1973 Constitutions do not provide for this kind of provision. this body.
Why are we singling out this particular offense? There are THE PRESIDENT. Are we ready to vote now, Mr. Floor
other crimes which cast a bigger blot on the moral Leader?
character of the public officials.
MR. NATIVIDAD. Just one more.
Finally, this body should not be the first one to limit the
almost absolute power of our Chief Executive in deciding THE PRESIDENT. Commissioner Natividad is recognized.
whether to pardon, to reprieve or to commute the sentence
rendered by the court. MR. NATIVIDAD. I am also against this provision which
will again chip more powers from the President. In case of
I thank you. other criminals convicted in our society, we extend
probation to them while in this case, they have already
THE PRESIDENT. Are we ready to vote now? been convicted and we offer mercy. The only way we can
offer mercy to them is through this executive clemency
MR. ROMULO. Commissioner Padilla would like to be extended to them by the President. If we still close this
recognized, and after him will be Commissioner Natividad. avenue to them, they would be prejudiced even worse
than the murderers and the more vicious killers in our
THE PRESIDENT. Commissioner Padilla is recognized. society. I do not think they deserve this opprobrium and
punishment under the new Constitution.
MR. PADILLA. Only one sentence, Madam President. The
Sandiganbayan has been called the Anti-Graft Court, so if I am in favor of the proposed amendment of Commissioner
this is allowed to stay, it would mean that the Presidents Tan.
power togrant pardon or reprieve will be limited to the
cases decided by the Anti-Graft Court, when as already MR. ROMULO. We are ready tovote, Madam President.
stated, there are many provisions inthe Revised Penal
Code that penalize more serious offenses. THE PRESIDENT. Is this accepted by the Committee?

Moreover, when there is a judgment of conviction and the MR. REGALADO. The Committee, Madam President,
case merits the consideration of the exercise of executive prefers to submit this to the floor and also because of the
clemency, usually under Article V of the Revised Penal objection of the main proponent, Commissioner Davide.
Code the judge will recommend such exercise of So we feel that the Commissioners should vote on this
clemency. And so, I am in favor of the amendment question.
proposed by Commissioner Tan for the deletion of this last
sentence in Section 17. VOTING
THE PRESIDENT. As many as are in favor of the suffrage, unless such rights be expressly restored by the
proposed amendment of Commissioner Tan to delete the terms of the pardon.
last sentence of Section 17 appearing on lines 7, 8 and 9,
please raise their hand. (Several Members raised their A pardon shall in no case exempt the culprit from the
hand.) payment of the civil indemnity imposed upon him by the
sentence.
As many as are against, please raise their hand. (Few
Members raised their hand.) xxxx

The results show 34 votes in favor and 4 votes against; the ART. 41. Reclusion perpetua and reclusion temporal
amendment is approved.30 (Emphases supplied.) Their accessory penalties. The penalties of reclusion
perpetua and reclusion temporal shall carry with them that
The proper interpretation of Articles of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual
36 and 41 of the Revised Penal Code. absolute disqualification which the offender shall suffer
even though pardoned as to the principal penalty, unless
The foregoing pronouncements solidify the thesis that the same shall have been expressly remitted in the
Articles 36 and 41 of the Revised Penal Code cannot, in pardon. (Emphases supplied.)
any way, serve to abridge or diminish the exclusive power
and prerogative of the President to pardon persons A rigid and inflexible reading of the above provisions of
convicted of violating penal statutes. law, as proposed by Risos-Vidal, is unwarranted,
especially so if it will defeat or unduly restrict the power of
The Court cannot subscribe to Risos-Vidals interpretation the President to grant executive clemency.
that the said Articles contain specific textual commands
which must be strictly followed in order to free the It is well-entrenched in this jurisdiction that where the
beneficiary of presidential grace from the disqualifications words of a statute are clear, plain, and free from ambiguity,
specifically prescribed by them. it must be given its literal meaning and applied without
attempted interpretation. Verba legis non est recedendum.
Again, Articles 36 and 41 of the Revised Penal Code From the words of a statute there should be no
provides: departure.31 It is this Courts firm view that the phrase in
the presidential pardon at issue which declares that former
ART. 36. Pardon; its effects. A pardon shall not work the President Estrada "is hereby restored to his civil and
restoration of the right to hold publicoffice, or the right of
political rights" substantially complies with the requirement the power to make such restoration or remission, subject
of express restoration. to a prescription on the manner by which he or she is to
state it.32
The Dissent of Justice Marvic M.V.F. Leonen agreed with
Risos Vidal that there was no express remission and/or With due respect, I disagree with the overbroad statement
restoration of the rights of suffrage and/or to hold public that Congress may dictate as to how the President may
office in the pardon granted to former President Estrada, exercise his/her power of executive clemency. The form or
as required by Articles 36 and 41 of the Revised Penal manner by which the President, or Congress for that
Code. matter, should exercise their respective Constitutional
powers or prerogatives cannot be interfered with unless it
Justice Leonen posits in his Dissent that the is so provided in the Constitution. This is the essence of
aforementioned codal provisions must be followed by the the principle of separation of powers deeply ingrained in
President, as they do not abridge or diminish the our system of government which "ordains that each of the
Presidents power to extend clemency. He opines that they three great branches of government has exclusive
do not reduce the coverage of the Presidents pardoning cognizance of and is supreme in matters falling within its
power. Particularly, he states: own constitutionally allocated sphere."33 Moreso, this
fundamental principle must be observed if noncompliance
Articles 36 and 41 refer only to requirements of convention with the form imposed by one branch on a co-equal and
or form. They only provide a procedural prescription. They coordinate branch will result into the diminution of an
are not concerned with areas where or the instances when exclusive Constitutional prerogative.
the President may grant pardon; they are only concerned
with how he or she is to exercise such power so that no For this reason, Articles 36 and 41 of the Revised Penal
other governmental instrumentality needs to intervene to Code should be construed in a way that will give full effect
give it full effect. to the executive clemency granted by the President,
instead of indulging in an overly strict interpretation that
All that Articles 36 and 41 do is prescribe that, if the may serve to impair or diminish the import of the pardon
President wishes to include in the pardon the restoration which emanated from the Office of the President and duly
of the rights of suffrage and to hold public office, or the signed by the Chief Executive himself/herself. The said
remission of the accessory penalty of perpetual absolute codal provisions must be construed to harmonize the
disqualification,he or she should do so expressly. Articles power of Congress to define crimes and prescribe the
36 and 41 only ask that the President state his or her penalties for such crimes and the power of the President
intentions clearly, directly, firmly, precisely, and to grant executive clemency. All that the said provisions
unmistakably. To belabor the point, the President retains impart is that the pardon of the principal penalty does
notcarry with it the remission of the accessory penalties Section 5 of Republic Act No. 9225,34 otherwise known as
unless the President expressly includes said accessory the "Citizenship Retention and Reacquisition Act of 2003,"
penalties in the pardon. It still recognizes the Presidential reads as follows:
prerogative to grant executive clemency and, specifically,
to decide to pardon the principal penalty while excluding Section 5. Civil and Political Rights and Liabilities. Those
its accessory penalties or to pardon both. Thus, Articles 36 who retain or reacquire Philippine citizenship under this
and 41 only clarify the effect of the pardon so decided upon Act shall enjoy full civil and political rights and be subject
by the President on the penalties imposedin accordance to all attendant liabilities and responsibilities under existing
with law. laws of the Philippines and the following conditions: (1)
Those intending to exercise their right of suffrage must
A close scrutiny of the text of the pardon extended to meet the requirements under Section 1, Article V of the
former President Estrada shows that both the principal Constitution, Republic Act No. 9189, otherwise known as
penalty of reclusion perpetua and its accessory penalties "The Overseas Absentee Voting Act of 2003" and other
are included in the pardon. The first sentence refers to the existing laws;
executive clemency extended to former President Estrada
who was convicted by the Sandiganbayan of plunder and (2) Those seeking elective public office in the
imposed a penalty of reclusion perpetua. The latter is the Philippines shall meet the qualifications for holding
principal penalty pardoned which relieved him of such public office as required by the Constitution
imprisonment. The sentence that followed, which states and existing laws and, at the time of the filing of the
that "(h)e is hereby restored to his civil and political rights," certificate of candidacy, make a personal and
expressly remitted the accessory penalties that attached sworn renunciation of any and all foreign citizenship
to the principal penalty of reclusion perpetua. Hence, even before any public officer authorized to administer an
if we apply Articles 36 and 41 of the Revised Penal Code, oath;
it is indubitable from the textof the pardon that the
accessory penalties of civil interdiction and perpetual (3) Those appointed to any public office shall
absolute disqualification were expressly remitted together subscribe and swear an oath of allegiance to the
with the principal penalty of reclusion perpetua. Republic of the Philippines and its duly constituted
authorities prior to their assumption of office:
In this jurisdiction, the right toseek public elective office is Provided, That they renounce their oath of
recognized by law as falling under the whole gamut of civil allegiance to the country where they took that oath;
and political rights. (4) Those intending to practice their profession in
the Philippines shall apply with the proper authority
for a license or permit to engage in such practice; Recently, in Sobejana-Condon v. Commission on
and Elections,35 the Court unequivocally referred to the right to
seek public elective office as a political right, to wit:
(5) That right to vote or be elected or appointed to
any public office in the Philippines cannot be Stated differently, it is an additional qualification for
exercised by, or extended to, those who: elective office specific only to Filipino citizens who re-
acquire their citizenship under Section 3 of R.A. No. 9225.
(a) are candidates for or are occupying any It is the operative act that restores their right to run for
public office in the country of which theyare public office. The petitioners failure to comply there with
naturalized citizens; and/or in accordance with the exact tenor of the law, rendered
ineffectual the Declaration of Renunciation of Australian
(b) are in active service as commissioned or Citizenship she executed on September 18, 2006. As
non commissioned officers in the armed such, she is yet to regain her political right to seek elective
forces of the country which they are office. Unless she executes a sworn renunciation of her
naturalized citizens. (Emphases supplied.) Australian citizenship, she is ineligible to run for and hold
any elective office in the Philippines. (Emphasis supplied.)
No less than the International Covenant on Civil and
Political Rights, to which the Philippines is a signatory, Thus, from both law and jurisprudence, the right to seek
acknowledges the existence of said right. Article 25(b) of public elective office is unequivocally considered as a
the Convention states: Article 25 political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President
Every citizen shall have the right and the opportunity, Estrada admits no other interpretation other than to mean
without any of the distinctions mentioned in Article 2 and that, upon acceptance of the pardon granted tohim, he
without unreasonable restrictions: regained his FULL civil and political rights including the
right to seek elective office.
xxxx
On the other hand, the theory of Risos-Vidal goes beyond
(b) To vote and to be electedat genuine periodic elections the plain meaning of said penal provisions; and prescribes
which shall be by universal and equal suffrage and shall a formal requirement that is not only unnecessary but, if
be held by secret ballot, guaranteeing the free expression insisted upon, could be in derogation of the constitutional
of the will of the electors[.] (Emphasis supplied.) prohibition relative to the principle that the exercise of
presidential pardon cannot be affected by legislative
action.
Risos-Vidal relied heavily on the separate concurring that former President Estrada is disqualified under item
opinions in Monsanto v. Factoran, Jr.36 to justify her (a), to wit:
argument that an absolute pardon must expressly state
that the right to hold public office has been restored, and (a) Those sentenced by final judgment for an offense
that the penalty of perpetual absolute disqualification has involving moral turpitude or for an offense punishable by
been remitted. one (1) year or more of imprisonment, within two (2) years
after serving sentence[.] (Emphasis supplied.)
This is incorrect.
Likewise, Section 12 of the OEC provides for similar
Her reliance on said opinions is utterly misplaced. prohibitions, but it provides for an exception, to wit:
Although the learned views of Justices Teodoro R. Padilla
and Florentino P. Feliciano are to be respected, they do Section 12. Disqualifications. x x x unless he has been
not form partof the controlling doctrine nor to be given plenary pardon or granted amnesty. (Emphasis
considered part of the law of the land. On the contrary, a supplied.)
careful reading of the majority opinion in Monsanto,
penned by no less than Chief Justice Marcelo B. Fernan, As earlier stated, Risos-Vidal maintains that former
reveals no statement that denotes adherence to a President Estradas conviction for plunder disqualifies him
stringent and overly nuanced application of Articles 36 and from running for the elective local position of Mayor of the
41 of the Revised Penal Code that will in effect require the City of Manila under Section 40(a) of the LGC. However,
President to use a statutorily prescribed language in the subsequent absolute pardon granted to former
extending executive clemency, even if the intent of the President Estrada effectively restored his right to seek
President can otherwise be deduced from the text or words public elective office. This is made possible by reading
used in the pardon. Furthermore, as explained above, the Section 40(a) of the LGC in relation to Section 12 of the
pardon here is consistent with, and not contrary to, the OEC.
provisions of Articles 36 and 41.
While it may be apparent that the proscription in Section
The disqualification of former President Estrada under 40(a) of the LGC is worded in absolute terms, Section 12
Section 40 of the LGC in relation to Section 12 of the OEC of the OEC provides a legal escape from the prohibition
was removed by his acceptance of the absolute pardon a plenary pardon or amnesty. In other words, the latter
granted to him. provision allows any person who has been granted plenary
pardon or amnesty after conviction by final judgment of an
Section 40 of the LGC identifies who are disqualified from offense involving moral turpitude, inter alia, to run for and
running for any elective local position. Risos-Vidal argues hold any public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC This is especially true as the pardon itself does not
to candidates running for local elective positions is not explicitly impose a condition or limitation, considering the
unprecedented. In Jalosjos, Jr. v. Commission on unqualified use of the term "civil and political rights"as
Elections,37 the Court acknowledged the aforementioned being restored. Jurisprudence educates that a preamble is
provision as one of the legal remedies that may be availed not an essential part of an act as it is an introductory or
of to disqualify a candidate in a local election filed any day preparatory clause that explains the reasons for the
after the last day for filing of certificates of candidacy, but enactment, usually introduced by the word
not later than the date of proclamation.38 The pertinent "whereas."40 Whereas clauses do not form part of a statute
ruling in the Jalosjos case is quoted as follows: because, strictly speaking, they are not part of the
operative language of the statute.41 In this case, the
What is indisputably clear is that false material whereas clause at issue is not an integral part of the
representation of Jalosjos is a ground for a petition under decree of the pardon, and therefore, does not by itself
Section 78. However, since the false material alone operate to make the pardon conditional or to make
representation arises from a crime penalized by prision its effectivity contingent upon the fulfilment of the
mayor, a petition under Section 12 ofthe Omnibus Election aforementioned commitment nor to limit the scope of the
Code or Section 40 of the Local Government Code can pardon.
also be properly filed. The petitioner has a choice whether
to anchor his petition on Section 12 or Section 78 of the On this matter, the Court quotes with approval a relevant
Omnibus Election Code, or on Section 40 of the Local excerpt of COMELEC Commissioner Maria Gracia
Government Code. The law expressly provides multiple Padacas separate concurring opinion in the assailed April
remedies and the choice of which remedy to adopt 1, 2013 Resolution of the COMELEC in SPA No. 13-211
belongs to petitioner.39 (Emphasis supplied.) (DC), which captured the essence of the legal effect of
preambular paragraphs/whereas clauses, viz:
The third preambular clause of the pardon did not operate
to make the pardon conditional. The present dispute does not raise anything which the 20
January 2010 Resolution did not conclude upon. Here,
Contrary to Risos-Vidals declaration, the third preambular Petitioner Risos-Vidal raised the same argument with
clause of the pardon, i.e., "[w]hereas, Joseph Ejercito respect to the 3rd "whereas clause" or preambular
Estrada has publicly committed to no longer seek any paragraph of the decree of pardon. It states that "Joseph
elective position or office," neither makes the pardon Ejercito Estrada has publicly committed to no longer seek
conditional, nor militate against the conclusion that former any elective position or office." On this contention, the
President Estradas rights to suffrage and to seek public undersigned reiterates the ruling of the Commission that
elective office have been restored. the 3rd preambular paragraph does not have any legal or
binding effect on the absolute nature of the pardon Where the scope and import of the executive clemency
extended by former President Arroyo to herein extended by the President is in issue, the Court must turn
Respondent. This ruling is consistent with the traditional to the only evidence available to it, and that is the pardon
and customary usage of preambular paragraphs. In the itself. From a detailed review ofthe four corners of said
case of Echegaray v. Secretary of Justice, the Supreme document, nothing therein gives an iota of intimation that
Court ruled on the legal effect of preambular paragraphs the third Whereas Clause is actually a limitation, proviso,
or whereas clauses on statutes. The Court stated, viz.: stipulation or condition on the grant of the pardon, such
that the breach of the mentioned commitment not to seek
Besides, a preamble is really not an integral part of a law. public office will result ina revocation or cancellation of said
It is merely an introduction to show its intent or purposes. pardon. To the Court, what it is simply is a statement of
It cannot be the origin of rights and obligations. Where the fact or the prevailing situation at the time the executive
meaning of a statute is clear and unambiguous, the clemency was granted. It was not used as a condition to
preamble can neither expand nor restrict its operation the efficacy orto delimit the scope of the pardon.
much less prevail over its text.
Even if the Court were to subscribe to the view that the
If former President Arroyo intended for the pardon to be third Whereas Clausewas one of the reasons to grant the
conditional on Respondents promise never to seek a pardon, the pardon itself does not provide for the attendant
public office again, the former ought to have explicitly consequence of the breach thereof. This Court will be hard
stated the same in the text of the pardon itself. Since put to discern the resultant effect of an eventual
former President Arroyo did not make this an integral part infringement. Just like it will be hard put to determine which
of the decree of pardon, the Commission is constrained to civil or political rights were restored if the Court were to
rule that the 3rd preambular clause cannot be interpreted take the road suggested by Risos-Vidal that the statement
as a condition to the pardon extended to former President "[h]e is hereby restored to his civil and political rights"
Estrada.42 (Emphasis supplied.) excludes the restoration of former President Estradas
rights to suffrage and to hold public office. The
Absent any contrary evidence, former President Arroyos aforequoted text ofthe executive clemency granted does
silence on former President Estradas decision torun for not provide the Court with any guide asto how and where
President in the May 2010 elections against, among to draw the line between the included and excluded
others, the candidate of the political party of former political rights.
President Arroyo, after the latters receipt and acceptance
of the pardon speaks volume of her intention to restore him Justice Leonen emphasizes the point that the ultimate
to his rights to suffrage and to hold public office. issue for resolution is not whether the pardon is contingent
on the condition that former President Estrada will not seek
janother elective public office, but it actually concerns the be extremely difficult to identify which of the political rights
coverage of the pardon whether the pardon granted to are restored by the pardon, when the text of the latter is
former President Estrada was so expansive as to have silent on this matter. Exceptions to the grant of pardon
restored all his political rights, inclusive of the rights of cannot be presumed from the absence of the qualifying
suffrage and to hold public office. Justice Leonen is of the word "full" when the pardon restored the "political rights"
view that the pardon in question is not absolute nor plenary of former President Estrada without any exclusion or
in scope despite the statement that former President reservation.
Estrada is "hereby restored to his civil and political rights,"
that is, the foregoing statement restored to former Therefore, there can be no other conclusion but to say that
President Estrada all his civil and political rights except the the pardon granted to former President Estrada was
rights denied to him by the unremitted penalty of perpetual absolute in the absence of a clear, unequivocal and
absolute disqualification made up of, among others, the concrete factual basis upon which to anchor or support the
rights of suffrage and to hold public office. He adds that Presidential intent to grant a limited pardon.
had the President chosen to be so expansive as to include
the rights of suffrage and to hold public office, she should To reiterate, insofar as its coverageis concerned, the text
have been more clear on her intentions. of the pardon can withstand close scrutiny even under the
provisions of Articles 36 and 41 of the Revised Penal
However, the statement "[h]e is hereby restored to his civil Code.
and political rights," to the mind of the Court, iscrystal clear
the pardon granted to former President Estrada was The COMELEC did not commit grave abuse of discretion
absolute, meaning, it was not only unconditional, it was amounting to lack or excess of jurisdiction in issuing the
unrestricted in scope, complete and plenary in character, assailed Resolutions.
as the term "political rights"adverted to has a settled
meaning in law and jurisprudence. In light of the foregoing, contrary to the assertions of Risos-
Vidal, the COMELEC did not commit grave abuse of
With due respect, I disagree too with Justice Leonen that discretion amounting to lack or excess of jurisdiction in
the omission of the qualifying word "full" can be construed issuing the assailed Resolutions.
as excluding the restoration of the rights of suffrage and to
hold public office. There appears to be no distinction as to The Court has consistently held that a petition for
the coverage of the term "full political rights" and the term certiorariagainst actions of the COMELEC is confined only
"political rights" used alone without any qualification. How to instances of grave abuse of discretion amounting to
to ascribe to the latter term the meaning that it is "partial" patentand substantial denial of due process, because the
and not "full" defies ones understanding. More so, it will
COMELEC is presumed to be most competent in matters G.R. No. 202943, March 25, 2015
falling within its domain.43
THE DEPARTMENT OF HEALTH, REPRESENTED BY
As settled in jurisprudence, grave abuse of discretion is SECRETARY ENRIQUE T. ONA, AND THE FOOD AND
the arbitrary exercise of power due to passion, prejudice DRUG ADMINISTRATION (FORMERLY THE BUREAU
or personal hostility; or the whimsical, arbitrary, or OF FOOD AND DRUGS), REPRESENTED BY
capricious exercise of power that amounts to an evasion ASSISTANT SECRETARY OF HEALTH NICOLAS B.
or refusal to perform a positive duty enjoined by law or to LUTERO III, OFFICER-IN-
act at all in contemplation of law. For an act to be CHARGE, Petitioners, v. PHILIP MORRIS PHILIPPINES
condemned as having been done with grave abuse of MANUFACTURING, INC., Respondent.
discretion, such an abuse must be patent and gross.44
DECISION
The arguments forwarded by Risos-Vidal fail to adequately
demonstrate any factual or legal bases to prove that the PERLAS-BERNABE, J.:
assailed COMELEC Resolutions were issued in a
"whimsical, arbitrary or capricious exercise of power that Assailed in this petition for review on certiorari1 are the
amounts to an evasion orrefusal to perform a positive duty Decision2 dated August 26, 2011 and the
enjoined by law" or were so "patent and gross" as to Resolution3 dated August 3, 2012 rendered by the Court
constitute grave abuse of discretion. of Appeals (CA) in CA-G.R. SP No. 109493, finding grave
abuse of discretion on the part of petitioners the
On the foregoing premises and conclusions, this Court Department of Health (DOH) and the Food and Drug
finds it unnecessary to separately discuss Lim's petition- Administration (FDA), then known as the Bureau of Food
in-intervention, which substantially presented the same and Drugs (BFAD), for denying respondent Philip Morris
arguments as Risos-Vidal's petition. Philippines Manufacturing, Inc.s (PMPMI) permit
applications for its tobacco sales promotions.
WHEREFORE, the petition for certiorari and petition-
inintervention are DISMISSED. The Resolution dated April The Facts
1, 2013 of the Commission on Elections, Second Division,
and the Resolution dated April 23, 2013 of the On November 19, 2008, PMPMI, through the advertising
Commission on Elections, En bane, both in SPA No. 13- agency PCN Promopro, Inc. (PCN), by virtue of Article
211 (DC), are AFFIRMED. 1164 of Republic Act No. (RA) 73945 or the Consumer Act
of the Philippines, applied for a sales promotion permit
SO ORDERED. before the BFAD, now the FDA, for its Gear Up
Promotional Activity (Gear Up Promo).6 The application based on the provisions of RA 921112 or the Tobacco
included the mechanics for the promotional activity, as well Regulation Act of 2003.13
as relevant materials and fees.7
On January 19, 2009, PMPMI filed an administrative
With more than fifteen (15) days lapsing without the BFAD appeal14 before the DOH Secretary, assailing the BFADs
formally acting upon the application, PMPMI then inquired denial of its Gear Up Promo application, as well as its
about its status. However, PMPMI was only verbally refusal to accept the Golden Stick Promo application. In its
informed of the existence of a Memorandum issued by the appeal, PMPMI maintained that under RA
DOH purportedly prohibiting tobacco companies from 9211, promotion is not prohibited but
conducting any tobacco promotional activities in the merely restricted, and that while there are specific
country. On January 8, 2009, PCN requested8 the BFAD provisions therein totally banning tobacco advertising and
to formally place on record the lack of any formal action on sponsorships, no similar provision could be found
its Gear Up Promo application.9 banning promotion.15 It likewise averred that it had
acquired a vested right over the granting of its sales
Meanwhile, on November 28, 2008, PMPMI, through promotional permit applications, considering that the
another advertising agency, Arc Worldwide Philippines BFAD has been granting such applications prior to
Co. (AWPC), filed another application for a sales January 5, 2009. Finally, it insisted that the denial of its
promotional permit, this time for its Golden Stick promotional permit applications was tantamount to a
Promotional Activity (Golden Stick Promo) which the violation of its right to due process as well as their right to
BFAD, however, refused outright, pursuant to a directive property.16
of the BFAD Director that all permit applications for
promotional activities of tobacco companies will no longer The DOH Ruling
be accepted. Despite inquiries, the BFAD merely advised
AWPC to await the formal written notice regarding its In a Consolidated Decision17 dated April 30, 2009, then
application.10 DOH Secretary Francisco T. Duque III (Sec. Duque)
denied PMPMIs appeal, as well as all other similar actions
Eventually, in a letter11 dated January 5, 2009, the BFAD, filed by other tobacco companies and thereby affirmed the
through Director IV Leticia Barbara B. Gutierrez, M.S. (Dir. action of the BFAD denying their sales promotional permit
Gutierrez), denied PMPMIs Gear Up Promo application in applications, pursuant to the provisions of RA 9211.18
accordance with the instructions of the Undersecretary of
Health for Standards and Regulations, directing that as of In denying PMPMIs and other tobacco companies
July 1, 2008, all promotions, advertisements and/or promotional applications, the DOH ruled that the issuance
sponsorships of tobacco products are already prohibited, of permits for sales promotional activities was never a
ministerial duty of the BFAD; rather, it was a discretionary
power to be exercised within the confines of the law. petition and nullified the Consolidated Decision of the DOH
Moreover, previous approvals of sales promotional permit upon a finding that the provisions of RA 9211 were clear
applications made by the BFAD did not create a vested when it
right on the part of the tobacco companies to have all distinguished promotion from advertising and sponsorshi
applications approved.19 p, so much so that while the latter two (2) activities were
completely banned as of July 1, 2008, the same does not
The DOH likewise ruled that the intent and purpose of RA hold true with regard to promotion, which was
9211 was to completely ban tobacco only restricted. The CA held that the DOH cannot
advertisements, promotions, and sponsorships, as exercise carte blanche authority to deny PMPMIs
promotion is inherent in both advertising and sponsorship. promotional permit applications, adding that [w]hen the
As such, if RA 9211 completely law is clear and free from any doubt or ambiguity, there is
prohibited advertisements and sponsorships, then it is no room for construction or interpretation, only for
clear that promotion, which is necessarily included in both application.24
activities, is likewise prohibited, explaining further that the
provisions of RA 9211 should not be interpreted in a way Furthermore, it ruled that the DOH is bereft of any authority
as would render them ridiculous or meaningless.20 to enforce the provisions of RA 9211, in view of the
creation of the Inter-Agency CommitteeTobacco (IAC-
Lastly, the DOH cited the Philippines obligation to observe Tobacco) under Section 29 of the said law, which shall
the provisions of the Framework Convention on Tobacco have the exclusive power and function to administer and
Control (FCTC), an international treaty, which has been implement the provisions of [RA 9211] x x x.25 Thus, even
duly ratified and adopted by the country on June 6, 2005. 21 though PMPMI originally applied for sales promotional
permits under Article 116 in relation to Article 109 of RA
Aggrieved, PMPMI elevated the matter to the 7394, from which the DOH derives its authority to regulate
CA via petition for certiorari and mandamus,22docketed tobacco sales promotions, the said provision has already
as CA G.R. SP No. 109493, ascribing grave abuse of been repealed by Section 39 of RA 9211,26 which states:
discretion upon the DOH in refusing to grant its sales
promotional permit applications, maintaining, inter alia, Section 39. Repealing Clause. DOH Administrative
that RA 9211 still allows promotion activities Orders No. 10[,] s. 1993 and No. 24[,] s. 2003 are hereby
notwithstanding the phase-out of advertising and repealed. Article 94 of Republic Act No. 7394, as
sponsorship activities after July 1, 2008. amended, otherwise known as the Consumer Act of the
Philippines, is hereby amended.
The CA Ruling
All other laws, decrees, ordinances, administrative orders,
In a Decision23 dated August 26, 2011, the CA granted the rules and regulations, or any part thereof, which are
inconsistent with this Act are likewise repealed or provisions of RA 7394, i.e., Article 116 in relation to Article
amended accordingly. 109, to wit:

Article 116. Permit to Conduct Promotion. No person


Hence, the CA ruled that the DOH wrongfully arrogated
shall conduct any sales campaigns, including beauty
unto itself the authority given to the IAC-Tobacco to
contest, national in character, sponsored and promoted by
administer and implement the provisions of RA 9211,
manufacturing enterprises without first securing a
which includes regulation of tobacco promotions.27
permit from the concerned department at least thirty
(30) calendar days prior to the commencement thereof.
Dissatisfied, the DOH, through the Office of the Solicitor
Unless an objection or denial is received within fifteen (15)
General (OSG), moved for the reconsideration28 of the
days from filing of the application, the same shall be
said Decision, which the CA denied in a
deemed approved and the promotion campaign or activity
Resolution29 dated August 3, 2012, hence, this petition.
may be conducted: Provided, That any sales promotion
The Issues Before the Court campaign using medical prescriptions or any part thereof
or attachment thereto for raffles or a promise of reward
The essential issues to be resolved are: (a) whether or not shall not be allowed, nor a permit be issued therefor.
the CA erred in finding that the authority of the DOH, (Emphasis supplied)
through the BFAD, to regulate tobacco sales promotions
under Article 116 in relation to Article 109 of RA 7394 had Article 109. Implementing Agency. The Department of
already been impliedly repealed by RA 9211, which Trade and Industry shall enforce the provisions of this
created the IAC-Tobacco and granted upon it the Chapter and its implementing rules and regulations:
exclusive authority to administer and implement the Provided, That with respect to food, drugs, cosmetics,
provisions thereof; and (b) whether or not the CA erred in devices, and hazardous substances, it shall be
ascribing grave abuse of discretion upon the DOH when enforced by the Department of Health. (Emphasis and
the latter held that RA 9211 has also completely prohibited underscoring supplied)
tobacco promotions as of July 1, 2008.
The DOH derives its authority to rule upon applications
The Courts Ruling for sales promotion permits from the above-cited
provisions. On the other hand, Section 29 of RA 9211
The petition is bereft of merit. creating the IAC-Tobacco provides:

At the core of the present controversy are the pertinent Section 29. Implementing Agency. An Inter-Agency
Committee-Tobacco (IAC-Tobacco), which shall have
the exclusive power and function to administer and
implement the provisions of this Act, is hereby created. It is the CAs pronouncement that the creation of the IAC-
The IAC-Tobacco shall be chaired by the Secretary of the Tobacco effectively and impliedly repealed30 the above-
Department of Trade and Industry (DTI) with the Secretary quoted provisions of RA 7394, thereby removing the
of the Department of Health (DOH) as Vice Chairperson. authority of the DOH to rule upon applications for sales
The IAC-Tobacco shall have the following as members: promotional permits filed by tobacco companies such as
those filed by PMPMI subject of this case.
a. Secretary of the Department of Agriculture
(DA); On the other hand, while the DOH and the BFAD concede
b. Secretary of the Department of Justice that the creation of the IAC-Tobacco expressly grants
(DOJ); upon the IAC-Tobacco the exclusive power and function to
c. Secretary of the Department of Finance administer and implement its provisions, they nevertheless
(DOF); maintain that RA 9211 did not remove their authority under
d. Secretary of the Department of Environment RA 7394 to regulate tobacco sales promotions.31 They
and Natural Resources (DENR); point out that this much can be deduced from the lack of
e. Secretary of the Department of Science and provisions in RA 9211 and its implementing rules laying
Technology (DOST); down the procedure for the processing of applications for
f. Secretary of the Department of Education tobacco sales promotions permit.32 As such, the DOH,
(DepEd); through the BFAD, retains the authority to rule on PMPMIs
g. Administrator of the National Tobacco promotional permit applications.
Administration (NTA);
h. A representative from the Tobacco Industry The Court agrees with the CA.
to be nominated by the legitimate and
recognized associations of the industry; and After a meticulous examination of the above-quoted
i. A representative from a nongovernment pertinent provisions of RA 7394 and RA 9211, the Court
organization (NGO) involved in public health finds that the latter law impliedly repealed the relevant
promotion nominated by DOH in provisions of the former with respect to the authority of the
consultation with the concerned NGOs[.] DOH to regulate tobacco sales promotions.

The Department Secretaries may designate their At this point, the Court notes that both laws separately
Undersecretaries as their authorized representative to the treat promotion as one of the activities related to tobacco:
IAC. (Emphasis and underscoring supplied) RA 7394 defines sales promotion under Article 4 (bm),
while RA 9211 speaks of promotion or tobacco
promotion under Section 4 (l). x x x x

Sales promotion is defined in Article 4 (bm) of RA 7394, l. Promotion refers to an event or activity organized
to wit: by or on behalf of a tobacco manufacturer, distributor or
retailer with the aim of promoting a brand of tobacco
Article 4. Definition of Terms. For purposes of this Act, product, which event or activity would not occur but for
the term: the support given to it by or on behalf of the tobacco
manufacturer, distributor or retailer. It may also refer to
x x x x the display of a tobacco product or manufacturers
name, trademark, logo, etc. on non-tobacco products.
bm) Sales Promotion means techniques intended This includes the paid use of tobacco products bearing
for broad consumer participation which contain the brand names, trademarks, logos, etc. in movies,
promises of gain such as prizes, in cash or in kind, television and other forms of entertainment. For the
as reward for the purchase of a product, security, purpose of this Act, promotion shall be understood
service or winning in contest, game, tournament and as tobacco promotion[.] (Emphases and underscoring
other similar competitions which involve determination supplied)
of winner/s and which utilize mass media or other
widespread media of information. It also
As adverted to elsewhere, the IAC-Tobacco shall have the
means techniques purely intended to increase the
exclusive power and function to administer and implement
sales, patronage and/or goodwill of a
the provisions of RA 9211, which includes the conduct of
product. (Emphases and underscoring supplied)
regulating promotion.

Identifying its Gear Up Promo and Golden Stick Promo to The Court has judiciously scrutinized the above definitions
be activities that fall under sales promotion as and finds that there is no substantial difference between
contemplated in the said provision, PMPMI filed its permit the activities that would fall under the purview of sales
applications under Article 116 of RA 7394 before the promotion in RA 7394, as well as those under promotion
BFAD. in RA 9211, as would warrant a delineation in the authority
to regulate its conduct. In fact, the techniques, activities,
Meanwhile, Section 4 (l) of RA 9211 defines promotion and methods mentioned in the definition of sales
as follows: promotion can be subsumed under the more
comprehensive and broad scope of promotion.
Section 4. Definition of Terms. As used in this Act:
In order to fully understand the depth and scope of these
marketing activities, the Court finds it necessary to go and fundamental purpose of these marketing strategies is
beyond the ambit of the definitions provided in our laws. to raise customer awareness in order to increase
consumer demand or sales, drawing a demarcation line
Outside RA 7394, sales promotion refers to activities between promotion and sales promotion as two distinct
which make use of media and non-media marketing and separate activities would be unnecessarily stretching
communication for a pre-determined, limited time to their meanings and, accordingly, sow more confusion.
increase consumer demand, stimulate market demand or Moreover, the techniques, methods, and devices through
improve product availability,33 to provide added value or which sales promotion are usually accomplished can
incentives to consumers, wholesalers, retailers, or other likewise be considered as activities relating to promotion,
organizational customers to stimulate immediate sales like raffle contests, which necessarily require prizes and
and product interest, trial, or purchase. 34 Examples of drawing of winners, discounts, and freebies.
devices used in sales promotion are contests, coupons,
freebies, point-of-purchase displays, premiums, raffle Concomitantly, while the Court acknowledges the attempt
prizes, product samples, sweepstakes, and rebates.35 of the Department of Justice (DOJ), through its DOJ
Opinion No. 29, series of 2004,40 (DOJ Opinion) to
On the other hand, promotion is a term frequently used reconcile and harmonize the apparently conflicting
in marketing which pertains to raising customer provisions of RA 7394 and RA 9211 in this respect, to the
awareness of a product or brand, generating sales, and Courts mind, it is more logical to conclude that sales
creating brand loyalty36 which utilize the following promotion and promotion are actually one and the
subcategories: personal selling, advertising, sales same. The DOJ, in fact, referred41 to product promotion
promotion, direct marketing, and publicity.37 The three in RA 9211 as promotion per se which, therefore, can be
basic objectives of promotion are: (1) to present taken to mean an all-encompassing activity or marketing
information to consumers as well as others; (2) to increase strategy which may reasonably and logically include sales
demand; and (3) to differentiate a product.38 Promotion promotion. Besides, the DOJ Opinion is merely
can be done through various methods, e.g., internet persuasive and not necessarily controlling.42
advertisements, special events, endorsements, incentives
in the purchase of a product like discounts (i.e., coupons), Furthermore, the declared policy of RA 9211 where
free items, or contests.39 promotion is defined includes the institution of a
balanced policy whereby the use, sale and
Consequently, if sales promotion is considered as one of advertisements of tobacco products shall be regulated in
the subcategories of promotion, it is clear, therefore, that order to promote a healthful environment and protect the
promotion necessarily incorporates the activities that fall citizens from the hazards of tobacco smoke x x
under sales promotion. Considering that the common x.43 Hence, if the IAC-Tobacco was created and expressly
given the exclusive authority to implement the provisions sponsorship), are declared null and void, which, as a
of RA 9211 in accordance with the foregoing State policy, necessary consequence, precludes the Court from further
it signifies that it shall also take charge of the regulation of delving on the same. As it stands, the present applications
the use, sale, distribution, and advertisements of tobacco filed by PMPMI are thus remanded to the IAC-Tobacco for
products, as well as all forms of promotion which its appropriate action. Notably, in the proper exercise of its
essentially includes sales promotion. Therefore, with this rule-making authority, nothing precludes the IAC-Tobacco
regulatory power conferred upon the IAC-Tobacco by RA from designating any of its pilot agencies (which, for
9211, the DOH and the BFAD have been effectively and instance, may even be the DOH45) to perform its
impliedly divested of any authority to act upon applications multifarious functions under RA 9211.
for tobacco sales promotional permit, including PMPMIs.
WHEREFORE, the petition is DENIED. The Decision
Finally, it must be stressed that RA 9211 is a special dated August 26, 2011 and the Resolution dated August
legislation which exclusively deals with the subject of 3, 2012 of the Court of Appeals in CA-G.R. SP No. 109493
tobacco products and related activities. On the other hand, are hereby AFFIRMED with the MODIFICATION in that
RA 7394 is broader and more general in scope, and treats the present permit applications filed by respondent Philip
of the general welfare and interests of consumers vis--vis Morris Philippines Manufacturing, Inc. for its tobacco sales
proper conduct for business and industry. As such, lex promotions are hereby REMANDED to the Inter-Agency
specialis derogat generali. General legislation must give Committee-Tobacco for appropriate action.
way to special legislation on the same subject, and SO ORDERED.
generally is so interpreted as to embrace only cases in
which the special provisions are not applicable. In other Republic of the Philippines
words, where two statutes are of equal theoretical SUPREME COURT
application to a particular case, the one specially designed Manila
therefore should prevail.44
FIRST DIVISION
In fine, the Court agrees with the CA that it is the IAC-
Tobacco and not the DOH which has the primary G.R. No. 167290 November 26, 2014
jurisdiction to regulate sales promotion activities as
explained in the foregoing discussion. As such, the DOHs HERMANO OIL MANUFACTURING & SUGAR
ruling, including its construction of RA 9211 (i.e., that CORPORATION, Petitioner,
it completely banned tobacco vs.
advertisements, promotions, and sponsorships, TOLL REGULA TORY BOARD, ENGR. JAIME S.
as promotion is inherent in both advertising and DUMLAO, JR., PHILIPPINE NATIONAL
CONSTRUCTION CORPORATION (PNCC) and easement of right of way, contending that it had been
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS totally deprived of the enjoyment and possession of its
(DPWH), Respondents. property by the access fence that had barred its entry into
and exit from the NLEX. On September 26, 2001,
DECISION however, the TRB denied the petitioner's request,
explaining thusly:
BERSAMIN, J.:
It is with regret that we cannot favorably consider your
The issue to be determined concerns the demand of the client's request at this point in time. Said request is
petitioner to have access to the North Luzon Expressway inconsistent with the provision of Section 7.0 of Republic
(NLEX) by way of an easement of right of way. The Act No. 2000, also known as the Limited Access Highway
demand was rebuffed by the respondents, and upheld by Act. Moreover, allowing easement of right-of-way may
both the trial and appellate courts. have detrimental/adverse effect on the scheduled
rehabilitation and improvement of the North Luzon
The Case Expressway Interchanges, as well as on the operational
problems, i.e. traffic conflicts that may arise, if approved.5
On appeal by review on certiorari is the decision
promulgated on October 27, 2004,1 whereby the Court of Thereafter, the petitioner sued the TRB and Engr. Jaime
Appeals (CA) affirmed the dismissal of the petitioner's S. Dumlao, the TRB's Executive Director, in the
complaint for specific performance by the Regional Trial RTC,6demanding specific performance, the grant of the
Court (RTC) in Malolos, Bulacan, Branch 7, through the easement of right of way and damages (Civil Case No. 37-
order issued on March 6, 2002.2 M-2002). The petitioner amended its complaint to implead
the Philippine National Construction Corporation (PNCC)
Antecedents and the Department of Public Works and Highways
(DPWH) as indispensable parties.7
The petitioner owned a parcel of land located at the right
side of the Sta. Rita Exit of the NLEX situated at Barangay The petitioner alleged in its amended complaint that the
Sta. Rita, Guiguinto, Bulacan and covered by Transfer access fence had totally deprived it of the use and
Certificate of Title (TCT) No. T-134222 in its name issued enjoyment of its property by preventing ingress and egress
by the Registry of Deeds of Bulacan.3 The parcel of land to its property; that the only access leading to its property
was bounded by an access fence along the NLEX. In its was the road network situated in front of its property; that
letter dated September 7, 2001,4 the petitioner requested it was thereby deprived of its property without due process
that respondent Toll Regulatory Board (TRB) grant an of law and just compensation; and that it was also denied
equal protection of the law because adjacent property f) To pay plaintiff the costs of suit.
owners had been given ingress and egress access to their
properties. It prayed that the RTC: Plaintiff further prays for such other reliefs and remedies
as may be deemed just and equitable under the premises.8
1. Immediately issue a writ of preliminary
injunction/temporary restraining order enjoining the Appearing for the TRB, the Office of the Solicitor General
defendants, its agents and/or representatives from (OSG) filed a Motion to Dismiss with Opposition to the
depriving plaintiff to ingress and egress of its Application for the Issuance of Temporary Restraining
property; Order and/or Writ of Preliminary Injunction based on the
following grounds:9
2. After due hearing:
I.
a) Render the foregoing writ of preliminary
injunction perpetual; THE HONORABLE COURT HAS NO JURISDICTION
OVER THE CASE
b) Granting plaintiff a right of way;
II.
c) Declare the condemnation of plaintiff's
property as null and void. Alternatively, THE PETITION ST A TES NO CAUSE OF ACTION
plaintiff prays that defendants be ordered to CONSIDERING THAT: A. PLAINTIFF IS NOT THE REAL
pay plaintiff a just and fair compensation of PARTY IN INTEREST B. EASEMENT WILL NOT LIE
the latter's property in the amount of not less BECAUSE THE LIMITED ACCESS TO THE NORTH
than Four Thousand Pesos (Ps. 4,000.00) LUZON EXPRESSWAY IS ALLOWED UNDER
per square meter; REPUBLIC ACT 2000 C. THE STATE CANNOT BE SUED
WITHOUT ITS CONSENT
d) To pay plaintiff the amount of THREE
HUNDRED THOUSAND PESOS (Ps. III.
300,000.00) and Ps. 5,000.00 per court
appearance by way of Attorney's fees; THE REQUISITES FOR THE ISSUANCE OF
TEMPORARY RESTRAINING ORDER AND/OR WRIT
e) To pay plaintiff Moral and Exemplary OF INJUNCTION ARE NOT PRESENT
Damages in the amount of Ps. 200,000.00;
and IV.
THE COMPLAINT HAS NO LEGAL BASIS, THE prevents ingress to and egress from the subject property,
PROPER REMEDY AVAILABLE IN THIS CASE IS NOT considering further that the other defendants had refused
COMPLAINT BUT A PETITION roR CERTIORARI to grant plaintiff's request for an casement of right of way.
UNDER RULE 65 OF THE RULES OF COURT.
The main objective and prayer of the plaintiff is for this
In its order dated March 6, 2002,10 the RTC granted the court to issue a writ of injunction that will restrain the
motion to dismiss, observing as follows: defendants from depriving it of ingress and egress to its
property in question or to grant to it a right of way to its
The present action against the defendants Toll Regulatory property.
Board and its Executive Director, Engr. Jaime S. Dumlao,
Jr., could be considered as a suit against the state without Suffice it to say that the main relief sought by the plaintiff
its consent as among the reliefs prayed for in the complaint is beyond the jurisdiction of this court to grant as provided
is to require the said defendants to pay, jointly and for under Presidential Decree No. 1818 and Republic Act
severally, a just and reasonable compensation of the No. 8975 which essentially prohibit the courts from issuing
plaintiff's property which, if awarded in the judgment temporary restraining orders and/or writs of injunction
against said defendants, would ultimately involve an against government infrastructure projects, and which
appropriation by the state of the amount needed to pay the expressly declares any such TRO or writ of injunction void
compensation and damages so awarded. Moreover, as under Section 3 of R.A. No. 8975.
pointed out by the defendants-movants, defendant Jaime
S. Dumlao, Jr. is sued in his official capacity so that the In view of all the foregoing, the motion to dismiss is hereby
instant complaint against him is tantamount to a claim GRANTED.
against the state which cannot be sued without its consent.
WHEREFORE, the instant complaint is hereby
This principle applies with equal force as regards new DISMISSED.
defendant Department of Public Works and Highways
(DPWH). SO ORDERED.11

Defendant Philippine National Construction Corporation The petitioner sought reconsideration, but the R TC denied
(PNCC), on the other hand, was impleaded as additional its motion on July 25, 2002.12
defendant being the entity that operates the North Luzon
Expressway and was primarily responsible in depriving the The petitioner appealed.13
plaintiff of the use and enjoyment of its property by reason
of the construction of the access or right of way fence that Judgment of the CA
On October 27, 2004, the CA promulgated its assailed which serves as its access (Records, p. 28). It is settled
judgment, affirming the RTC's dismissal of the complaint, that to be able to demand a compulsory right of way, the
to wit: dominant estate must not have adequate access to a
public highway (Villanueva v Velasco, supra). Plaintiff
The law is clear. Plaintiff-appellant does not deny that the appellant did not complaint about the adequacy of the
NLEX is a limited access facility. Neither did it put forward existing road works.
any reason why it should not be covered by the said law.
Plaintiff-appellant, therefore, cannot expect any court to Also, as pointed out by defendants-appellees, the action
issue a decision in its favor in violation of an existing law. below was one for specific performance which is proper
The Court further notes that plaintiff-appellant skirted this only in case of contractual breach. In the present case,
issue in its pleadings perhaps because it recognizes the plaintiff-appellant cannot claim that defendants-appellees
fact that its prayers in the complaint before the trial court committed a breach of contract because there is precisely
is in violation of the said law. no contract between them.

Moreover, as pointed out by defendants-appellees (Rollo, As to the matter of non-suability, the Court notes that while
p. 19 and 127-128), when plaintiff-appellant acquired the defendant-appellee PNCC is a government owned and
property on December 14, 1999 (See: Records, p. 33), the controlled corporation, the other defendants-appellees are
NLEX was already in existence and as a matter of fact either agencies of the State (DPWH and TRB) or an
Entry No. 189568 in the title indicated that a portion of the employee of a government agency. Plaintiff appellant
property was already sold to the Republic of the argued that the principle of non-suability of the state does
Philippines (See: Dorsal portion, Records, p. 33). It is basic not apply when the government acted in a non-
that a person cannot demand an easement of right of way governmental capacity. The Court, however, notes that
if the isolation of the property was due to owner's own act plaintiff-appellant merely cites cases to this effect but did
(Art. 649, NCC; Villanueva v Velasco, 346 SCRA not put forward any argument why the maintenance of
99[2000]). In the present case, when the plaintiff-appellant NLEX should be considered as a non-governmental
bought the property in 1999, the NLEX was already in function. It cannot be denied that the maintenance of the
existence and so was the access fence. In short, its highways is part of the necessary functions of the
predecessors-in-interest allowed the property to be government of maintaining public infrastructures.
isolated. Plaintiff-appellant is now bound by the acts of its
predecessors-in-interest. Coming now to PNCC although it is not strictly a
government agency, its function is a necessary incident to
Moreover, as admitted by plaintiff-appellant in its amended a government function and, hence, it should likewise enjoy
complaint, there is a road network in front of the property immunity from suit (See: Union Insurance Society qf
Canton, Ltd. v Republic of the Philippines, 46 SCRA 120 THE COURT OF APPEALS COMMITTED A GRAVE
(1972]). ABUSE OF DISCRETION IN DECLARING THAT ENTRY
NO. 189568 IN THE TITLE OF HEREIN PETITIONER
As to the assertion that no expropriation proceeding was WAS ALREADY IN EXISTENCE WHICH SHOWED THAT
taken against the subject property, the Court agrees with EVEN BEFORE THE ACQUISITION OF THE PROPERTY
the PNCC that these arguments were not raised in the IN 1999, THE NLEX WAS ALREADY IN EXISTENCE
Court below and, hence, is no longer proper at this stage. AND SO WAS THE ACCESS FENCE. THUS, ITS
Moreover, the Court notes that the proper party to PREDECESSORS-IN-INTEREST ALLOWED THE
complain against the alleged lack of proper expropriation PROPERTY TO BE ISOLATED.
proceeding is the previous owner, when portion of the
property was sold to the Republic of the Philippines in THIRD
1979.
THE COURT OF APPEALS SERIOUSLY ERRED IN
WHEREFORE, the appealed Order dated March 6, 2002 DECLARING THAT RESPONDENT PNCC, ALTHOUGH
of the Regional Trial Court of Malolos, Bulacan, Branch 7, NOT STRICTLY A GOVERNMENT AGENCY, SHOULD
in Civil Case No. 37-M-2002 is hereby AFFIRMED. LIKEWISE ENJOY IMMUNITY FROM SUIT.15

SO ORDERED.14 The foregoing grounds boil down to the issue of whether


Civil Case No. 37-M-2002 was properly dismissed.
Issues
Ruling
The present appeal is anchored on the following grounds,
namely: We concur with both lower courts.

FIRST In our view, the TRB, Dumlao and the DPWH correctly
invoked the doctrine of sovereign immunity in their favor.
THE DECISION OF THE COURT OF APPEALS IS The TRB and the DPWH performed purely or essentially
REPUGNANT TO THE DUE PROCESS AND EQUAL government or public functions. As such, they were
PROTECTION CLAUSE ENSHRINED IN OUR invested with the inherent power of sovereignty. Being
CONSTITUTION AND PREY AILING JURISPRUDENCE. unincorporated agencies or entities of the National
Government, they could not be sued as such. On his part,
SECOND Dumlao was acting as the agent of the TRB in respect of
the matter concerned.
In Air Transportation Office v. Ramos,16 we expounded on corporation due to its having been created in accordance
the doctrine of sovereign immunity in the following with the Corporation Code, the general corporation
manner: statute.20 More specifically, the PNCC was an acquired
asset corporation under Administrative Order No. 59, and
An unincorporated government agency without any was subject to the regulation and jurisdiction of the
separate juridical personality of its own enjoys immunity Securities and Exchange Commission.21Consequently,
from suit because it is invested with an inherent power of the doctrine of sovereign immunity had no application to
sovereignty. Accordingly, a claim for damages against the the PNCC.
agency cannot prosper; otherwise, the doctrine of
sovereign immunity is violated. However, the need to The foregoing conclusion as to the PNCC notwithstanding,
distinguish between an unincorporated government the Court affirms the dismissal of the complaint due to lack
agency performing governmental function and one of jurisdiction and due to lack of cause of action.
performing proprietary functions has arisen. The immunity
has been upheld in favor of the former because its function It appears that the petitioner's complaint principally sought
is governmental or incidental to such function; it has not to restrain the respondents from implementing an access
been upheld in favor of the latter whose function was not fence on its property, and to direct them to grant it a right
in pursuit of a necessary function of government but was of way to the NLEX. Clearly, the reliefs being sought by
essentially a business. Nonetheless, the petitioner the petitioner were beyond the jurisdiction of the RTC
properly argued that the PNCC, being a private business because no court except the Supreme Court could issue
entity, was not immune from suit. The PNCC was an injunction against an infrastructure project of the
incorporated in 1966 under its original name of Government. This is because Presidential Decree No.
Construction Development Corporation of the Philippines 1818, issued on January 16, 1981, prohibited judges from
(CDCP) for a term of fifty years pursuant to the Corporation issuing restraining orders against government
Code.17 In 1983, the CDCP changed its corporate name to infrastructure projects, stating in its sole provision: "No
the PNCC to reflect the extent of the Government's equity court in the Philippines shall have jurisdiction to issue any
investment in the company, a situation that came about restraining order, preliminary injunction or preliminary
after the government financial institutions converted their order, preliminary mandatory injunction in any case,
loans into equity following the CDCP's inability to pay the dispute or controversy involving an infrastructure project."
loans.18 Hence, the Government owned 90.3% of the Presidential Decree No. 1818 was amended by Republic
equity of the PNCC, and only 9.70% of the PNCC's voting Act No. 8975,22 approved on November 7, 2000, whose
equity remained under private ownership.19 Although the pertinent parts provide:
majority or controlling shares of the PNCC belonged to the
Government, the PNCC was essentially a private
Section 3. Prohibition on the Issuance of Temporary matter is of extreme urgency involving a constitutional
Restrainin;; Orders, Preliminary Injunctions and issue, such that unless a temporary restraining order is
Preliminary Mandatory Injunctions.-No court, except the issued, grave injustice and irreparable injury will arise. The
Supreme Court, shall issue any temporary restraining applicant shall file a bond, in an amount to be fixed by the
order, preliminary injunction or preliminary mandatory court, which bond shall accrue in favor of the government
injunction against the government, or any of its if the court should finally decide that the applicant was not
subdivisions, officials or any person or entity, whether entitled to the relief sought.
public or private, acting under the government's direction,
to restrain, prohibit or compel the following acts: If after due hearing the court finds that the award of the
contract is null and void, the court may, if appropriate
(a) Acquisition, clearance and development of the under the circumstances, award the contract to the
right-of-way and/or site or location of any national qualified and winning bidder or order a rebidding of the
government project; same, without prejudice to any liability that the guilty party
may incur under existing laws.
(b) Bidding or awarding of contract/project of the
national government as defined under Section 2 Section 4. Nullity of Writs and Orders.-Any temporary
hereof; restraining order, preliminary injunction or preliminary
mandatory injunction issued in violation of Section 3
(c) Commencement, prosecution, execution, hereof is void and of no force and effect.
implementation, operation of any such contract or
project; Section 5. Designation of Regional Trial Courts.-The
Supreme Court may designate regional trial courts to act
(d) Termination or rescission of any such as commissioners with the sole function of receiving facts
contract/project; and of the case involving acquisition, clearance and
development of right-of-way for government infrastructure
(e) The undertaking or authorization of any other projects. The designated regional trial comt shall within
lawful activity necessary for such contract/project. thirty (30) days from the date of receipt of the referral,
forward its findings of facts to the Supreme Court for
This prohibition shall apply in all cases, disputes or appropriate action. x x x
controversies instituted by a private party, including but not
limited to cases filed by bidders or those claiming to have As to what was embraced by the term infrastructure project
rights through such bidders involving such as used in Presidential Decree No. 1818, the Court has
contract/project. This prohibition shall not apply when the
ruled in Francisco, Jr. v. UEMMARA Philippines official cannot be prohibited from continuing the execution
Corporation:23 or implementation of such project or pursuing any lawful
activity necessary for such execution or implementation.
PD 1818 proscribes the issuance of a writ of preliminary Undeniably, the collection of toll fees is part of the
injunction in any case involving an infrastructure project of execution or implementation of the MCTEP as agreed
the government. The aim of the prohibition, as expressed upon in the TOA. The TOA is valid since it has not been
in its second whereas clause, is to prevent delay in the nullified. Thus it is a legitimate source of rights and
implementation or execution of government infrastructure obligations. It has the force and effect of law between the
projects (particularly through the use of provisional contracting parties and is entitled to recognition by this
remedies) to the detriment of the greater good since it Court. The MCTEP is an infrastructure project of the
disrupts the pursuit of essential government projects and government forming part of the government capital
frustrates the economic development effort of the nation. investment considering that under the TOA, the
government owns the expressways comprising the
Petitioner argues that the collection of toll fees is not an project. (Emphasis supplied.)
infrastructure project of the government. He cites the
definition of "infrastructure projects" we used in Republic There can be no question that the respondents'
v. Silerio: The term "infrastructure projects" means maintenance of safety measures, including the
"construction, improvement and rehabilitation of roads, establishment of the access fence along the NLEX, was a
and bridges, railways, airports, seaports, communication component of the continuous improvement and
facilities, irrigation, flood control and drainage, water development of the NLEX. Consequently, the lower courts
supply and sewage systems, shore protection, power could not validly restrain the implementation of the access
facilities, national buildings, school buildings, hospital fence by granting the petitioner its right of way without
buildings, and other related construction projects that form exceeding its jurisdiction.
part of the government capital investment."
Nor did the establishment of the access fence violate the
xxxx petitioner's constitutional and legal rights.

The definition of infrastructure projects specifically It is relevant to mention that the access fence was put up
includes the improvement and rehabilitation of roads and pursuant to Republic Act No. 2000 (Limited Access
not just its construction. Accordingly, even if the Coastal Highway Act), the enforcement of which was under the
Road was merely upgraded and not constructed from authority of the DOTC. Clarifying the DOTC's jurisdiction
scratch, it is still covered by the definition. Moreover, PD under this law in Mirasol v. Department of Public Works
1818 itself states that any person, entity or governmental and Highways,24 the Court has said
RA 2000, otherwise known as the Limited Access Highway Limited Access Facilities. However, on 23 July 1979, long
Act, was approved on 22 June 1957. Section 4 of RA 2000 before these department orders and regulations were
provides that "[t]he Department of Public Works and issued, the Ministry of Public Works, Transportation and
Communications is authorized to do so design any limited Communications was divided into two agencies - the
access facility and to so regulate, restrict, or prohibit Ministry of Public Works and the Ministry of Transportation
access as to best serve the traffic for which such facility is and Communications - by virtue of EO 546. The question
intended." The RTC construed this authorization to is, which of these two agencies is now authorized to
regulate, restrict, or prohibit access to limited access regulate, restrict, or prohibit access to limited access
facilities to apply to the Department of Public Works and facilities?
Highways (DPWH).
Under Section 1 of EO 546, the Ministry of Public Works
The RTC's ruling is based on a wrong premise. The RTC (now DPWH) assumed the public works functions of the
assumed that the DPWH derived its authority from its Ministry of Public Works, Transportation and
predecessor, the Department of Public Works and Communications. On the other hand, among the functions
Communications, which is expressly authorized to of the Ministry of Transportation and Communications
regulate, restrict, or prohibit access to limited access (now Department of Transportation and Communications
facilities under Section 4 of RA 2000. However, such [DOTC]) were to (1) formulate and recommend national
assumption fails to consider the evolution of the policies and guidelines for the preparation and
Department of Public Works and Communications. implementation of an integrated and comprehensive
transportation and communications systems at the
xxxx national, regional, and local levels; and (2) regulate,
whenever necessary, activities relative to transportation
Upon the ratification of the 1987 Constitution in February and communications and prescribe and collect fees in the
1987, the former Ministry of Public Works and Highways exercise of such power. Clearly, under EO 546, it is the
became the Department of Public Works and Highways DOTC, not the DPWH, which has authority to regulate,
(DPWH) and the former Ministry of Transportation and restrict, or prohibit access to limited access facilities.
Communications became the Department of
Transportation and Communications (DOTC). Even under Executive Order No. 125 (EO 125) and
Executive Order No. 125-A (EO 125-A), which further
DPWH issued DO 74 and DO 215 declaring certain reorganized the DOTC, the authority to administer and
expressways as limited access facilities on 5 April 1993 enforce all laws, rules and regulations relative to
and 25 June 1998, respectively. Later, the TRB, under the transportation is clearly with the DOTC.
DPWH, issued the Revised Rules and Regulations on
Thus, DO 74 and DO 215 arc void because the DPWH has because it may lack purely theoretical or scientific
no authority to declare certain expressways as limited uniformity.28
access facilities.1wphi1 Under the law, it is the DOTC
which is authorized to administer and enforce all laws, Lastly, the limited access imposed on the petitioner's
rules and regulations in the field of transportation and to property did not partake of a compensable taking due to
regulate related activities. (Emphasis supplied.) the exercise of the power of eminent domain. There is no
question that the property was not taken and devoted for
Moreover, the putting up of the access fence on the public use. Instead, the property was subjected to a certain
petitioner's property was in the valid exercise of police restraint, i.e. the access fence, in order to secure the
power, assailable only upon proof that such putting up general safety and welfare of the motorists using the
unduly violated constitutional limitations like due process NLEX. There being a clear and valid exercise of police
and equal protection of the law.25 In Mirasol v. Department power, the petitioner was certainly not entitled to any just
of Public Works and Highways, the Court has further noted compensation.29
that:
WHEREFORE, the Court DENIES the petition for review
A toll way is not an ordinary road. As a facility designed to on certiorari; AFFIRMS the decision promulgated on
promote the fastest access to certain destinations, its use, October 27, 2004; and ORDERS the petitioner to pay the
operation, and maintenance require close regulation. costs of suit.
Public interest and safety require the imposition of certain
restrictions on toll ways that do not apply to ordinary roads. SO ORDERED.
As a special kind of road, it is but reasonable that not all
forms of transport could use it.26 Republic of the Philippines
SUPREME COURT
Clearly, therefore, the access fence was a reasonable Manila
restriction on the petitioner's property given the location
thereof at the right side of Sta. Rita Exit of the NLEX. EN BANC
Although some adjacent properties were accorded
unrestricted access to the expressway, there was a valid G.R. No. 209287 February 3, 2015
and reasonable classification for doing so because their
owners provided ancillary services to motorists using the MARIA CAROLINA P. ARAULLO, CHAIRPERSON,
NLEX, like gasoline service stations and food stores.27 A BAGONG ALYANSANG MAKABAYAN; JUDY M.
classification based on practical convenience and TAGUIWALO, PROFESSOR, UNIVERSITY OF THE
common knowledge is not unconstitutional simply PHILIPPINES DILIMAN, CO-CHAIRPERSON,
PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS G.R. No. 209136
MOVEMENT; REP. LUZ ILAGAN, GABRIELA
WOMEN'S PARTY REPRESENTATIVE; REP. TERRY L. MANUELITO R. LUNA, Petitioner,
RIDON, KABATAAN PARTYLIST REPRESENTATIVE; vs.
REP. CARLOS ISAGANI ZARATE, BAYAN MUNA SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL
PARTY-LIST REPRESENTATIVE; RENATO M. REYES, CAPACITY AS HEAD OF THE DEPARTMENT OF
JR., SECRETARY GENERAL OF BAYAN; MANUEL K. BUDGET AND MANAGEMENT; AND EXECUTIVE
DAYRIT, CHAIRMAN, ANG KAPATIRAN PARTY; SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL
VENCER MARI E. CRISOSTOMO, CHAIRPERSON, CAPACITY AS ALTER EGO OF THE
ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR, PRESIDENT, Respondents.
YOUTH ACT NOW, Petitioners,
vs. x-----------------------x
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES; PAQUITO N. G.R. No. 209155
OCHOA, JR., EXECUTIVE SECRETARY; AND
FLORENCIO B. ABAD, SECRETARY OF THE ATTY. JOSE MALVAR VILLEGAS, JR. Petitioner
DEPARTMENT OF BUDGET AND vs.
MANAGEMENT, Respondents. THE HONORABLE EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR.; AND THE SECRETARY OF
x-----------------------x BUDGET AND MANAGEMENT FLORENCIO B.
ABAD, Respondents.
G.R. No. 209135
x-----------------------x
AUGUSTO L. SYJUCO JR., Ph.D., Petitioner,
vs. G.R. No. 209164
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE
SECRETARY OF DEPARTMENT OF BUDGET AND PHILIPPINE CONSTITUTION ASSOCIATION
MANAGEMENT; AND HON. FRANKLIN MAGTUNAO (PHILCONSA), REPRESENTED BY DEAN FROILAN M.
DRILON, IN HIS CAPACITY AS THE SENATE BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M.
PRESIDENT OF THE PHILIPPINES, Respondents. BRIONES, Petitioners,
vs.
x-----------------------x DEPARTMENT OF BUDGET AND MANAGEMENT
AND/OR HON. FLORENCIO B. ABAD, Respondents.
x-----------------------x x-----------------------x

G.R. No. 209260 G.R. No. 209517

INTEGRATED BAR OF THE PHILIPPINES CONFEDERATION FOR UNITY, RECOGNITION AND


(IBP), Petitioner, ADVANCEMENT OF GOVERNMENT EMPLOYEES
vs. (COURAGE), REPRESENTED BY ITS 1ST VICE
SECRETARY FLORENCIO B. ABAD OF THE PRESIDENT, SANTIAGO DASMARINAS, JR.;
DEPARTMENT OF BUDGET AND MANAGEMENT ROSALINDA NARTATES, FOR HERSELF AND AS
(DBM), Respondent. NATIONAL PRESIDENT OF THE CONSOLIDATED
UNION OF EMPLOYEES NATIONAL HOUSING
x-----------------------x AUTHORITY (CUE-NHA); MANUEL BACLAGON, FOR
HIMSELF AND AS PRESIDENT OF THE SOCIAL
G.R. No. 209442 WELFARE EMPLOYEES ASSOCIATION OF THE
PHILIPPINES, DEPARTMENT OF SOCIAL WELFARE
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP AND DEVELOPMENT CENTRAL OFFICE (SWEAP-
REUBEN M. ABANTE AND REV. JOSE L. DSWD CO); ANTONIA PASCUAL, FOR HERSELF AND
GONZALEZ,Petitioners, AS NATIONAL PRESIDENT OF THE DEPARTMENT OF
vs. AGRARIAN REFORM EMPLOYEES ASSOCIATION
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE (DAREA); ALBERT MAGALANG, FOR HIMSELF AND
SENATE OF THE PHILIPPINES, REPRESENTED BY AS PRESIDENT OF THE ENVIRONMENT AND
SENATE PRESIDENT FRANKLIN M. DRILON; THE MANAGEMENT BUREAU EMPLOYEES UNION
HOUSE OF REPRESENTATIVES, REPRESENTED BY (EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND
SPEAKER FELICIANO BELMONTE, JR.; THE AS PRESIDENT OF THE KAPISANAN PARA SA
EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE KAGALINGAN NG MGA KAW ANI NG MMDA (KKK-
SECRETARY PAQUITO N. OCHOA, JR.; THE MMDA),Petitioners,
DEPARTMENT OF BUDGET AND MANAGEMENT, vs.
REPRESENTED BY SECRETARY FLORENCIO ABAD; BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
THE DEPARTMENT OF FINANCE, REPRESENTED BY REPUBLIC OF THE PHILIPPINES; PAQUITO OCHOA,
SECRETARY CESAR V. PURISIMA; AND THE JR., EXECUTIVE SECRETARY; AND HON.
BUREAU OF TREASURY, REPRESENTED BY FLORENCIO B. ABAD, SECRETARY OF THE
ROSALIA V. DE LEON, Respondents. DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x I

G.R. No. 209569 WITHOUT AN ACTUAL CASE OR CONTROVERSY,


ALLEGATIONS OF GRAVE ABUSE OF DISCRETION
VOLUNTEERS AGAINST CRIME AND CORRUPTION (V ON THE PART OF ANY INSTRUMENTALITY OF THE
ACC), REPRESENTED BY DANTE L. GOVERNMENT CANNOT CONFER ON THIS
JIMENEZ,Petitioner, HONORABLE COURT THE POWER TO DETERMINE
vs. THE CONSTITUTIONALITY OF THE DAP AND NBC NO.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND 541
FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND II
MANAGEMENT, Respondents.
PETITIONERS ACTIONS DO NOT PRESENT AN
RESOLUTION ACTUAL CASE OR CONTROVERSY AND THEREFORE
THIS HONORABLE COURT DID NOT ACQUIRE
BERSAMIN, J.: JURISDICTION

The Constitution must ever remain supreme. All must bow III
to the mandate of this law. Expediency must not be
allowed to sap its strength nor greed for power debase its PETITIONERS HAVE NEITHER BEEN INJURED NOR
rectitude.1 THREATENED WITH INJURY AS A RESULT OF THE
OPERATION OF THE DAP AND THEREFORE SHOULD
Before the Court are the Motion for Reconsideration2 filed HAVE BEEN HELD TO HAVE NO STANDING TO BRING
by the respondents, and the Motion for Partial THESE SUITS FOR CERTIORARI AND PROHIBITION
Reconsideration3 filed by the petitioners in G.R. No.
209442. IV

In their Motion for Reconsideration, the respondents assail NOR CAN PETITIONERS STANDING BE SUSTAINED
the decision4 promulgated on July 1 2014 upon the ON THE GROUND THAT THEY ARE BRINGING THESE
following procedural and substantive errors, viz: SUITS AS CITIZENS AND AS TAXPAYERS

PROCEDURAL V
THE DECISION OF THIS HONORABLE COURT IS NOT V
BASED ON A CONSIDERATION OF THE ACTUAL
APPLICATIONS OF THE DAP IN 116 CASES BUT THE OPERATIVE FACT DOCTRINE WAS WRONGLY
SOLELY ON AN ABSTRACT CONSIDERATION OF NBC APPLIED6
NO. 5415
The respondents maintain that the issues in these
SUBSTANTIVE consolidated cases were mischaracterized and
unnecessarily constitutionalized; that the Courts
I interpretation of savings can be overturned by legislation
considering that savings is defined in the General
THE EXECUTIVE DEPARTMENT PROPERLY Appropriations Act (GAA), hence making savings a
INTERPRETED "SAVINGS" UNDER THE RELEVANT statutory issue;7 that the withdrawn unobligated allotments
PROVISIONS OF THE GAA and unreleased appropriations constitute savings and may
be used for augmentation;8 and that the Court should
II apply legally recognized norms and principles, most
especially the presumption of good faith, in resolving their
ALL DAP APPLICATIONS HAVE APPROPRIATION motion.9
COVER
On their part, the petitioners in G.R. No. 209442 pray for
III the partial reconsideration of the decision on the ground
that the Court thereby:
THE PRESIDENT HAS AUTHORITY TO TRANSFER
SAVINGS TO OTHER DEPARTMENTS PURSUANT TO FAILED TO DECLARE AS UNCONSTITUTIONAL AND
HIS CONSTITUTIONAL POWERS ILLEGAL ALL MONEYS UNDER THE DISBURSEMENT
ACCELERATION PROGRAM (DAP) USED FOR
IV ALLEGED AUGMENTATION OF APPROPRIATION
ITEMS THAT DID NOT HAVE ACTUAL DEFICIENCIES10
THE 2011, 2012 AND 2013 GAAS ONLY REQUIRE THAT
REVENUE COLLECTIONS FROM EACH SOURCE OF They submit that augmentation of items beyond the
REVENUE ENUMERATED IN THE BUDGET maximum amounts recommended by the President for the
PROPOSAL MUST EXCEED THE CORRESPONDING programs, activities and projects (PAPs) contained in the
REVENUE TARGET budget submitted to Congress should be declared
unconstitutional.
Ruling of the Court separation of power and equal protection. Hence, the
matter is still entirely within the Courts competence, and
We deny the motion for reconsideration of the petitioners its determination does not pertain to Congress to the
in G.R. No. 209442, and partially grant the motion for exclusion of the Court. Indeed, the interpretation of the
reconsideration of the respondents. GAA and its definition of savings is a foremost judicial
function. This is because the power of judicial review
The procedural challenges raised by the respondents, vested in the Court is exclusive. As clarified in Endencia
being a mere rehash of their earlier arguments herein, are and Jugo v. David:12
dismissed for being already passed upon in the assailed
decision. Under our system of constitutional government, the
Legislative department is assigned the power to make and
As to the substantive challenges, the Court discerns that enact laws. The Executive department is charged with the
the grounds are also reiterations of the arguments that execution of carrying out of the provisions of said laws. But
were already thoroughly discussed and passed upon in the interpretation and application of said laws belong
the assailed decision. However, certain declarations in our exclusively to the Judicial department. And this authority
July 1, 2014 Decision are modified in order to clarify to interpret and apply the laws extends to the Constitution.
certain matters and dispel further uncertainty. Before the courts can determine whether a law is
constitutional or not, it will have to interpret and ascertain
1. the meaning not only of said law, but also of the pertinent
portion of the Constitution in order to decide whether there
The Courts power of judicial review is a conflict between the two, because if there is, then the
law will have to give way and has to be declared invalid
The respondents argue that the Executive has not violated and unconstitutional.
the GAA because savings as a conceptis an ordinary
species of interpretation that calls for legislative, instead of xxxx
judicial, determination.11
We have already said that the Legislature under our form
This argument cannot stand. of government is assigned the task and the power to make
and enact laws, but not to interpret them. This is more true
The consolidated petitions distinctly raised the question of with regard to the interpretation of the basic law, the
the constitutionality of the acts and practices under the Constitution, which is not within the sphere of the
DAP, particularly their non-conformity with Section 25(5), Legislative department. If the Legislature may declare
Article VI of the Constitution and the principles of what a law means, or what a specific portion of the
Constitution means, especially after the courts have in construed against expanding the scope of the power to
actual case ascertain its meaning by interpretation and augment.15 Such a strict interpretation is essential in order
applied it in a decision, this would surely cause confusion to keep the Executive and other budget implementors
and instability in judicial processes and court decisions. within the limits of their prerogatives during budget
Under such a system, a final court determination of a case execution, and to prevent them from unduly transgressing
based on a judicial interpretation of the law of the Congress power of the purse.16 Hence, regardless of the
Constitution may be undermined or even annulled by a perceived beneficial purposes of the DAP, and regardless
subsequent and different interpretation of the law or of the of whether the DAP is viewed as an effective tool of
Constitution by the Legislative department. That would be stimulating the national economy, the acts and practices
neither wise nor desirable, besides being clearly violative under the DAP and the relevant provisions of NBC No. 541
of the fundamental, principles of our constitutional system cited in the Decision should remain illegal and
of government, particularly those governing the separation unconstitutional as long as the funds used to finance the
of powers.13 projects mentioned therein are sourced from savings that
deviated from the relevant provisions of the GAA, as well
The respondents cannot also ignore the glaring fact that as the limitation on the power to augment under Section
the petitions primarily and significantly alleged grave 25(5), Article VI of the Constitution. In a society governed
abuse of discretion on the part of the Executive in the by laws, even the best intentions must come within the
implementation of the DAP. The resolution of the petitions parameters defined and set by the Constitution and the
thus demanded the exercise by the Court of its law. Laudable purposes must be carried out through legal
aforedescribed power of judicial review as mandated by methods.17
the Constitution.
Respondents contend, however, that withdrawn
2. unobligated allotments and unreleased appropriations
under the DAP are savings that may be used for
Strict construction on the accumulation and utilization of augmentation, and that the withdrawal of unobligated
savings allotments were made pursuant to Section 38 Chapter 5,
Book VI of the Administrative Code;18 that Section 38 and
The decision of the Court has underscored that the Section 39, Chapter 5, Book VI of the Administrative Code
exercise of the power to augment shall be strictly are consistent with Section 25(5), Article VI of the
construed by virtue of its being an exception to the general Constitution, which, taken together, constitute "a
rule that the funding of PAPs shall be limited to the amount framework for which economic managers of the nation
fixed by Congress for the purpose.14 Necessarily, savings, may pull various levers in the form of authorization from
their utilization and their management will also be strictly Congress to efficiently steer the economy towards the
specific and general purposes of the GAA;" 19 and that the Section 39. Authority to Use Savings in Appropriations to
Presidents augmentation of deficient items is in Cover Deficits.Except as otherwise provided in the
accordance with the standing authority issued by General Appropriations Act, any savings in the regular
Congress through Section 39. appropriations authorized in the General Appropriations
Act for programs and projects of any department, office or
Section 25(5), Article VI of the Constitution states: agency, may, with the approval of the President, be used
to cover a deficit in any other item of the regular
Section 25. x x x x x x x appropriations: Provided, that the creation of new
positions or increase of salaries shall not be allowed to be
5) No law shall be passed authorizing any transfer of funded from budgetary savings except when specifically
appropriations; however, the President, the President of authorized by law: Provided, further, that whenever
the Senate, the Speaker of the House of Representatives, authorized positions are transferred from one program or
the Chief Justice of the Supreme Court, and the heads of project to another within the same department, office or
Constitutional Commissions may, by law, be authorized to agency, the corresponding amounts appropriated for
augment any item in the general appropriations law for personal services are also deemed transferred, without,
their respective offices from savings in other items of their however increasing the total outlay for personal services
respective appropriations. of the department, office or agency concerned. (Bold
underscoring supplied for emphasis)
xxxx
In the Decision, we said that:
Section 38 and Section 39, Chapter 5, Book VI of the
Administrative Code provide: Unobligated allotments, on the other hand, were
encompassed by the first part of the definition of "savings"
Section 38. Suspension of Expenditure of Appropriations. in the GAA, that is, as "portions or balances of any
- Except as otherwise provided in the General programmed appropriation in this Act free from any
Appropriations Act and whenever in his judgment the obligation or encumbrance." But the first part of the
public interest so requires, the President, upon notice to definition was further qualified by the three enumerated
the head of office concerned, is authorized to suspend or instances of when savings would be realized. As such,
otherwise stop further expenditure of funds allotted for any unobligated allotments could not be indiscriminately
agency, or any other expenditure authorized in the declared as savings without first determining whether any
General Appropriations Act, except for personal services of the three instances existed. This signified that the
appropriations used for permanent officials and DBMs withdrawal of unobligated allotments had
employees. disregarded the definition of savings under the GAAs.
xxxx 5.7.2 Realigned to cover additional funding for other
existing programs and projects of the agency/OU; or
The respondents rely on Section 38, Chapter 5, Book VI
of the Administrative Code of 1987 to justify the withdrawal 5.7.3 Used to augment existing programs and projects of
of unobligated allotments. But the provision authorized any agency and to fund priority programs and projects not
only the suspension or stoppage of further expenditures, considered in the 2012 budget but expected to be started
not the withdrawal of unobligated allotments, to wit: or implemented during the current year.

xxxx Although the withdrawal of unobligated allotments may


have effectively resulted in the suspension or stoppage of
Moreover, the DBM did not suspend or stop further expenditures through the issuance of negative Special
expenditures in accordance with Section 38, supra, but Allotment Release Orders (SARO), the reissuance of
instead transferred the funds to other PAPs.20 withdrawn allotments to the original programs and projects
is a clear indication that the program or project from which
We now clarify. the allotments were withdrawn has not been discontinued
or abandoned. Consequently, as we have pointed out in
Section 38 refers to the authority of the President "to the Decision, "the purpose for which the withdrawn funds
suspend or otherwise stop further expenditure of funds had been appropriated was not yet fulfilled, or did not yet
allotted for any agency, or any other expenditure cease to exist, rendering the declaration of the funds as
authorized in the General Appropriations Act." When the savings impossible."21 In this regard, the withdrawal and
President suspends or stops expenditure of funds, savings transfer of unobligated allotments remain unconstitutional.
are not automatically generated until it has been But then, whether the withdrawn allotments have actually
established that such funds or appropriations are free from been reissued to their original programs or projects is a
any obligation or encumbrance, and that the work, activity factual matter determinable by the proper tribunal.
or purpose for which the appropriation is authorized has
been completed, discontinued or abandoned. Also, withdrawals of unobligated allotments pursuant to
NBC No. 541 which shortened the availability of
It is necessary to reiterate that under Section 5.7 of NBC appropriations for MOOE and capital outlays, and those
No. 541, the withdrawn unobligated allotments may be: which were transferred to PAPs that were not determined
to be deficient, are still constitutionally infirm and invalid.
5.7.1 Reissued for the original programs and projects of
the agencies/OUs concerned, from which the allotments At this point, it is likewise important to underscore that the
were withdrawn; reversion to the General Fund of unexpended balances of
appropriations savings included pursuant to Section 28 mandate of the Constitution but especially as regards the
Chapter IV, Book VI of the Administrative Code22 does not Supreme Court, of the independence and separation of
apply to the Constitutional Fiscal Autonomy Group powers upon which the entire fabric of our constitutional
(CFAG), which include the Judiciary, Civil Service system is based. x x x23
Commission, Commission on Audit, Commission on
Elections, Commission on Human Rights, and the Office On the other hand, Section 39 is evidently in conflict with
of the Ombudsman. The reason for this is that the fiscal the plain text of Section 25(5), Article VI of the Constitution
autonomy enjoyed by the CFAG because it allows the President to approve the use of any
savings in the regular appropriations authorized in the
x x x contemplates a guarantee of full flexibility to allocate GAA for programs and projects of any department, office
and utilize their resources with the wisdom and dispatch or agency to cover a deficit in any other item of the regular
that their needs require. It recognizes the power and appropriations. As such, Section 39 violates the mandate
authority to levy, assess and collect fees, fix rates of of Section 25(5) because the latter expressly limits the
compensation not exceeding the highest rates authorized authority of the President to augment an item in the GAA
by law for compensation and pay plans of the government to only those in his own Department out of the savings in
and allocate and disburse such sums as may be provided other items of his own Departments appropriations.
by law or prescribed by them in the course of the discharge Accordingly, Section 39 cannot serve as a valid authority
of their functions. to justify cross-border transfers under the DAP.
Augmentations under the DAP which are made by the
Fiscal autonomy means freedom from outside control. If Executive within its department shall, however, remain
the Supreme Court says it needs 100 typewriters but DBM valid so long as the requisites under Section 25(5) are
rules we need only 10 typewriters and sends its complied with.
recommendations to Congress without even informing us,
the autonomy given by the Constitution becomes an empty In this connection, the respondents must always be
and illusory platitude. reminded that the Constitution is the basic law to which all
laws must conform. No act that conflicts with the
The Judiciary, the Constitutional Commissions, and the Constitution can be valid.24 In Mutuc v. Commission on
Ombudsman must have the independence and flexibility Elections,25therefore, we have emphasized the
needed in the discharge of their constitutional duties. The importance of recognizing and bowing to the supremacy of
imposition of restrictions and constraints on the manner the Constitution:
the independent constitutional offices allocate and utilize
the funds appropriated for their operations is anathema to x x x The concept of the Constitution as the fundamental
fiscal autonomy and violative not only of the express law, setting forth the criterion for the validity of any public
act whether proceeding from the highest official or the what may be the tides of time. It cannot be simply made to
lowest functionary, is a postulate of our system of sway and accommodate the call of situations and much
government. That is to manifest fealty to the rule of law, more tailor itself to the whims and caprices of government
with priority accorded to that which occupies the topmost and the people who run it.27
rung in the legal hierarchy. The three departments of
government in the discharge of the functions with which it 3.
is [sic] entrusted have no choice but to yield obedience to
its commands. Whatever limits it imposes must be The power to augment cannot be used to fund non-
observed. Congress in the enactment of statutes must existent provisions in the GAA
ever be on guard lest the restrictions on its authority,
whether substantive or formal, be transcended. The The respondents posit that the Court has erroneously
Presidency in the execution of the laws cannot ignore or invalidated all the DAP-funded projects by overlooking the
disregard what it ordains. In its task of applying the law to difference between an item and an allotment class, and by
the facts as found in deciding cases, the judiciary is called concluding that they do not have appropriation cover; and
upon to maintain inviolate what is decreed by the that such error may induce Congress and the Executive
fundamental law. Even its power of judicial review to pass (through the DBM) to ensure that all items should have at
upon the validity of the acts of the coordinate branches in least P1 funding in order to allow augmentation by the
the course of adjudication is a logical corollary of this basic President.28
principle that the Constitution is paramount. It overrides
any governmental measure that fails to live up to its At the outset, we allay the respondents apprehension
mandates. Thereby there is a recognition of its being the regarding the validity of the DAP funded projects. It is to
supreme law. be emphatically indicated that the Decision did not declare
the en masse invalidation of the 116 DAP-funded projects.
Also, in Biraogo v. Philippine Truth Commission of To be sure, the Court recognized the encouraging effects
2010,26 we have reminded that: The role of the of the DAP on the countrys economy,29 and
Constitution cannot be overlooked. It is through the acknowledged its laudable purposes, most especially
Constitution that the fundamental powers of government those directed towards infrastructure development and
are established, limited and defined, and by which these efficient delivery of basic social services.30 It bears
powers are distributed among the several departments. repeating that the DAP is a policy instrument that the
The Constitution is the basic and paramount law to which Executive, by its own prerogative, may utilize to spur
all other laws must conform and to which all persons, economic growth and development.
including the highest officials of the land, must defer.
Constitutional doctrines must remain steadfast no matter
Nonetheless, the Decision did find doubtful those projects Supreme Court characterized an item of appropriation as
that appeared to have no appropriation cover under the follows:
relevant GAAs on the basis that: (1) the DAP funded
projects that originally did not contain any appropriation for An item of an appropriation bill obviously means an item
some of the expense categories (personnel, MOOE and which, in itself, is a specific appropriation of money, not
capital outlay); and (2) the appropriation code and the some general provision of law which happens to be put
particulars appearing in the SARO did not correspond with into an appropriation bill. (Emphases supplied)
the program specified in the GAA. The respondents
assert, however, that there is no constitutional requirement On this premise, it may be concluded that an appropriation
for Congress to create allotment classes within an item. bill, to ensure that the President may be able to exercise
What is required is for Congress to create items to comply his power of item veto, must contain "specific
with the line-item veto of the President.31 appropriations of money" and notonly "general provisions"
which provide for parameters of appropriation.
After a careful reexamination of existing laws and
jurisprudence, we find merit in the respondents argument. Further, it is significant to point out that an item of
appropriation must be an item characterized by singular
Indeed, Section 25(5) of the 1987 Constitution mentions of correspondence meaning an allocation of a specified
the term item that may be the object of augmentation by singular amount for a specified singular purpose,
the President, the Senate President, the Speaker of the otherwise known as a "line-item." This treatment not only
House, the Chief Justice, and the heads of the allows the item to be consistent with its definition as a
Constitutional Commissions. In Belgica v. Ochoa,32 we "specific appropriation of money" but also ensures that the
said that an item that is the distinct and several part of the President may discernibly veto the same. Based on the
appropriation bill, in line with the item-veto power of the foregoing formulation, the existing Calamity Fund,
President, must contain "specific appropriations of money" Contingent Fund and the Intelligence Fund, being
and not be only general provisions, thus: appropriations which state a specified amount for a
specific purpose, would then be considered as "line-item"
For the President to exercise his item-veto power, it appropriations which are rightfully subject to item veto.
necessarily follows that there exists a proper "item" which Likewise, it must be observed that an appropriation may
may be the object of the veto. An item, as defined in the be validly apportioned into component percentages or
field of appropriations, pertains to "the particulars, the values; however, it is crucial that each percentage or value
details, the distinct and severable parts of the must be allocated for its own corresponding purpose for
appropriation or of the bill." In the case of Bengzon v. such component to be considered as a proper line-item.
Secretary of Justice of the Philippine Islands, the US Moreover, as Justice Carpio correctly pointed out, a valid
appropriation may even have several related purposes Nonetheless, this modified interpretation does not take
that are by accounting and budgeting practice considered away the cave at that only DAP projects found in the
as one purpose, e.g., MOOE (maintenance and other appropriate GAAs may be the subject of augmentation by
operating expenses), in which case the related purposes legally accumulated savings. Whether or not the 116 DAP-
shall be deemed sufficiently specific for the exercise of the funded projects had appropriation cover and were validly
Presidents item veto power. Finally, special purpose augmented require factual determination that is not within
funds and discretionary funds would equally square with the scope of the present consolidated petitions under Rule
the constitutional mechanism of item-veto for as long as 65.
they follow the rule on singular correspondence as herein
discussed. x x x (Emphasis supplied)33 4.

Accordingly, the item referred to by Section 25(5) of the Cross-border transfers are constitutionally impermissible
Constitution is the last and indivisible purpose of a
program in the appropriation law, which is distinct from the The respondents assail the pronouncement of
expense category or allotment class. There is no unconstitutionality of cross-border transfers made by the
specificity, indeed, either in the Constitution or in the President. They submit that Section 25(5), Article VI of the
relevant GAAs that the object of augmentation should be Constitution prohibits only the transfer of appropriation, not
the expense category or allotment class. In the same vein, savings. They relate that cross-border transfers have been
the President cannot exercise his veto power over an the practice in the past, being consistent with the
expense category; he may only veto the item to which that Presidents role as the Chief Executive.35
expense category belongs to.
In view of the clarity of the text of Section 25(5), however,
Further, in Nazareth v. Villar,34 we clarified that there must the Court stands by its pronouncement, and will not brook
be an existing item, project or activity, purpose or object of any strained interpretations.
expenditure with an appropriation to which savings may be
transferred for the purpose of augmentation. Accordingly, 5.
so long as there is an item in the GAA for which Congress
had set aside a specified amount of public fund, savings Unprogrammed funds may only be released upon proof
may be transferred thereto for augmentation purposes. that the total revenues exceeded the target
This interpretation is consistent not only with the
Constitution and the GAAs, but also with the degree of Based on the 2011, 2012 and 2013 GAAs, the
flexibility allowed to the Executive during budget execution respondents contend that each source of revenue in the
in responding to unforeseeable contingencies. budget proposal must exceed the respective target to
authorize release of unprogrammed funds. Accordingly, performance in terms of the agencys budget utilization as
the Courts ruling thereon nullified the intention of the provided in Book VI, Chapter 6, Section 51 and Section 52
authors of the unprogrammed fund, and renders useless of the Administrative Code of 1987,which state:
the special provisions in the relevant GAAs.36
SECTION 51. Evaluation of Agency Performance.The
The respondents contentions are without merit. President, through the Secretary shall evaluate on a
continuing basis the quantitative and qualitative measures
To recall, the respondents justified the use of of agency performance as reflected in the units of work
unprogrammed funds by submitting certifications from the measurement and other indicators of agency
Bureau of Treasury and the Department of Finance (DOF) performance, including the standard and actual costs per
regarding the dividends derived from the shares of stock unit of work.
held by the Government in government-owned and
controlled corporations.37 In the decision, the Court has SECTION 52. Budget Monitoring and Information
held that the requirement under the relevant GAAs should System.The Secretary of Budget shall determine
be construed in light of the purpose for which the accounting and other items of information, financial or
unprogrammed funds were denominated as "standby otherwise, needed to monitor budget performance and to
appropriations." Hence, revenue targets should be assess effectiveness of agencies operations and shall
considered as a whole, not individually; otherwise, we prescribe the forms, schedule of submission, and other
would be dealing with artificial revenue surpluses. We components of reporting systems, including the
have even cautioned that the release of unprogrammed maintenance of subsidiary and other records which will
funds based on the respondents position could be enable agencies to accomplish and submit said
unsound fiscal management for disregarding the budget information requirements: Provided, that the Commission
plan and fostering budget deficits, contrary to the on Audit shall, in coordination with the Secretary of
Governments surplus budget policy.38 Budget, issue rules and regulations that may be applicable
when the reporting requirements affect accounting
While we maintain the position that aggregate revenue functions of agencies: Provided, further, that the
collection must first exceed aggregate revenue target as a applicable rules and regulations shall be issued by the
pre-requisite to the use of unprogrammed funds, we clarify Commission on Audit within a period of thirty (30) days
the respondents notion that the release of unprogrammed after the Department of Budget and Management
funds may only occur at the end of the fiscal year. prescribes the reporting requirements.

There must be consistent monitoring as a component of Pursuant to the foregoing, the Department of Budget and
the budget accountability phase of every agencys Management (DBM) and the Commission on Audit (COA)
require agencies under various joint circulars to submit However, the Courts construction of the provision on
budget and financial accountability reports (BFAR) on a unprogrammed funds is a statutory, not a constitutional,
regular basis,39 one of which is the Quarterly Report of interpretation of an ambiguous phrase. Thus, the
Income or Quarterly Report of Revenue and Other construction should be given prospective effect.44
Receipts.40 On the other hand, as Justice Carpio points
out in his Separate Opinion, the Development Budget 6.
Coordination Committee (DBCC) sets quarterly revenue
targets for aspecific fiscal year.41 Since information on The presumption of good faith stands despite the obiter
both actual revenue collections and targets are made pronouncement
available every quarter, or at such time as the DBM may
prescribe, actual revenue surplus may be determined The remaining concern involves the application of the
accordingly and eleases from the unprogrammed fund operative fact doctrine.
may take place even prior to the end of the fiscal year.42
The respondents decry the misapplication of the operative
In fact, the eleventh special provision for unprogrammed fact doctrine, stating:
funds in the 2011 GAA requires the DBM to submit
quarterly reports stating the details of the use and releases 110. The doctrine of operative fact has nothing to do with
from the unprogrammed funds, viz: the potential liability of persons who acted pursuant to a
then-constitutional statute, order, or practice. They are
11. Reportorial Requirement. The DBM shall submit to the presumed to have acted in good faith and the court cannot
House Committee on Appropriations and the Senate load the dice, so to speak, by disabling possible defenses
Committee on Finance separate quarterly reports stating in potential suits against so-called "authors, proponents
the releases from the Unprogrammed Fund, the amounts and implementors." The mere nullification are still deemed
released and purposes thereof, and the recipient valid on the theory that judicial nullification is a contingent
departments, bureaus, agencies or offices, GOCCs and or unforeseen event.
GFIs, including the authority under which the funds are
released under Special Provision No. 1 of the 111. The cases before us are about the statutory and
Unprogrammed Fund. constitutional interpretations of so-called acts and
practices under a government program, DAP. These are
Similar provisions are contained in the 2012 and 2013 not civil, administrative, or criminal actions against the
GAAs.43 public officials responsible for DAP, and any statement
about bad faith may be unfairly and maliciously exploited
for political ends. At the same time, any negation of the
presumption of good faith, which is the unfortunate The paragraphs 3 and 4 of page 90 of the Decision alluded
implication of paragraphs 3 and 4 of page 90 of the to by the respondents read:
Decision, violates the constitutional presumption of
innocence, and is inconsistent with the Honorable Courts Nonetheless, as Justice Brion has pointed out during the
recognition that "the implementation of the DAP yielded deliberations, the doctrine of operative fact does not
undeniably positive results that enhanced the economic always apply, and is not always the consequence of every
welfare of the country." declaration of constitutional invalidity. It can be invoked
only in situations where the nullification of the effects of
112. The policy behind the operative fact doctrine is what used to be a valid law would result in inequity and
consistent with the idea that regardless of the nullification injustice; but where no such result would ensue, the
of certain acts and practices under the DAP and/or NBC general rule that an unconstitutional law is totally
No. 541, it does not operate to impute bad faith to authors, ineffective should apply.
proponents and implementors who continue to enjoy the
presumption of innocence and regularity in the In that context, as Justice Brion has clarified, the doctrine
performance of official functions and duties. Good faith is of operative fact can apply only to the PAPs that can no
presumed, whereas bad faith requires the existence of longer be undone, and whose beneficiaries relied in good
facts. To hold otherwise would send a chilling effect to all faith on the validity of the DAP, but cannot apply to the
public officers whether of minimal or significant discretion, authors, proponents and implementors of the DAP, unless
the result of which would be a dangerous paralysis of there are concrete findings of good faith in their favor by
bureaucratic activity.45 (Emphasis supplied) the proper tribunals determining their criminal, civil,
administrative and other liabilities.48 (Bold underscoring is
In the speech he delivered on July 14, 2014, President supplied)
Aquino III also expressed the view that in applying the
doctrine of operative fact, the Court has already presumed The quoted text of paragraphs 3 and 4 shows that the
the absence of good faith on the part of the authors, Court has neither thrown out the presumption of good faith
proponents and implementors of the DAP, so that they nor imputed bad faith to the authors, proponents and
would have to prove good faith during trial.46 implementors of the DAP. The contrary is true, because
the Court has still presumed their good faith by pointing
Hence, in their Motion for Reconsideration, the out that "the doctrine of operative fact xxx cannot apply to
respondents now urge that the Court should extend the the authors, proponents and implementors of the DAP,
presumption of good faith in favor of the President and his unless there are concrete findings of good faith in their
officials who co-authored, proposed or implemented the favor by the proper tribunals determining their criminal,
DAP.47 civil, administrative and other liabilities." Note that the
proper tribunals can make "concrete findings of good faith amounting to bad faith. "Bad faith" does not simply
in their favor" only after a full hearing of all the parties in connote bad moral judgment or negligence. There must be
any given case, and such a hearing can begin to proceed some dishonest purpose or some moral obliquity and
only after according all the presumptions, particularly that conscious doing of a wrong, a breach of a sworn duty
of good faith, by initially requiring the complainants, through some motive or intent or ill will. It partakes of the
plaintiffs or accusers to first establish their complaints or nature of fraud. It contemplates a state of mind
charges before the respondent authors, proponents and affirmatively operating with furtive design or some motive
implementors of the DAP. of self-interest or ill will for ulterior purposes.

It is equally important to stress that the ascertainment of The law also requires that the public officers action
good faith, or the lack of it, and the determination of caused undue injury to any party, including the
whether or not due diligence and prudence were government, or gave any private party unwarranted
exercised, are questions of fact.49 The want of good faith benefits, advantage or preference in the discharge of his
is thus better determined by tribunals other than this Court, functions. x x x
which is not a trier of facts.50
The Court has further explained in Philippine Agila
For sure, the Court cannot jettison the presumption of Satellite, Inc. v. Trinidad-Lichauco: 54
good faith in this or in any other case.1wphi1 The
presumption is a matter of law. It has had a long history. We do not doubt the existence of the presumptions of
Indeed, good faith has long been established as a legal "good faith" or "regular performance of official duty", yet
principle even in the heydays of the Roman Empire. 51In these presumptions are disputable and may be
Soriano v. Marcelo,52 citing Collantes v. Marcelo,53 the contradicted and overcome by other evidence. Many civil
Court emphasizes the necessity of the presumption of actions are oriented towards overcoming any number of
good faith, thus: these presumptions, and a cause of action can certainly
be geared towards such effect. The very purpose of trial is
Well-settled is the rule that good faith is always presumed to allow a party to present evidence to overcome the
and the Chapter on Human Relations of the Civil Code disputable presumptions involved. Otherwise, if trial is
directs every person, inter alia, to observe good faith which deemed irrelevant or unnecessary, owing to the perceived
springs from the fountain of good conscience. Specifically, indisputability of the presumptions, the judicial exercise
a public officer is presumed to have acted in good faith in would be relegated to a mere ascertainment of what
the performance of his duties. Mistakes committed by a presumptions apply in a given case, nothing more.
public officer are not actionable absent any clear showing Consequently, the entire Rules of Court is rendered as
that they were motivated by malice or gross negligence
excess verbiage, save perhaps for the provisions laying impact of nullifying these projects by virtue alone of the
down the legal presumptions. invalidation of certain acts and practices under the DAP,
the Court has upheld the efficacy of such DAP-funded
Relevantly, the authors, proponents and implementors of projects by applying the operative fact doctrine. For this
the DAP, being public officers, further enjoy the reason, we cannot sustain the Motion for Partial
presumption of regularity in the performance of their Reconsideration of the petitioners in G.R. No. 209442.
functions. This presumption is necessary because they
are clothed with some part of the sovereignty of the State, IN VIEW OF THE FOREGOING, and SUBJECT TO THE
and because they act in the interest of the public as FOREGOING CLARIFICATIONS, the Court PARTIALLY
required by law.55 However, the presumption may be GRANTS the Motion for Reconsideration filed by the
disputed.56 respondents, and DENIES the Motion for Partial
Reconsideration filed by the petitioners in G.R. No.
At any rate, the Court has agreed during its deliberations 209442 for lack of merit.
to extend to the proponents and implementors of the DAP
the benefit of the doctrine of operative fact. This is because ACCORDINGLY, the dispositive portion of the Decision
they had nothing to do at all with the adoption of the invalid promulgated on July 1, 2014 is hereby MODIFIED as
acts and practices. follows:

7. WHEREFORE, the Court PARTIALLY GRANTS the


petitions for certiorari and prohibition; and DECLARES the
The PAPs under the DAP remain effective under the following acts and practices under the Disbursement
operative fact doctrine Acceleration Program, National Budget Circular No. 541
and related executive issuances UNCONSTITUTIONAL
As a general rule, the nullification of an unconstitutional for being in violation of Section 25(5), Article VI of the 1987
law or act carries with it the illegality of its effects. Constitution and the doctrine of separation of powers,
However, in cases where nullification of the effects will namely:
result in inequity and injustice, the operative fact doctrine
may apply.57In so ruling, the Court has essentially (a) The withdrawal of unobligated allotments from
recognized the impact on the beneficiaries and the country the implementing agencies, and the declaration of
as a whole if its ruling would pave the way for the the withdrawn unobligated allotments and
nullification of the P144.378 Billions58 worth of unreleased appropriations as savings prior to the
infrastructure projects, social and economic services end of the fiscal year without complying with the
funded through the DAP. Bearing in mind the disastrous
statutory definition of savings contained in the funds will be used.2chanroblesvirtuallawlibrary
General Appropriations Acts; and
Petitioner Rolly Mijares (Mijares) prays for the issuance of
(b) The cross-border transfers of the savings of the a writ of mandamus in order to compel this court to
Executive to augment the appropriations of other exercise its judicial independence and fiscal autonomy
offices outside the Executive. against the perceived hostility of
Congress.3chanroblesvirtuallawlibrary
The Court further DECLARES VOID the use of
unprogrammed funds despite the absence of a This matter was raised to this court through the
certification by the National Treasurer that the revenue letter4 dated August 27, 2014, signed by Mijares and
collections exceeded the revenue targets for non- addressed to the Chief Justice and the Associate Justices
compliance with the conditions provided in the relevant of the Supreme Court. The letter is
General Appropriations Acts. captioned:chanRoblesvirtualLawlibrary
Petition for Mandamus with Manifestation to invoke the
SO ORDERED. Judicial Independence and Fiscal Autonomy as mandated
under the Constitution5
UDK-15143, January 21, 2015 The letter was referred to the Clerk of Court En Banc for
appropriate action.6 It was then docketed as UDK-
IN THE MATTER OF: SAVE THE SUPREME COURT 15143.7chanroblesvirtuallawlibrary
JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY
MOVEMENT v. ABOLITION OF JUDICIARY In the letter-petition, Mijares alleges that he is a Filipino
DEVELOPMENT FUND (JDF) AND REDUCTION OF citizen, and a concerned taxpayer[.]8 He filed this petition
FISCAL AUTONOMY. as part of his continuing crusade to defend and uphold the
Constitution9 because he believes in the rule of law.10 He
RESOLUTION is concerned about the threats against the judiciary after
this court promulgated Priority Development Assistance
LEONEN, J.: Fund11 case on November 19, 2013 and Disbursement
Acceleration Program12 case on July 1, 2014.
This case involves the proposed bills abolishing the
Judiciary Development Fund1 and replacing it with the The complaint implied that certain acts of members of
Judiciary Support Fund. Funds collected from the Congress and the President after the promulgation of
proposed Judiciary Support Fund shall be remitted to the these cases show a threat to judicial independence.
national treasury and Congress shall determine how the
In the first week of July 2014, Ilocos Norte Representative hopes for your careful deliberation and response. And I
Rodolfo Farias filed House Bill No. 4690, which would hope that once youve examined the arguments I will
require this court to remit its Judiciary Development Fund submit, regarding the law and about our economy,
collections to the national solidarity will ensuethus strengthening the entire
treasury.13chanroblesvirtuallawlibrary governments capability to push for the interests of the
nation.15
A week later, or on July 14, 2014, Iloilo Representative Niel The issue for resolution is whether petitioner Rolly Mijares
Tupas, Jr., filed House Bill No. 4738 entitled The Act has sufficiently shown grounds for this court to grant the
Creating the Judicial Support Fund (JSF) under the petition and issue a writ of mandamus.
National Treasury, repealing for the purpose Presidential
Decree No. 1949.14chanroblesvirtuallawlibrary Petitioner argues that Congress gravely abused its
discretion with a blatant usurpation of judicial
On the same day, President Benigno Simeon C. Aquino III independence and fiscal autonomy of the Supreme
addressed the nation:chanRoblesvirtualLawlibrary Court.16chanroblesvirtuallawlibrary
My message to the Supreme Court: We do not want two
equal branches of government to go head to head, Petitioner points out that Congress is exercising its power
needing a third branch to step in to intervene. We find it in an arbitrary and despotic manner by reason of passion
difficult to understand your decision. You had done or personal hostility by abolishing the Judiciary
something similar in the past, and you tried to do it again; Development Fund (JDF) of the Supreme
there are even those of the opinion that what you Court.17chanroblesvirtuallawlibrary
attempted to commit was graver, if we were to base it on
your decision. Abiding by the principle of presumption of With regard to his prayer for the issuance of the writ of
regularity, we assumed that you did the right thing; after mandamus, petitioner avers that Congress should not act
all, you are the ones who should ostensibly have a better as wreckers of the law18 by threatening to clip the
understanding of the law. And now, when we use the same powers of the High Tribunal[.]19Congress committed a
mechanismwhich, you yourselves have admitted, blunder of monumental proportions20 when it reduced
benefit our countrymenwhy is it then that we are wrong? the judiciarys 2015 budget.21chanroblesvirtuallawlibrary
We believe that the majority of you, like us, want only the Petitioner prays that this court exercise its powers to
best for the Filipino people. To the honorable justices of REVOKE/ABROGATE and EXPUNGE whatever
the Supreme Court: Help us help our countrymen. We ask irreconcilable contravention of existing laws affecting the
that you review your decision, this time taking into judicial independence and fiscal autonomy as mandated
consideration the points I have raised tonight. The nation under the Constitution to better serve public interest and
general welfare of the
people. chanroblesvirtuallawlibrary
22 Article VIII, Section 1 of the Constitution provides
that:chanRoblesvirtualLawlibrary
This court resolves to deny the petition. ARTICLE VIII

The power of judicial review, like all powers granted by the Judicial Department
Constitution, is subject to certain limitations. Petitioner
must comply with all the requisites for judicial review Section 1. The judicial power shall be vested in one
before this court may take cognizance of the case. The Supreme Court and in such lower courts as may be
requisites are:chanRoblesvirtualLawlibrary established by law.
(1) there must be an actual case or controversy calling for
the exercise of judicial power; Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
(2) the person challenging the act must have the standing legally demandable and enforceable, and to determine
to question the validity of the subject act or issuance; whether or not there has been a grave abuse of discretion
otherwise stated, he must have a personal and amounting to lack or excess of jurisdiction on the part of
substantial interest in the case such that he has any branch or instrumentality of the Government.
sustained, or will sustain, direct injury as a result of its (Emphasis supplied)
enforcement; One of the requirements for this court to exercise its power
of judicial review is the existence of an actual controversy.
(3) the question of constitutionality must be raised at the This means that there must be an existing case or
earliest opportunity; and controversy that is appropriate or ripe for determination,
not conjectural or anticipatory, lest the decision of the court
(4) the issue of constitutionality must be the very lis mota of would amount to an advisory opinion.24 As emphasized
the case.23 by this court in Information Technology Foundation of the
Petitioners failure to comply with the first two requisites Phils. v. Commission on Elections:25
warrants the outright dismissal of this petition. It is well-established in this jurisdiction that . . . for a court
to exercise its power of adjudication, there must be an
I
actual case or controversy one which involves a conflict
of legal rights, an assertion of opposite legal claims
The petition does not comply with the requisites of
susceptible of judicial resolution; the case must not be
judicial review
moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. . . .
No actual case or controversy
[C]ourts do not sit to adjudicate mere academic questions power should generally be reserved when the
to satisfy scholarly interest, however intellectually departments have exhausted any and all acts that would
challenging. The controversy must be justiciable remedy any perceived violation of right. The rationale that
definite and concrete, touching on the legal relations of defines the extent of our doctrines laying down exceptions
parties having adverse legal interests. In other words, the to our rules on justiciability are clear: Not only should the
pleadings must show an active antagonistic assertion of a pleadings show a convincing violation of a right, but the
legal right, on the one hand, and a denial thereof on the impact should be shown to be so grave, imminent, and
other; that is, it must concern a real and not a merely irreparable that any delayed exercise of judicial review or
theoretical question or issue. There ought to be an actual deference would undermine fundamental principles that
and substantial controversy admitting of specific relief should be enjoyed by the party complaining or the
through a decree conclusive in nature, as distinguished constituents that they legitimately represent.27 (Emphasis
from an opinion advising what the law would be upon a supplied)
hypothetical state of facts.26 The reason for this requirement was explained in Angara
For this court to rule on constitutional issues, there must v. Electoral Commission:28
first be a justiciable controversy. Pleadings before this Any attempt at abstraction could only lead to dialectics and
court must show a violation of an existing legal right or a barren legal questions and to sterile conclusions unrelated
controversy that is ripe for judicial determination. In the to actualities. Narrowed as its function is in this manner,
concurring opinion in Belgica v. the judiciary does not pass upon questions of wisdom,
Ochoa:chanRoblesvirtualLawlibrary justice or expediency of legislation. More than that, courts
Basic in litigation raising constitutional issues is the accord the presumption of constitutionality to legislative
requirement that there must be an actual case or enactments, not only because the legislature is presumed
controversy. This Court cannot render an advisory opinion. to abide by the Constitution but also because the judiciary
We assume that the Constitution binds all other in the determination of actual cases and controversies
constitutional departments, instrumentalities, and organs. must reflect the wisdom and justice of the people as
We are aware that in the exercise of their various powers, expressed through their representatives in the executive
they do interpret the text of the Constitution in the light of and legislative departments of the government.29
contemporary needs that they should address. A policy Petitioners allegations show that he wants this court to
that reduces this Court to an adviser for official acts by the strike down the proposed bills abolishing the Judiciary
other departments that have not yet been done would Development Fund. This court, however, must act only
unnecessarily tax our resources. It is inconsistent with our within its powers granted under the Constitution. This court
role as final arbiter and adjudicator and weakens the entire is not empowered to review proposed bills because a bill
system of the Rule of Law. Our power of judicial review is is not a law.
a duty to make a final and binding construction of law. This
Montesclaros v. COMELEC30 involved the postponement act of Congress. The power of judicial review cannot be
of the 2002 Sangguniang Kabataan Elections and the exercised in vacuo. . . .
lowering of the age requirement in the Sangguniang
Kabataan to at least 15 but not more than 18 years of . . . .
age.31 Montesclaros and other parties filed a petition for
certiorari, prohibition, and mandamus with prayer for the Thus, there can be no justiciable controversy involving the
issuance of a temporary restraining order.32 One of the constitutionality of a proposed bill. The Court can exercise
reliefs prayed for was:chanRoblesvirtualLawlibrary its power of judicial review only after a law is enacted, not
a) To prevent, annul or declare unconstitutional any law, before.
decree, Comelec resolution/directive and other
respondents issuances, orders and actions and the like in Under the separation of powers, the Court cannot restrain
postponing the May 6, 2002 SK elections.33 Congress from passing any law, or from setting into motion
This court held that:chanRoblesvirtualLawlibrary the legislative mill according to its internal rules. Thus, the
. . . petitioners instituted this petition to: (1) compel public following acts of Congress in the exercise of its legislative
respondents to hold the SK elections on May 6, 2002 and powers are not subject to judicial restraint: the filing of bills
should it be postponed, the SK elections should be held by members of Congress, the approval of bills by each
not later than July 15, 2002; (2) prevent public chamber of Congress, the reconciliation by the Bicameral
respondents from passing laws and issuing resolutions Committee of approved bills, and the eventual approval
and orders that would lower the membership age in the into law of the reconciled bills by each chamber of
SK. . . . 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
Petitioners prayer to prevent Congress from enacting into of Congress.
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 . . . To do so would destroy the delicate system of checks
duty legally enforceable by the Court. A proposed bill, and balances finely crafted by the Constitution for the
having no legal effect, violates no constitutional right or three co-equal, coordinate and independent branches of
duty. The Court has no power to declare a proposed bill government.34 (Emphasis supplied, citations omitted)
constitutional or unconstitutional because that would be in Similar to Montesclaros, petitioner is asking this court to
the nature of rendering an advisory opinion on a proposed stop Congress from passing laws that will abolish the
Judiciary Development Fund. This court has explained suits. Here, the plaintiff who asserts a public right in
that the filing of bills is within the legislative power of assailing an allegedly illegal official action, does so as a
Congress and is not subject to judicial restraint[.]35 A representative of the general public. He may be a person
proposed bill produces no legal effects until it is passed who is affected no differently from any other person. He
into law. Under the Constitution, the judiciary is mandated could be suing as a stranger, or in the category of a
to interpret laws. It cannot speculate on the citizen, or taxpayer. In either case, he has to adequately
constitutionality or unconstitutionality of a bill that show that he is entitled to seek judicial protection. In other
Congress may or may not pass. It cannot rule on mere words, he has to make out a sufficient interest in the
speculations or issues that are not ripe for judicial vindication of the public order and the securing of relief as
determination.36 The petition, therefore, does not present a citizen or taxpayer.
any actual case or controversy that is ripe for this courts
determination. . . . .

Petitioner has no legal standing This Court adopted the direct injury test in our
jurisdiction. In People v. Vera, it held that the person who
Even assuming that there is an actual case or controversy impugns the validity of a statute must have a personal and
that this court must resolve, petitioner has no legal substantial interest in the case such that he has sustained,
standing to question the validity of the proposed bill. The or will sustain direct injury as a result. The Vera doctrine
rule on legal standing has been discussed in David v. was upheld in a litany of cases, such as, Custodio v.
Macapagal-Arroyo:37 President of the Senate, Manila Race Horse Trainers
Locus standi is defined as a right of appearance in a court Association v. De la Fuente, Pascual v. Secretary of Public
of justice on a given question. In private suits, standing is Works and Anti-Chinese League of the Philippines v.
governed by the real-parties-in interest rule as contained Felix.38
in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, Petitioner has not shown that he has sustained or will
as amended. It provides that every action must be sustain a direct injury if the proposed bill is passed into
prosecuted or defended in the name of the real party in law. While his concern for judicial independence is
interest. Accordingly, the real-party-in interest is the laudable, it does not, by itself, clothe him with the requisite
party who stands to be benefited or injured by the standing to question the constitutionality of a proposed bill
judgment in the suit or the party entitled to the avails of the that may only affect the judiciary.
suit. Succinctly put, the plaintiffs standing is based on his
own right to the relief sought. This court, however, has occasionally relaxed the rules on
standing when the issues involved are of transcendental
The difficulty of determining locus standi arises in public
importance to the public. Specifically, this court has stated In addition to the determinants in Francisco, it must also
that:chanRoblesvirtualLawlibrary be shown that there is a clear or imminent threat to
the rule on standing is a matter of procedure, hence, can fundamental rights. In an opinion in Imbong v. Ochoa:43
be relaxed for nontraditional plaintiffs like ordinary citizens, The Responsible Parenthood and Reproductive Health
taxpayers, and legislators when the public interest so Act of 2012 should not be declared unconstitutional in
requires, such as when the matter is of transcendental whole or in any of its parts given the petitions filed in this
importance, of overreaching significance to society, or of case.
paramount public interest.39
Transcendental importance is not defined in our None of the petitions properly present an actual case or
jurisprudence, thus, in Francisco v. House of controversy, which deserves the exercise of our
Representatives:40 awesome power of judicial review. It is our duty not to rule
There being no doctrinal definition of transcendental on the abstract and speculative issues barren of actual
importance, the following instructive determinants facts. These consolidated petitions, which contain bare
formulated by former Supreme Court Justice Florentino P. allegations, do not provide the proper venue to decide on
Feliciano are instructive: (1) the character of the funds or fundamental issues. The law in question is needed social
other assets involved in the case; (2) the presence of a legislation.
clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or That we rule on these special civil actions for certiorari and
instrumentality of the government; and (3) the lack of any prohibition which amounts to a pre-enforcement free-
other party with a more direct and specific interest in wheeling facial review of the statute and the implementing
raising the questions being raised.41 rules and regulations is very bad precedent. The issues
are far from justiciable. Petitioners claim in their class suits
A mere invocation of transcendental importance in the that they entirely represent a whole religion, the Filipino
pleading is not enough for this court to set aside nation and, worse, all the unborn. The intervenors also
procedural rules:chanRoblesvirtualLawlibrary claim the same representation: Filipinos and Catholics.
Whether an issue is of transcendental importance is a Many of the petitions also sue the President of the
matter determined by this court on a case-to-case basis. Republic.
An allegation of transcendental importance must be
supported by the proper allegations.42 We should apply our rules rigorously and dismiss these
None of the determinants in Francisco are present in this cases. The transcendental importance of the issues they
case. The events feared by petitioner are merely want us to decide will be better served when we wait for
speculative and conjectural. the proper cases with the proper parties suffering real,
actual or more imminent injury. There is no showing of an
injury so great and so imminent that we cannot wait for petitioner, and to pay the damages sustained by the
these cases.44 (Emphasis supplied) petitioner by reason of the wrongful acts of the respondent.
The events feared by petitioner are contingent on the
passing of the proposed bill in Congress. The threat of The petition shall also contain a sworn certification of non-
imminent injury is not yet manifest since there is no forum shopping as provided in the third paragraph of
guarantee that the bill will even be passed into law. There section 3, Rule 46.cralawred
is no transcendental interest in this case to justify the The writ of mandamus will issue when the act sought to be
relaxation of technical rules. performed is ministerial.45 An act is ministerial when it
does not require the exercise of judgment and the act is
II performed in compliance with a legal mandate.46 In a
petition for mandamus, the burden of proof is on petitioner
Requisites for the issuance of a writ of mandamus not to show that one is entitled to the performance of a legal
shown right and that respondent has a corresponding duty to
perform the act.47 Mandamus will not lie to compel an
Rule 65, Section 3 of the 1997 Rules of Civil Procedure official to do anything which is not his duty to do or which
provides that:chanRoblesvirtualLawlibrary it is his duty not to do, or to give to the applicant anything
Rule 65 to which he is not entitled by
law.48chanroblesvirtuallawlibrary
CERTIORARI, PROHIBITION AND MANDAMUS
In this case, petitioner has not shown how he is entitled to
SEC. 3. Petition for mandamus. When any tribunal, the relief prayed for. Hence, this court cannot be
corporation, board, officer or person unlawfully neglects compelled to exercise its power of judicial review since
the performance of an act which the law specifically there is no actual case or controversy.
enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and Final note
enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate The judiciary is the weakest branch of government. It is
remedy in the ordinary course of law, the person aggrieved true that courts have power to declare what law is given a
thereby may file a verified petition in the proper court, set of facts, but it does not have an army to enforce its
alleging the facts with certainty and praying that judgment writs. Courts do not have the power of the purse. Except
be rendered commanding the respondent, immediately or for a constitutional provision that requires that the budget
at some other time to be specified by the court, to do the of the judiciary should not go below the appropriation for
act required to be done to protect the rights of the the previous year, it is beholden to the Congress
depending on how low the budget Sharia Circuit
is. chanroblesvirtuallawlibrary
49 51 P45,883.68
Courts
These amounts were arrived at using the following
Despite being the third co-equal branch of the computation:chanRoblesvirtualLawlibrary
government, the judiciary enjoys less than 1%50 of the total Number
budget for the national government. Specifically, it was a x MOOE
of Courts
mere 0.82% in 2014,51 0.85% in 2013,52 0.83% in -------------
2012,53 and 0.83% in 2011.54chanroblesvirtuallawlibrary -------------
-
Maintenance and Other Operating Expenses or MOOE Total
pays for sundry matters such as utility payments, paper, Number / 12
gasoline and others.55 The MOOE granted to the lower of Courts
courts in 2014 was P1,220,905,000.00.56 While this might -------------------------------
seem like a large amount, the amount significantly -------------------------------
dwindles when divided among all lower courts in the -----------------------
country. Per the 2014 General Appropriations Act (GAA), Number of Courts
the approximate monthly MOOE for all courts are In comparison, the 2014 MOOE allocation for the House
estimated as follows:chanRoblesvirtualLawlibrary of Representatives was P3,386,439,000.0058or about
Estimated P282.2 million per month for the maintenance and
Type of Court Number of Courts57 Monthly MOOE operation of the House of Representatives compound in
Per Court Batasan Hills. Even if this amount was divided equally
Regional Trial among the 234 legislative districts, a representatives
969 P46,408.67
Courts office space would still have a monthly MOOE allocation
Metropolitan of approximately P1.2 million, which is significantly higher
106 P46,071.89 than the average P46,000.00 allocated monthly to each
Trial Courts
Municipal Trial trial court.
229 P46,206.01
Courts in Cities
Municipal Circuit It was only in 2013 that the budget allocated to the judiciary
468 P46,305.69 included an item for the construction, rehabilitation, and
Trial Courts
repair of the halls of justice in the capital outlay. The
Municipal Trial
366 P46,423.30 amount allocated was P1
Courts
million.59chanroblesvirtuallawlibrary
Sharia District
5 P40,696.83
Courts
In 2014, there was no item for the construction, government units that provide additional subsidy to our
rehabilitation, and repair of the halls of justice. 60 This judges.65 If not, the budget for the construction, repair, and
allocation would have been used to help fund the repair of rehabilitation of halls of justice is with the Department of
existing halls of justice and the construction of new halls Justice.66chanroblesvirtuallawlibrary
of justice in the entire country, including those courts
destroyed by Typhoon Yolanda and the 2013 earthquake. As a result, our fiscal autonomy and judicial independence
are often undermined by low levels of budgetary outlay,
The entire budget for the judiciary, however, does not only the lack of provision for maintenance and operating
come from the national government. The Constitution expenses, and the reliance on local government units and
grants fiscal autonomy to the judiciary to maintain its the Department of Justice.
independence.61 In Bengzon v. Drilon:62
The Judiciary, the Constitutional Commissions, and the Courts are not constitutionally built to do political lobbying.
Ombudsman must have the independence and flexibility By constitutional design, it is a co-equal department to the
needed in the discharge of their constitutional duties. The Congress and the Executive. By temperament, our
imposition of restrictions and constraints on the manner arguments are legal, not political. We are best when we
the independent constitutional offices allocate and utilize lay down all our premises in the finding of facts,
the funds appropriated for their operations is anathema to interpretation of the law and understanding of precedents.
fiscal autonomy and violative not only of the express We are not trained to produce a political statement or a
mandate of the Constitution but especially as regards the media release.67chanroblesvirtuallawlibrary
Supreme Court, of the independence and separation of
powers upon which the entire fabric of our constitutional Because of the nature of courts, that is that it has to
system is based.63 decide in favor of one party, we may not have a political
Courts, therefore, must also be accountable with their own base. Certainly, we should not even consider building a
budget. The Judiciary Development Fund, used to political base. All we have is an abiding faith that we should
augment the expenses of the judiciary, is regularly do what we could to ensure that the Rule of Law prevails.
accounted for by this court on a quarterly basis. The It seems that we have no champions when it comes to
financial reports are readily available at the Supreme ensuring the material basis for fiscal autonomy or judicial
Court website.64chanroblesvirtuallawlibrary independence.68chanroblesvirtuallawlibrary

These funds, however, are still not enough to meet the For this reason, we appreciate petitioners concern for the
expenses of lower courts and guarantee credible judiciary. It is often only through the vigilance of private
compensation for their personnel. The reality is that halls citizens that issues relating to the judiciary can be
of justice exist because we rely on the generosity of local discussed in the political sphere. Unfortunately, the
remedy he seeks cannot be granted by this court. But his "The Philippines is a democratic and republican State.
crusade is not a lost cause. Considering that what he Sovereignty resides in the people and all government
seeks to be struck down is a proposed bill, it would be authority emanates from them." Article II, Section 1,
better for him to air his concerns by lobbying in Congress. Constitution
There, he may discover the representatives and senators
who may have a similar enthusiastic response to truly All governmental authority emanates from our people. No
making the needed investments in the Rule of Law. unreasonable restrictions of the fundamental and
preferred right to expression of the electorate during
WHEREFORE, the petition is DISMISSED. political contests no matter how seemingly benign will be
tolerated.
SO ORDERED.
This case defines the extent that our people may shape
the debates during elections. It is significant and of first
Republic of the Philippines impression. We are asked to decide whether the
SUPREME COURT Commission on Elections (COMELEC) has the
Manila competence to limit expressions made by the citizens
who are not candidates during elections.
EN BANC
Before us is a special civil action for certiorari and
G.R. No. 205728 January 21, 2015 prohibition with application for preliminary injunction and
temporary restraining order1 under Rule 65 of the Rules of
THE DIOCESE OF BACOLOD, REPRESENTED BY THE Court seeking to nullify COMELECs Notice to Remove
MOST REV. BISHOP VICENTE M. NAVARRA and THE Campaign Materials2 dated February 22, 2013 and
BISHOP HIMSELF IN HIS PERSONAL letter3 issued on February 27, 2013.
CAPACITY, Petitioners,
vs. The facts are not disputed.
COMMISSION ON ELECTIONS AND THE ELECTION
OFFICER OF BACOLOD CITY, ATTY. MAVIL V. On February 21, 2013, petitioners posted two (2)
MAJARUCON, Respondents. tarpaulins within a private compound housing the San
Sebastian Cathedral of Bacolod. Each tarpaulin was
DECISION approximately six feet (6') by ten feet (10') in size. They
were posted on the front walls of the cathedral within public
LEONEN, J.: view. The first tarpaulin contains the message "IBASURA
RH Law" referring to the Reproductive Health Law of 2012 candidate. Petitioners also conceded that the tarpaulin
or Republic Act No. 10354. The second tarpaulin is the contains names ofcandidates for the 2013 elections, but
subject of the present case.4 This tarpaulin contains the not of politicians who helped in the passage of the RH Law
heading "Conscience Vote" and lists candidates as either but were not candidates for that election.
"(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH)
Team Patay" with an "X" mark.5 The electoral candidates On February 22, 2013, respondent Atty. Mavil V.
were classified according to their vote on the adoption of Majarucon, in her capacity as Election Officer of Bacolod
Republic Act No. 10354, otherwise known as the RH City, issued a Notice to Remove Campaign
Law.6Those who voted for the passing of the law were Materials8 addressed to petitioner Most Rev. Bishop
classified by petitioners as comprising "Team Patay," Vicente M. Navarra. The election officer ordered the
while those who voted against it form "Team Buhay": 7 tarpaulins removal within three (3) days from receipt for
being oversized. COMELEC Resolution No. 9615 provides
TEAM BUHAY TEAM PATAY for the size requirement of two feet (2) by three feet (3).9

Estrada, JV Angara, Juan Edgardo On February 25, 2013, petitioners replied10 requesting,
Honasan, Gregorio Casio, Teddy among others, that (1) petitioner Bishop be given a definite
ruling by COMELEC Law Department regarding the
Magsaysay, Mitos Cayetano, Alan Peter tarpaulin; and (2) pending this opinion and the availment
of legal remedies, the tarpaulin be allowed to remain.11
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis On February 27, 2013, COMELEC Law Department
issued a letter12 ordering the immediate removal of the
Villar, Cynthia Hontiveros, Risa
tarpaulin; otherwise, it will be constrained to file an election
Party List Buhay Legarda, Loren offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to
Party List Ang Pamilya Party List Gabriela petitioners. The letter provides as follows:
Party List Akbayan
Dear Bishop Navarra:
Party List Bayan Muna
Party List Anak Pawis It has reached this Office that our Election Officer for this
City, Atty. Mavil Majarucon, had already given you notice
on February 22, 2013 as regards the election propaganda
During oral arguments, respondents conceded that the
material posted on the church vicinity promoting for or
tarpaulin was neither sponsored nor paid for by any
against the candidates and party-list groups with the conduct of peaceful, orderly, honest and credible
following names and messages, particularly described as elections.
follows:
Thank you and God Bless!
Material size : six feet (6) by ten feet (10)
[signed]
Description : FULL COLOR TARPAULIN ATTY. ESMERALDA AMORA-LADRA
Director IV13
Image of : SEE ATTACHED PICTURES
Concerned about the imminent threatof prosecution for
Message : CONSCIENCE VOTE (ANTI RH) their exercise of free speech, petitioners initiated this case
TEAM through this petition for certiorari and prohibition with
application for preliminary injunction and temporary
BUHAY; (PRO RH) TEAM PATAY restraining order.14 They question respondents notice
dated February 22, 2013 and letter issued on February 27,
Location : POSTED ON THE CHURCH 2013. They pray that: (1) the petition be given due course;
VICINITY (2) a temporary restraining order (TRO) and/or a writ of
OF THE DIOCESE OF BACOLOD CITY preliminary injunction be issued restraining respondents
from further proceeding in enforcing their orders for the
The three (3) day notice expired on February 25, 2013. removal of the Team Patay tarpaulin; and (3) after notice
and hearing, a decision be rendered declaring the
Considering that the above-mentioned material is found to questioned orders of respondents as unconstitutional and
be in violation of Comelec Resolution No. 9615 void, and permanently restraining respondents from
promulgated on January 15, 2013 particularly on the size enforcing them or any other similar order.15
(even with the subsequent division of the said tarpaulin
into two), as the lawful size for election propaganda After due deliberation, this court, on March 5, 2013, issued
material is only two feet (2) by three feet (3), please a temporary restraining order enjoining respondents from
order/cause the immediate removal of said election enforcing the assailed notice and letter, and set oral
propaganda material, otherwise, we shall be constrained arguments on March 19, 2013.16
to file an election offense case against you.
On March 13, 2013, respondents filed their
We pray that the Catholic Church will be the first institution comment17 arguing that (1) a petition for certiorari and
to help the Commission on Elections inensuring the prohibition under Rule 65 of the Rules of Court filed before
this court is not the proper remedy to question the notice B. ASSUMING ARGUENDO THAT THE
and letter of respondents; and (2) the tarpaulin is an AFOREMENTIONED ORDERS ARE NOT
election propaganda subject to regulation by COMELEC CONSIDERED JUDGMENTS/FINAL
pursuant to its mandate under Article IX-C, Section 4 of ORDERS/RESOLUTIONS OF THE
the Constitution. Hence, respondents claim that the COMELEC, WHETHER THERE ARE
issuances ordering its removal for being oversized are EXCEPTIONAL CIRCUMSTANCES
valid and constitutional.18 WHICH WOULD ALLOW THIS COURT TO
TAKE COGNIZANCE OF THE CASE[;]
During the hearing held on March 19, 2013, the parties
were directed to file their respective memoranda within 10 II.
days or by April 1, 2013, taking into consideration the
intervening holidays.19 WHETHER IT IS RELEVANT TODETERMINE
WHETHER THE TARPAULINS ARE "POLITICAL
The issues, which also served as guide for the oral ADVERTISEMENT" OR "ELECTION PROPAGANDA"
arguments, are:20 CONSIDERING THAT PETITIONER IS NOT A
POLITICAL CANDIDATE[;]
I.
III.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER
BY ELECTION OFFICER MAJARUCON AND THE 27 WHETHER THE TARPAULINS ARE A FORM OR
FEBRUARY 2013 ORDER BY THE COMELEC LAW EXPRESSION (PROTECTED SPEECH), OR ELECTION
DEPARTMENT ARE CONSIDERED PROPAGANDA/POLITICAL ADVERTISEMENT[;]
JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC WHICH WOULD WARRANT A REVIEW OF A. ASSUMING ARGUENDO THAT THE
THIS COURT VIA RULE 65 PETITION[;] TARPAULINS ARE A FORM OF
EXPRESSION, WHETHER THE COMELEC
A. WHETHER PETITIONERS VIOLATED POSSESSES THE AUTHORITY TO
THE HIERARCHY OF COURTS REGULATE THE SAME[;]
DOCTRINE AND JURISPRUDENTIAL
RULES GOVERNING APPEALS FROM B. WHETHER THIS FORM OF
COMELEC DECISIONS; EXPRESSION MAY BE REGULATED[;]

IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER Respondents contend that the assailed notice and letter
BY ELECTION OFFICER MAJARUCON AND THE 27 are not subject to review by this court, whose power to
FEBRUARY 2013 ORDER BY THE COMELEC LAW review is "limited only to final decisions, rulings and orders
DEPARTMENT VIOLATES THE PRINCIPLE OF of the COMELEC En Banc rendered in the exercise of its
SEPARATION OF CHURCH AND STATE[;] [AND] adjudicatory or quasi-judicial power."23 Instead,
respondents claim that the assailed notice and letter are
V. reviewable only by COMELEC itself pursuant to Article IX-
C, Section 2(3) of the Constitution24 on COMELECs
WHETHER THE ACTION OF THE PETITIONERS IN power to decide all questions affecting
POSTING ITS TARPAULIN VIOLATES THE elections.25 Respondents invoke the cases of Ambil, Jr. v.
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
CHURCH AND STATE. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is
I limited to final decisions, orders, rulings and judgments of
PROCEDURAL ISSUES the COMELEC En Banc.31

I.A These cases are not applicable.

This courts jurisdiction over COMELEC cases In Ambil, Jr. v. COMELEC, the losing party in the
gubernatorial race of Eastern Samar filed the election
Respondents ask that this petition be dismissed on the protest.32 At issue was the validity of the promulgation of a
ground that the notice and letter are not final orders, COMELEC Division resolution.33 No motion for
decisions, rulings, or judgments of the COMELEC En reconsideration was filed to raise this issue before the
Banc issued in the exercise of its adjudicatory powers, COMELEC En Banc. This court declared that it did not
reviewable via Rule 64 of the Rules of Court.21 have jurisdiction and clarified:

Rule 64 is not the exclusive remedy for all acts of the We have interpreted [Section 7, Article IX-A of the
COMELEC. Rule 65 is applicable especially to raise Constitution]34 to mean final orders, rulings and
objections relating to a grave abuse of discretion resulting decisionsof the COMELEC rendered in the exercise of its
in the ouster of jurisdiction.22 As a special civil action, there adjudicatory or quasi-judicial powers." This decision must
must also be a showing that there be no plain, speedy, and be a final decision or resolution of the Comelec en banc,
adequate remedy in the ordinary course of the law. not of a division, certainly not an interlocutory order of a
division.The Supreme Court has no power to review
viacertiorari, an interlocutory order or even a final 2) The issue involves a principle of social justice;
resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted) 3) The issue involves the protection of labor;

However, in the next case cited by respondents, Repol v. 4) The decision or resolution sought tobe set aside
COMELEC, this court provided exceptions to this general is a nullity; or
rule. Repolwas another election protest case, involving the
mayoralty elections in Pagsanghan, Samar.36 This time, 5) The need for relief is extremely urgent and
the case was brought to this court because the COMELEC certiorari is the only adequate and speedy remedy
First Division issued a status quo ante order against the available.
Regional Trial Court executing its decision pending
appeal.37 This courts ponencia discussed the general rule Ultimately, this court took jurisdiction in Repoland decided
enunciated in Ambil, Jr. that it cannot take jurisdiction to that the status quo anteorder issued by the COMELEC
review interlocutory orders of a COMELEC Division was unconstitutional.
38
Division. However, consistent with ABS-CBN
Broadcasting Corporation v. COMELEC,39 it clarified the Respondents also cite Soriano, Jr. v. COMELEC.This
exception: case was also an election protest case involving
candidates for the city council of Muntinlupa
This Court, however, has ruled in the past that this City.41 Petitioners in Soriano, Jr.filed before this court a
procedural requirement [of filing a motion for petition for certiorari against an interlocutory order of the
reconsideration] may be glossed over to prevent COMELEC First
miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when Division.42 While the petition was pending in this court, the
the decision or resolution sought to be set aside is a nullity, COMELEC First Division dismissed the main election
or when the need for relief is extremely urgent and protest case.43 Sorianoapplied the general rule that only
certiorari is the only adequate and speedy remedy final orders should be questioned with this court. The
available.40 ponencia for this court, however, acknowledged the
exceptions to the general rule in ABS-CBN.44
Based on ABS-CBN, this court could review orders and
decisions of COMELEC in electoral contests despite Blanco v. COMELEC, another case cited by respondents,
not being reviewed by the COMELEC En Banc, if: was a disqualification case of one of the mayoralty
candidates of Meycauayan, Bulacan.45 The COMELEC
1) It will prevent the miscarriage of justice; Second Division ruled that petitioner could not qualify for
the 2007 elections due to the findings in an administrative When it issued the notice and letter, the COMELEC was
case that he engaged in vote buying in the 1995 allegedly enforcingelection laws.
elections.46No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took I.B
cognizance of this case applying one of the exceptions in
ABS-CBN: The assailed resolution was a nullity.47 Rule 65, grave abuse of discretion,

Finally, respondents cited Cayetano v. COMELEC, a and limitations on political speech


recent election protest case involving the mayoralty
candidates of Taguig City.48 Petitioner assailed a The main subject of thiscase is an alleged constitutional
resolution of the COMELEC denying her motion for violation: the infringement on speech and the "chilling
reconsideration to dismiss the election protest petition for effect" caused by respondent COMELECs notice and
lack of form and substance.49 This court clarified the letter.
general rule and refused to take cognizance of the review
of the COMELEC order. While recognizing the exceptions Petitioners allege that respondents committed grave
in ABS-CBN, this court ruled that these exceptions did not abuse of discretion amounting to lack or excess of
apply.50 jurisdiction in issuing the notice51 dated February 22,2013
and letter52 dated February 27, 2013 ordering the removal
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited of the tarpaulin.53 It is their position that these infringe on
by respondents do not operate as precedents to oust this their fundamental right to freedom of expression and
court from taking jurisdiction over this case. All these violate the principle of separation of church and state and,
cases cited involve election protests or disqualification thus, are unconstitutional.54
cases filed by the losing candidate against the winning
candidate. The jurisdiction of this court over the subject matter is
determined from the allegations in the petition. Subject
In the present case, petitioners are not candidates seeking matter jurisdiction is defined as the authority "to hear and
for public office. Their petition is filed to assert their determine cases of the general class to which the
fundamental right to expression. proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines
Furthermore, all these cases cited by respondents its powers."55Definitely, the subject matter in this case is
pertained to COMELECs exercise of its adjudicatory or different from the cases cited by respondents.
quasi-judicial power. This case pertains to acts of
COMELEC in the implementation of its regulatory powers.
Nothing less than the electorates political speech will be Judicial power includes the duty of the courts of justice to
affected by the restrictions imposed by COMELEC. settle actual controversies involving rights which are
Political speech is motivated by the desire to be heard and legally demandable and enforceable, and to determine
understood, to move people to action. It is concerned with whether ornot there has been a grave abuse of discretion
the sovereign right to change the contours of power amounting to lack or excess of jurisdiction on the part of
whether through the election of representatives in a any branch or instrumentality of the
republican government or the revision of the basic text of Government.56(Emphasis supplied)
the Constitution. The zeal with which we protect this kind
of speech does not depend on our evaluation of the On the other hand, respondents relied on its constitutional
cogency of the message. Neither do we assess whether mandate to decide all questions affectingelections. Article
we should protect speech based on the motives of IX-C, Section 2(3) of the Constitution, provides:
COMELEC. We evaluate restrictions on freedom of
expression from their effects. We protect both speech and Sec. 2. The Commission on Elections shall exercise the
medium because the quality of this freedom in practice will following powers and functions:
define the quality of deliberation in our democratic society.
....
COMELECs notice and letter affect preferred speech.
Respondents acts are capable of repetition. Under the (3) Decide, except those involving the right to vote, all
conditions in which it was issued and in view of the novelty questions affecting elections, including determination of
of this case,it could result in a "chilling effect" that would the number and location of polling places, appointment of
affect other citizens who want their voices heard on issues election officials and inspectors, and registration of voters.
during the elections. Other citizens who wish to express
their views regarding the election and other related issues Respondents reliance on this provision is misplaced.
may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid We are not confronted here with the question of whether
such proscribed conditions. Rule 65 is also the procedural the COMELEC, in its exercise of jurisdiction, gravely
platform for raising grave abuse of discretion. abused it. We are confronted with the question as to
whether the COMELEC had any jurisdiction at all with its
Both parties point to constitutional provisions on acts threatening imminent criminal action effectively
jurisdiction. For petitioners, it referred to this courts abridging meaningful political speech.
expanded exercise of certiorari as provided by the
Constitution as follows: It is clear that the subject matter of the controversy is the
effect of COMELECs notice and letter on free speech.
This does not fall under Article IX-C, Section 2(3) of the I.C
Constitution. The use of the word "affecting" in this
provision cannot be interpreted to mean that COMELEC Hierarchy of courts
has the exclusive power to decide any and allquestions
that arise during elections. COMELECs constitutional This brings us to the issue of whether petitioners violated
competencies during elections should not operate to the doctrine of hierarchy of courts in directly filing their
divest this court of its own jurisdiction. petition before this court.

The more relevant provision for jurisdiction in this case is Respondents contend that petitioners failure to file the
Article VIII, Section 5(1) of the Constitution.This provision proper suit with a lower court of concurrent jurisdiction is
provides for this courts original jurisdiction over petitions sufficient ground for the dismissal of their petition.57 They
for certiorari and prohibition. This should be read add that observation of the hierarchy of courts is
alongside the expanded jurisdiction of the court in Article compulsory, citing Heirs of Bertuldo Hinog v.
VIII, Section 1 of the Constitution. Melicor.58 While respondents claim that while there are
exceptions to the general rule on hierarchy of courts, none
Certainly, a breach of the fundamental right of expression of these are present in this case.59
by COMELEC is grave abuse of discretion. Thus, the
constitutionality of the notice and letter coming from On the other hand, petitioners cite Fortich v. Corona 60 on
COMELEC is within this courts power to review. this courts discretionary power to take cognizance of a
petition filed directly to it if warranted by "compelling
During elections, we have the power and the duty to reasons, or [by] the nature and importance of the issues
correct any grave abuse of discretion or any act tainted raised. . . ."61 Petitioners submit that there are "exceptional
with unconstitutionality on the part of any government and compelling reasons to justify a direct resort [with] this
branch or instrumentality. This includes actions by the Court."62
COMELEC. Furthermore, it is this courts constitutional
mandate to protect the people against governments In Baez, Jr. v. Concepcion,63 we explained the necessity
infringement of their fundamental rights. This constitutional of the application of the hierarchy of courts:
mandate out weighs the jurisdiction vested with the
COMELEC. The Court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not
It will, thus, be manifest injustice if the court does not take to be ignored without serious consequences. The
jurisdiction over this case. strictness of the policy is designed to shield the Court from
having to deal with causes that are also well within the
competence of the lower courts, and thus leave time to the The doctrine that requires respect for the hierarchy of
Court to deal with the more fundamental and more courts was created by this court to ensure that every level
essential tasks that the Constitution has assigned to it. The of the judiciary performs its designated roles in an effective
Court may act on petitions for the extraordinary writs of and efficient manner. Trial courts do not only determine
certiorari, prohibition and mandamus only when absolutely the facts from the evaluation of the evidence presented
necessary or when serious and important reasons exist to before them. They are likewise competent to determine
justify an exception to the policy.64 issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in
In Baez, we also elaborated on the reasons why lower relation to the Constitution.67 To effectively perform these
courts are allowed to issue writs of certiorari, prohibition, functions, they are territorially organized into regions and
and mandamus, citing Vergara v. Suelto:65 then into branches. Their writs generally reach within
those territorial boundaries. Necessarily, they mostly
The Supreme Court is a court of lastresort, and must so perform the all-important task of inferring the facts from the
remain if it is to satisfactorily perform the functions evidence as these are physically presented before them.
assigned to it by the fundamental charter and immemorial In many instances, the facts occur within their territorial
tradition. It cannot and should not be burdened with the jurisdiction, which properly present the actual case that
task of dealing with causes in the first instance. Its original makes ripe a determination of the constitutionality of such
jurisdiction to issue the so-called extraordinary writs action. The consequences, of course, would be national in
should be exercised only where absolutely necessary or scope. There are, however, some cases where resort to
where serious and important reasons exist therefore. courts at their level would not be practical considering their
Hence, that jurisdiction should generally be exercised decisions could still be appealed before the higher courts,
relative to actions or proceedings before the Court of such as the Court of Appeals.
Appeals, or before constitutional or other tribunals, bodies
or agencies whose acts for some reason or another are The Court of Appeals is primarily designed as an appellate
not controllable by the Court of Appeals. Where the court that reviews the determination of facts and law made
issuance of an extraordinary writ is also within the by the trial courts. It is collegiate in nature. This nature
competence of the Court of Appeals or a Regional Trial ensures more standpoints in the review of the actions of
Court, it is in either of these courts that the specific action the trial court. But the Court of Appeals also has original
for the writs procurement must be presented. This is and jurisdiction over most special civil actions. Unlike the trial
should continue to be the policy in this regard, a policy that courts, its writs can have a nationwide scope. It is
courts and lawyers must strictly observe.66 (Emphasis competent to determine facts and, ideally, should act on
omitted) constitutional issues thatmay not necessarily be novel
unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by similar cases. The case before this court involves an active
breaking new ground or further reiterating in the light of effort on the part of the electorate to reform the political
new circumstances or in the light of some confusions of landscape. This has become a rare occasion when private
bench or bar existing precedents. Rather than a court citizens actively engage the public in political discourse.
of first instance or as a repetition of the actions of the Court To quote an eminent political theorist:
of Appeals, this court promulgates these doctrinal devices
in order that it truly performs that role. [T]he theory of freedom of expression involves more than
a technique for arriving at better social judgments through
In other words, the Supreme Courts role to interpret the democratic procedures. It comprehends a vision of
Constitution and act in order to protect constitutional rights society, a faith and a whole way of life. The theory grew
when these become exigent should not be emasculated out of an age that was awakened and invigorated by the
by the doctrine in respect of the hierarchy of courts. That idea of new society in which man's mind was free, his fate
has never been the purpose of such doctrine. determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization
Thus, the doctrine of hierarchy of courts is not an iron-clad virtually unlimited. It is put forward as a prescription for
rule.68 This court has "full discretionary power to take attaining a creative, progressive, exciting and intellectually
cognizance and assume jurisdiction [over] special civil robust community. It contemplates a mode of life that,
actions for certiorari . . .filed directly with it for exceptionally through encouraging toleration, skepticism, reason and
compelling reasons69 or if warranted by the nature of the initiative, will allow man to realize his full potentialities.It
issues clearly and specifically raised in the petition."70 As spurns the alternative of a society that is tyrannical,
correctly pointed out by petitioners,71 we have provided conformist, irrational and stagnant.73
exceptions to this doctrine:
In a democracy, the citizens right tofreely participate in the
First, a direct resort to this court is allowed when there are exchange of ideas in furtherance of political decision-
genuine issues of constitutionality that must be addressed making is recognized. It deserves the highest protection
at the most immediate time. A direct resort to this court the courts may provide, as public participation in nation-
includes availing of the remedies of certiorari and building isa fundamental principle in our Constitution. As
prohibition toassail the constitutionality of actions of both such, their right to engage in free expression of ideas must
legislative and executive branches of the government.72 be given immediate protection by this court.

In this case, the assailed issuances of respondents A second exception is when the issuesinvolved are of
prejudice not only petitioners right to freedom of transcendental importance.74 In these cases, the
expression in the present case, but also of others in future imminence and clarity of the threat to fundamental
constitutional rights outweigh the necessity for prudence. which there is, as yet, no local jurisprudence to guide lower
The doctrine relating to constitutional issues of courts.77
transcendental importance prevents courts from the
paralysis of procedural niceties when clearly faced with the This court finds that this is indeed a case of first impression
need for substantial protection. involving as it does the issue of whether the right of
suffrage includes the right of freedom of expression. This
In the case before this court, there is a clear threat to the is a question which this court has yet to provide substantial
paramount right of freedom of speech and freedom of answers to, through jurisprudence. Thus, direct resort to
expression which warrants invocation of relief from this this court is allowed.
court. The principles laid down in this decision will likely
influence the discourse of freedom of speech in the future, Fourth, the constitutional issues raisedare better decided
especially in the context of elections. The right to suffrage by this court. In Drilon v. Lim,78 this court held that:
not only includes the right to vote for ones chosen
candidate, but also the right to vocalize that choice to the . . . it will be prudent for such courts, if only out of a
public in general, in the hope of influencing their votes. It becoming modesty, to defer to the higher judgmentof this
may be said that in an election year, the right to vote Court in the consideration of its validity, which is better
necessarily includes the right to free speech and determined after a thorough deliberation by a collegiate
expression. The protection of these fundamental body and with the concurrence of the majority of those who
constitutional rights, therefore, allows for the immediate participated in its discussion.79 (Citation omitted)
resort to this court.
In this case, it is this court, with its constitutionally
Third, cases of firstimpression75 warrant a direct resort to enshrined judicial power, that can rule with finality on
this court. In cases of first impression, no jurisprudence yet whether COMELEC committed grave abuse of discretion
exists that will guide the lower courts on this matter. In or performed acts contrary to the Constitution through the
Government of the United States v. Purganan,76 this court assailed issuances.
took cognizance of the case as a matter of first impression
that may guide the lower courts: Fifth, the time element presented in this case cannot be
ignored. This case was filed during the 2013 election
In the interest of justice and to settle once and for all the period. Although the elections have already been
important issue of bail in extradition proceedings, we deem concluded, future cases may be filed that necessitate
it best to take cognizance of the present case. Such urgency in its resolution. Exigency in certain situations
proceedings constitute a matter of first impression over would qualify as an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional Eighth, the petition includes questionsthat are "dictated by
organ. COMELEC is a constitutional body. In Albano v. public welfare and the advancement of public policy, or
Arranz,80 cited by petitioners, this court held that "[i]t is demanded by the broader interest of justice, or the orders
easy to realize the chaos that would ensue if the Court of complained of were found to be patent nullities, or the
First Instance ofeach and every province were [to] appeal was consideredas clearly an inappropriate
arrogate itself the power to disregard, suspend, or remedy."82 In the past, questions similar to these which
contradict any order of the Commission on Elections: that this court ruled on immediately despite the doctrine of
constitutional body would be speedily reduced to hierarchy of courts included citizens right to bear
impotence."81 arms,83 government contracts involving modernization of
voters registration lists,84 and the status and existence of
In this case, if petitioners sought to annul the actions of a public office.85
COMELEC through pursuing remedies with the lower
courts, any ruling on their part would not have been This case also poses a question of similar, if not greater
binding for other citizens whom respondents may place in import. Hence, a direct action to this court is permitted.
the same situation. Besides, thiscourt affords great
respect to the Constitution and the powers and duties It is not, however, necessary that all of these exceptions
imposed upon COMELEC. Hence, a ruling by this court must occur at the same time to justify a direct resort to this
would be in the best interest of respondents, in order that court. While generally, the hierarchy of courts is respected,
their actions may be guided accordingly in the future. the present case falls under the recognized exceptions
and, as such, may be resolved by this court directly.
Seventh, petitioners rightly claim that they had no other
plain, speedy, and adequate remedy in the ordinary I.D
course of law that could free them from the injurious effects
of respondents acts in violation of their right to freedom of The concept of a political question
expression.
Respondents argue further that the size limitation and its
In this case, the repercussions of the assailed issuances reasonableness is a political question, hence not within the
on this basic right constitute an exceptionally compelling ambit of this courts power of review. They cite Justice
reason to justify the direct resort to this court. The lack of Vitugs separate opinion in Osmea v. COMELEC86 to
other sufficient remedies in the course of law alone is support their position:
sufficient ground to allow direct resort to this court.
It might be worth mentioning that Section 26, Article II, of
the Constitution also states that the "State shall guarantee
equal access to opportunities for public service, and tarpaulin in their private property, asan exercise of their
prohibit political dynasties as may be defined by law." I see right of free expression. Despite the invocation of the
neither Article IX (C)(4) nor Section 26, Article II, of the political question doctrine by respondents, this court is not
Constitution to be all that adversarial or irreconcilably proscribed from deciding on the merits of this case.
inconsistent with the right of free expression. In any event,
the latter, being one of general application, must yield to In Taada v. Cuenco,88 this court previously elaborated on
the specific demands of the Constitution. The freedom of the concept of what constitutes a political question:
expression concededly holds, it is true, a vantage point in
hierarchy of constitutionally-enshrined rights but, like all What is generally meant, when it is said that a question is
fundamental rights, it is not without limitations. political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity,
The case is not about a fight between the "rich" and the or that it has been specifically delegated to some other
"poor" or between the "powerful" and the "weak" in our department or particular officer of the government,
society but it is to me a genuine attempt on the part of withdiscretionary power to act.89 (Emphasis omitted)
Congress and the Commission on Elections to ensure that
all candidates are given an equal chance to media It is not for this court to rehearse and re-enact political
coverage and thereby be equally perceived as giving real debates on what the text of the law should be. In political
life to the candidates right of free expression rather than forums, particularly the legislature, the creation of the
being viewed as an undue restriction of that freedom. The textof the law is based on a general discussion of factual
wisdom in the enactment of the law, i.e., that which the circumstances, broadly construed in order to allow for
legislature deems to be best in giving life to the general application by the executive branch. Thus, the
Constitutional mandate, is not for the Court to question; it creation of the law is not limited by particular and specific
is a matter that lies beyond the normal prerogatives of the facts that affect the rights of certain individuals, per se.
Court to pass upon.87
Courts, on the other hand, rule on adversarial positions
This separate opinion is cogent for the purpose it was said. based on existing facts established on a specific case-to-
But it is not in point in this case. case basis, where parties affected by the legal provision
seek the courts understanding of the law.
The present petition does not involve a dispute between
the rich and poor, or the powerful and weak, on their equal The complementary nature of the political and judicial
opportunities for media coverage of candidates and their branches of government is essential in order to ensure that
right to freedom of expression. This case concerns the the rights of the general public are upheld at all times. In
right of petitioners, who are non-candidates, to post the order to preserve this balance, branches of government
must afford due respectand deference for the duties and Marcos v. Manglapus90 limited the use of the political
functions constitutionally delegated to the other. Courts question doctrine:
cannot rush to invalidate a law or rule. Prudence dictates
that we are careful not to veto political acts unless we can When political questions are involved, the Constitution
craft doctrine narrowly tailored to the circumstances of the limits the determination to whether or not there has been
case. a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
The case before this court does not call for the exercise of questioned. If grave abuse is not established, the Court
prudence or modesty. There is no political question. It can will not substitute its judgment for that of the official
be acted upon by this court through the expanded concerned and decide a matter which by its nature or by
jurisdiction granted to this court through Article VIII, law is for the latter alone to decide.91
Section 1 of the Constitution.
How this court has chosen to address the political question
A political question arises in constitutional issues relating doctrine has undergone an evolution since the timethat it
to the powers or competence of different agencies and had been first invoked in Marcos v. Manglapus.
departments of the executive or those of the legislature. Increasingly, this court has taken the historical and social
The political question doctrine is used as a defense when context of the case and the relevance of pronouncements
the petition asks this court to nullify certain acts that are of carefully and narrowly tailored constitutional doctrines.
exclusively within the domain of their respective This trend was followed in cases such as Daza v.
competencies, as provided by the Constitution or the law. Singson92 and Coseteng v. Mitra Jr.93
In such situation, presumptively, this court should act with
deference. It will decline to void an act unless the exercise Daza and Coseteng involved a question as to the
of that power was so capricious and arbitrary so as to application of Article VI, Section 18 of the 1987
amount to grave abuse of discretion. Constitution involving the removal of petitioners from the
Commission on Appointments. In times past, this would
The concept of a political question, however, never have involved a quint essentially political question as it
precludes judicial review when the act of a constitutional related to the dominance of political parties in Congress.
organ infringes upon a fundamental individual or collective However, in these cases, this court exercised its power of
right. Even assuming arguendo that the COMELEC did judicial review noting that the requirement of interpreting
have the discretion to choose the manner of regulation of the constitutional provision involved the legality and not
the tarpaulin in question, it cannot do so by abridging the the wisdom of a manner by which a constitutional duty or
fundamental right to expression. power was exercised. This approach was again reiterated
in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court We will not decline to exercise our power of judicial review.
declared again that the possible existence ofa political And such review does not constitute a modification or
question did not bar an examination of whether the correction of the act of the President, nor does it constitute
exercise of discretion was done with grave abuse of interference with the functions of the President.98
discretion. In that case, this court ruled on the question of
whether there was grave abuse of discretion in the The concept of judicial power in relation to the concept of
Presidents use of his power to call out the armed forces the political question was discussed most extensively in
to prevent and suppress lawless violence. Francisco v. HRET.99 In this case, the House of
Representatives arguedthat the question of the validity of
In Estrada v. Desierto,96 this court ruled that the legal the second impeachment complaint that was filed against
question as to whether a former President resigned was former Chief Justice Hilario Davide was a political question
not a political question even if the consequences would be beyond the ambit of this court. Former Chief Justice
to ascertain the political legitimacy of a successor Reynato Puno elaborated on this concept in his concurring
President. and dissenting opinion:

Many constitutional cases arise from political crises. The To be sure, the force to impugn the jurisdiction of this Court
actors in such crises may use the resolution of becomes more feeble in light of the new Constitution which
constitutional issues as leverage. But the expanded expanded the definition of judicial power as including "the
jurisdiction of this court now mandates a duty for it to duty of the courts of justice to settle actual controversies
exercise its power of judicial review expanding on involving rights which are legally demandable and
principles that may avert catastrophe or resolve social enforceable, and to determine whether or not there has
conflict. been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
This courts understanding of the political question has not instrumentality of the Government." As well observed by
been static or unbending. In Llamas v. Executive retired Justice Isagani Cruz, this expanded definition of
Secretary Oscar Orbos,97 this court held: judicial power considerably constricted the scope of
political question. He opined that the language luminously
While it is true that courts cannot inquire into the manner suggests that this duty (and power) is available even
in which the President's discretionary powers are against the executive and legislative departments
exercised or into the wisdom for its exercise, it is also a including the President and the Congress, in the exercise
settled rule that when the issue involved concerns the of their discretionary powers.100 (Emphasis in the original,
validity of such discretionary powers or whether said citations omitted)
powers are within the limits prescribed by the Constitution,
Francisco also provides the cases which show the conferred upon us that now covers, in proper cases, even
evolution of the political question, as applied in the the political question.x x x (Emphasis and italics supplied.)
following cases:
....
In Marcos v. Manglapus, this Court, speaking through
Madame Justice Irene Cortes, held: The present In our jurisdiction, the determination of whether an issue
Constitution limits resort to the political question doctrine involves a truly political and non-justiciable question lies in
and broadens the scope of judicial inquiry into areas which the answer to the question of whether there are
the Court,under previous constitutions, would have constitutionally imposed limits on powers or functions
normally left to the political departments to decide. x x x conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or
In Bengzon v. Senate Blue Ribbon Committee, through instrumentality of the government properly acted within
Justice Teodoro Padilla, this Court declared: such limits.101 (Citations omitted)

The "allocation of constitutional boundaries" is a task that As stated in Francisco, a political question will not be
this Court must perform under the Constitution. Moreover, considered justiciable if there are no constitutionally
as held in a recent case, "(t)he political question doctrine imposed limits on powers or functions conferred upon
neither interposes an obstacle to judicial determination of political bodies. Hence, the existence of constitutionally
the rival claims. The jurisdiction to delimit constitutional imposed limits justifies subjecting the official actions of the
boundaries has been given to this Court. It cannot body to the scrutiny and review of this court.
abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does In this case, the Bill of Rights gives the utmost deference
away with the applicability of the principle in appropriate to the right to free speech. Any instance that this right may
cases." (Emphasis and italics supplied) be abridged demands judicial scrutiny. It does not fall
squarely into any doubt that a political question brings.
And in Daza v. Singson, speaking through Justice Isagani
Cruz, this Court ruled: I.E

In the case now before us, the jurisdictional objection Exhaustion of administrative remedies
becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue presented Respondents allege that petitioners violated the principle
before us was political in nature, we would still not be of exhaustion of administrative remedies. Respondents
precluded from resolving it under the expanded jurisdiction
insist that petitioners should have first brought the matter In the context of this case, exhaustion of their
to the COMELEC En Banc or any of its divisions.102 administrative remedies as COMELEC suggested in their
pleadings prolongs the violation of their freedom of
Respondents point out that petitioners failed to comply speech.
with the requirement in Rule 65 that "there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary Political speech enjoys preferred protection within our
course of law."103 They add that the proper venue to assail constitutional order. In Chavez v. Gonzales,107 Justice
the validity of the assailed issuances was in the course of Carpio in a separate opinion emphasized: "[i]f everthere is
an administrative hearing to be conducted by a hierarchy of protected expressions, political expression
COMELEC.104 In the event that an election offense is filed would occupy the highest rank, and among different kinds
against petitioners for posting the tarpaulin, they claim that of political expression, the subject of fair and honest
petitioners should resort to the remedies prescribed in elections would be at the top."108 Sovereignty resides in
Rule 34 of the COMELEC Rules of Procedure.105 the people.109 Political speech is a direct exercise of the
sovereignty. The principle of exhaustion of administrative
The argument on exhaustion of administrative remedies is remedies yields in order to protect this fundamental right.
not proper in this case.
Even assuming that the principle of exhaustion of
Despite the alleged non-exhaustion of administrative administrative remedies is applicable, the current
remedies, it is clear that the controversy is already ripe for controversy is within the exceptions to the principle. In
adjudication. Ripeness is the "prerequisite that something Chua v. Ang,110 this court held:
had by then been accomplished or performed by either
branch [or in this case, organ of government] before a On the other hand, prior exhaustion of administrative
court may come into the picture."106 remedies may be dispensed with and judicial action may
be validly resorted to immediately: (a) when there is a
Petitioners exercise of their rightto speech, given the violation of due process; (b) when the issue involved is
message and their medium, had understandable purely a legal question; (c) when the administrative action
relevance especially during the elections. COMELECs is patently illegal amounting to lack or excess of
letter threatening the filing of the election offense against jurisdiction; (d) when there is estoppel on the part ofthe
petitioners is already an actionable infringement of this administrative agency concerned; (e) when there is
right. The impending threat of criminal litigation is enough irreparable injury; (f) when the respondent is a department
to curtail petitioners speech. secretary whose acts as analter ego of the President bear
the implied and assumed approval of the latter; (g) when
to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification II.A
of a claim; (i) when the subject matter is a private land in
land case proceedings; (j) whenthe rule does not provide COMELEC had no legal basis to regulate expressions
a plain, speedy and adequate remedy; or (k) when there made by private citizens
are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted) Respondents cite the Constitution, laws, and
jurisprudence to support their position that they had the
The circumstances emphasized are squarely applicable power to regulate the tarpaulin.113 However, all of these
with the present case. First, petitioners allegethat the provisions pertain to candidates and political parties.
assailed issuances violated their right to freedom of Petitioners are not candidates. Neither do theybelong to
expression and the principle of separation of church and any political party. COMELEC does not have the authority
state. This is a purely legal question. Second, the to regulate the enjoyment of the preferred right to freedom
circumstances of the present case indicate the urgency of of expression exercised by a non-candidate in this case.
judicial intervention considering the issue then on the RH
Law as well as the upcoming elections. Thus, to require II.A.1
the exhaustion of administrative remedies in this case
would be unreasonable. First, respondents cite Article IX-C, Section 4 of the
Constitution, which provides:
Time and again, we have held that this court "has the
power to relax or suspend the rules or to except a case Section 4. The Commission may,during the election
from their operation when compelling reasons so warrant, period, supervise or regulate the enjoyment or utilization
or whenthe purpose of justice requires it, [and when] of all franchises or permits for the operation of
[w]hat constitutes [as] good and sufficient cause that will transportation and other public utilities, media of
merit suspension of the rules is discretionary upon the communication or information, all grants, special
court".112Certainly, this case of first impression where privileges, or concessions granted by the Government or
COMELEC has threatenedto prosecute private parties any subdivision, agency, or instrumentality thereof,
who seek to participate in the elections by calling attention including any government-owned or controlled corporation
to issues they want debated by the publicin the manner or its subsidiary. Such supervision or regulation shall aim
they feel would be effective is one of those cases. to ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor, for
II public information campaigns and forums among
SUBSTANTIVE ISSUES candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible (7) Recommend to the Congress effective measures to
114
elections. (Emphasis supplied) minimize election spending, including limitation of places
where propaganda materials shall be posted, and to
Sanidad v. COMELEC115 involved the rules promulgated prevent and penalize all forms of election frauds, offenses,
by COMELEC during the plebiscite for the creation of the malpractices, and nuisance candidates. (Emphasis
Cordillera Autonomous Region.116 Columnist Pablito V. supplied) Based on the enumeration made on actsthat
Sanidad questioned the provision prohibiting journalists may be penalized, it will be inferred that this provision only
from covering plebiscite issues on the day before and on affects candidates.
plebiscite day.117 Sanidad argued that the prohibition was
a violation of the "constitutional guarantees of the freedom Petitioners assail the "Notice to Remove Campaign
of expression and of the press. . . ."118 We held that the Materials" issued by COMELEC. This was followed bythe
"evil sought to be prevented by this provision is the assailed letter regarding the "election propaganda material
possibility that a franchise holder may favor or give any posted on the church vicinity promoting for or against the
undue advantage to a candidate in terms of advertising candidates and party-list groups. . . ."123
space or radio or television time."119 This court found that
"[m]edia practitioners exercising their freedom of Section 9 of the Fair Election Act124 on the posting of
expression during plebiscite periods are neither the campaign materials only mentions "parties" and
franchise holders nor the candidates[,]"120 thus, their right "candidates":
to expression during this period may not be regulated by
COMELEC.121 Sec. 9. Posting of Campaign Materials. - The COMELEC
may authorize political parties and party-list groups to
Similar to the media, petitioners in the case at bar are erect common poster areas for their candidates in not
neither franchise holders nor candidates. II.A.2 more than ten (10) public places such as plazas, markets,
barangay centers and the like, wherein candidates can
Respondents likewise cite Article IX-C, Section 2(7) of the post, display or exhibit election propaganda: Provided,
Constitution as follows:122 That the size ofthe poster areas shall not exceed twelve
(12) by sixteen (16) feet or its equivalent. Independent
Sec. 2. The Commission on Elections shall exercise the candidates with no political parties may likewise be
following powers and functions: authorized to erect common poster areas in not more than
ten (10) public places, the size of which shall not exceed
.... four (4) by six (6) feet or its equivalent. Candidates may
post any lawful propaganda material in private places with
the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially and file the appropriate charges against them. (Emphasis
among the candidates. (Emphasis supplied) supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, Respondents considered the tarpaulin as a campaign
the rules and regulations implementing the Fair Election material in their issuances. The above provisions
Act, provides as follows: regulating the posting of campaign materials only apply to
candidates and political parties, and petitioners are neither
SECTION 17. Posting of Campaign Materials. - Parties of the two.
and candidates may post any lawful campaign material in:
Section 3 of Republic Act No. 9006on "Lawful Election
a. Authorized common poster areasin public places Propaganda" also states that these are "allowed for all
subject to the requirements and/or limitations set registered political parties, national, regional, sectoral
forth in the next following section; and parties or organizations participating under the party-list
elections and for all bona fide candidates seeking national
b. Private places provided it has the consent of the and local elective positions subject to the limitation on
owner thereof. authorized expenses of candidates and political parties. . .
." Section 6 of COMELEC Resolution No. 9615 provides
The posting of campaign materials in public places outside for a similar wording. These provisions show that election
of the designated common poster areas and those propaganda refers to matter done by or on behalf of and
enumerated under Section 7 (g) of these Rules and the in coordination with candidates and political parties. Some
like is prohibited. Persons posting the same shall be liable level of coordination with the candidates and political
together with the candidates and other persons who parties for whom the election propaganda are released
caused the posting. It will be presumed that the candidates would ensure that these candidates and political parties
and parties caused the posting of campaign materials maintain within the authorized expenses limitation.
outside the common poster areas if they do not remove
the same within three (3) days from notice which shall be The tarpaulin was not paid for byany candidate or political
issued by the Election Officer of the city or municipality party.125 There was no allegation that petitioners
where the unlawful election propaganda are posted or coordinated with any of the persons named in the tarpaulin
displayed. regarding its posting. On the other hand, petitioners
posted the tarpaulin as part of their advocacy against the
Members of the PNP and other law enforcement agencies RH Law. Respondents also cite National Press Club v.
called upon by the Election Officeror other officials of the COMELEC126 in arguing that its regulatory power under
COMELEC shall apprehend the violators caught in the act,
the Constitution, to some extent, set a limit on the right to elections because of the COMELEC notice and letter. It
free speech during election period.127 was not merelya regulation on the campaigns of
candidates vying for public office. Thus, National Press
National Press Club involved the prohibition on the sale Clubdoes not apply to this case.
and donation of space and time for political
advertisements, limiting political advertisements to Finally, Section 79 of Batas Pambansa Blg. 881, otherwise
COMELEC-designated space and time. This case was known as the Omnibus Election Code, defines an"election
brought by representatives of mass media and two campaign" as follows:
candidates for office in the 1992 elections. They argued
that the prohibition on the sale and donation of space and ....
time for political advertisements is tantamount to
censorship, which necessarily infringes on the freedom of (b) The term "election campaign" or "partisan political
speech of the candidates.128 activity" refers to an act designed to promote the election
or defeat of a particular candidate or candidates to a public
This court upheld the constitutionality of the COMELEC office which shall include:
prohibition in National Press Club. However, this case
does not apply as most of the petitioners were electoral (1) Forming organizations, associations, clubs,
candidates, unlike petitioners in the instant case. committees or other groups of persons for the
Moreover, the subject matter of National Press Club, purpose of soliciting votes and/or undertaking any
Section 11(b) of Republic Act No. 6646,129 only refers to a campaign for or against a candidate;
particular kind of media such as newspapers, radio
broadcasting, or television.130 Justice Feliciano (2) Holding political caucuses, conferences,
emphasized that the provision did not infringe upon the meetings, rallies, parades, or other similar
right of reporters or broadcasters to air their commentaries assemblies, for the purpose of soliciting votes
and opinions regarding the candidates, their qualifications, and/or undertaking any campaign or propaganda
and program for government. Compared to for or against a candidate;
Sanidadwherein the columnists lost their ability to give
their commentary on the issues involving the plebiscite, (3) Making speeches, announcements or
National Press Clubdoes not involve the same commentaries, or holding interviews for or against
infringement. the election of any candidate for public office;

In the case at bar, petitioners lost their ability to give a


commentary on the candidates for the 2013 national
(4) Publishing or distributing campaign literature or The violation of the constitutional right
materials designed to support or oppose the
election of any candidate; or to freedom of speech and expression

(5) Directly or indirectly soliciting votes, pledges or Petitioners contend that the assailed notice and letter for
support for or against a candidate. the removal of the tarpaulin violate their fundamental right
to freedom of expression.
The foregoing enumerated acts ifperformed for the
purpose of enhancing the chances of aspirants for On the other hand, respondents contend that the tarpaulin
nomination for candidacy to a public office by a political is an election propaganda subject to their regulation
party, aggroupment, or coalition of parties shall not be pursuant to their mandate under Article IX-C, Section 4 of
considered as election campaign or partisan election the Constitution. Thus, the assailed notice and letter
activity. Public expressions or opinions or discussions of ordering itsremoval for being oversized are valid and
probable issues in a forthcoming electionor on attributes of constitutional.131
or criticisms against probable candidates proposed to be
nominated in a forthcoming political party convention shall II.B.1
not be construed as part of any election campaign or
partisan political activity contemplated under this Article. Fundamental to the consideration of this issue is Article III,
(Emphasis supplied) Section 4 of the Constitution:

True, there is no mention whether election campaign is Section 4. No law shall be passed abridging the freedom
limited only to the candidates and political parties of speech, of expression, or of the press, or the right of the
themselves. The focus of the definition is that the act must people peaceably to assemble and petition the
be "designed to promote the election or defeat of a government for redress of grievances.132
particular candidate or candidates to a public office."
No law. . .
In this case, the tarpaulin contains speech on a matter of
public concern, that is, a statement of either appreciation While it is true that the present petition assails not a law
or criticism on votes made in the passing of the RH law. but an opinion by the COMELEC Law Department, this
Thus, petitioners invoke their right to freedom of court has applied Article III, Section 4 of the Constitution
expression. even to governmental acts.

II.B
In Primicias v. Fugoso,133 respondent Mayor applied by . . . of expression. . .
analogy Section 1119 of the Revised Ordinances of 1927
of Manila for the public meeting and assembly organized Our Constitution has also explicitly included the freedom
by petitioner Primicias.134 Section 1119 requires a Mayors of expression, separate and in addition to the freedom of
permit for the use of streets and public places for purposes speech and of the press provided in the US Constitution.
such as athletic games, sports, or celebration of national The word "expression" was added in the 1987 Constitution
holidays.135 What was questioned was not a law but the by Commissioner Brocka for having a wider scope:
Mayors refusal to issue a permit for the holding of
petitioners public meeting.136 Nevertheless, this court MR. BROCKA: This is a very minor amendment, Mr.
recognized the constitutional right to freedom of speech, Presiding Officer. On Section 9, page 2, line 29, it says:
to peaceful assembly and to petition for redress of "No law shall be passed abridging the freedom of speech."
grievances, albeit not absolute,137 and the petition for I would like to recommend to the Committee the change of
mandamus to compel respondent Mayor to issue the the word "speech" to EXPRESSION; or if not, add the
permit was granted.138 words AND EXPRESSION after the word "speech,"
because it is more expansive, it has a wider scope, and it
In ABS-CBN v. COMELEC, what was assailed was not a would refer to means of expression other than speech.
law but COMELEC En Banc Resolution No. 98-1419
where the COMELEC resolved to approve the issuance of THE PRESIDING OFFICER (Mr.Bengzon): What does the
a restraining order to stop ABS-CBN from conducting exit Committee say?
surveys.139 The right to freedom of expression was
similarly upheld in this case and, consequently, the FR. BERNAS: "Expression" is more broad than speech.
assailed resolution was nullified and set aside.140 We accept it.

. . . shall be passed abridging. . . MR. BROCKA: Thank you.

All regulations will have an impact directly or indirectly on THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
expression. The prohibition against the abridgment of
speech should not mean an absolute prohibition against FR. BERNAS: Yes.
regulation. The primary and incidental burden on speech
must be weighed against a compelling state interest THE PRESIDING OFFICER (Mr.Bengzon): Is there any
clearly allowed in the Constitution. The test depends on objection? (Silence) The Chair hears none; the
the relevant theory of speech implicit in the kind of society amendment is approved.
framed by our Constitution.
FR. BERNAS: So, that provision will now read: "No law In Ebralinag v. The Division Superintendent of Schools of
shall be passed abridging the freedom of speech, Cebu,148 students who were members of the religious sect
expression or of the press . . . ."141 Speech may be said to Jehovahs Witnesses were to be expelled from school for
be inextricably linked to freedom itself as "[t]he right to refusing to salute the flag, sing the national anthem, and
think is the beginning of freedom, and speech must be recite the patriotic pledge.149 In his concurring opinion,
protected from the government because speech is the Justice Cruz discussed how the salute is a symbolic
beginning of thought."142 manner of communication and a valid form of
expression.150 He adds that freedom of speech includes
II.B.2 even the right to be silent:

Communication is an essential outcome of protected Freedom of speech includes the right to be silent. Aptly
speech.143 Communication exists when "(1) a speaker, has it been said that the Bill of Rights that guarantees to
seeking to signal others, uses conventional actions the individual the liberty to utter what is in his mind also
because he orshe reasonably believes that such actions guarantees to him the liberty not to utter what is not in his
will be taken by the audience in the manner intended; and mind. The salute is a symbolic manner of communication
(2) the audience so takes the actions." 144 "[I]n that conveys its messageas clearly as the written or
communicative action[,] the hearer may respond to the spoken word. As a valid form of expression, it cannot be
claims by . . . either accepting the speech acts claims or compelled any more than it can be prohibited in the face
opposing them with criticism or requests for of valid religious objections like those raised in this
justification."145 petition. To impose it on the petitioners is to deny them the
right not to speak when their religion bids them to be silent.
Speech is not limited to vocal communication. "[C]onduct This coercion of conscience has no place in the free
is treated as a form of speech sometimes referred to as society.
symbolic speech[,]"146 such that "when speech and
nonspeech elements are combined in the same course of The democratic system provides for the accommodation
conduct, the communicative element of the conduct may of diverse ideas, including the unconventional and even
be sufficient to bring into play the [right to freedom of the bizarre or eccentric. The will of the majority prevails,
expression]."147 but it cannot regiment thought by prescribing the recitation
by rote of its opinions or proscribing the assertion of
The right to freedom of expression, thus, applies to the unorthodox or unpopular views as inthis case. The
entire continuum of speech from utterances made to conscientious objections of the petitioners, no less than
conduct enacted, and even to inaction itself as a symbolic the impatience of those who disagree with them, are
manner of communication.
protected by the Constitution. The State cannot make the It is easy to discern why size matters.
individual speak when the soul within rebels.151
First, it enhances efficiency in communication. A larger
Even before freedom "of expression" was included in tarpaulin allows larger fonts which make it easier to view
Article III, Section 4 of the present Constitution,this court its messages from greater distances. Furthermore, a
has applied its precedent version to expressions other larger tarpaulin makes it easier for passengers inside
than verbal utterances. moving vehicles to read its content. Compared with the
pedestrians, the passengers inside moving vehicles have
In the 1985 case of Gonzalez v. Chairman lesser time to view the content of a tarpaulin. The larger
Katigbak,152 petitioners objected to the classification of the the fonts and images, the greater the probability that it will
motion picture "Kapit sa Patalim" as "For Adults Only." catch their attention and, thus, the greater the possibility
They contend that the classification "is without legal and that they will understand its message.
factual basis and is exercised as impermissible restraint of
artistic expression."153 This court recognized that "[m]otion Second, the size of the tarpaulin may underscore the
pictures are important both as a medium for the importance of the message to the reader. From an
communication of ideas and the expression of the artistic ordinary persons perspective, those who post their
impulse."154 It adds that "every writer,actor, or producer, messages in larger fonts care more about their message
no matter what medium of expression he may use, should than those who carry their messages in smaller media.
be freed from the censor."155 This court found that "[the The perceived importance given by the speakers, in this
Boards] perception of what constitutes obscenity appears case petitioners, to their cause is also part of the message.
to be unduly restrictive."156 However, the petition was The effectivity of communication sometimes relies on the
dismissed solely on the ground that there were not enough emphasis put by the speakers and onthe credibility of the
votes for a ruling of grave abuse of discretion in the speakers themselves. Certainly, larger segments of the
classification made by the Board.157 public may tend to be more convinced of the point made
by authoritative figures when they make the effort to
II.B.3 emphasize their messages.

Size does matter Third, larger spaces allow for more messages. Larger
spaces, therefore, may translate to more opportunities to
The form of expression is just as important as the amplify, explain, and argue points which the speakers
information conveyed that it forms part of the expression. might want to communicate. Rather than simply placing
The present case is in point. the names and images of political candidates and an
expression of support, larger spaces can allow for brief but
memorable presentations of the candidates platforms for First, this relates to the right ofthe people to participate in
governance. Larger spaces allow for more precise public affairs, including the right to criticize government
inceptions of ideas, catalyze reactions to advocacies, and actions.
contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the Proponents of the political theory on "deliberative
possibilities of both good governance and accountability in democracy" submit that "substantial, open, [and] ethical
our government. dialogue isa critical, and indeed defining, feature of a good
polity."159 This theory may be considered broad, but it
These points become more salient when it is the definitely "includes [a] collective decision making with the
electorate, not the candidates or the political parties, that participation of all who will beaffected by the decision." 160 It
speaks. Too often, the terms of public discussion during anchors on the principle that the cornerstone of every
elections are framed and kept hostage by brief and catchy democracy is that sovereignty resides in the people.161 To
but meaningless sound bites extolling the character of the ensure order in running the states affairs, sovereign
candidate. Worse, elections sideline political arguments powers were delegated and individuals would be elected
and privilege the endorsement by celebrities. Rather than or nominated in key government positions to represent the
provide obstacles to their speech, government should in people. On this note, the theory on deliberative democracy
fact encourage it. Between the candidates and the may evolve to the right of the people to make government
electorate, the latter have the better incentive to demand accountable. Necessarily, this includes the right of the
discussion of the more important issues. Between the people to criticize acts made pursuant to governmental
candidates and the electorate, the former have better functions.
incentives to avoid difficult political standpoints and
instead focus on appearances and empty promises. Speech that promotes dialogue on publicaffairs, or airs out
grievances and political discontent, should thus be
Large tarpaulins, therefore, are not analogous to time and protected and encouraged.
place.158 They are fundamentally part of expression
protected under Article III, Section 4 of the Constitution. Borrowing the words of Justice Brandeis, "it is hazardous
to discourage thought, hope and imagination; that fear
II.B.4 breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in
There are several theories and schools of thought that the opportunity to discuss freely supposed grievances and
strengthen the need to protect the basic right to freedom proposed remedies."162
of expression.
In this jurisdiction, this court held that "[t]he interest of purpose when it induces a condition of unrest, creates
society and the maintenance of good government demand dissatisfaction with conditions as they are, or even stirs
a full discussion of public affairs."163 This court has, thus, people to anger."169 It is in this context that we should
adopted the principle that "debate on public issues should guard against any curtailment of the peoples right to
be uninhibited, robust,and wide open . . . [including even] participate in the free trade of ideas.
unpleasantly sharp attacks on government and public
officials."164 Third, free speech involves self-expression that enhances
human dignity. This right is "a means of assuring individual
Second, free speech should be encouraged under the self-fulfillment,"170 among others. In Philippine Blooming
concept of a market place of ideas. This theory was Mills Employees Organization v. Philippine Blooming Mills
articulated by Justice Holmes in that "the ultimate good Co., Inc,171 this court discussed as follows:
desired is better reached by [the] free trade in ideas:" 165
The rights of free expression, free assembly and petition,
When men have realized that time has upset many fighting are not only civil rights but also political rights essential to
faiths, they may come to believe even more than they man's enjoyment of his life, to his happiness and to his full
believe the very foundations of their own conduct that the and complete fulfillment.Thru these freedoms the citizens
ultimate good desired is better reached by free trade in can participate not merely in the periodic establishment of
ideas - that the best test of truth is the power of the thought the government through their suffrage but also in the
to get itself accepted in the competition of the market, and administration of public affairs as well as in the discipline
that truth is the only ground upon which their wishes safely of abusive public officers. The citizen is accorded these
can be carried out.166 rights so that he can appeal to the appropriate
governmental officers or agencies for redress and
The way it works, the exposure to the ideas of others protection as well as for the imposition of the lawful
allows one to "consider, test, and develop their own sanctions on erring public officers and
conclusions."167 A free, open, and dynamic market place employees.172 (Emphasis supplied)
of ideas is constantly shaping new ones. This promotes
both stability and change where recurring points may Fourth, expression is a marker for group identity. For one,
crystallize and weak ones may develop. Of course, free "[v]oluntary associations perform [an] important
speech is more than the right to approve existing political democratic role [in providing] forums for the development
beliefs and economic arrangements as it includes, "[t]o of civil skills, for deliberation, and for the formation of
paraphrase Justice Holmes, [the] freedom for the thought identity and community spirit[,] [and] are largely immune
that we hate, no less than for the thought that agrees with from [any] governmental interference."173 They also
us."168 In fact, free speech may "best serve its high "provide a buffer between individuals and the state - a free
space for the development of individual personality, there is a need for peaceful methods in making passionate
distinct group identity, and dissident ideas - and a potential dissent. This includes "free expression and political
source of opposition to the state."174 Free speech must be participation"183 in that they can "vote for candidates who
protected as the vehicle to find those who have similar and share their views, petition their legislatures to [make or]
shared values and ideals, to join together and forward change laws, . . . distribute literature alerting other citizens
common goals. of their concerns[,]"184 and conduct peaceful rallies and
other similar acts.185 Free speech must, thus, be protected
Fifth, the Bill of Rights, free speech included, is supposed as a peaceful means of achieving ones goal, considering
to "protect individuals and minorities against majoritarian the possibility that repression of nonviolent dissent may
abuses perpetrated through [the] framework [of spill over to violent means just to drive a point.
democratic governance]."175 Federalist framers led by
James Madison were concerned about two potentially II.B.5
vulnerable groups: "the citizenry at large - majorities - who
might be tyrannized or plundered by despotic federal Every citizens expression with political consequences
officials"176 and the minorities who may be oppressed by enjoys a high degree of protection. Respondents argue
"dominant factions of the electorate [that] capture [the] that the tarpaulinis election propaganda, being petitioners
government for their own selfish ends[.]" 177 According to way of endorsing candidates who voted against the RH
Madison, "[i]t is of great importance in a republic not only Law and rejecting those who voted for it.186 As such, it is
to guard the society against the oppression of its rulers, subject to regulation by COMELEC under its constitutional
but to guard one part of the society against the injustice of mandate.187 Election propaganda is defined under Section
the other part."178 We should strive to ensure that free 1(4) of COMELEC Resolution No. 9615 as follows:
speech is protected especially in light of any potential SECTION 1. Definitions . . .
oppression against those who find themselves in the
fringes on public issues. ....

Lastly, free speech must be protected under the safety 4. The term "political advertisement" or "election
valve theory.179 This provides that "nonviolent propaganda" refers to any matter broadcasted, published,
manifestations of dissent reduce the likelihood of printed, displayed or exhibited, in any medium, which
violence[.]"180 "[A] dam about to burst . . . resulting in the contain the name, image, logo, brand, insignia, color motif,
banking up of a menacing flood of sullen anger behind the initials, and other symbol or graphic representation that is
walls of restriction"181 has been used to describe the effect capable of being associated with a candidate or party, and
of repressing nonviolent outlets.182 In order to avoid this is intended to draw the attention of the public or a segment
situation and prevent people from resorting to violence, thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public Property and property rights can belost thru prescription;
office. In broadcast media, political advertisements may but human rights are imprescriptible. If human rights are
take the form of spots, appearances on TV shows and extinguished by the passage of time, then the Bill of Rights
radio programs, live or taped announcements, teasers, is a useless attempt to limit the power of government and
and other forms of advertising messages or ceases to be an efficacious shield against the tyranny of
announcements used by commercial advertisers. Political officials, of majorities, ofthe influential and powerful, and of
advertising includes matters, not falling within the scope of oligarchs - political, economic or otherwise.
personal opinion, that appear on any Internet website,
including, but not limited to, social networks, blogging In the hierarchy of civil liberties, the rights of free
sites, and micro-blogging sites, in return for consideration, expression and of assembly occupy a preferred position
or otherwise capable of pecuniary estimation. as they are essential to the preservation and vitality of our
civil and political institutions; and such priority "gives these
On the other hand, petitioners invoke their "constitutional liberties the sanctity and the sanction not permitting
right to communicate their opinions, views and beliefs dubious intrusions."195 (Citations omitted)
about issues and candidates."188 They argue that the
tarpaulin was their statement of approval and appreciation This primordial right calls for utmost respect, more so
of the named public officials act of voting against the RH "when what may be curtailed is the dissemination of
Law, and their criticism toward those who voted in its information to make more meaningful the equally vital right
favor.189 It was "part of their advocacy campaign against of suffrage."196 A similar idea appeared in our
the RH Law,"190 which was not paid for by any candidate jurisprudence as early as 1969, which was Justice
or political party.191 Thus, "the questioned orders which . . Barredos concurring and dissenting opinion in Gonzales
. effectively restrain[ed] and curtail[ed] [their] freedom of v. COMELEC:197
expression should be declared unconstitutional and
void."192 I like to reiterate over and over, for it seems this is the
fundamental point others miss, that genuine democracy
This court has held free speech and other intellectual thrives only where the power and right of the people toelect
freedoms as "highly ranked in our scheme of constitutional the men to whom they would entrust the privilege to run
values."193 These rights enjoy precedence and the affairs of the state exist. In the language of the
primacy.194 In Philippine Blooming Mills, this court declaration of principles of our Constitution, "The
discussed the preferred position occupied by freedom of Philippines is a republican state. Sovereignty resides in
expression: the people and all government authority emanates from
them" (Section 1, Article II). Translating this declaration
into actuality, the Philippines is a republic because and
solely because the people in it can be governed only by in order that it may not be injurious to the equal right of
officials whom they themselves have placed in office by others or those of the community or society. The difference
their votes. And in it is on this cornerstone that I hold it tobe in treatment is expected because the relevant interests of
self-evident that when the freedoms of speech, press and one type of speech, e.g., political speech, may vary from
peaceful assembly and redress of grievances are being those of another, e.g., obscene speech. Distinctionshave
exercised in relation to suffrage or asa means to enjoy the therefore been made in the treatment, analysis, and
inalienable right of the qualified citizen to vote, they are evaluation ofthe permissible scope of restrictions on
absolute and timeless. If our democracy and various categories of speech. We have ruled, for example,
republicanism are to be worthwhile, the conduct of public that in our jurisdiction slander or libel, lewd and obscene
affairs by our officials must be allowed to suffer incessant speech, as well as "fighting words" are not entitled to
and unabating scrutiny, favorable or unfavorable, constitutional protection and may be
everyday and at all times. Every holder of power in our penalized.199 (Citations omitted)
government must be ready to undergo exposure any
moment of the day or night, from January to December We distinguish between politicaland commercial speech.
every year, as it is only in this way that he can rightfully Political speech refers to speech "both intended and
gain the confidence of the people. I have no patience for received as a contribution to public deliberation about
those who would regard public dissection of the some issue,"200 "foster[ing] informed and civicminded
establishment as an attribute to be indulged by the people deliberation."201 On the other hand, commercial speech
only at certain periods of time. I consider the freedoms of has been defined as speech that does "no more than
speech, press and peaceful assembly and redress of propose a commercial transaction."202 The expression
grievances, when exercised in the name of suffrage, as resulting from the content of the tarpaulin is, however,
the very means by which the right itself to vote can only be definitely political speech. In Justice Brions dissenting
properly enjoyed.It stands to reason therefore, that opinion, he discussed that "[t]he content of the tarpaulin,
suffrage itself would be next to useless if these liberties as well as the timing of its posting, makes it subject of the
cannot be untrammelled [sic] whether as to degree or regulations in RA 9006 and Comelec Resolution No.
time.198 (Emphasis supplied) 9615."203 He adds that "[w]hile indeed the RH issue, by
itself,is not an electoralmatter, the slant that the petitioners
Not all speech are treated the same. In Chavez v. gave the issue converted the non-election issue into a live
Gonzales, this court discussed that some types of speech election one hence, Team Buhay and Team Patay and the
may be subject to regulation: plea to support one and oppose the other."204

Some types of speech may be subjected to some While the tarpaulin may influence the success or failure of
regulation by the State under its pervasive police power, the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin Thus, the last paragraph of Section 1(1) of COMELEC
was not paid for or posted "in return for consideration" by Resolution No. 9615 states:
any candidate, political party, or party-list group.
SECTION 1. Definitions - As used in this Resolution:
The second paragraph of Section 1(4) of COMELEC
Resolution No. 9615, or the rules and regulations 1. The term "election campaign" or "partisan political
implementing Republic Act No. 9006 as an aid to interpret activity" refers to an act designed to promote the election
the law insofar as the facts of this case requires, states: or defeat of a particular candidate or candidates to a public
office, and shall include any of the following:
4. The term "political advertisement" or "election
propaganda" refers to any matter broadcasted, published, ....
printed, displayed or exhibited, in any medium, which
contain the name, image, logo, brand, insignia, color motif, Personal opinions, views, and preferences for candidates,
initials, and other symbol or graphic representation that is contained in blogs shall not be considered acts of election
capable of being associated with a candidate or party, and campaigning or partisan politicalactivity unless expressed
is intended to draw the attention of the public or a segment by government officials in the Executive Department, the
thereof to promote or oppose, directly or indirectly, the Legislative Department, the Judiciary, the Constitutional
election of the said candidate or candidates to a public Commissions, and members of the Civil Service.
office. In broadcast media, political advertisements may
take the form of spots, appearances on TV shows and In any event, this case does not refer to speech in
radio programs, live or taped announcements, teasers, cyberspace, and its effects and parameters should be
and other forms of advertising messages or deemed narrowly tailored only in relation to the facts and
announcements used by commercial advertisers. Political issues in this case. It also appears that such wording in
advertising includes matters, not falling within the scope of COMELEC Resolution No. 9615 does not similarly appear
personal opinion, that appear on any Internet website, in Republic Act No. 9006, the law it implements.
including, but not limited to, social networks, blogging
sites, and micro-blogging sites, in return for consideration, We should interpret in this manner because of the value of
or otherwise capable of pecuniary estimation. (Emphasis political speech.
supplied)
As early as 1918, in United States v. Bustos,205 this court
It is clear that this paragraph suggests that personal recognized the need for full discussion of public affairs. We
opinions are not included, while sponsored messages are acknowledged that free speech includes the right to
covered. criticize the conduct of public men:
The interest of society and the maintenance of good something worth hearing from the dissenter [and] [t]hat is
government demand a full discussion of public affairs. to ensurea true ferment of ideas."215
Complete liberty to comment on the conduct of public men
is a scalpel in the case of free speech. The sharp incision Allowing citizens to air grievances and speak constructive
of its probe relieves the abscesses of official dom. Men in criticisms against their government contributes to every
public life may suffer under a hostile and an unjust societys goal for development. It puts forward matters that
accusation; the wound can be assuaged with the balm of may be changed for the better and ideas that may be
a clear conscience. A public officer must not be too thin- deliberated on to attain that purpose. Necessarily, it also
skinned with reference to comment upon his official acts. makes the government accountable for acts that violate
Only thus can the intelligence and dignity of the individual constitutionally protected rights.
be exalted.206
In 1998, Osmea v. COMELEC found Section 11(b) of
Subsequent jurisprudence developed the right to petition Republic Act No. 6646, which prohibits mass media from
the government for redress of grievances, allowing for selling print space and air time for campaign except to the
criticism, save for some exceptions.207 In the 1951 case of COMELEC, to be a democracy-enhancing
Espuelas v. People,208 this court noted every citizens measure.216This court mentioned how "discussion of
privilege to criticize his or her government, provided it is public issues and debate on the qualifications of
"specific and therefore constructive, reasoned or candidates in an election are essential to the proper
tempered, and not a contemptuous condemnation of the functioning of the government established by our
entire government set-up."209 Constitution."217

The 1927 case of People v. Titular210 involved an alleged As pointed out by petitioners, "speech serves one of its
violation of the Election Law provision "penaliz[ing] the greatest public purposes in the context of elections when
anonymous criticism of a candidate by means of posters the free exercise thereof informs the people what the
or circulars."211 This court explained that it is the posters issues are, and who are supporting what issues."218 At the
anonymous character that is being penalized.212 The heart of democracy is every advocates right to make
ponente adds that he would "dislike very muchto see this known what the people need to know,219 while the
decision made the vehicle for the suppression of public meaningful exercise of ones right of suffrage includes the
opinion."213 right of every voter to know what they need to know in
order to make their choice.
In 1983, Reyes v. Bagatsing214 discussed the importance
of allowing individuals to vent their views. According to this Thus, in Adiong v. COMELEC,220 this court discussed the
court, "[i]ts value may lie in the fact that there may be importance of debate on public issues, and the freedom of
expression especially in relation to information that II.B.6
ensures the meaningful exercise of the right of suffrage:
Content-based regulation
We have adopted the principle that debate on public
issues should be uninhibited, robust, and wide open and COMELEC contends that the order for removal of the
that it may well include vehement, caustic and sometimes tarpaulin is a content-neutral regulation. The order was
unpleasantly sharp attacks on government and public made simply because petitioners failed to comply with the
officials. Too many restrictions will deny to people the maximum size limitation for lawful election propaganda.224
robust, uninhibited, and wide open debate, the generating
of interest essential if our elections will truly be free, clean On the other hand, petitioners argue that the present size
and honest. regulation is content-based as it applies only to political
speech and not to other forms of speech such as
We have also ruled that the preferred freedom of commercial speech.225 "[A]ssuming arguendo that the size
expression calls all the more for the utmost respect when restriction sought to be applied . . . is a mere time, place,
what may be curtailed is the dissemination of information and manner regulation, its still unconstitutional for lack of
to make more meaningful the equally vital right of a clear and reasonable nexus with a constitutionally
suffrage.221(Emphasis supplied, citations omitted) sanctioned objective."226

Speech with political consequences isat the core of the The regulation may reasonably be considered as either
freedom of expression and must be protected by this court. content-neutral or content-based.227 Regardless, the
disposition of this case will be the same. Generally,
Justice Brion pointed out that freedomof expression "is not compared with other forms of speech, the proposed
the god of rights to which all other rights and even speech is content-based.
government protection of state interest must bow." 222
As pointed out by petitioners, the interpretation of
The right to freedom of expression isindeed not absolute. COMELEC contained in the questioned order applies only
Even some forms of protected speech are still subjectto to posters and tarpaulins that may affect the elections
some restrictions. The degree of restriction may depend because they deliver opinions that shape both their
on whether the regulation is content-based or content- choices. It does not cover, for instance, commercial
neutral.223 Content-based regulations can either be based speech.
on the viewpoint of the speaker or the subject of the
expression. Worse, COMELEC does not point to a definite view of what
kind of expression of non-candidates will be adjudged as
"election paraphernalia." There are no existing bright lines substantial state interest endangered by the posting of the
to categorize speech as election-related and those that are tarpaulinas to justify curtailment of the right of freedom of
not. This is especially true when citizens will want to use expression. There is no reason for the state to minimize
their resources to be able to raise public issues that should the right of non-candidate petitioners to post the tarpaulin
be tackled by the candidates as what has happened in this in their private property. The size of the tarpaulin does not
case. COMELECs discretion to limit speech in this case is affect anyone elses constitutional rights.
fundamentally unbridled.
Content-based restraint or censorship refers to restrictions
Size limitations during elections hit ata core part of "based on the subject matter of the utterance or
expression. The content of the tarpaulin is not easily speech."232 In contrast, content-neutral regulation includes
divorced from the size of its medium. controls merely on the incidents of the speech such as
time, place, or manner of the speech.233
Content-based regulation bears a heavy presumption of
invalidity, and this court has used the clear and present This court has attempted to define "content-neutral"
danger rule as measure.228 Thus, in Chavez v. Gonzales: restraints starting with the 1948 case of Primicias v.
Fugoso.234The ordinance in this case was construed to
A content-based regulation, however, bears a heavy grant the Mayor discretion only to determine the public
presumption of invalidity and is measured against the clear places that may be used for the procession ormeeting, but
and present danger rule. The latter will pass constitutional not the power to refuse the issuance of a permit for such
muster only if justified by a compelling reason, and the procession or meeting.235 This court explained that free
restrictions imposedare neither overbroad nor speech and peaceful assembly are "not absolute for it may
229
vague. (Citations omitted) be so regulated that it shall not beinjurious to the equal
enjoyment of others having equal rights, nor injurious to
Under this rule, "the evil consequences sought to be the rights of the community or society."236
prevented must be substantive, extremely serious and the
degree of imminence extremely high."230 "Only when the The earlier case of Calalang v. Williams237 involved the
challenged act has overcome the clear and present National Traffic Commission resolution that prohibited the
danger rule will it pass constitutional muster, with the passing of animal-drawn vehicles along certain roads at
government having the burden of overcoming the specific hours.238 This court similarly discussed police
presumed unconstitutionality."231 power in that the assailed rules carry outthe legislative
policy that "aims to promote safe transit upon and avoid
Even with the clear and present danger test, respondents obstructions on national roads, in the interest and
failed to justify the regulation. There is no compelling and convenience of the public."239
As early as 1907, United States v. Apurado240 recognized We reiterate that the regulation involved at bar is content-
that "more or less disorder will mark the public assembly based. The tarpaulin content is not easily divorced from
of the people to protest against grievances whether real or the size of its medium.
imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement. . . ."241 It is with this II.B.7
backdrop that the state is justified in imposing restrictions
on incidental matters as time, place, and manner of the Justice Carpio and Justice Perlas-Bernabe suggest that
speech. the provisions imposing a size limit for tarpaulins are
content-neutral regulations as these "restrict the
In the landmark case of Reyes v. Bagatsing, this court mannerby which speech is relayed but not the content of
summarized the steps that permit applicants must follow what is conveyed."248
which include informing the licensing authority ahead of
time as regards the date, public place, and time of the If we apply the test for content-neutral regulation, the
assembly.242 This would afford the public official time to questioned acts of COMELEC will not pass the three
inform applicants if there would be valid objections, requirements for evaluating such restraints on freedom of
provided that the clear and present danger test is the speech.249 "When the speech restraints take the form of a
standard used for his decision and the applicants are given content-neutral regulation, only a substantial
the opportunity to be heard.243 This ruling was practically governmental interest is required for its validity," 250 and it
codified in Batas Pambansa No. 880, otherwise known as is subject only to the intermediate approach.251
the Public Assembly Act of 1985.
This intermediate approach is based on the test that we
Subsequent jurisprudence have upheld Batas Pambansa have prescribed in several cases.252 A content-neutral
No. 880 as a valid content-neutral regulation. In the 2006 government regulation is sufficiently justified:
case of Bayan v. Ermita,244 this court discussed how Batas
Pambansa No. 880 does not prohibit assemblies but [1] if it is within the constitutional power of the Government;
simply regulates their time, place, and manner.245 In 2010, [2] if it furthers an important or substantial governmental
this court found in Integrated Bar of the Philippines v. interest; [3] if the governmental interest is unrelated to the
Atienza246 that respondent Mayor Atienza committed suppression of free expression; and [4] if the incident
grave abuse of discretion when he modified the rally permit restriction on alleged [freedom of speech & expression] is
by changing the venue from Mendiola Bridge to Plaza no greater than is essential to the furtherance of that
Miranda without first affording petitioners the opportunity interest.253
to be heard.247
On the first requisite, it is not within the constitutional speech."258 In any case, faced with both rights to freedom
powers of the COMELEC to regulate the tarpaulin. As of speech and equality, a prudent course would be to "try
discussed earlier, this is protected speech by petitioners to resolve the tension in a way that protects the right of
who are non-candidates. On the second requirement, not participation."259
only must the governmental interest be important or
substantial, it must also be compelling as to justify the Second, the pertinent election lawsrelated to private
restrictions made. property only require that the private property owners
consent be obtained when posting election propaganda in
Compelling governmental interest would include the property.260 This is consistent with the fundamental
constitutionally declared principles. We have held, for right against deprivation of property without due process
example, that "the welfare of children and the States of law.261 The present facts do not involve such posting of
mandate to protect and care for them, as parens election propaganda absent consent from the property
patriae,254 constitute a substantial and compelling owner. Thus, this regulation does not apply in this case.
government interest in regulating . . . utterances in TV
broadcast."255 Respondents likewise cite the Constitution262 on their
authority to recommend effective measures to minimize
Respondent invokes its constitutional mandate to ensure election spending. Specifically, Article IX-C, Section 2(7)
equal opportunity for public information campaigns among provides:
candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256 Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
Justice Brion in his dissenting opinion discussed that
"[s]ize limits to posters are necessary to ensure equality of ....
public information campaigns among candidates, as
allowing posters with different sizes gives candidates and (7) Recommend to the Congress effective measures to
their supporters the incentive to post larger posters[,] [and] minimize election spending, including limitation of places
[t]his places candidates with more money and/or with where propaganda materials shall be posted, and to
deep-pocket supporters at an undue advantage against prevent and penalize all forms of election frauds, offenses,
candidates with more humble financial capabilities."257 malpractices, and nuisance candidates. (Emphasis
supplied) This does not qualify as a compelling and
First, Adiong v. COMELEC has held that this interest is substantial government interest to justify regulation of the
"not as important as the right of [a private citizen] to freely preferred right to freedom of expression.
express his choice and exercise his right of free
The assailed issuances for the removal of the tarpaulin are The restriction in the present case does not pass even the
based on the two feet (2) by three feet (3) size limitation lower test of intermediate scrutiny for content-neutral
under Section 6(c) of COMELEC Resolution No. 9615. regulations.
This resolution implements the Fair Election Act that
provides for the same size limitation.263 The action of the COMELEC in thiscase is a strong
deterrent to further speech by the electorate. Given the
This court held in Adiong v. COMELEC that "[c]ompared stature of petitioners and their message, there are
to the paramount interest of the State in guaranteeing indicators that this will cause a "chilling effect" on robust
freedom of expression, any financial considerations discussion during elections.
behind the regulation are of marginal significance." 264 In
fact, speech with political consequences, as in this case, The form of expression is just as important as the message
should be encouraged and not curtailed. As petitioners itself. In the words of Marshall McLuhan, "the medium is
pointed out, the size limitation will not serve the objective the message."266 McLuhans colleague and mentor Harold
of minimizing election spending considering there is no Innis has earlier asserted that "the materials on which
limit on the number of tarpaulins that may be posted.265 words were written down have often counted for more than
the words themselves."267
The third requisite is likewise lacking. We look not only at
the legislative intent or motive in imposing the restriction, III
but more so at the effects of such restriction, if Freedom of expression and equality
implemented. The restriction must not be narrowly tailored
to achieve the purpose. It must be demonstrable. It must III.A
allow alternative avenues for the actor to make speech.
The possibility of abuse
In this case, the size regulation is not unrelated to the
suppression of speech. Limiting the maximum sizeof the Of course, candidates and political parties do solicit the
tarpaulin would render ineffective petitioners message help of private individuals for the endorsement of their
and violate their right to exercise freedom of expression. electoral campaigns.

The COMELECs act of requiring the removal of the On the one extreme, this can take illicit forms such as
tarpaulin has the effect of dissuading expressions with when endorsement materials in the form of tarpaulins,
political consequences. These should be encouraged, posters, or media advertisements are made ostensibly by
more so when exercised to make more meaningful the "friends" but in reality are really paid for by the candidate
equally important right to suffrage.
or political party. This skirts the constitutional value that The message of petitioners in thiscase will certainly not be
provides for equal opportunities for all candidates. what candidates and political parties will carry in their
election posters or media ads. The message of petitioner,
However, as agreed by the parties during the oral taken as a whole, is an advocacy of a social issue that it
arguments in this case, this is not the situation that deeply believes. Through rhetorical devices, it
confronts us. In such cases, it will simply be a matter for communicates the desire of Diocese that the positions of
investigation and proof of fraud on the part of the those who run for a political position on this social issue be
COMELEC. determinative of how the public will vote. It primarily
advocates a stand on a social issue; only secondarily
The guarantee of freedom of expression to individuals even almost incidentally will cause the election or non-
without any relationship to any political candidate should election of a candidate.
not be held hostage by the possibility of abuse by those
seeking to be elected. It is true that there can be The twin tarpaulins consist of satire of political parties.
underhanded, covert, or illicit dealings so as to hide the Satire is a "literary form that employs such devices as
candidates real levels of expenditures. However, labelling sarcasm, irony and ridicule to deride prevailing vices or
all expressions of private parties that tend to have an effect follies,"268 and this may target any individual or group in
on the debate in the elections as election paraphernalia society, private and government alike. It seeks to
would be too broad a remedy that can stifle genuine effectively communicate a greater purpose, often used for
speech like in this case. Instead, to address this evil, better "political and social criticism"269 "because it tears down
and more effective enforcement will be the least restrictive facades, deflates stuffed shirts, and unmasks hypocrisy. .
means to the fundamental freedom. . . Nothing is more thoroughly democratic than to have the
high-and-mighty lampooned and spoofed."270 Northrop
On the other extreme, moved by the credentials and the Frye, wellknown in this literary field, claimed that satire had
message of a candidate, others will spend their own two defining features: "one is wit or humor founded on
resources in order to lend support for the campaigns. This fantasy or a sense of the grotesque and absurd, the other
may be without agreement between the speaker and the is an object of attack."271 Thus, satire frequently uses
candidate or his or her political party. In lieu of donating exaggeration, analogy, and other rhetorical devices.
funds to the campaign, they will instead use their
resources directly in a way that the candidate or political The tarpaulins exaggerate. Surely, "Team Patay" does not
party would have doneso. This may effectively skirt the refer to a list of dead individuals nor could the Archbishop
constitutional and statutory limits of campaign spending. of the Diocese of Bacolod have intended it to mean that
the entire plan of the candidates in his list was to cause
Again, this is not the situation in this case. death intentionally. The tarpaulin caricatures political
parties and parodies the intention of those in the list. Heterodoxies have always given us pause. The
Furthermore, the list of "Team Patay" is juxtaposed with unforgiving but insistent nuance that the majority surely
the list of "Team Buhay" that further emphasizes the theme and comfortably disregards provides us with the checks
of its author: Reproductive health is an important marker upon reality that may soon evolve into creative solutions
for the church of petitioners to endorse. to grave social problems. This is the utilitarian version. It
could also be that it is just part of human necessity to
The messages in the tarpaulins are different from the usual evolve through being able to express or communicate.
messages of candidates. Election paraphernalia from
candidates and political parties are more declarative and However, the Constitution we interpret is not a theoretical
descriptive and contain no sophisticated literary allusion to document. It contains other provisions which, taken
any social objective. Thus, they usually simply exhort the together with the guarantee of free expression, enhances
public to vote for a person with a brief description of the each others value. Among these are the provisions that
attributes of the candidate. For example "Vote for [x], acknowledge the idea of equality. In shaping doctrine
Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for construing these constitutional values, this court needs to
[z], Iba kami sa Makati." exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to
This courts construction of the guarantee of freedom of unwittingly cause the undesired effect of diluting freedoms
expression has always been wary of censorship or as exercised in reality and, thus, render them
subsequent punishment that entails evaluation of the meaningless.
speakers viewpoint or the content of ones speech. This is
especially true when the expression involved has political III.B.
consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming Speech and equality:
humility on the part of any human institution no matter how
endowed with the secular ability to decide legal Some considerations We first establish that there are two
controversies with finality entails that we are not the paradigms of free speech that separate at the point of
keepers of all wisdom. giving priority to equality vis--vis liberty.272

Humanitys lack of omniscience, even acting collectively, In an equality-based approach, "politically disadvantaged
provides space for the weakest dissent. Tolerance has speech prevails over regulation[,] but regulation promoting
always been a libertarian virtue whose version is political equality prevails over speech."273 This view allows
embedded in our Billof Rights. There are occasional the government leeway to redistribute or equalize
heretics of yesterday that have become our visionaries. speaking power, such as protecting, even implicitly
subsidizing, unpopular or dissenting voices often series of synthetic judgments. It stipulates the ability to
systematically subdued within societys ideological determine ones own life: to be able to determine what to
ladder.274 This view acknowledges that there are dominant do and what not to do, what to suffer and what not. But the
political actors who, through authority, power, resources, subject of this autonomy is never the contingent, private
identity, or status, have capabilities that may drown out the individual as that which he actually is or happens to be; it
messages of others. This is especially true in a developing is rather the individual as a human being who is capable
or emerging economy that is part of the majoritarian world of being free with the others. And the problem of making
like ours. possible such a harmony between every individual liberty
and the other is not that of finding a compromise between
The question of libertarian tolerance competitors, or between freedom and law, between
general and individual interest, common and private
This balance between equality and the ability to express welfare in an established society, but of creating the
so as to find ones authentic self or to participate in the self society in which man is no longer enslaved by institutions
determination of ones communities is not new only to law. which vitiate self-determination from the beginning. In
It has always been a philosophical problematique. other words, freedom is still to be created even for the
freest of the existing societies.277 (Emphasis in the
In his seminal work, Repressive Tolerance, philosopher original)
and social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background Marcuse suggests that the democratic argument with
limitation, rendering freedoms exercised within such all opinions presented to and deliberated by the people
limitation as merely "protect[ing] the already established "implies a necessary condition, namely, that the people
machinery of discrimination."275 In his view, any must be capable of deliberating and choosing on the basis
improvement "in the normal course of events" within an of knowledge, that they must have access to authentic
unequal society, without subversion, only strengthens information, and that, on this basis, their evaluation must
existing interests of those in power and control.276 be the result of autonomous thought."278 He submits that
"[d]ifferent opinions and philosophies can no longer
In other words, abstract guarantees of fundamental rights compete peacefully for adherence and persuasion on
like freedom of expression may become meaningless if not rational grounds: the marketplace of ideas is organized
taken in a real context. This tendency to tackle rights in the and delimited by those who determine the national and the
abstract compromises liberties. In his words: individual interest."279 A slant toward left manifests from
his belief that "there is a natural right of resistance for
Liberty is self-determination, autonomythis is almost a oppressed and overpowered minorities to use extralegal
tautology, but a tautology which results from a whole means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that of betterendowed citizens."288 Justice Brandeis solution is
breaks away and transcends from established hierarchies, to "remedy the harms of speech with more
power structures, and indoctrinations. The tolerance of speech."289 This view moves away from playing down the
libertarian society he refers to as "repressive tolerance." danger as merely exaggerated, toward "tak[ing] the costs
seriously and embrac[ing] expression as the preferred
Legal scholars strategy for addressing them."290 However, in some cases,
the idea of more speech may not be enough. Professor
The 20th century also bears witness to strong support from Laurence Tribe observed the need for context and "the
legal scholars for "stringent protections of expressive specification of substantive values before [equality] has full
liberty,"281 especially by political egalitarians. meaning."291 Professor Catherine A. MacKinnon adds that
Considerations such as "expressive, deliberative, and "equality continues to be viewed in a formal rather than a
informational interests,"282 costs or the price of substantive sense."292 Thus, more speech can only mean
expression, and background facts, when taken together, more speech from the few who are dominant rather than
produce bases for a system of stringent protections for those who are not.
expressive liberties.283
Our jurisprudence
Many legal scholars discuss the interest and value of
expressive liberties. Justice Brandeis proposed that This court has tackled these issues.
"public discussion is a political duty."284 Cass Sustein
placed political speech on the upper tier of his twotier Osmea v. COMELEC affirmed National Press Club v.
model for freedom of expression, thus, warranting COMELEC on the validity of Section 11(b) ofthe Electoral
stringent protection.285 He defined political speech as Reforms Law of 1987.293 This section "prohibits mass
"both intended and received as a contribution to public media from selling or giving free of charge print space or
deliberation about some issue."286 air time for campaign or other political purposes, except to
the Commission on Elections."294 This court explained that
But this is usually related also tofair access to this provision only regulates the time and manner of
opportunities for such liberties.287 Fair access to advertising in order to ensure media equality among
opportunity is suggested to mean substantive equality and candidates.295 This court grounded this measure on
not mere formal equalitysince "favorable conditions for constitutional provisions mandating political
realizing the expressive interest will include some equality:296 Article IX-C, Section 4
assurance of the resources required for expression and
some guarantee that efforts to express views on matters Section 4. The Commission may, during the election
of common concern will not be drowned out by the speech period, supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of Thus, in these cases, we have acknowledged the
transportation and other public utilities, media of Constitutions guarantee for more substantive expressive
communication or information, all grants, special freedoms that take equality of opportunities into
privileges, or concessions granted by the Government or consideration during elections.
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation The other view
or its subsidiary. Such supervision or regulation shall aim
to ensure equal opportunity, time, and space, and the right However, there is also the other view. This is that
to reply, including reasonable, equal rates therefor, for considerations of equality of opportunity or equality inthe
public information campaigns and forums among ability of citizens as speakers should not have a bearing in
candidates in connection with the objective of holding free, free speech doctrine. Under this view, "members of the
orderly, honest, peaceful, and credible elections. public are trusted to make their own individual evaluations
(Emphasis supplied) of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are
Article XIII, Section 1 best left to a freely competitive ideological market."297 This
is consistent with the libertarian suspicion on the use of
Section 1. The Congress shall give highest priorityto the viewpoint as well as content to evaluate the constitutional
enactment of measures that protect and enhance the right validity or invalidity of speech.
of all the people to human dignity, reducesocial, economic,
and political inequalities, and remove cultural inequities by The textual basis of this view is that the constitutional
equitably diffusing wealth and political power for the provision uses negative rather than affirmative language.
common good. It uses speech as its subject and not
speakers.298 Consequently, the Constitution protects free
To this end, the State shall regulate the acquisition, speech per se, indifferent to the types, status, or
ownership, use, and disposition of property and its associations of its speakers.299 Pursuant to this,
increments. (Emphasis supplied) "government must leave speakers and listeners in the
private order to their own devices in sorting out the relative
Article II, Section 26 influence of speech."300

Section 26. The State shall guarantee equal access to Justice Romeros dissenting opinion in Osmea v.
opportunities for public service, and prohibit political COMELEC formulates this view that freedom of speech
dynasties as may be defined by law. (Emphasis supplied) includes "not only the right to express ones views, but also
other cognate rights relevant to the free communication
[of] ideas, not excluding the right to be informed on matters Parenthetically and just to provide the whole detail of the
of public concern."301 She adds: argument, the majority of the US Supreme Court in the
campaign expenditures case of Buckley v. Valeo
And since so many imponderables may affect the outcome "condemned restrictions (even if content-neutral) on
of elections qualifications of voters and candidates, expressive liberty imposed in the name of enhanc[ing] the
education, means of transportation, health, public relative voice of others and thereby equaliz[ing] access to
discussion, private animosities, the weather, the threshold the political arena."306 The majority did not use the
of a voters resistance to pressure the utmost ventilation equality-based paradigm.
of opinion of men and issues, through assembly,
association and organizations, both by the candidate and One flaw of campaign expenditurelimits is that "any limit
the voter, becomes a sine qua non for elections to truly placed on the amount which a person can speak, which
reflect the will of the electorate.302 (Emphasis supplied) takes out of his exclusive judgment the decision of when
enough is enough, deprives him of his free speech."307
Justice Romeros dissenting opinion cited an American
case, if only to emphasize free speech primacy such Another flaw is how "[a]ny quantitative limitation on
that"courts, as a rule are wary to impose greater political campaigning inherently constricts the sum of
restrictions as to any attempt to curtail speeches with public information and runs counter to our profound
political content,"303 thus: national commitment that debate on public issues should
be uninhibited, robust, and wide-open."308
the concept that the government may restrict the speech
of some elements in our society in order to enhance the In fact, "[c]onstraining those who have funds or have been
relative voice of the others is wholly foreign to the First able to raise funds does not ease the plight of those
Amendment which was designed to "secure the widest without funds in the first place . . . [and] even if ones main
possible dissemination of information from diverse and concern isslowing the increase in political costs, it may be
antagonistic sources" and "to assure unfettered more effective torely on market forces toachieve that result
interchange of ideas for the bringing about of political and than on active legal intervention."309 According to Herbert
social changes desired by the people."304 Alexander, "[t]o oppose limitations is not necessarily to
argue that the skys the limit [because in] any campaign
This echoes Justice Oliver Wendell Holmes submission there are saturation levels and a point where spending no
"that the market place of ideas is still the best alternative longer pays off in votes per dollar."310
to censorship."305
III. C.
When private speech amounts Thus clearly, regulation of speech in the context of
electoral campaigns made by candidates or the members
to election paraphernalia of their political parties or their political parties may be
regulated as to time, place, and manner. This is the effect
The scope of the guarantee of free expression takes into of our rulings in Osmea v. COMELEC and National Press
consideration the constitutional respect for human Club v. COMELEC.
potentiality and the effect of speech. It valorizes the ability
of human beings to express and their necessity to relate. Regulation of speech in the context of electoral campaigns
On the other hand, a complete guarantee must also take made by persons who are not candidates or who do not
into consideration the effects it will have in a deliberative speak as members of a political party which are, taken as
democracy. Skewed distribution of resources as well as a whole, principally advocacies of a social issue that the
the cultural hegemony of the majority may have the effect public must consider during elections is unconstitutional.
of drowning out the speech and the messages of those in Such regulation is inconsistent with the guarantee of
the minority. In a sense, social inequality does have its according the fullest possible range of opinions coming
effect on the exercise and effect of the guarantee of free from the electorate including those that can catalyze
speech. Those who have more will have better access to candid, uninhibited, and robust debate in the criteria for the
media that reaches a wider audience than those who have choice of a candidate.
less. Those who espouse the more popular ideas will have
better reception than the subversive and the dissenters of This does not mean that there cannot be a specie of
society.To be really heard and understood, the speech by a private citizen which will not amount toan
marginalized view normally undergoes its own degree of election paraphernalia to be validly regulated by law.
struggle.
Regulation of election paraphernalia will still be
The traditional view has been to tolerate the viewpoint of constitutionally valid if it reaches into speech of persons
the speaker and the content of his or her expression. This who are not candidates or who do not speak as members
view, thus, restricts laws or regulation that allows public of a political party if they are not candidates, only if what is
officials to make judgments of the value of such viewpoint regulated is declarative speech that, taken as a whole, has
or message content. This should still be the principal for its principal object the endorsement of a candidate
approach. only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of
However, the requirements of the Constitution regarding enhancing the opportunity of all candidates to be heard
equality in opportunity must provide limits to some and considering the primacy of the guarantee of free
expression during electoral campaigns. expression, and (d) demonstrably the least restrictive
means to achieve that object. The regulation must only be private individuals.314 Certainly, any provision or regulation
with respect to the time, place, and manner of the rendition can be circumvented. But we are not confronted with this
of the message. In no situation may the speech be possibility. Respondents agree that the tarpaulin in
prohibited or censored onthe basis of its content. For this question belongs to petitioners. Respondents have also
purpose, it will notmatter whether the speech is made with agreed, during the oral arguments, that petitioners were
or on private property. neither commissioned nor paid by any candidate or
political party to post the material on their walls.
This is not the situation, however, in this case for two
reasons. First, as discussed, the principal message in the Even though the tarpaulin is readily seen by the public, the
twin tarpaulins of petitioners consists of a social advocacy. tarpaulin remains the private property of petitioners. Their
right to use their property is likewise protected by the
Second, as pointed out in the concurring opinion of Justice Constitution.
Antonio Carpio, the present law Section 3.3 of Republic
Act No. 9006 and Section 6(c) of COMELEC Resolution In Philippine Communications Satellite Corporation v.
No. 9615 if applied to this case, will not pass the test of Alcuaz:315
reasonability. A fixed size for election posters or tarpaulins
without any relation to the distance from the intended Any regulation, therefore, which operates as an effective
average audience will be arbitrary. At certain distances, confiscation of private property or constitutes an arbitrary
posters measuring 2 by 3 feet could no longer be read by or unreasonable infringement of property rights is void,
the general public and, hence, would render speech because it is repugnant to the constitutional guaranties of
meaningless. It will amount to the abridgement of speech due process and equal protection of the laws.316 (Citation
with political consequences. omitted)

IV This court in Adiong held that a restriction that regulates


Right to property where decals and stickers should be posted is "so broad
that it encompasses even the citizens private
Other than the right to freedom of expression311 and the property."317 Consequently, it violates Article III, Section 1
meaningful exercise of the right to suffrage,312 the present of the Constitution which provides thatno person shall be
case also involves ones right to property.313 deprived of his property without due process of law. This
court explained:
Respondents argue that it is the right of the state to
prevent the circumvention of regulations relating to Property is more than the mere thing which a person owns,
election propaganda by applying such regulations to it includes the right to acquire, use, and dispose of it; and
the Constitution, in the 14th Amendment, protects these tarpaulin from their own property. The absurdity of the
essential attributes. situation is in itself an indication of the unconstitutionality
of COMELECs interpretation of its powers.
Property is more than the mere thing which a person owns.
It is elementary that it includes the right to acquire, use, Freedom of expression can be intimately related with the
and dispose of it. The Constitution protects these essential right to property. There may be no expression when there
attributes of property. Holden v. Hardy, 169 U.S. 366, 391, is no place where the expression may be made.
41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists COMELECs infringement upon petitioners property rights
of the free use, enjoyment, and disposal of a persons as in the present case also reaches out to infringement on
acquisitions without control or diminution save by the law their fundamental right to speech.
of the land. 1 Cooleys Bl. Com. 127. (Buchanan v. Warley
245 US 60 [1917])318 Respondents have not demonstrated thatthe present state
interest they seek to promote justifies the intrusion into
This court ruled that the regulation in Adiong violates petitioners property rights. Election laws and regulations
private property rights: must be reasonable. It must also acknowledge a private
individuals right to exercise property rights. Otherwise, the
The right to property may be subject to a greater degree due process clause will be violated.
of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the COMELEC Resolution No. 9615 and the Fair Election Act
Government must be exceptionally convincing and intend to prevent the posting of election propaganda in
irrefutable. The burden is not met in this case. private property without the consent of the owners of such
private property. COMELEC has incorrectly implemented
Section 11 of Rep. Act 6646 is so encompassing and these regulations. Consistent with our ruling in Adiong, we
invasive that it prohibits the posting or display of election find that the act of respondents in seeking to restrain
propaganda in any place, whether public or private, except petitioners from posting the tarpaulin in their own private
inthe common poster areas sanctioned by COMELEC. property is an impermissible encroachments on the right
This means that a private person cannot post his own to property.
crudely prepared personal poster on his own front dooror
on a post in his yard. While the COMELEC will certainly V
never require the absurd, there are no limits to what Tarpaulin and its message are not religious speech
overzealous and partisan police officers, armed with a
copy of the statute or regulation, may do.319 Respondents We proceed to the last issues pertaining to whether the
ordered petitioners, who are private citizens, to remove the COMELEC in issuing the questioned notice and letter
violated the right of petitioners to the free exercise of their The difficulty that often presents itself in these cases stems
religion. from the reality that every act can be motivated by moral,
ethical, and religious considerations. In terms of their
At the outset, the Constitution mandates the separation of effect on the corporeal world, these acts range from belief,
church and state.320 This takes many forms. Article III, to expressions of these faiths, to religious ceremonies, and
Section 5 of the Constitution, for instance provides: then to acts of a secular character that may, from the point
of view of others who do not share the same faith or may
Section 5. No law shall be made respecting an not subscribe to any religion, may not have any religious
establishment of religion, or prohibiting the free exercise bearing.
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or Definitely, the characterizations ofthe religious of their acts
preference, shall forever be allowed. Noreligious test shall are not conclusive on this court. Certainly, our powers of
be required for the exercise of civil or political rights. adjudication cannot be blinded by bare claims that acts are
religious in nature.
There are two aspects of this provision.321 The first is the
none stablishment clause.322 Second is the free exercise Petitioners erroneously relied on the case of Ebralinag v.
and enjoyment of religious profession and worship.323 The Division Superintendent of Schools of Cebu 326 in
claiming that the court "emphatically" held that the
The second aspect is atissue in this case. adherents ofa particular religion shall be the ones to
determine whether a particular matter shall be considered
Clearly, not all acts done by those who are priests, ecclesiastical in nature.327 This court in
bishops, ustadz, imams, or any other religious make such Ebralinagexempted Jehovahs Witnesses from
act immune from any secular regulation.324 The religious participating in the flag ceremony "out of respect for their
also have a secular existence. They exist within a society religious beliefs, [no matter how] "bizarre" those
that is regulated by law. beliefsmay seem to others."328 This court found a balance
between the assertion of a religious practice and the
The Bishop of Bacolod caused the posting of the tarpaulin. compelling necessities of a secular command. It was an
But not all acts of a bishop amounts to religious early attempt at accommodation of religious beliefs.
expression. This notwithstanding petitioners claim that
"the views and position of the petitioners, the Bishop and In Estrada v. Escritor,329 this court adopted a policy of
the Diocese of Bacolod, on the RH Bill is inextricably benevolent neutrality:
connected to its Catholic dogma, faith, and moral
teachings. . . ."325
With religion looked upon with benevolence and not The same may be said of petitioners reliance on papal
hostility, benevolent neutrality allows accommodation of encyclicals to support their claim that the expression onthe
religion under certain circumstances. Accommodations tarpaulin is an ecclesiastical matter. With all due respect
are government policies that take religion specifically to the Catholic faithful, the church doctrines relied upon by
intoaccount not to promote the governments favored form petitioners are not binding upon this court. The position of
of religion, but to allow individuals and groups to exercise the Catholic religion in the Philippines as regards the RH
their religion without hindrance. Their purpose or effect Law does not suffice to qualify the posting by one of its
therefore is to remove a burden on, or facilitate the members of a tarpaulin as religious speech solely on such
exercise of, a persons or institutions religion. As Justice basis. The enumeration of candidates on the face of the
Brennan explained, the "government [may] take religion tarpaulin precludes any doubtas to its nature as speech
into account . . . to exempt, when possible, from generally with political consequences and not religious speech.
applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be Furthermore, the definition of an "ecclesiastical affair" in
infringed, or to create without state involvement an Austria v. National Labor Relations Commission333 cited
atmosphere in which voluntary religious exercise may by petitioners finds no application in the present case. The
flourish."330 posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as
This court also discussed the Lemon test in that case, such enumerated in the Austriacase such as "proceedings for
that a regulation is constitutional when: (1) it has a secular excommunication, ordinations of religious ministers,
legislative purpose; (2) it neither advances nor inhibits administration of sacraments and other activities
religion; and (3) it does not foster an excessive withattached religious significance."334
entanglement with religion.331
A FINAL NOTE
As aptly argued by COMELEC, however, the tarpaulin, on
its face, "does not convey any religious doctrine of the We maintain sympathies for the COMELEC in attempting
Catholic church."332 That the position of the Catholic to do what it thought was its duty in this case. However, it
church appears to coincide with the message of the was misdirected.
tarpaulin regarding the RH Law does not, by itself, bring
the expression within the ambit of religious speech. On the COMELECs general role includes a mandate to ensure
contrary, the tarpaulin clearly refers to candidates equal opportunities and reduce spending among
classified under "Team Patay" and "Team Buhay" candidates and their registered political parties. It is not to
according to their respective votes on the RH Law. regulate or limit the speech of the electorate as it strives to
participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a Freedom for the thought we can disagree with can be
caricature of those who are running for public office.Their wielded not only by those in the minority. This can often be
message may be construed generalizations of very expressed by dominant institutions, even religious ones.
complex individuals and party-list organizations. That they made their point dramatically and in a large way
does not necessarily mean that their statements are true,
They are classified into black and white: as belonging to or that they have basis, or that they have been expressed
"Team Patay" or "Team Buhay." in good taste.

But this caricature, though not agreeable to some, is still Embedded in the tarpaulin, however, are opinions
protected speech. expressed by petitioners. It is a specie of expression
protected by our fundamental law. It is an expression
That petitioners chose to categorize them as purveyors of designed to invite attention, cause debate, and hopefully,
death or of life on the basis of a single issue and a persuade. It may be motivated by the interpretation of
complex piece of legislation at that can easily be petitioners of their ecclesiastical duty, but their
interpreted as anattempt to stereo type the candidates and parishioners actions will have very real secular
party-list organizations. Not all may agree to the way their consequences. Certainly, provocative messages do
thoughts were expressed, as in fact there are other matter for the elections.
Catholic dioceses that chose not to follow the example of
petitioners. What is involved in this case is the most sacred of speech
forms: expression by the electorate that tends to rouse the
Some may have thought that there should be more room public to debate contemporary issues. This is not
to consider being more broad-minded and non- speechby candidates or political parties to entice votes. It
judgmental. Some may have expected that the authors is a portion of the electorate telling candidates the
would give more space to practice forgiveness and conditions for their election. It is the substantive content of
humility. the right to suffrage.

But, the Bill of Rights enumerated in our Constitution is an This. is a form of speech hopeful of a quality of democracy
enumeration of our fundamental liberties. It is not a that we should all deserve. It is protected as a fundamental
detailed code that prescribes good conduct. It provides and primordial right by our Constitution. The expression in
space for all to be guided by their conscience, not only in the medium chosen by petitioners deserves our protection.
the act that they do to others but also in judgment of the
acts of others. WHEREFORE, the instant petition is GRANTED. The
temporary restraining order previously issued is hereby
made permanent. The act of the COMELEC in issuing the This is a petition1 for certiorari filed pursuant to Rule XI,
assailed notice dated February 22, 2013 and letter dated Section 1 of the 1997 Revised Rules of Procedure of the
February 27, 2013 is declared unconstitutional. Commission on Audit. The petition seeks to annul the
decision2 dated September 27, 2007 and
SO ORDERED. resolution3 dated November 5, 2008 of the Commission on
Audit, which disallowed the payment of retainer fees to the
Republic of the Philippines law firm of Laguesma Magsalin Consulta and Gastardo for
SUPREME COURT legal services rendered to Clark Development
Manila Corporation.4

EN BANC Sometime in 2001, officers of Clark Development


Corporation,5 a government-owned and controlled
G.R. No. 185544 January 13, 2015 corporation, approached the law firm of Laguesma
Magsalin Consulta and Gastardo for its possible
THE LAW FIRM OF LAGUESMA MAGSALIN assistance in handling the corporations labor cases.6
CONSULTA AND GASTARDO, Petitioner,
vs. Clark Development Corporation, through its legal officers
THE COMMISSION ON AUDIT and/or REYNALDO A. and after the law firms acquiescence, "sought from the
VILLAR and JUANITO G. ESPINO, JR. in their Office of the Government Corporate Counsel [OGCC] its
capacities as Chairman and Commissioner, approval for the engagement of [Laguesma Magsalin
respectively, Respondents. Consulta and Gastardo] as external counsel."7

DECISION On December 4, 2001, the Office of the Government


Corporate Counsel denied the request.8 Clark
LEONEN, J.: Development Corporation then filed a request for
reconsideration.9
When a government entity engages the legal services of
private counsel, it must do so with the necessary On May 20, 2002, the Office of the Government Corporate
authorization required by law; otherwise, its officials bind Counsel, through Government Corporate Counsel Amado
themselves to be personally liable for compensating D. Valdez (Government Corporate Counsel Valdez),
private counsels services. reconsidered the request and approved the engagement
of Laguesma Magsalin Consulta and Gastardo.10 It also
furnished Clark Development Corporation a copy of a pro-
forma retainership contract11 containing the suggested Clark Development Corporations funds to settle the legal
terms and conditions of the retainership.12 It instructed fees due to the law firm.18
Clark Development Corporation to submit a copy of the
contract to the Office of the Government Corporate On August 5, 2005, State Auditor IVElvira G. Punzalan
Counsel after all the parties concerned have signed it.13 informed Clark Development Corporation that itsrequest
for clearance could not be acted upon until the Office of
In the meantime, Laguesma Magsalin Consulta and the Government Corporate Counsel approves the
Gastardo commenced rendering legal services to Clark retainership contract with finality.19
Development Corporation. At this point, Clark
Development Corporation had yet to secure the On August 10, 2005, Clark Development Corporation sent
authorization and clearance from the Office of the a letterrequest to the Office of the Government Corporate
Government Corporate Counsel or the concurrence of the Counsel for the final approval of the retainership contract,
Commission on Audit of the retainership contract. in compliance with the Commission on Audits
According to the law firm, Clark Development requirements.20
Corporations officers assured the law firm that it was in
the process of securing the approval of the Commission On December 22, 2005, GovernmentCorporate Counsel
on Audit.14 Agnes VST Devanadera (Government Corporate Counsel
Devanadera) denied Clark Development Corporations
On June 28, 2002, Clark Development Corporation, request for approval on the ground that the proforma
through its Board of Directors, approved Laguesma retainership contract given to them was not "based on the
Magsalin Consulta and Gastardos engagement as private premise that the monthly retainers fee and concomitant
counsel.15 In 2003, it also approved the assignment of charges are reasonable and could pass in audit by
additional labor cases to the law firm.16 COA."21 She found that Clark Development Corporation
adopted instead the law firms proposals concerning the
On July 13, 2005, Clark Development Corporation payment of a retainers fee on a per case basis without
requested the Commission on Audit for concurrence of the informing the Office of the Government Corporate
retainership contract it executed with Laguesma Magsalin Counsel. She, however, ruled that the law firm was entitled
Consulta and Gastardo.17 According to the law firm, it was to payment under the principle of quantum meruitand
only at this pointwhen Clark Development Corporation subject to Clark Development Corporation Boards
informed them that the Commission on Audit required the approval and the usual government auditing rules and
clearance and approval of the Office of the Government regulations.22
Corporate Counsel before it could approve the release of
On December 27, 2005, Clark Development Corporation the legal fees already incurred by Clark Development
relayed Government Corporate Counsel Devanaderas Corporation, but rather by the government officials who
letter to the Commissions Audit Team Leader, highlighting violated the regulations on the matter.29
the portion on the approval of payment to Laguesma
Magsalin Consulta and Gastardo on the basis of quantum Clark Development Corporation and Laguesma Magsalin
meruit.23 Consulta and Gastardo separately filed motions for
reconsideration,30 which the Commission on Audit denied
On November 9, 2006, the Commission on Audits Office in the assailed resolution dated November 5, 2008. The
of the General Counsel, Legal and Adjudication Sector resolution also disallowed the payment of legal fees to the
issued a "Third Indorsement"24 denying Clark law firm on the basis of quantum meruitsince the
Development Corporations request for clearance, citing Commission on Audit Circular No. 86-255 mandates that
its failure to secure a prior written concurrence of the the engagementof private counsel without prior approval
Commission on Audit and the approval with finality of the "shall be a personal liability of the officials concerned."31
Office of the Government Corporate Counsel.25 It also
stated that its request for concurrence was made three (3) Laguesma Magsalin Consulta and Gastardo filed this
years after engaging the legal services of the law firm.26 petition for certiorari on December 19,
32
2008. Respondents, through the Office of the Solicitor
On December 4, 2006, Laguesma Magsalin Consulta and General, filed their comment33 dated May 7, 2009. The
Gastardo appealed the "Third Indorsement"to the reply34 was filed on September 1, 2009.
Commission on Audit. On December 12, 2006, Clark
Development Corporation also filed a motion for The primordial issue to be resolved by this court is whether
reconsideration.27 the Commission on Audit erred in disallowing the payment
of the legal fees to Laguesma Magsalin Consulta and
On September 27, 2007, the Commission on Audit Gastardo as Clark Development Corporations private
rendered the assailed decision denying the appeal and counsel.
motion for reconsideration. It ruled that Clark Development
Corporation violated Commission on Audit Circular No. 98- To resolve this issue, however, several procedural and
002 dated June 9, 1998 and Office of the President substantive issues must first be addressed:
Memorandum Circular No. 9 dated August 27, 1998
whenit engaged the legal services of Laguesma Magsalin Procedural:
Consulta and Gastardo without the final approval and
written concurrence of the Commission on Audit.28 It also 1. Whether the petition was filed on time; and
ruled that it was not the governments responsibility to pay
2. Whether petitioner is the real party-in-interest. In their comment,40 respondents argue that petitioner is
not a real party-in-interest to the case.41 They argue that it
Substantive: is Clark Development Corporation, and not petitioner, who
isa real party-in-interest since the subject of the assailed
1. Whether the Commission on Audit erred in decision was the denial of the corporations request for
denying Clark Development Corporations clearance.42
requestfor clearance in engaging petitioner as
private counsel; Respondents also allege that it was only on July 13, 2005,
or three (3) years after the hiring of petitioner, when Clark
2. Whether the Commission on Audit correctly cited Development Corporation requested the Commission on
Polloso v. Gangan35 and PHIVIDEC Industrial Audits concurrence of the retainership contract between
Authority v. Capitol Steel Corporation36 in support Clark Development Corporation and petitioner.43 They
of its denial; and argue that the retainership contract was not approved with
finality by the Office of the Government Corporate
3. Whether the Commission on Audit erred in ruling Counsel.44 Further, Polloso and PHIVIDE Care applicable
that petitioner should not be paid on the basis of to this case since both cases involve the "indispensability
quantum meruitand that any payment for its legal of [the] prior written concurrence of both [the Office of the
services should be the personal liability of Clark Government Corporate Counsel] and the [Commission on
Development Corporations officials. Audit] before any [government-owned and controlled
corporation] can hire an external counsel."45
Petitioner argues that Pollosoand PHIVIDEC are not
applicable to the circumstances at hand because in both In its reply,46 petitioner argues that it is a real party-in-
cases, the government agency concerned had failed to interest since "it rendered its services to [Clark
secure the approval of both the Office of the Government Development Corporation], which ultimately redounded to
Corporate Counsel and the Commission on the benefit of the Republic"47 and that "it deserves to be
37
Audit. Petitioner asserts that it was able to secure paid what is its due as a matter of right."48 Petitioner also
authorization from the Office of the Government Corporate reiterates its argument that Polloso and PHIVIDE Care not
Counsel prior to rendering services to Clark Development applicable to this case since the factual antecedents are
Corporation for all but two (2) of the labor cases assigned not the same.49
to it.38 It argues that the May 20, 2002 letter from
Government Corporate Counsel Valdez was tantamount The petition is denied.
to a grant of authorization since it granted Clark
Development Corporations request for reconsideration.39 The petition was filed out of time
Petitioner states that it filed this petition under Rule XI, receipt of denial of the motion for reconsideration. The
Section 1 of the 1997 Revised Rules of Procedure of the Constitution, however, specifies that the reglementary
Commission on Audit.50 The rule states: period for assailing the decisions, orders, or rulings of the
constitutional commissions is thirty (30) days from receipt
RULE XI of the decision, order, or ruling. For this reason, a separate
rule was enacted in the Rules of Court.
JUDICIAL REVIEW SECTION
Rule 64 of the Rules of Civil Procedure provides the
1. Petition for Certiorari. Any decision, order or guidelines for filing a petition for certiorari under this rule.
resolution of the Commission may be brought to the Section 2 of the rule specifies that "[a] judgment or final
Supreme Court on certiorari by the aggrieved party within order or resolution of the Commission on Elections and the
thirty (30) days from receipt of a copy thereof in the Commission on Audit may be brought by the aggrieved
manner provided by law, the Rules of Court51 and these party to the Supreme Court on certiorari under Rule 65,
Rules. except as hereinafter provided."

This rule is based on Article IX-A, Section 7 of the The phrase, "except as hereinafter provided," specifies
Constitution, which states: that any petition for certiorari filed under this rule follows
the same requisites as those of Rule 65 except for certain
Section 7. Each Commission shall decide by a majority provisions found only in Rule 64. One of these provisions
vote of all its Members, any case or matter brought before concerns the time given to file the petition.
it within sixty days from the date of its submission for
decision or resolution. A case or matter is deemed Section 3 of Rule 64 of the Rules of Civil Procedure states:
submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules SEC. 3. Time to file petition. The petition shall be filed
of the Commission or by the Commission itself. Unless within thirty (30) days from notice of the judgment or final
otherwise provided by this Constitution or by law, any order or resolution sought to be reviewed. The filing of a
decision, order, or ruling of each Commission may be motion for new trial or reconsideration of said judgment or
brought to the Supreme Court on certiorari by the final order or resolution, if allowed under the procedural
aggrieved party within thirty days from receipt of a copy rules of the Commission concerned, shall interrupt the
thereof. (Emphasis supplied) period herein fixed. If the motion is denied, the aggrieved
party may file the petition within the remaining period, but
Ordinarily, a petition for certiorari under Rule 65 of the which shall not be less than five (5) days in any event,
Rules of Court has a reglementary period of 60 days from reckoned from notice of denial.(Emphasis supplied)
Under this rule, a party may file a petition for review on Saturday, petitioner could still have filed on the next
certiorari within 30 days from notice of the judgment being working day, or on December 1, 2008. It, however, filed
assailed. The reglementary period includes the time taken the petition on December 19, 2008,57 which was well
to file the motion for reconsideration and is only interrupted beyond the reglementary period.
once the motion is filed. If the motion is denied, the party
may filethe petition only within the period remaining from This petition could have been dismissed outright for being
the notice of judgment. filed out of time. This court, however, recognizes that there
are certain exceptions that allow a relaxation of the
The difference between Rule 64 and Rule 65 has already procedural rules. In Barranco v. Commission on the
been exhaustively discussed by this court in Pates v. Settlement of Land Problems:58
Commission on Elections:52
The Court is fully aware that procedural rules are not to be
Rule 64, however, cannot simply be equated to Rule 65 belittled or simply disregarded for these prescribed
even if it expressly refers to the latter rule. They exist as procedures insure an orderly and speedy administration of
separate rules for substantive reasons as discussed justice. However, it is equally true that litigation is not
below. Procedurally, the most patent difference between merely a game of technicalities. Law and jurisprudence
the two i.e., the exception that Section 2, Rule 64 refers grant to courts the prerogative to relax compliance with
to is Section 3 which provides for a special period for the procedural rules of even the most mandatory character,
filing of petitions for certiorari from decisions or rulings of mindful of the duty to reconcile both the need to put an end
the COMELEC en banc. The period is 30 days from notice to litigation speedily and the parties right to an opportunity
of the decision or ruling (instead of the 60 days that Rule to be heard.
65 provides), with the intervening period used for the filing
of any motion for reconsideration deductible from the In Sanchez v. Court of Appeals, the Court restated the
originally granted 30 days (instead of the fresh period of reasons which may provide justification for a court to
60 days that Rule 65 provides).53 (Emphasis supplied) suspend a strict adherence to procedural rules, such as:
(a) matters of life, liberty, honor or property[,] (b) the
In this case, petitioner received the decision of the existence of special or compelling circumstances, (c) the
Commission on Audit on October 16, 2007.54 It filed a merits of the case, (d) a cause not entirely attributable to
motion for reconsideration on November 6, 2007,55 or after the fault or negligence of the party favored by the
21 days. It received notice of the denial of its motion on suspension of the rules, (e) a lack of any showing that the
November 20, 2008.56 The receipt of this notice gave review sought is merely frivolous and dilatory, and (f) the
petitioner nine (9) days, or until November 29, 2008, to file other party will not be unjustly prejudiced
a petition for certiorari. Since November 29, 2008 fell on a 59
thereby. (Emphasis supplied)
Considering that the issues in thiscase involve the right of The issue at hand, however, relates to the assailed
petitioner to receive due compensation on the one hand decision and resolution of respondents, which disallowed
and respondents duty to prevent the unauthorized the disbursement of public funds for the payment of legal
disbursement of public funds on the other, a relaxation of fees to petitioner. Respondents admit that legal services
the technical rules is in order. were performed by petitioner for which payment of legal
fees are due. The question that they resolved was which
Petitioner is a real party-in-interest among the parties, the government, or the officials of Clark
Development Corporation were liable.
Respondents argue that it is Clark Development
Corporation, and not petitioner, which is the real party-in- The net effect of upholding or setting aside the assailed
interest since the subject of the assailed decision and Commission on Audit rulings would be to either disallow or
resolution was the corporations request for clearance to allow the payment of legal fees to petitioner. Petitioner,
pay petitioner its legal fees. Respondents argue that any therefore, stands to either be benefited or injured by the
interest petitioner may have in the case is merely suit, or entitled to its avails. It is a real party-in-interest.
incidental.60This is erroneous. Clark Development Corporations Board of Directors, on
the other hand, should have been impleaded inthis case
Petitioner is a real party-in-interest, as defined in Rule 3, as a necessary party.
Section 2 of the 1997 Rules of Civil Procedure:
A necessary party is defined as "onewho is not
SEC. 2. Parties in interest. A real party in interest is the indispensable but who ought to be joined as a party if
party who stands to be benefited or injured by the complete relief is to be accorded as to those already
judgment in the suit, or the party entitled to the avails of parties, or for a complete determination or settlement of
the suit. Unless otherwise authorized by law or these the claim subject of the action."65
Rules, every action must be prosecuted or defended in the
name of the real party in interest. The actions of the Board of Directors precipitated the
issues in this case. If the petition is granted, then the
Petitioner does not have a "mere incidental interest,"61 and officers are relieved of liability to petitioner. If the rulings of
its interest is not "merely consequential."62 Respondents respondents are upheld, then it is the Board of Directors
mistakenly narrow down the issue to whether they erred in that will be liable to petitioner. Any relief in this case would
denying Clark Development Corporations request for be incomplete without joining the members of the Board of
clearance of the retainership contract.63 In doing so, they Directors.
argue that the interested parties are limited only to Clark
Development Corporation and respondents.64
The Commission on Audit did not thus: Book IV, Title III, Chapter 3, Section 10 of Executive
commit grave abuse of discretion in Order No. 292, otherwise known as the Administrative
denying the corporations request Code of 1987, provides that the Office of the Government
for clearance to engage the services Corporate Counsel (OGCC) shall act as the principal law
of petitioner as private counsel office of all GOCCs, their subsidiaries, other corporate off-
springs, and government acquired asset corporations.
Book IV, Title III, Chapter 3, Section 10 of the Administrative Order No. 130, issued by the Office of the
Administrative Code of 1987 provides: President on 19 May 1994, delineating the functions and
responsibilities of the OSG and the OGCC, clarifies that all
Section. 10. Office of the Government Corporate Counsel. legal matters pertaining to GOCCs, their subsidiaries,
- The Office of the Government Corporate Counsel other corporate off[-]springs, and government acquired
(OGCC) shall act as the principal law office of all asset corporations shall be exclusively referred to and
government-owned or controlled corporations, their handled by the OGCC, unless their respective charters
subsidiaries, other corporate off-springs and government expressly name the OSG as their legal counsel.
acquired asset corporations and shall exercise control and Nonetheless, the GOCC may hire the services of a private
supervision over all legal departments or divisions counsel in exceptional cases with the written conformity
maintained separately and such powers and functions as and acquiescence of the Government Corporate Counsel,
are now or may hereafter be provided by law. In the and with the concurrence of the Commission on Audit
exercise of such control and supervision, the Government (COA).66 (Emphasis supplied)
Corporate Counsel shall promulgate rules and regulations
toeffectively implement the objectives of this Office. The rules and regulations concerning the engagement of
(Emphasis supplied) private counsel by government-owned and controlled
corporations is currently provided for by Commission on
The Office of the Government Corporate Counsel is Audit Circular No. 86-25567 dated April 2, 1986, and Office
mandated by law to provide legal services to government- of the President Memorandum Circular No. 9 dated August
owned and controlled corporations such as Clark 27, 1998.
Development Corporation.
Commission on Audit Circular No. 86-255, dated April 2,
As a general rule, government-owned and controlled 1986, as amended, states:
corporations are not allowed to engage the legal services
of private counsels. However, both respondent and the Accordingly and pursuant to this Commission's exclusive
Office of the President have made issuances that had the authority to promulgate accounting and auditing rules and
effect of providing certain exceptions to the general rule, regulations, including for the prevention and disallowance
of irregular, unnecessary, excessive, extravagant and/or However, under exceptional circumstances, the OSG may
unconscionable expenditure or uses of public funds and represent the GOCC concerned, Provided: This is
property (Sec. 2-2, Art. IX-D, Constitutional, public funds authorized by the President; or by the head of the office
shall not be utilized for payment of the services of a private concerned and approved by the President.
legal counsel or law firm to represent government
agencies and instrumentalities, including government- SECTION 2. All pending cases of GOCCs being handled
owned or controlled corporations and local government by the OSG, and all pending requests for opinions and
units in court or to render legal services for them. In the contract reviews which have been referred by saidGOCCs
event that such legal services cannot be avoided or to the OSG, may be retained and acted upon by the OSG;
isjustified under extraordinary or exceptional but the latter shall inform the OGCC of the said pending
circumstances for government agencies and cases, requests for opinions and contract reviews, if any,
instrumentalities, including government-owned or to ensure proper monitoring and coordination.
controlled corporations, the written conformity and
acquiescence of the Solicitor General or the Government SECTION 3. GOCCs are likewise enjoined to refrain from
Corporate Counsel, as the case maybe, and the written hiring private lawyers or law firms to handle their cases
concurrence of the Commission on Audit shall first be and legal matters. But in exceptional cases, the written
secured before the hiring or employment of a private conformity and acquiescence of the Solicitor General or
lawyer or law firm.(Emphasis supplied) the Government Corporate Counsel, as the case may be,
and the written concurrence of the Commission on Audit
The Office of the President Memorandum Circular No. 9, shall first be secured before the hiring or employment of a
on the other hand, states: private lawyer or law firm. (Emphasis supplied)

SECTION 1.All legal matters pertainingto government- According to these rules and regulations, the general rule
owned or controlled corporations, their subsidiaries, other is that government-owned and controlled corporations
corporate offsprings and government acquired asset must refer all their legal matters to the Office of the
corporations (GOCCs) shall be exclusively referred to and Government Corporate Counsel. It is only in "extraordinary
handled by the Office of the Government Corporate or exceptional circumstances" or "exceptional cases" that
Counsel (OGCC). it is allowed to engage the services of private counsels.

GOCCs are thereby enjoined from referring their cases Petitioner claims that it was hired by Clark Development
and legal matters to the Office of the Solicitor General Corporation due to "numerous labor cases which need
unless their respective charters expressly name the Office urgent attention[.]"68 In its request for reconsideration to
of the Solicitor General as their legal counsel. the Office of the Government Corporate Counsel, Clark
Development Corporation claims that it was obtaining the For the better protection of the interests of CDC, we
services of petitioner "acting through Atty. Ariston Vicente hereby furnish you with a Pro-Forma Retainership
R. Quirolgico, known expert in the field of labor law and Agreement containing the suggested terms and conditions
relations."69 of the retainership, which you may adopt for this purpose.

The labor cases petitioner handled were not of a After the subject Retainership Agreement shall have been
complicated or peculiar nature that could justify the hiring executed between your corporation and the retained
of a known expert in the field. On the contrary, these counsel, please submit a copy thereof to our Office for our
appear to be standard labor cases of illegal dismissal and information and file.71
collective bargaining agreement negotiations,70 which
Clark Development Corporations lawyers or the Office of Upon Clark Development Corporations failure to submit
the Government Corporate Counsel could have handled. the retainership contract, the Office of the Government
Corporate Counsel denied Clark Development
Commission on Audit Circular No. 86-255 dated April 2, Corporations request for final approval of its legal services
1986 and Office of the President Memorandum Circular contracts, including that of petitioner. In the letter72 dated
No. 9 also require that "before the hiring or employment"of December 22, 2005, Government Corporate Counsel
private counsel, the "written conformity and acquiescence Devanadera informed Clark Development Corporation
of the [Government Corporate Counsel] and the written that:
concurrence of the Commissionon Audit shall first be
secured. . . ." [i]t appears, though, that our Pro-Forma Retainership
Agreement was not followed and CDC merely adopted the
In this case, Clark Development Corporation had failed to proposal of aforesaid retainers/consultants. Also, this
secure the final approval of the Office of the Government Office was never informed that CDC agreed on payment
Corporate Counsel and the written concurrence of of retainers fee on a per case basis.73
respondent before it engaged the services of petitioner.
In view of Clark Development Corporations failure to
When Government Corporate Counsel Valdez granted secure the final conformity and acquiescence of the Office
Clark Development Corporations request for of the Government Corporate Counsel, its retainership
reconsideration, the approval was merely conditional and contract with petitioner could not have been considered as
subject to its submission of the signed pro-forma authorized.
retainership contract provided for by the Office of the
Government Corporate Counsel. In the letter dated May The concurrence of respondents was also not secured by
20, 2002, Government Corporate Counsel Valdez added: Clark Development Corporation priorto hiring petitioners
services. The corporation only wrote a letter-request to Development Corporation was able to obtain the written
respondents three (3) years after it had engaged the conformity of the Office of the Government Corporate
services of petitioner as private legal counsel. Counsel to engage petitioners services.

The cases that the private counsel was asked to manage In Polloso, the legal services of Atty. Benemerito A.
are not beyond the range of reasonable competence Satorre were engaged by the National Power Corporation
expected from the Office of the Government Corporate for its Leyte-Cebu and Leyte Luzon Interconnection
Counsel. Certainly, the issues do not appear to be Projects.76 The Commission on Audit disallowed the
complex or of substantial national interest to merit payment of services to Atty. Satore on the basis of
additional counsel. Even so, there was no showing that the quantum meruit, citing Commission on Audit Circular No.
delays in the approval also were due to circumstances not 86-255 dated April 2, 1986.77 In upholding the
attributable to petitioner nor was there a clear showing that disallowance by the Commission on Audit, this court ruled:
there was unreasonable delay in any action of the
approving authorities. Rather, it appears that the It bears repeating that the purpose of the circular is to
procurement of the proper authorizations was mere curtail the unauthorized and unnecessary disbursement of
afterthought. public funds to private lawyers for services rendered to the
government. This is in line with the Commission on Audits
Respondents, therefore, correctly denied Clark constitutional mandate to promulgate accounting and
Development Corporations request for clearance in the auditing rules and regulations including those for the
disbursement of funds to pay petitioner its standing legal prevention and disallowance of irregular, unnecessary,
fees. excessive, extravagant or unconscionable expenditures or
uses of government fundsand properties. Having
Polloso v. Ganganand PHIVIDEC determined the intent of the law, this Court has the
Industrial Authority v. Capitol Steel imperative duty to give it effect even if the policy goes
Corporationapply in this case beyond the letter or words of the statute.

Petitioner argues that Polloso does not apply since the Hence, as the hiring of Atty. Satorre was clearly done
denial was based on the "absence of a written authority without the prior conformity and acquiescence of the Office
from the OSG or OGCC[.]"74 It also argues that the of the Solicitor General or the Government Corporate
PHIVIDEC case does not apply since "the case [was] Counsel, as well as the written concurrence of the
represented by a private lawyer whose engagement was Commission on Audit, the payment of fees to Atty. Satorre
secured without the conformity of the OGCC andthe was correctly disallowed in audit by the COA.78
COA."75 Petitioner argues that, unlike these cases, Clark
In PHIVIDEC, this court found the engagement by acquiescence of the Solicitor General or the Government
PHIVIDEC Industrial Authority, a government-owned and Corporate Counsel, as the case may be, and the written
controlled corporation, of Atty. Cesilo Adazas legal concurrence of the COA shall first be secured before the
services to be unauthorized for the corporations failure to hiring or employment of a private lawyer or law firm. In
secure the written conformity of the Office of the Phividec Industrial Authority v. Capitol Steel Corporation,
Government Corporate Counsel and the Commission on we listed three (3) indispensable conditions before a
Audit.79Citing the provisions of Office of the President GOCC can hirea private lawyer: (1) private counsel can
Memorandum Circular No. 9, this court ruled that: only be hired in exceptional cases; (2) the GOCC must first
secure the written conformity and acquiescence of the
[i]t was only with the enactment of Memorandum Circular Solicitor General or the Government Corporate Counsel,
No. 9 in 1998 that an exception to the general prohibition as the case may be; and (3) the written concurrence of the
was allowed for the first time since P.D. No. 1415 was COA must also be secured.82 (Emphasis supplied) On the
enacted in 1978. However, indispensable conditions basis of Pollosoand PHIVIDEC, petitioners arguments are
precedent were imposed before any hiring of private unmeritorious.
lawyer could be effected. First, private counsel can be
hired only in exceptional cases. Second, the GOCC must Petitioner fails to understand that Commission on Audit
first secure the written conformity and acquiescence of the Circular No. 86-255 requires not only the conformity and
Solicitor General or the Government Corporate Counsel, acquiescence of the Office of the Solicitor General or
as the case may be, before any hiring can be done. And Office of the Government Corporate Counsel but also the
third, the written concurrence of the COA must also be written conformity of the Commission on Audit. The hiring
secured prior to the hiring.80 (Emphasis supplied) of private counsel becomes unauthorized if it is only the
Office of the Government Corporate Counsel that gives its
The same ruling was likewise reiterated in Vargas v. conformity. The rules and jurisprudence expressly require
Ignes,81 wherein this court stated: that the government-owned and controlled corporation
concerned must also secure the concurrence of
Under Section 10, Chapter 3, Title III, Book IV of the respondents.
Administrative Code of1987, it is the OGCC which shall act
as the principal law office of all GOCCs. And Section 3 of It is also erroneous for petitioner to assume that it had the
Memorandum Circular No. 9, issued by President Estrada conformity and acquiescence of the Office of the
on August 27, 1998, enjoins GOCCs to refrain from hiring Government Corporate Counsel since Government
private lawyers or law firms to handle their cases and legal Corporate Counsel Valdezs approval of Clark
matters. But the same Section 3 provides that in Development Corporations request was merely
exceptional cases, the written conformity and conditional on its submission of the retainership contract.
Clark Development Corporations failure to submit the ofattorneys fees on the basis of quantum meruitis a device
retainership contract resulted in itsfailure to securea final that prevents an unscrupulous client from running away
approval. with the fruits of the legal services of counsel without
paying for it and also avoids unjust enrichment on the part
The Commission on Audit did not of the attorney himself. An attorney must show that he is
commit grave abuse of discretion in entitled to reasonable compensation for the effort in
disallowing the payment to pursuing the clients cause, taking into account certain
petitioner on the basis of quantum factors in fixing the amount of legal fees.88
meruit
Here, the Board of Directors, acting on behalf of Clark
When Government Corporate Counsel Devanadera Development Corporation, contracted the services of
denied Clark Development Corporations request for final petitioner, without the necessary prior approvals required
approval of its legal services contracts, she, however, by the rules and regulations for the hiring of private
allowed the payment to petitioner for legal services already counsel. Their actions were clearly unauthorized.
rendered on a quantum meruitbasis.83
It was, thus, erroneous for Government Corporate
Respondents disallowed Clark Development Corporation Counsel Devanadera to bind Clark Development
from paying petitioner on this basis as the contract Corporation, a government entity, to pay petitioner on a
between them was executed "in clear violation of the quantum meruit basis for legal services, which were
provisions of COA Circular No. 86-255 and OP neither approved nor authorized by the government. Even
Memorandum Circular No. 9[.]"84 It then ruled that the granting that petitioner ought to be paid for services
retainership contract between them should be deemed a rendered, it should not be the governments liability, but
private contract for which the officials of Clark that of the officials who engaged the services of petitioner
Development Corporation should be liable, citing Section without the required authorization. The amendment of
10385 of Presidential Decree No. 1445, otherwise known Commission on
as the Government Auditing Code of the Philippines.86
Audit Circular No. 86-255 by
In National Power Corporation v. Heirs of Macabangkit Commission on Audit Circular No.
Sangkay, quantum meruit:87 98-002 created a gap in the law

literally meaning as much as he deserves is used as Commission on Audit Circular No. 86-255 dated April 2,
basis for determining an attorneys professional fees in the 1986 previously stated that: [a]ccordingly, it is hereby
absence of an express agreement. The recovery directed that, henceforth, the payment out of public funds
of retainer fees to private law practitioners who are so No. 9 should be personally liable to pay the legal fees of
hired or employed without the prior written conformity and petitioner, as previously provided for in Circular No. 86-
acquiescence of the Solicitor General or the Government 255.
Corporate Counsel, as the case may be, as well as the
written concurrence of the Commission on Audit shall be This finds support in Section 103 of the Government
disallowed in audit and the same shall be a personal Auditing Code of the Philippines,91 which states:
liability of the officials concerned. (Emphasis supplied)
However, when Commission on Audit Circular No. 86-255 SEC. 103. General liability for unlawful expenditures. -
was amended by Commission on Audit Circular No. 98- Expenditures of government funds or uses of government
002 on June 9, 1998, it failed to retain the liability of the property in violation of law or regulations shall be a
officials who violated the circular.89 This gap in the law personal liability of the official or employee found to be
paves the way for both the erring officials of the directly responsible therefor.
government owned and controlled corporations to disclaim
any responsibility for the liabilities owing to private This court has also previously held in Gumaru v. Quirino
practitioners. State College92 that:

It cannot be denied that petitioner rendered legal services the fee of the lawyer who rendered legal service to the
to Clark Development Corporation.1wphi1 It assisted the government in lieu of the OSG or the OGCC is the
corporation in litigating numerous labor cases90 during the personal liability of the government official who hired his
period of its engagement. It would be an injustice for services without the prior written conformity of the OSG or
petitioner not to be compensated for services rendered the OGCC, as the case may be.93
even if the engagement was unauthorized.
WHEREFORE, the petition is DISMISSED without
The fulfillment of the requirements of the rules and prejudice to petitioner filing another action against the
regulations was Clark Development Corporations proper parties.
responsibility, not petitioners. The Board of Directors, by
its irresponsible actions, unjustly procured for themselves SO ORDERED.
petitioners legal services without compensation.
G.R. No. 185812, January 13, 2015
To fill the gap created by the amendment of Commission
on Audit Circular No. 86-255, respondents correctly held MARITIME INDUSTRY
that the officials of Clark, Development Corporation who AUTHORITY, Petitioner, v. COMMISSION ON
violated the provisions of Circular No. 98-002 and Circular AUDIT, Respondents.
DECISION Section 12. Consolidation of Allowances and
Compensation. - All allowances, except for
LEONEN, J.: representation and transportation allowances; clothing
and laundry allowances; subsistence allowance of marine
This case involves the validity of the grant of allowance officers and crew on board government vessels and
and incentives to the officers and employees of petitioner hospital personnel; hazard pay; allowances of foreign
Maritime Industry Authority. We revisit the interpretation service personnel stationed abroad; and such other
and application of Section 12 of the Compensation and additional compensation not otherwise specified herein as
Position Classification Act of may be determined by the DBM, shall be deemed included
1989.1chanroblesvirtuallawlibrary in the standardized salary rates herein prescribed. Such
other additional compensation, whether in cash or in kind,
The Resident Auditor issued notices of disallowance on being received by incumbents only as of July 1, 1989 not
the allowances and incentives received by the officers and integrated into the standardized salary rates shall continue
employees of Maritime Industry Authority.2 The Legal and to be authorized.
Adjudication Office of the Commission on Audit upheld the
notices of disallowance issued.3 The Commission on Audit Existing additional compensation of any national
affirmed the notices of disallowance.4 Thus, this petition government official or employee paid from local funds of a
for certiorari was filed by Maritime Industry Authority. local government unit shall be absorbed into the basic
salary of said official or employee and shall be paid by the
Maritime Industry Authority is an attached agency of the National Government.
Department of Transportation and Communication and
created under Presidential Decree No. On September 30, 1989, the Department of Budget and
474.5chanroblesvirtuallawlibrary Management issued National Compensation Circular Nos.
566 and 597 implementing Republic Act No. 6758.
On July 1, 1989, Republic Act No. 6758, otherwise known
as An Act Prescribing a Revised Compensation and Maritime Industry Authority discontinued the grant of
Position Classification System in the Government and For several allowances and incentives to its officials and
Other Purposes took effect. The law standardizes the employees allegedly due to the issuance of National
salary rates of government officials and employees. Compensation Circular Nos. 56 and
8
59. chanroblesvirtuallawlibrary
Section 12 of Republic Act No. 6758
provides:chanRoblesvirtualLawlibrary In the memorandum dated February 10, 2000, the
Administrator of Maritime Industry Authority recommended
to then President Joseph Ejercito Estrada the approval enhance/provide/promote employees welfare/productivity
and/or restoration of financial incentives, benefits, or and deter graft and corruption
allowances to the officers and employees of Maritime activities.21chanroblesvirtuallawlibrary
Industry Authority.9chanroblesvirtuallawlibrary
The memorandum was then allegedly stamped with
The allowances and incentives received by the employees approved on October 16, 2000 with the signature of the
and officers of Maritime Industry Authority as of the date President of the Philippines below the stamp.22 Relying on
of the memorandum and needing approval of the the alleged approval of the President of the Philippines,
President are the following:10chanroblesvirtuallawlibrary Maritime Industry Authority granted the allowances and
incentives to its officers and employees starting January
(1) Per diems and commutable allowance received by the 2001.23chanroblesvirtuallawlibrary
members of the Board of Maritime Industry Authority;11
(2) Rice subsidy allowance;12 and The Resident Auditor24 of Maritime Industry Authority then
(3) Medical allowance.13 issued the following notices of disallowance with a total
amount of ?5,565,445.02 for the allowances or benefits
The allowances and incentives sought to be restored are received by the officers or employees from January to May
the following:14chanroblesvirtuallawlibrary 2001:25chanroblesvirtuallawlibrary

(1) Reimbursable representation allowance for members Notice of Date Amount Allowance/Benefit
of the Board of Maritime Industry Authority;15 Disallowance Disallowed
(2) Performance incentives allowance;16 Disallowed
(3) Economic/efficiency/financial assistance/benefit;17 No.
(4) Hearing allowance;18 and 2002-002- April 9, P586,500.00 Rice and Medical
(5) Birthday month/off month/employment date 101(01) 26 2002 Allowance
anniversary allowances.19 Allowances of
Board Members
The request to restore these benefits or allowances was and Secretary
premised on inflation-caused difficulties resulting to [sic] 2002-005- April 9, P30,800.00 Rice and Medical
the exodus of technically/specially trained personnel into 101(01) 27 2002 Allowance
the private sector or abroad who shall carry on the delicate Representation
and unique functions of the agency and in consideration of Allowance of Board
the additional functions of the agency.20 The request to Members and
restore was also made to further Secretary
2002-006- Augus P1,635,376.0 Rice and Medical by Article IX(b) of the 1987 Constitution, in relation to
101(01)28 t 7, 8 Allowance Section 229 of the Government Accounting and Auditing
2002 Performance Manual or GAAM Volume 1.31Further, the Presidents
Incentive Allowance approval of the memorandum was not the law
for February contemplated by the Constitution as an exception to the
Birthday and prohibition on double
Employment compensation.32chanroblesvirtuallawlibrary
Anniversary Bonus
Representation On October 25, 2002, Maritime Industry Authority filed a
Allowance of Board request for reconsideration on the notices of disallowance
Members and before the Commission on Audit Director of the Legal and
Secretary Adjudication Office.33chanroblesvirtuallawlibrary
2002-007- Augus P1,694,008.1 Rice and Medical
101(01)29 t 8, 4 Allowance The request for reconsideration was denied in the decision
2002 Performance dated June 23, 2003.34 It was ruled that the
Incentive Allowance incentives/allowances, except for medical allowance and
Birthday and per diems of the members of the Board, were integrated in
Employment the basic salary pursuant to the Salary Standardization
Anniversary Bonus Law and National Compensation Circular No. 59.35 On the
2002-008- Augus P1,618,760.8 Rice and Medical other hand, the grant of medical allowance and per diems
101(01)30 t 8, 0 Allowance to the members of the Board is proscribed by Article VII,
2002 Performance Section 13 of the 1987 Constitution on double
Incentive Allowance compensation.36chanroblesvirtuallawlibrary
Birthday and
Employment Maritime Industry Authority filed a petition for review
Anniversary Bonus before the Commission on
Anniversary Audit.37chanroblesvirtuallawlibrary
Allowance
In the decision38 dated March 3, 2005, the Commission on
Audit denied the petition for review except as to the per
diem and monthly commutable allowance of the members
The Resident Auditor disallowed the grant of the
allowances on the ground that it constituted double of the Board of Maritime Industry Authority at the rate of
?500.00 for each member per
compensation to public officers and employees proscribed
month.39chanroblesvirtuallawlibrary 2009.47chanroblesvirtuallawlibrary

The Commission on Audit held that the disallowed The sole issue in this case is whether the allowance or
allowances are integrated in the standardized salary rates incentives granted to the officers and employees of
under Section 12 of Republic Act No. Maritime Industry Authority have legal basis.
40
6758. chanroblesvirtuallawlibrary
We deny the petition.
Further, the alleged approval of the President for the
restoration or grant of benefits falls short of a law, as I
required by the Constitution for the grant of additional
allowance or incentive.41 Even assuming that the approval
of the President is sufficient to grant additional allowance Commission on Audit did not
to officers and employees of Maritime Industry Authority, commit grave abuse of discretion
the authenticity of the memorandum bearing the alleged
approval of the President presented by Maritime Industry The aggrieved party can assail the decision of the
Authority was not established.42 Only a photocopy of the Commission on Audit through a petition for certiorari under
memorandum was presented. A copy of the memorandum Rule 64 before this court. A petition under Rule 64 may
was also not on file in the Malacaang Records prosper only after a finding that the administrative agency
Office.43chanroblesvirtuallawlibrary committed grave abuse of discretion amounting to lack or
excess of jurisdiction. Not all errors of the Commission on
Maritime Industry Authoritys motion for reconsideration Audit is reviewable by this court. Thus,
was denied in COA Resolution No. 2008-117 dated
December 9, 2008.44chanroblesvirtuallawlibrary A Rule 65 petition is a unique and special rule because it
commands limited review of the question raised. As
Thus, this petition for certiorari was filed by Maritime an extraordinary remedy, its purpose is simply to keep the
Industry Authority assailing the Commission on Audit's public respondent within the bounds of its jurisdiction or to
decision and resolution affirming the notices of relieve the petitioner from the public respondents arbitrary
disallowance. acts. In this review, the Court is confined solely to
questions of jurisdiction whenever a tribunal, board or
In compliance with the orders45 of this court, the officer exercising judicial or quasi-judicial function acts
Commission on Audit filed a comment on the petition for without jurisdiction or in excess of jurisdiction, or with
certiorari on June 22, 2009.46 Maritime Industry Authority grave abuse of discretion amounting to lack or excess of
filed a reply to the comment on August 24, jurisdiction. . . .
The limitation of the Courts power of review over COA not based on law and evidence but on caprice, whim and
rulings merely complements its nature as an independent despotism.49
constitutional body that is tasked to safeguard the
proper use of the government and, ultimately, the peoples We find that no grave abuse of discretion amounting to
property by vesting it with power to (i) determine whether lack or excess of jurisdiction may be attributed to the
the government entities comply with the law and the rules Commission on Audit in this case.
in disbursing public funds; and (ii) disallow legal
disbursements of these funds.48(Emphasis in the original) II

Reviewing the rationale for this standard of judicial Position of the parties
review:chanRoblesvirtualLawlibrary
Petitioner Maritime Industry Authority argues that the
[t]his court has consistently held that findings of allowances and incentives granted to its officers and
administrative agencies are generally respected, unless employees are not integrated in the standardized
found to have been tainted with unfairness that amounted salary.50 It relies on the last clause of the first sentence of
to grave abuse of discretion:chanRoblesvirtualLawlibrary Section 12 of Republic Act No.
It is the general policy of the Court to sustain the decisions 6758:51chanroblesvirtuallawlibrary
of administrative authorities, especially one which is
constitutionally-created not only on the basis of the Section 12. Consolidation of Allowances and
doctrine of separation of powers but also for their Compensation. - All allowances, except for
presumed expertise in the laws that they are entrusted to representation and transportation allowances; clothing
enforce. Findings of administrative agencies are accorded and laundry allowances; subsistence allowance of marine
not only respect but also finality when the decision and officers and crew on board government vessels and
order are not tainted with unfairness or arbitrariness that hospital personnel; hazard pay; allowances of foreign
would amount to grave abuse of discretion. It is only when service personnel stationed abroad; and such other
the COA has acted without or in excess of jurisdiction, or additional compensation not otherwise specified herein as
with grave abuse of discretion amounting to lack or excess may be determined by the DBM, shall be deemed included
of jurisdiction, that this Court entertains a petition in the standardized salary rates herein prescribed. Such
questioning its rulings. There is grave abuse of discretion other additional compensation, whether in cash or in kind,
when there is an evasion of a positive duty or a virtual being received by incumbents only as of July 1, 1989 not
refusal to perform a duty enjoined by law or to act in integrated into the standardized salary rates shall continue
contemplation of law as when the judgment rendered is to be authorized.
Existing additional compensation of any national government officials and employees, starting November 1,
government official or employee paid from local funds of a 1989, is not a mere interpretative or internal regulation. It
local government unit shall be absorbed into the basic is something more than that. And why not, when it tends
salary of said official or employee and shall be paid by the to deprive government workers of their allowances and
National Government. (Emphasis supplied) additional compensation sorely needed to keep body and
soul together. At the very least, before the said circular
Petitioner Maritime Industry Authority understands the under attack may be permitted to substantially reduce their
clause as requiring a subsequent issuance by the income, the government officials and employees
Department of Budget and Management so that other concerned should be apprised and alerted by the
allowances or benefits not specifically enumerated in the publication of the subject circular in the Official Gazette or
provision will be excluded. It insists that a circular must be in a newspaper of general circulation in the Philippines
issued by the Department of Budget and Management for to the end that they be given amplest opportunity to voice
a specific allowance to be deemed integrated in the out whatever opposition they may have, and to ventilate
standardized salary pursuant to Section 12 of Republic Act their stance on the subject matter. This approach is more
No. 6758. in keeping with democratic precepts and rudiments of
fairness and transparency.cralawred
Since the National Compensation Circular No. 59, the In other words, during the period that DBM-CCC No. 10
circular issued by the Department of Budget and was in legal limbo, the COLA and the amelioration
Management implementing Section 12, was not published, allowance were not effectively integrated into the
there can be no allowance deemed integrated in the standardized salaries.
standardized salary rates.52 It relies on Philippine Ports
Authority hired after July 1, 1989 v. Commission on Hence, it would be incorrect to contend that because those
Audit53 where this court held the allowances were not effectively integrated under the first
following:chanRoblesvirtualLawlibrary sentence, then they were non-integrated benefits falling
under the second sentence of Section 12 of RA 6758.
However, because of its lack of publication in either Their characterization must be deemed to have also been
the Official Gazette or in a newspaper of general in legal limbo, pending the effectivity of DBM-CCC No. 10.
circulation, DBM-CCC No. 10 was declared ineffective on Consequently, contrary to the ruling of the COA, the
August 12, 1998, in De Jesus v. COA, which we second sentence does not apply to the present case. By
quote:chanRoblesvirtualLawlibrary the same token, the policy embodied in the provision
In the present case under scrutiny, it is decisively clear that the non-diminution of benefits in favour of incumbents as
D[B]M-CCC No. 10, which completely disallows payment of July 1, 1989 is also inapplicable.
of allowances and other additional compensation to
The parties fail to cite any law barring the continuation of the aforequoted provision of Section 12 of Rep. Act No.
the grant of the COLA and the amelioration allowance 6758, are only the following
during the period when DBM-CCC No. 10 was in legal allowances:chanRoblesvirtualLawlibrary
limbo.54
(1) representation and transportation allowances
(RATA);
On the other hand, respondent Commission on Audit
(2) clothing and laundry allowances;
interprets Section 12 of Republic Act No. 6758 differently.
(3) subsistence allowances of marine officers and crew
It considers all allowances as deemed included in the
on board government vessels;
standardized salary except those specifically enumerated
(4) subsistence allowance of hospital personnel;
in Section 12 of Republic Act No. 6758.55 The issuance of
(5) hazard pay;
a circular by the Department of Budget and Management
(6) allowance of foreign service personnel stationed
is necessary only for the grant of allowance other than
abroad; and
those enumerated under Section 12 of Republic Act No.
(7) such other additional compensation not otherwise
6758 in addition to the standardized salary.56Respondent
specified herein as may be determined by the DBM.
Commission on Audit relies on PPA Employees Hired
After 01 July 1989 v. COA57 and NAPOCOR Employees
Otherwise stated, the foregoing are the only allowances
Consolidated Union v. National Power
which government employees can continue to receive in
Corporation.58chanroblesvirtuallawlibrary
addition to their standardized salary rates. The employee
welfare allowance of NPC personnel is clearly not among
In PPA Employees Hired After 01 July 1989 v. COA, et
the allowances listed above which State workers can
al., 59 this court held that the Department of Budget and
continue to receive under Rep. Act No. 6758 over and
Managements issuance is only for the purpose of
above their standardized salary rates. We must
identifying additional non-integrated benefits, over and
emphasize that Rep. Act No. 6758 does not require that
above the standardized salary rates.
DBM should first define those allowances that are to be
integrated with the standardized salary rates of
Then in NAPOCOR Employees Consolidated Union v.
government employees before NPC could integrate the
National Power Corporation,60 this court
employee welfare allowance into its employees salaries.
stated:chanRoblesvirtualLawlibrary
Thus, despite our ruling in De Jesus which thwarted the
Section 12 of Rep. Act No. 6758 lays down the general attempt of DBM in DBM-CCC No. 10 to complete the list
rule that all allowances of state workers are to be included of allowances exempted from integration, NPC is allowed
in their standardized salary rates. Exempted from under Rep. Act No. 6758 to integrate employee welfare
integration to the standardized salary rates, as specified in allowance into the employees standardized salary rates.61
III
Respondent Commission on Audit argues that the alleged
lack of publication of National Compensation Circular No. The concept of integration of allowances
59 does not affect the integration of allowances into the
standardized salary.62 Section 12 of Republic Act No. The consolidation of allowances in the standardized salary
6758 is in itself executory in that allowances and benefits in Section 12 of Republic Act No. 6758 is a new rule in the
are deemed integrated in the standardized salary except Philippine position classification and compensation
those specifically exempted. system. The previous laws68 on standardization of
compensation of government officials and employees do
Further, the nature of the allowances and incentives in this not have this provision.
case is not similar to that of the enumerated exceptions in
Section 12 of Republic Act No. 6758.63 As held in Bureau Presidential Decree No. 985,69 as amended by
of Fisheries and Aquatic Resources Employees Union v. Presidential Decree No. 1597,70 the law prior to Republic
Commission on Audit,64 the benefits excluded from the Act No. 6758, repealed all laws, decrees, executive
standardized salary rates are the allowances or those orders, and other issuances or parts thereof that authorize
which are usually granted to officials and employees of the the grant of allowances of certain positions and
government to defray or reimburse the expenses incurred employees.71 Under Presidential Decree No. 985,
in the performance of their official allowances, honoraria, and other fringe benefits may only
functions.65chanroblesvirtuallawlibrary be granted to government employees upon approval of the
President with the recommendation of the Commissioner
Finally, respondent Commission on Audit points out that of the Budget Commission.72chanroblesvirtuallawlibrary
there is no law that authorizes the grant of the allowances
and incentives in addition to the salaries of the officers and Being a new rule, Section 12 of Republic Act No. 6758
employees of petitioner Maritime Industry raised several questions among government employees.
Authority.66chanroblesvirtuallawlibrary Petitions were filed before this court involving the
Commission on Audits disallowance of the grant of
Respondent Commission on Audit points out that the allowances and incentives to government employees. This
alleged approval of the President was contained in a mere court already settled the issues and matters raised by
photocopy of the memorandum dated February 10, 2000. petitioner Maritime Industry Authority.
It purportedly bears the approval and signature of the
President for the grant of the allowances and The clear policy of Section 12 is to standardize salary
incentives.67 The original was not presented during the rates among government personnel and do away with
proceedings. multiple allowances and other incentive packages and the
resulting differences in compensation among integrated allowances in Section 12 remain
them. Thus, the general rule is that all allowances are
73 78
exclusive. chanroblesvirtuallawlibrary
deemed included in the standardized salary.74 However,
there are allowances that may be given in addition to the This court has repeatedly clarified the last clause of the
standardized salary. These non-integrated allowances are first sentence of Section 12: and such other additional
specifically identified in Section 12, to compensation not otherwise specified herein as may be
wit:chanRoblesvirtualLawlibrary determined by the DBM.

1. representation and transportation In Abellanosa v. Commission on Audit,79 this court held


allowances; that:chanRoblesvirtualLawlibrary
2. clothing and laundry allowances;
3. subsistence allowance of marine officers R.A. 6758 further reinforced this policy by expressly
and crew on board government vessels; decreeing that all allowances not specifically mentioned
4. subsistence allowance of hospital therein, or as may be determined by the DBM, shall be
personnel; deemed included in the standardized salary rates
5. hazard pay; and prescribed.80
6. allowances of foreign service personnel
stationed abroad.75 In Napocor Employees Consolidation Union v. The
National Power Corporation,81 this court held that Section
12 of Republic Act No. 6758 is self-executing. It is not
In addition to the non-integrated allowances specified in required that allowances must be listed for these to be
Section 12, the Department of Budget and Management is considered integrated in the standardized salary. This
delegated the authority to identify other allowances that court said:chanRoblesvirtualLawlibrary
may be given to government employees in addition to the
standardized salary.76chanroblesvirtuallawlibrary Otherwise stated, the foregoing are the only allowances
which government employees can continue to receive in
Action by the Department of Budget and Management is addition to their standardized salary rates. The employee
not required to implement Section 12 integrating welfare allowance of NPC personnel is clearly not among
allowances into the standardized salary.77 Rather, an the allowances listed above which State workers can
issuance by the Department of Budget and Management continue to receive under Rep. Act No. 6758 over and
is required only if additional non-integrated allowances will above their standardized salary rates. We must
be identified. Without this issuance from the Department emphasize that Rep. Act No. 6758 does not require
of Budget and Management, the enumerated non- that DBM should first define those allowances that are
to be integrated in the standardized salary rates of Commission on Audit,85 the non-publication of the
government employees before NPC could integrate Department of Budget and Managements issuance
the employee welfare allowance into its employees' enumerating allowances that are deemed integrated in the
salaries. Thus, despite our ruling in De Jesus which standardized salary will not affect the execution of Section
thwarted the attempt of DBM-CCC No. 10 to complete the 12 of Republic Act No. 6758.
list of allowances exempted from integration, NPC is Thus:chanRoblesvirtualLawlibrary
allowed under Rep. Act No. 6758 to integrate the
employee welfare allowance into the employees' There is no merit in the claim of PITC that R.A. No. 6758,
standardized salary rates.82 (Emphasis supplied) particularly Section 12 thereof is void because DBM-
Corporate Compensation Circular No. 10, its implementing
rules, was nullified in the case of De Jesus v. Commission
In Benguet State University v. Commission on Audit,83 this
on Audit, for lack of publication. The basis of COA in
court held that the rice subsidy and health care allowance
disallowing the grant of SFI was Section 12 of R.A. No.
were not among the allowances listed in Section 12 which
6758 and not DBM-CCC No. 10. Moreover, the nullity of
State workers can continue to receive under R.A. No. 6758
DBM-CCC No. 10 will not affect the validity of R.A. No.
over and above their standardized salary
6758. It is a cardinal rule in statutory construction that
rates.84chanroblesvirtuallawlibrary
statutory provisions control the rules and regulations which
may be issued pursuant thereto. Such rules and
We cannot subscribe to petitioner Maritime Industry
regulations must be consistent with and must not defeat
Authoritys contention that due to the non-publication of
the purpose of the statute. The validity of R.A. No. 6758
the Department of Budget and Managements National
should not be made to depend on the validity of its
Compensation Circular No. 59, it is considered invalid that
implementing rules.86
results in the non-integration of allowances in the
standardized salary.
In Gutierrez v. Department of Budget and
87
The Department of Budget and Managements National Management, this court held
Compensation Circular No. 59 issued on September 30, that:chanRoblesvirtualLawlibrary
1989 enumerates the allowances/additional compensation
of government employees that are deemed integrated into all allowances were deemed integrated into the
the basic salary. It does not identify an allowance that standardized salary rates except the
should not be deemed as integrated in the basic salary of following:chanRoblesvirtualLawlibrary
government employees. (1) representation and transportation allowances;
(2) clothing and laundry allowances;
As held in Philippine International Trading Corporation v. (3) subsistence allowances of marine officers and crew on
board government vessels; . . . .
(4) subsistence allowances of hospital personnel;
(5) hazard pay; The drawing up of the above list is consistent with Section
(6) allowances of foreign service personnel stationed 12 above. R.A. 6758 did not prohibit the DBM from
abroad; and identifying for the purpose of implementation what fell into
(7) such other additional compensation not otherwise the class of all allowances. With respect to what
specified in Section 12 as may be determined by the employees benefits fell outside the term apart from those
DBM.cralawred that the law specified, the DBM, said this Court in a case,
But, while the provision enumerated certain exclusions, it needed to promulgate rules and regulations identifying
also authorized the DBM to identify such other additional those excluded benefits. This leads to the inevitable
compensation that may be granted over and above the conclusion that until and unless the DBM issues such rules
standardized salary rates. In Philippine Ports Authority and regulations, the enumerated exclusions in items (1) to
Employees Hired After July 1, 1989 v. Commission on (6) remain exclusive. Thus so, not being an enumerated
Audit, the Court has ruled that while Section 12 could be exclusion, COLA is deemed already incorporated in the
considered self-executing in regard to items (1) to (6), it standardized salary rates of government employees under
was not so in regard to item (7). The DBM still needed to the general rule of integration.88
amplify item (7) since one cannot simply assume what
other allowances were excluded from the standardized Petitioner Maritime Industry Authoritys reliance
salary rates. It was only upon the issuance and effectivity on Philippine Ports Authority Employees Hired After July
of the corresponding implementing rules and regulations 1, 1989 v. Commission on Audit is misplaced. As this court
that item (7) could be deemed legally completed. clarified in Napocor Employees Consolidated Union v.
National Power Corporation,89 the ruling in Philippine
. . . . Ports Authority Employees Hired After July 1, 1989 was
limited to distinguishing the benefits that may be received
In this case, the DBM promulgated NCC 59 [and CCC 10]. by government employees who were hired before and
But, instead of identifying some of the additional after the effectivity of Republic Act No. 6758.
exclusions that Section 12 of R.A. 6758 permits it to make, Thus:chanRoblesvirtualLawlibrary
the DBM made a list of what allowances and benefits are
deemed integrated into the standardized salary rates. [t]he Court has, to be sure, taken stock of its recent ruling
More specifically, NCC 59 identified the following in Philippine Ports Authority (PPA) Employees Hired After
allowances/additional compensation that are deemed July 1, 1989 vs. Commission on Audit. Sadly, however, our
integrated:chanRoblesvirtualLawlibrary pronouncement therein is not on all fours applicable owing
to the differing factual milieu. There, the Commission on
Audit allowed the payment of back cost of living allowance V
(COLA) and amelioration allowance previously withheld
from PPA employees pursuant to the heretofore ineffective Additional allowances that
DBM CCC No. 10, but limited the back payment only to may be identified and granted
incumbents as of July 1, 1989 who were already then to government employees
receiving both allowances. COA considered the COLA and
amelioration allowance of PPA employees as not Other than those specifically enumerated in Section 12,
integrated within the purview of the second sentence of non-integrated allowances, incentives, or benefits, may
Section 12 of Rep. Act No. 6758, which, according to COA still be identified and granted to government employees.
confines the payment of not integrated benefits only to This is categorically allowed in Republic Act No. 6758. This
July 1, 1989 incumbents already enjoying the allowances. is also in line with the Presidents power of control over
executive departments, bureaus, and offices.
In setting aside COAs ruling, we held in PPA
Employees that there was no basis to use the elements of These allowances, however, cannot be granted
incumbency and prior receipt as standards to discriminate indiscriminately. Otherwise, the purpose and mandate of
against the petitioners therein. For, DBM-CCC No. 10, Republic Act No. 6758 will be defeated.
upon which the incumbency and prior receipt requirements
are contextually predicated, was in legal limbo from July 1, Republic Act No. 6758 was enacted to promote the policy
1989 (effective date of the unpublished DBM-CCC No. 10) of the State to provide equal pay for substantially equal
to March 16, 1999 (date of effectivity of the heretofore work and to base differences in pay upon substantive
unpublished DBM circular). And being in legal limbo, the differences in duties and responsibilities, and qualification
benefits otherwise covered by the circular, if properly requirements of the positions.91 The law lists down the
published, were likewise in legal limbo as they cannot be factors that should guide the Department of Budget and
classified either as effectively integrated or not integrated Management in preparing the index of occupational
benefits.90 services, to wit:chanRoblesvirtualLawlibrary

1. the education and excellence required to perform the


Similar to what was stated in Napocor Employees
duties and responsibilities of the position;
Consolidated Union, the element of discrimination
2. the nature and complexity of the work to be performed;
between incumbents as of July 1, 1989 and those joining
3. the kind of supervision received;
the force thereafter is not obtaining in this case. The
4. mental and/or physical strain required in the completion
second sentence of the first paragraph of Section 12,
of the work;
Republic Act No. 6758 is not in issue.
5. nature and extent of internal and external relationships;
6. kind of supervision exercised;
7. decision-making responsibility; performance of his or her
8. responsibility for accuracy of records and reports; 94
duties. chanroblesvirtuallawlibrary
9. accountability for funds, properties, and equipment; and
10. hardship, hazard, and personal risk involved in the [T]he benefits excluded from the standardized salary rates
job.92 are the allowances or those which are usually granted to
officials and employees of the government to defray or
reimburse the expenses incurred in the performance of
The factors to determine the salary grades corresponding
their official functions.
to each position of a government employee do not take
into consideration the peculiar characteristics of each
. . . .
government office where performance of the same work
may entail different necessary expenses for the employee.
In Philippine Ports Authority v. Commission on Audit, we
For instance, some employees in the Bureau of Customs
explained that if these allowances were consolidated with
may require expenses pertaining to security to properly
the standardized salary rates, then government officials or
execute their duties as compared to employees in the
employees would be compelled to spend their personal
Department of Trade and Industry. Republic Act No. 6758
funds in attending to their duties.95
recognizes this when it allowed certain allowances in
addition to the standardized salary due to the nature of the
office. Section 12 of the law excludes from the In National Tobacco Administration v. Commission on
standardized salary allowances to be given to marine Audit,96 this court held that educational assistance is not
officers and crew on board government vessels and an allowance that may be granted in addition to the
hospital personnel, and foreign service personnel standardized salary.
stationed abroad.93chanroblesvirtuallawlibrary
Analyzing No. 7, which is the last clause of the first
Thus, it must be shown that additional non-integrated sentence of Section 12, in relation to the other benefits
allowances are given to government employees of certain therein enumerated, it can be gleaned unerringly that it is
offices due to the unique nature of the office and of the a catch-all proviso. Further reflection on the nature of
work performed by the employee. subject fringe benefits indicates that all of them have one
thing in common - they belong to one category of privilege
Further, the non-integrated allowances that may be called allowances which are usually granted to officials
granted in addition to those specifically enumerated in and employees of the government to defray or reimburse
Section 12 of Republic Act No. 6758 should be in the the expenses incurred in the performance of their official
nature similar to those enumerated in the provision, that is, functions. In Philippine Ports Authority vs.
they are amounts needed by the employee in the Commission on Audit, this Court rationalized that if
these allowances are consolidated with the standardized (9) Quarters Allowance of officials and employees who are
rate, then the government official or employee will be presently entitled to the same;
compelled to spend his personal funds in attending to his (10) Overseas, Living Quarters and other allowances
duties. presently authorized for personnel stationed abroad;
(11) Night differential of personnel on night duty;
The conclusion - that the enumerated fringe benefits are (12) Per Diems of members of the governing Boards of
in the nature of allowance - finds support in sub- GOCCs/GFIs at the rate as prescribed in their respective
paragraphs 5.4 and 5.5 of CCC No. 10. Charters;
(13) Flying pay of personnel undertaking aerial flights;
Sub-paragraph 5.4 enumerates the allowance/fringe (14) Per Diems/Allowances of Chairman and Members or
benefits which are not integrated into the basic salary and Staff of collegial bodies and Committees; and
which may be continued after June 30, 1989 subject to the (15) Per Diems/Allowances of officials and employees on
condition that the grant of such benefit is covered by official foreign and local travel outside of their official
statutory authority, to wit:chanRoblesvirtualLawlibrary station.

(1) RATA; In addition, sub-paragraph 5.5 of the same Implementing


(2) Uniform and Clothing allowances; Rules provides for the other allowances/fringe benefits not
(3) Hazard pay; likewise integrated into the basic salary and allowed to be
(4) Honoraria/additional compensation for employees on continued only for incumbents as of June 30, 1989 subject
detail with special projects or inter-agency undertakings; to the condition that the grant of the same is with
(5) Honoraria for services rendered by researchers, appropriate authorization either from the DBM, Office of
experts and specialists who are of acknowledged the President or legislative issuances, as
authorities in their fields of specialization; follows:chanRoblesvirtualLawlibrary
(6) Honoraria for lectures and resource persons or
speakers; (1) Rice Subsidy;
(7) Overtime pay in accordance to Memorandum Order (2) Sugar Subsidy;
No. 228; (3) Death Benefits other than those granted by the GSIS;
(8) Clothing/laundry allowances and subsistence (4) Medical/Dental/Optical Allowances/Benefits;
allowance of marine officers and crew on board (5) Childrens Allowances;
GOCCs/GFIs owned vessels and used in their operations, (6) Special Duty Pay/Allowance;
and of hospital personnel who attend directly to patients (7) Meal Subsidy;
and who by nature of their duties are required to wear (8) Longevity Pay; and
uniforms; (9) Tellers Allowance.
harmonized, if at all possible. It is likewise a basic precept
On the other hand, the challenged financial incentive is in statutory construction that the intent of the legislature is
awarded by the government in order to encourage the the controlling factor in the interpretation of the subject
beneficiaries to pursue further studies and to help them statute. With these rules and the foregoing distinction
underwrite the expenses for the education of their children elaborated upon, it is evident that the two seemingly
and dependents. In other words, subject benefit is in the irreconcilable propositions are susceptible to perfect
nature of financial assistance and not of an allowance. For harmony. Accordingly, the Court concludes that under the
the former, reimbursement is not necessary while for the aforesaid catch-all proviso, the legislative intent is just to
latter, reimbursement is required. Not only that, the former include the fringe benefits which are in the nature
is basically an incentive wage which is defined as of allowances and since the benefit under controversy is
a bonus or other payment made to employees in addition not in the same category, it is safe to hold that subject
to guaranteed hourly wages while the latter cannot be educational assistance is not one of the fringe benefits
reckoned with as a bonus or additional income, strictly within the contemplation of the first sentence of Section 12
speaking. but rather, of the second sentence of Section 12, in relation
to Section 17 of R.A. No. 6758, considering that (1) the
It is indeed decisively clear that the benefits mentioned in recipients were incumbents when R.A. No. 6758 took
the first sentence of Section 12 and sub-paragraphs 5.4 effect on July 1, 1989, (2) were, in fact, receiving the
and 5.5 of CCC No. 10 are entirely different from the same, at the time, and (3) such additional compensation is
benefit in dispute, denominated as Educational distinct and separate from the specific allowances above-
Assistance. The distinction elucidated upon is material in listed, as the former is not integrated into the standardized
arriving at the correct interpretation of the two seemingly salary rate. Simply stated, the challenged benefit is
contradictory provisions of Section 12. covered by the second sentence of Section 12 of R.A. No.
6758, the application of sub-paragraphs 5.4 and 5.5 of
Cardinal is the rule in statutory construction that the CCC No. 10 being only confined to the first sentence of
particular words, clauses and phrases should not be Section 12, particularly the last clause thereof which
studied as detached and isolated expressions, but amplifies the catch-all proviso.97 (Citations omitted)
the whole and every part of the statute must be
considered in fixing the meaning of any of its parts and in In Bureau of Fisheries and Aquatic Resources Employees
order to produce a harmonious whole. A statute must so Union v. Commission on Audit,98 this court affirmed the
construed as to harmonize and give effect to all its disallowance of the grant of the food basket allowance in
provisions whenever possible. And the rule - that statute the amount of P10,000.00 to employees of the Bureau of
must be construed as a whole - requires that apparently Fisheries and Aquatic Resources. This court
conflicting provisions should be reconciled and held:chanRoblesvirtualLawlibrary
In the instant case, the Food Basket Allowance is definitely complete in all its essential terms and conditions when it
not in the nature of an allowance to reimburse expenses leaves the hands of the legislature. Thus, what is left for
incurred by officials and employees of the government in the executive branch or the concerned administrative
the performance of their official functions. It is not payment agency when it formulates rules and regulations
in consideration of the fulfilment of official duty. It is a form implementing the law is to fill up details (supplementary
of financial assistance to all officials and employees of rule-making) or ascertain facts necessary to bring the law
BFAR. Petitioner itself stated that the Food Basket into actual operation (contingent rule-
Allowance has the purpose of alleviating the economic making).101 (Citations omitted)
condition of BFAR employees.99
The law delegated to the executive branch the filling in of
VI other allowances and benefits that should be excluded
from the standardized salary. It specifically identifies the
Who identifies and grants Department of Budget and Management to carry out the
task. However, this does not exclude the President from
Respondent Commission on Audit argues that the alleged identifying the excluded allowances or benefits himself,
approval by the President is not a law that would allow the the Secretary of the Department of Budget and
grant of allowances and benefits to the employees of Management being an alter ego of the President. Of
petitioner Maritime Industry Authority. course, the performance of this task must still be in
accordance with the parameters laid down in Republic Act
Section 12 of Republic Act No. 6758 does not require the No. 6758.102 As this court held in Chavez v.
enactment of a law to exclude benefits or allowances from Romulo:103chanroblesvirtuallawlibrary
the standardized salary. What is required is a
determination by the Department of Budget and at the apex of the entire executive officialdom is the
Management of the non-integrated benefits or allowances. President. Section 17, Article VII of the Constitution
In Abakada Guro Party List v. specifies his power as Chief Executive, thus: The
100
Purisima: chanroblesvirtuallawlibrary President shall have control of all the executive
departments, bureaus and offices. He shall ensure
Congress has two options when enacting legislation to that the laws be faithfully executed. As Chief
define national policy within the broad horizons of its Executive, President Arroyo holds the steering wheel that
legislative competence. It can itself formulate the details or controls the course of her government. She lays down
it can assign to the executive branch the responsibility for policies in the execution of her plans and programs.
making necessary marginal decisions in conformity with Whatever policy she chooses, she has her subordinates to
those standards. In the latter case, the law must be implement them. In short, she has the power of
control. Whenever a specific function is entrusted by and the Office of the Ombudsman contemplates a
law or regulation to her subordinate, she may act guarantee of full flexibility to allocate and utilize their
directly or merely direct the performance of a resources with the wisdom and dispatch that their needs
duty. Thus, when President Arroyo directed respondent require. It recognizes the power and authority to levy,
Ebdane to suspend the issuance of PTCFOR, she was just assess and collect fees, fix rates of compensation not
directing a subordinate to perform an assigned duty. Such exceeding the highest rates authorized by law for
act is well within the prerogative of her office.104 (Emphasis compensation and pay loans of the government and
in the original) allocate and disburse such sums as may be provided by
law or prescribed by them in the course of the discharge
VII of their functions.108

Constitutional and Fiscal As this court held in Re: COA Opinion on the Computation
Autonomy Group of the Appraised Value of the Properties Purchased by the
Retired Chief/Associate Justices of the Supreme
We must, however, differentiate the guidelines for the Court,109 real fiscal autonomy covers the grant to the
grant of allowances and benefits to officials and Judiciary of the authority to use and dispose of its funds
employees of members of the Constitutional and Fiscal and properties at will, free from any outside control or
Autonomy Group. The judiciary, Civil Service Commission, interference.110 This includes the judgment to use its
Commission on Audit, Commission on Elections, and the funds to provide additional allowances and benefits to its
Office of the Ombudsman are granted fiscal autonomy by officials and employees deemed to be necessary and
the Constitution.105 The fiscal autonomy enjoyed by the relevant in the performance of their functions in the office.
Constitutional and Fiscal Autonomy Group is an aspect of Due to the nature of the functions of the Constitutional and
the members independence guaranteed by the Fiscal Autonomy Group and the constitutional grant of
Constitution.106 Their independence is a necessary fiscal autonomy, an issuance by the Department of Budget
component for their existence and survival in our form of and Management or any other agency of the government
government. is not necessary to exclude an allowance or benefit from
the standardized salary.
In Bengzon v. Drilon,107 this court
said:chanRoblesvirtualLawlibrary The entity entrusted by Republic Act No. 6758 to
determine the benefits and allowances that are not
As envisioned in the Constitution, the fiscal autonomy deemed integrated is the Department of Budget and
enjoyed by the Judiciary, the Civil Service Commission, Management. It studies the necessity and reasonableness
the Commission on Audit, the Commission on Elections, of the grant of the allowance and, more importantly, its
practicability, that is, whether the government has enough by the Commission on Audit on a post-audit
budget to grant the allowance. This is in line with our form basis.113chanroblesvirtuallawlibrary
of government where the sound management and
effective utilization of financial resources of government VIII
are basically executive functions.111 On the other hand,
the budget of the Constitutional and Fiscal Autonomy No proof of grant of allowance
Group is constitutionally mandated to be released by the President or the Department
regularly. How these constitutional bodies manage and of Budget and Management
utilize their budget is within their prerogative and authority
to determine. The officials of the Constitutional and Fiscal Petitioner Maritime Industry Authority relies on the alleged
Autonomy Group can determine whether the budget approval by then President Estrada of its memorandum
allocated and released by the government to them can dated February 10, 2000. Respondent Commission on
deliver the allowances and benefits its employees will Audit counters that the original memorandum was not
receive. The executive cannot interfere with how funds will presented by petitioner Maritime Industry Authority.
be used or disbursed without violating the separation of Further, the alleged approval is not a law authorizing the
powers. grant of additional compensation or benefits to
government employees.
Allowing the President or his or her alter ego to dictate the
allowances or benefits that may be received by the officers Article VI, Section 29 of the 1987 Constitution provides,
and employees of the Constitutional and Fiscal Autonomy [n]o money shall be paid out of the Treasury except in
Group will undermine their independence. This pursuance of an appropriation made by law.
arrangement is repugnant to their autonomy enshrined by
the Constitution. As said in Velasco v. Commission on Further, before public funds may be disbursed for salaries
Audit,112 the grant or regulation of the grant of productivity and benefits to government officers and employees, it
incentive allowance or similar benefits are in the exercise must be shown that these are commensurate to the
of the Presidents power of control over these entities. Not services rendered and necessary or relevant to the
being under the Presidents power of control, the functions of the office. Additional allowances and benefits
Constitutional and Fiscal Autonomy Group should be able must be shown to be necessary or relevant to the
to determine the allowances or benefits that suit the fulfillment of the official duties and functions of the
functions of the office. government officers and
employees.114chanroblesvirtuallawlibrary
Nonetheless, expenditures of government funds by the
Constitutional and Fiscal Autonomy Group are still audited In Yap v. Commission on Audit,115 this court laid down two
general requisites before a benefit may be granted to
government officials or employees. First is that the the allowance or benefit.
allowances and benefits were authorized by law
and second, that there was a direct and substantial To prove the validity of the allowances granted, petitioner
relationship between the performance of public functions Maritime Industry Authority presented a photocopy of the
and the grant of the disputed allowances. memorandum with an approved stamped on the
Thus:chanRoblesvirtualLawlibrary memorandum. Below the stamp is the signature of then
President Estrada.
[t]o reiterate, the public purpose requirement for the
disbursement of public funds is a valid limitation on the We cannot rule on the validity of the alleged approval by
types of allowances and benefits that may be granted to the then President Estrada of the grant of additional
public officers. It was incumbent upon petitioner to show allowances and benefits. Petitioner Maritime Industry
that his allowances and benefits were authorized by law Authority failed to prove its existence. The alleged
and that there was a direct and substantial relationship approval of the President was contained in a mere
between the performance of his public functions and the photocopy of the memorandum dated February 10, 2000.
grant of the disputed allowances to him.116 The original was not presented during the proceedings. A
copy of the document is not in the Malacaang Records
The burden of proving the validity or legality of the grant of Office.
allowance or benefits is with the government agency or
entity granting the allowance or benefit, or the employee IX
claiming the same. After the Resident Auditor issues a
notice of disallowance, the aggrieved party may appeal the The grant of allowances and
disallowance to the Director within six (6) months from benefits amounts to double
receipt of the decision.117 At this point, the government compensationproscribed by
agency or employee has the chance to prove the validity Article IX(B), Section 8 of
of the grant of allowance or benefit. If the appeal is denied, the 1987 Constitution
a petition for review may be filed before the Commission
on Audit Commission Proper.118 Finally, the aggrieved Article IX(B), Section 8 of the 1987 Constitution
party may file a petition for certiorari before this court to provides:chanRoblesvirtualLawlibrary
assail the decision of the Commission on Audit
Section 8. No elective or appointive public officer or
Commission Proper.119chanroblesvirtuallawlibrary
employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law, nor
Our laws and procedure have provided the aggrieved
accept without the consent of the Congress, any present,
party several chances to prove the validity of the grant of
emolument, office, or title of any kind from any foreign
government.
Petitioner Maritime Industry
Pensions or gratuities shall not be considered as Authority was not denied due
additional, double, or indirect compensation. process in the disallowance of
the allowances and benefits
Petitioner Maritime Industry Authority argues that the rule
against double compensation does not apply because Petitioner Maritime Industry Authority argues that it was
National Compensation Circular No. 59 is ineffectual due denied administrative due process.123Respondent
to its non-publication.120chanroblesvirtuallawlibrary Commission on Audit affirmed the notices of disallowance
on the basis of provisions of law that are different from the
Respondent Commission on Audit counters that the bases cited in the notices of
disallowed allowances is tantamount to additional disallowance.124chanroblesvirtuallawlibrary
compensation proscribed by Article IX(B), Section 8 of the
1987 Constitution.121 This is because these allowances Respondent Commission on Audit does not deny that
are not authorized by law. other grounds were relied upon to affirm the disallowance
of the allowances given to the officers and employees of
Republic Act No. 6758 deems all allowances and benefits petitioner Maritime Industry Authority. However, it argues
received by government officials and employees as that this is pursuant to its mandate under Article IX(D),
incorporated in the standardized salary, unless excluded Section 2 of the 1987 Constitution125 and is a necessary
by law or an issuance by the Department of Budget and incident of its appellate jurisdiction as provided in Rule II,
Management. The integration of the benefits and Section 4 of the 1997 COA Revised Rules of
allowances is by legal fiction.122chanroblesvirtuallawlibrary Procedure.126chanroblesvirtuallawlibrary

The disallowed benefits and allowances of petitioner This court already settled
Maritime Industry Authoritys officials and employees were that:chanRoblesvirtualLawlibrary
not excluded by law or an issuance by the Department of
[the Commission on Audit] is not required to limit its review
Budget and Management. Thus, these were deemed
only to the grounds relied upon by a government agency's
already given to the officials and employees when they
auditor with respect to disallowing certain disbursements
received their basic salaries. Their receipt of the
of public funds. In consonance with its general audit
disallowed benefits and allowances was tantamount to
power, respondent Commission on Audit is not merely
double compensation.
legally permitted, but is also duty-bound to make its own
X assessment of the merits of the disallowed disbursement
and not simply restrict itself to reviewing the validity of the
ground relied upon by the auditor of the government responsibilities or obligations of the officers/persons
agency concerned. To hold otherwise would render COA's concerned; (c) the extent of their participation or
vital constitutional power unduly limited and thereby involvement in the disallowed transaction; and (d) the
useless and ineffective.127 amount of losses or damages suffered by the government
thereby. The following are illustrative
The disallowance of the grant of benefits and allowances examples:chanRoblesvirtualLawlibrary
by respondent Commission on Audit is proper. We
proceed to determine whether officers and employees of . . . .
petitioner Maritime Industry Authority are liable and/or
should refund the disallowed allowances. 19.1.3. Public officers who approve or authorize
transactions involving the expenditure of government
XII funds and uses of government properties shall be liable for
all losses arising out of their negligence or failure to
Refund of the amounts received exercise the diligence of a good father of a family.
and liability of approving officers
Generally, the public officers good faith does not excuse
Presidential Decree No. 1445 provides for a general his or her personal liability over the unauthorized
liability for unlawful disbursement. This court
expenditures:chanRoblesvirtualLawlibrary said:chanRoblesvirtualLawlibrary

Section 103. General liability for unlawful expenditures. Section 103 of P.D. 1445 declares that expenditures of
Expenditures of government funds or uses of government government funds or uses of government property in
property in violation of law or regulations shall be a violation of law or regulations shall be a personal liability
personal liability of the official or employee found to be of the official or employee found to be directly responsible
directly responsible therefor.128 therefor. The public officials personal liability arises only if
the expenditure of government funds was made in
Section 19 of the Manual of Certificate of Settlement and violation of law. In this case, petitioners act of entering into
Balances, Commission on Audit Circular No. 94-001 a contract on behalf of the local government unit without
provides:chanRoblesvirtualLawlibrary the requisite authority therefor was in violation of the Local
Government Code. While petitioner may have relied on the
19.1. The liability of public officers and other persons for opinion of the City Legal Officer, such reliance only serves
audit disallowances shall be determined on the basis of: to buttress his good faith. It does not, however, exculpate
(a) the nature of the disallowance; (b) the duties, him from his personal liability under P.D. 1445.129
However, with regard to the disallowance of salaries, The assailed notices of disallowance enumerate the
emoluments, benefits, and allowances of government following persons as liable for the disallowed
employees, prevailing jurisprudence130 provides that disbursements:chanRoblesvirtualLawlibrary
recipients or payees need not refund these disallowed
amounts when they received these in good Elenita Delgado Approving Officer136
faith.131 Government officials and employees who Oscar Sevilla- Approving Officer 137
received benefits or allowances, which were disallowed, Yolanda Quiones Chief Accountant138
may keep the amounts received if there is no finding of bad Agrifina Lacson Certifying Officer139
faith and the disbursement was made in good Erlinda Baltazar - Cashier140
faith.132chanroblesvirtuallawlibrary Myrna Colag Alternative Approving Officer141
Miriam Dimayuga Alternate Approving Officer142
On the other hand, officers who participated in the
approval of the disallowed allowances or benefits are The recipients of the disallowed allowances under the
required to refund only the amounts received when they assailed notices of disallowance are the
are found to be in bad faith or grossly negligent amounting following:chanRoblesvirtualLawlibrary
to bad faith.133chanroblesvirtuallawlibrary
Payee Position Amount Allowance/Benefit
In Philippine Economic Zone Authority v. Commission on Disallowed Disallowed
Audit,134 this court defined good faith relative to the
requirement of refund of disallowed benefits or Notice of Disallowance No. 2002-002-101(01)143
allowances. Erlinda Cashier 550,000.00 Rice and Medical
Baltazar Allowance and
In common usage, the term good faith is ordinarily used Oscar Administrator 5,000.00 Allowances of
to describe that state of mind denoting honesty of Sevilla Board Members
intention, and freedom from knowledge of circumstances and Secretary
which ought to put the holder upon inquiry; an honest Pedro Director 5,700.00 (net of allowable
intention to abstain from taking any unconscientious Mendoza allowance of
advantage of another, even through technicalities of law, Marietto Director 5,700.00 P500.00/mo
together with absence of all information, notice, or benefit Enecio pursuant to Sec. 7
or belief of facts which render transaction Juan Pea Director 5,700.00 of P.D. 474) for
unconscientious.135 January 2001.
Gloria [not indicated 3,000.00
Baas in rollo]
G. Director 5,700.00 Erlinda Cashier 835,376.33 Performance
Mendoza Baltazar Incentive
Ruben Director 5,700.00 Allowance for
Ciron March 2001
Notice of Disallowance No. 2002-005-101(01)144 Jovino G. [not indicated 5,000.00 Employment
Tamayo in rollo] Anniversary
Oscar Administrator 5,000.00 Rice and Medical Bonus
Sevilla Allowance,
Representation Oscar M. Administrator 5,000.00 Representation
Pedro Director 5,700.00 Sevilla Allowance of
Mendoza Allowance of
Board Members Jose T. Director 5,700.00 Board Members
Marietto Director 5,700.00 and Secretary Tale and Secretary
Enecio (net of allowable (net of allowable
Pedro V. Director 5,700.00 allowance of
Alfonso Director 5,700.00 allowance of Mendoza
Cusi P500.00/mo P500.00/mo
pursuant to Sec. 7 Marietto A. Director 5,700.00 pursuant to Sec. 7
Ruben Director 5,700.00 Enecio of P.D. 474) for
Ciron of P.D. 474) for
February 2001. Ruben Director 5,700.00 March 2001.
Gloria [not indicated 3,000.00 Ciron
Baas in rollo]
Alfonso Director 5,700.00
Notice of Disallowance No. 2002-006-101(01)145 Cusi
Erlinda Cashier 565,400.00 Rice and Medical Gloria [not indicated 3,000.00
Baltazar Allowance Baas in rollo]
Chona [not indicated 1,591.50 Performance Notice of Disallowance No. 2002-007-101(01)146
[illegible] in rollo] Incentive
Allowance for Erlinda Cashier 561,000.00 Rice and Medical
[illegible] [not indicated 2,508.25 Baltazar Allowance for
in rollo] Feb. 2001
April 2001
Erlinda Cashier 139,000.00 Birthday and Renita [not indicated 30,800.00 Rice/Med for
Baltazar Employment Bautista in rollo] March 2001
Anniversary
Bonus for Chona [not indicated 2,200.00 Rice/Med for
February 2001 Verceles in rollo] March 2001
Alfonso [not indicated 4,698.00 Performance Alfonso [not indicated 4,698.00 Performance
Rulloda in rollo] Incentive Rulloda in rollo] Incentive
Allowance for Allowance for
Feb. 2001 March 2001
Renita [not indicated 15,400.00 Rice[/][M]ed for Chona [not indicated 1,591.50 Performance
Bautista in rollo] April 2001 Verceles in rollo] Incentive
Erlinda Cashier 893,910.14 Performance Allowance for
Baltazar Incentive March 2001
Allowance for Emperatriz [not indicated 2,232.75 Performance
April 2001 Aquino in rollo] Incentive
Erlinda Cashier 186,000.00 Birthday and Allowance for
Baltazar Employment March 2001
Anniversary Jesus [not indicated 2,200.00 Rice[/][M]ed for
Bonus for April Manongdo in rollo] May 2001
2001 Erlinda Cashier 124,000.00 Birthday and
Notice of Disallowance No. 2002-008-101(01)147 Baltazar Employment
Erlinda Cashier 552,200.00 Rice and Medical Anniversary
Baltazar Allowance for Bonus
May 2001 for May 2001
Renita [not indicated 30,669.50 Performance Roberto [not indicated 3,000.00 Anniversary
Bautista in rollo] Incentive [illegible] in rollo] Allowance
Allowance for Renita [not indicated 11,600.00 Rice/Med for May
April 2001 Bautista in rollo] 2001
Liberato [not indicated 2,200.00 Rice/Med for April Erlinda Cashier 877,270.30 Performance
[illegible] in rollo] 2001 Baltazar Incentive
Emperatriz [not indicated 1,098.75 Performance Allowance for
Aquino in rollo] Incentive May 2001
Allowance for Feliciano [not indicated 4,400.00 Rice/Med For
Feb. 2001 Tira, Jr. in rollo] April and May
2001
one month should have alerted her and the approving
The records do not show the reason why Erlinda Baltazar, officers on the validity and legality of the grant of the
petitioner Maritime Industry Authoritys cashier, received allowance. Good faith dictates that the approving officers
high amounts for the allowances as shown in the notices deny the grant and Erlinda Baltazar refrain from receiving
of disallowance. the amount that is clearly and on its face invalid. Erlinda
Baltazar and the approving officers positions dictate that
The amount given to Erlinda Baltazar is exorbitant they are familiar and knowledgeable of the usual amounts
especially when contrasted with the other officers and allowed for allowances and benefits.
employees of petitioner Maritime Industry Authority
receiving the same allowance. The disparity in the As to the directors, officers, and other employees of
amounts given to Erlinda Baltazar compared to the other petitioner Maritime Industry Authority who received the
officers and employees is too substantial to consider her disallowed benefits, they are presumed to have acted in
and the approving officers to be in good faith when Erlinda good faith when they allowed and/or received
Baltazar received the amounts. Thus, Erlinda Baltazar and them.148chanroblesvirtuallawlibrary
the approving officers are solidarily liable to refund all
amounts received by Erlinda Baltazar based on what was Respondent Commission on Audit failed to show bad faith
disallowed by respondent Commission on Audit. This on the part of the approving officers in disbursing the
solidary liability is in accordance with Book VI, Chapter V, disallowed benefits and allowances. Further, the officers
Section 43 of the Administrative Code, which of petitioner Maritime Industry Authority relied on the
provides:chanRoblesvirtualLawlibrary alleged approval of the President of the Philippines in
granting the benefits and allowances.
Liability for Illegal Expenditures. Every expenditure or
obligation authorized or incurred in violation of the Respondent Commission on Audit said that there were
provisions of this Code or of the general and special exchanges of communications between the auditor and
provisions contained in the annual General or other Atty. Oscar M. Sevilla, [Maritime Industry Authority]s
Appropriations Act shall be void. Every payment made in Administrator, pointing out to the latter, in letter of April 4,
violation of said provisions shall be illegal and every official 2001, that continuous grant of the allowances in question
or employee authorizing or making such payment, or would not only contradict the provisions of Administrative
taking part therein, and every person receiving such Order no. 5 issued by the Office of the President and
payment shall be jointly and severally liable to the Budget Circular No. 2001-1 but would likewise negate the
Government for the full amount so paid or received. objective of generating savings.

The amount Erlinda Baltazar received as allowance for However, the checks for the disallowed benefits and
allowances were issued prior to April 4, 2001. It does not DECISION
appear that petitioner Maritime Industry Authoritys
directors and officers were informed prior to the PERALTA, J.:
disbursement of the amounts disallowed that these
allowances and benefits were in violation of existing law, The true test of a cadets character as a leader rests on
and rules and regulations. his personal commitment to uphold what is morally and
ethically righteous at the most critical and trying times, and
WHEREFORE, the decision of respondent Commission at the most challenging circumstances. When a cadet
on Audit dated March 3, 2005 and resolution dated must face a dilemma between what is true and right as
December 9, 2008 are AFFIRMED with MODIFICATION. against his security, well-being, pleasures and comfort, or
The approving officers and Erlinda Baltazar are solidarily dignity, what is at stake is his honor and those that [define]
liable to refund the disallowed amounts received by his values. A man of an honorable character does not think
Erlinda Baltazar. The other payees need not refund the twice and chooses the fore. This is the essence of and the
amounts received. Spirit of the Honor Code it is championing truth and
righteousness even if it may mean the surrender of ones
SO ORDERED. basic rights and privileges.1
The Procedural Antecedents
G.R. No. 211362, February 24, 2015
Six days prior to the March 16, 2014 graduation
FIRST CLASS CADET ALDRIN JEFF P. CUDIA OF THE ceremonies of the Philippine Military Academy (PMA),
PHILIPPINE MILITARY ACADEMY, REPRESENTED BY petitioners Renato P. Cudia, acting for himself and in
HIS FATHER RENATO P. CUDIA, WHO ALSO ACTS ON behalf of his son, Cadet First Class Aldrin Jeff P. Cudia
HIS OWN BEHALF, AND BERTENI CATALUA (Cadet 1CL Cudia), and Berteni Catalua Causing filed
CAUSING, Petitioners, v. THE SUPERINTENDENT OF this petition for certiorari, prohibition, and mandamus with
THE PHILIPPINE MILITARY ACADEMY (PMA), THE application for extremely urgent temporary restraining
HONOR COMMITTEE (HC) OF 2014 OF THE PMA AND order (TRO).2chanroblesvirtuallawlibrary
HC MEMBERS, AND THE CADET REVIEW AND
APPEALS BOARD (CRAB), Respondents. In a Resolution dated March 17, 2014, the Court denied
the prayer for TRO and, instead, required respondents to
FILIPINA P. CUDIA, IN BEHALF OF CADET FIRST file their comment on the
CLASS ALDRIN JEFF P. CUDIA, AND ON HER OWN petition.3chanroblesvirtuallawlibrary
BEHALF, Petitioner-Intervenor.
On March 25, 2014, Filipina P. Cudia, acting for herself
and in behalf of her son Cadet 1CL Cudia, filed a motion August 11, 2014 and October 13, 2014.
for leave to intervene, attaching thereto the petition-in-
intervention.4 Per Resolution dated March 31, 2014, the Petitioner-intervenor twice filed a manifestation with
Court granted the motion and resolved to await motion to submit the case for early resolution,15which the
respondents comment on the Court noted in a Resolution dated August 11, 2014 and
5
petition. chanroblesvirtuallawlibrary October 13, 2014.16chanroblesvirtuallawlibrary

A manifestation was then filed by petitioners on April 3, The Facts


2014, recommending the admission of the petition-in-
intervention and adopting it as an integral part of their Cadet 1CL Cudia was a member of Siklab Diwa Class of
petition.6 On May 20, 2014, petitioner-intervenor filed a 2014 of the PMA, the countrys premiere military academy
manifestation with motion for leave to admit the Final located at Fort Gregorio del Pilar in Baguio City. He
Investigation Report of the Commission on Human Rights belonged to the A Company and was the Deputy Baron
(CHR) dated April 25, 2014.7 The Report8 was relative to of his class. As claimed by petitioners and petitioner-
CHR-CAR Case No. 2014-0029 filed by the spouses intervenor (hereinafter collectively called petitioners,
Renato and Filipina Cudia (Spouses Cudia), for unless otherwise indicated), he was supposed to graduate
themselves and in behalf of their son, against the PMA with honors as the class salutatorian, receive the
Honor Committee (HC) members and Major Vladimir P. Philippine Navy Saber as the top Navy cadet graduate,
Gracilla (Maj. Gracilla)9 for violation of Cadet 1CL Cudias and be commissioned as an ensign of the Philippine Navy.
rights to due process, education, and privacy of
communication. Subsequently, on June 3, 2014, On November 14, 2013, the combined classes of the Navy
petitioners filed a motion for leave to adopt the submission and Air Force 1CL cadets had a lesson examination (LE)
of the CHR Report.10 The manifestation was granted and on Operations Research (OR432) under Dr. Maria Monica
the motion was noted by the Court in its Resolution dated C. Costales (Dr. Costales) at the PMAFI Room. Per
July 7, 2014. published schedule from the Headquarters Academic
Group, the 4th period class in OR432 was from 1:30-3:00
After filing three motions for extension of p.m. (1330H-1500H), while the 5th period class in ENG412
time,11 respondents filed their Consolidated Comment12on was from 3:05-4:05 p.m. (1505H-1605H).
June 19, 2014. In a motion, petitioner-intervenor filed a
Reply, which was later adopted by petitioners.13 Submitted Five days after, Professor Juanita Berong (Prof. Berong)
as Annex A of the Reply was a copy of the CHR of the 5th period class issued a Delinquency Report (DR)
Resolution dated May 22, 2014 regarding CHR-CAR Case against Cadet 1CL Cudia because he was [l]ate for two
No. 2014-0029.14 We noted and granted the same on (2) minutes in his Eng 412 class x x x.17 Cadets 1CL
Narciso, Arcangel, Miranda, Pontillas, Diaz, Otila, and
Dela Cruz were also reported late for five Immediately after 4th period class, I went to my next class
minutes.18chanroblesvirtuallawlibrary without any intention of being late Sir.20
A day after, Maj. Leander instructed Maj. Hindang to give
On December 4, 2013, the DRs reached the Department his comments on the request of Cadet 1CL Cudia and to
of Tactical Officers. They were logged and transmitted to indicate if there were other cadets belonging to the same
the Company Tactical Officers (CTO) for explanation of section who were also late.
the concerned cadets. Two days later, Cadet 1CL Cudia
received his DR. On December 28, 2013, Maj. Hindang submitted his reply
to Maj. Leander pointing out that, based on his
In his Explanation of Report dated December 8, 2013, investigation, the 4th period class was not dismissed late.
Cadet 1CL Cudia reasoned out that: I came directly from As a result, Maj. Leander sustained the penalty imposed.
OR432 Class. We were dismissed a bit late by our Petitioners alleged that Cadet 1CL Cudia came to know of
instructor Sir.19chanroblesvirtuallawlibrary the denial of his request only on January 24, 2014 upon
inquiry with Maj. Leander.
On December 19, 2013, Major Rommel Dennis Hindang
(Maj. Hindang), the CTO of Cadet 1CL Cudia, meted out Several days passed, and on January 7, 2014, Cadet 1CL
to him the penalty of 11 demerits and 13 touring hours. Cudia was informed that Maj. Hindang reported him to the
Immediately, Cadet 1CL Cudia clarified with Maj. Hindang HC21 for violation of the Honor Code. The Honor Report
his alleged violation. The latter told him that the basis of stated:chanRoblesvirtualLawlibrary
the punishment was the result of his conversation with Dr. Lying that is giving statement that perverts the truth in his
Costales, who responded that she never dismissed her written appeal, stating that his 4th period class ended at
class late, and the protocol to dismiss the class 10-15 1500H that made him late in the succeeding class.22
minutes earlier than scheduled. When he expressed his
intention to appeal and seek reconsideration of the Upon asking the HC Chairman, Cadet 1CL Mike Anthony
punishment, he was advised to put the request in writing. P. Mogol (Cadet 1CL Mogol), as to what Maj. Hindang
Hence, that same day, Cadet 1CL Cudia addressed his meant in his Report, Cadet 1CL Cudia learned that it was
Request for Reconsideration of Meted Punishment to Maj. based on Maj. Hindangs conversations with their
Benjamin L. Leander, Senior Tactical Officer (STO), instructors and classmates as well as his statement in the
asserting:chanRoblesvirtualLawlibrary request for reconsideration to Maj. Leander. He then
I strongly believe that I am not in control of the verbally applied for and was granted an extension of time
circumstances, our 4th period class ended 1500H and our to answer the charge against him because Dr. Costales,
5th period class, which is ENG412, started 1500H also. who could shed light on the matter, was on emergency
leave.
On January 13, 2014, Dr. Costales sent text messages to 1. How could this be lying?
Cadet 1CL Cudia, conveying:chanRoblesvirtualLawlibrary
Gud pm cdt cudia. Mam belandres gave me bkground na. 2. What is wrong with the side of Maj. Hindang
She told me its a report dated november. When maj (why did he come up to that honor report)?
hindang ask me, no time referens. (04:25:11 P.M.)
3. What are his assumptions?
All the while I thot he was refering to dismisal during last
day last december. Whc i told, i wud presume they wil I appeal, in the name of clarity, fairness and truth[,] that my
finish early bec its grp work. (04:29:21 P.M.)23 case be reopened and carefully reviewed for I did not
violate the honor code/system, I can answer NO to both
The next day, Cadets 1CL Cudia and Arcangel questions (Did I intend to deceive? Did I intend to take
approached Dr. Costales, who reaffirmed that she and undue advantage?) and for the following
Maj. Hindang were not in the same time reference when reasons:chanRoblesvirtualLawlibrary
the latter asked her.
1. The honor report of Maj. Hindang was
Later, Cadet 1CL Cudia submitted his letter of explanation already settled and finalized given the fact
on the Honor Report. He that no face-to-face personal conversation
averred:chanRoblesvirtualLawlibrary with Ms. Costales was conducted to clarify
Sir, what and when exactly was the issue at
hand.
We had an LE that day (14 November 2013) in OR432
class. When the first bell rang (1455), I stood up, reviewed 2. Statements of the respondents support my
my paper and submitted it to my instructor, Ms. Costales. explanation.
After which, I and Cadet 1cl Arcangel asked for some
query with regards (sic) to the deductions of our previous 3. My explanation to my appeal to my DR
LE. Our instructor gladly answered our question. She then (Request for reconsideration of meted
told me that she will give the copy of our section grade, so punishment) further supports my
I waited at the hallway outside the ACAD5 office, and then explanation in my delinquency report.
she came out of the room and gave me a copy of the
grades. Cadet Arcangel, Cadet Narciso and I immediately 4. My understanding of the duration of the
went to our 5th period class which is ENG412. CLASS covers not just a lecture in a typical
classroom instruction but includes every
With these statements, I would like to clarify the transaction and communication a teacher
following:chanRoblesvirtualLawlibrary does with her students, especially that in our
case some cadets asked for queries, and I 7. Cadet 1cl DIAZ D Co can also stand as a
am given instruction by which (sic) were witness that I waited for Ms. Costales.24
directly related to our CLASS. Her
transaction and communication with our On January 15, 2014, the HC constituted a team to
other classmates may have already ended conduct a preliminary investigation on the reported honor
but ours extended for a little bit. violation of Cadet 1CL Cudia. The Foxtrot Company was
designated as the investigating team and was composed
I agree and consider that because Cadet of Cadet 1CL Hasigan as Presiding Officer, and Cadets
CUDIA is under my instruction to wait, and 1CL Mogol, 1CL Raguindin, 2CL Gumilab, 2CL Saldua,
the other cadets still have business with me, 3CL Espejo, and 3CL Poncardas as members.25Soon
it is reasonable enough for him to say that after, the team submitted its Preliminary Investigation
Our class was dismissed a bit late (dealing Report recommending that the case be formalized.
with matter of seconds or a minute
particularly 45 seconds to 1 minute and 30 The formal investigation against Cadet 1CL Cudia then
seconds) ensued. The Presiding Officer was Cadet 1CL Rhona K.
Salvacion, while the nine (9) voting members were Cadets
And with concern to (sic) OR432 class, I can 1CL Jairus O. Fantin, 1CL Bryan Sonny S. Arlegui, 1CL
say it ended on time (1500H). Kim Adrian R. Martal, 1CL Jeanelyn P. Cabrido, 1CL Shu-
Aydan G. Ayada, 1CL Dalton John G. Lagura, 2CL Renato
(signed) A. Cario, Jr., 2CL Arwi C. Martinez, and 2CL Niko Angelo
M. COSTALES C. Tarayao.26 Acting as recorders tasked to document the
w/ attached certification entire proceedings were 4CL Jennifer A. Cuarteron and
3CL Leoncio Nico A. de Jesus II.27 Those who observed
the trial were Cadets 1CL Balmeo, Dag-uman, Hasigan,
Raguindin, Paulino, Arcangel, and Narciso; Cadets 2CL
5. I was transparent and honest in explaining Jocson and Saldua, Jr.; and Cadet 3CL
the 2-minute delay and did not attempt to Umaguing.28chanroblesvirtuallawlibrary
conceal anything that happened or I did.
The first formal hearing started late evening of January 20,
6. Furthermore, CPT DULAWAN PA, the 2014 and lasted until early morning the next day. Cadet
Tactical Officer of Hawk Company[,] and I 1CL Cudia was informed of the charge against him, as to
had a conversation with regards (sic) to the which he pleaded Not Guilty. Among those who testified
same matter for which he can give important were Cadet 1CL Cudia, Maj. Hindang, and Cadets 1CL
points of my case.
Arcangel and Narciso. On the second night of the hearing Knowing the fact that in my delinquency report, it is stated
held on January 21, 2014, Cadet 1CL Cudia again that ENG412 classes started 1500H and I am late for two
appeared and was called to the witness stand along with minutes, it is logical enough for I (sic) to interpret it as I
Cadets Brit and Barrawed. Dr. Costales also testified came 1502H during that class. This is the explanation that
under oath via phone on a loudspeaker. Deliberation came into my mind that time. (I just cannot recall the exact
among the HC voting members followed. After that, the words I used in explaining that delinquency report, but
ballot sheets were distributed. The members cast their what I want to say is that I have no intention to be late). In
votes through secret balloting and submitted their my statements, I convey my message as since I was not
accomplished ballot sheets together with their written the only one left in that class, and the instructor is with us,
justification. The result was 8-1 in favor of a guilty verdict. I used the term CLASS, I used the word DISMISSED
Cadet 1CL Dalton John G. Lagura (Cadet 1CL Lagura) because I was under instruction (to wait for her to give the
was the lone dissenter. Allegedly, upon the order of HC section grade) by the instructor, Ms. Costales. The other
Chairman Cadet 1CL Mogol, the Presiding Officer and cadets (1CL MIRANDA, 1CL ARCANGEL) still have
voting members went inside a chamber adjoining the court queries and business with her that made me decide to use
room for further deliberation. After several minutes, they the word CLASS, while the others who dont have
went out and the Presiding Officer announced the 9-0 queries and business with her (ex: 1CL NARCISO and
guilty verdict. Cadet 1CL Cudia, who already served nine 1CL DIAZ) were also around.
(9) touring hours, was then informed of the unanimous
votes finding him guilty of violating the Honor Code. He Note:chanRoblesvirtualLawlibrary
was immediately placed in the PMA Holding Center until
the resolution of his appeal. The four named cadets were also reported late.

On January 24, 2014, Cadet 1CL Cudia filed a written Reference: Para 171.0. (Leaving the Classroom Prior to
appeal addressed to the HC Chairman, the full text of Dismissal Time)(Sec XVII, CCAFPR s2008)
which stated:chanRoblesvirtualLawlibrary
WRITTEN APPEAL It is stated in this reference that Cadets shall not linger in
the place of instruction after the section has been
14 NOVEMBER 2013 dismissed. EXCEPT when told or allowed to do so by the
instructor or by any competent authority for official
This is when I was reported for Late for two (2) minutes in purposes.
Eng412 class, my explanation on this delinquency report
when I received it, is that Our class was dismissed a (little) The instruction by Ms. Costales was given to me before
bit late and I came directly from 4th period class... etc. the two bells rang (indicating the end of class hour,
1500H). I waited for her for about 45 seconds to 1 minute the schedule and again, I have no intention to be late. After
and 30 seconds, that made me to decide to write a little explaining it further with these statements, my tactical
bit late in my explanation. Truly, the class ENDED 1500H officer said that since I was reported in a written form, I
but due to official purpose (instruction by Ms. Costales to should make an appeal in a written form. Thinking that he
wait) and the conflict in academic schedule (to which I am already understood what I want to say, I immediately made
not in control of the circumstances, 4thPD class 1330H- an appeal that day stating the words that I used in having
1500H and 5th PD class 1500H-1600H), and since Ms. conversation with him.29
Costales, my other classmates, and I were there, I used Attached to the written appeal was a Certification dated
the word CLASS. January 24, 2014, wherein Dr. Costales
attested:chanRoblesvirtualLawlibrary
19 December 2013
1. That Cadet MIRANDA, ARCANGEL, [and]
I was informed that my delinquency report was awarded, NARCISO was (sic) with Cadet CUDIA in
11 Demerits and 13 Touring hours. Not because I dont making query about their latest grades in
want to serve punishment, but because I know I did OR432 and/or results of UE1 outside the
nothing wrong, I obeyed instruction, and believing that my ACADS office. The following facts may
reason is justifiable and valid, that is why I approached our explain their queries on 14 November
tactical officer, MAJ HINDANG PAF, to clarify and ask why 2013:chanRoblesvirtualLawlibrary
it was awarded that day. a. That I held my class in the PMAFI
room instead of room 104.
In our conversation, he said that he had a phone call to my
instructor and he even added that they have a protocol to b. That OR432 releases grades every
dismiss the class, 15 minutes or 10 minutes before 1500H. Wednesday and cadets are informed
I explained:chanRoblesvirtualLawlibrary during Thursday, either in class or
posted grades in the bulletin board
Sir, I strongly believe that I am not in control of the (grades released was [sic] based on
circumstances, our 4th period class ended 1500H and our the previous LEs: latest LE before UE
5th period class, which is ENG412, started 1500H also. was Decision Trees).
Immediately after 4th period class, I went to my next class
without any intention of being late Sir. c. That UE papers were already
checked but not yet recorded due to
These statements are supplementary to my explanation in (sic) other cadets have not taken the
my delinquency report, in here, I specified the conflict in
UE. Cadets were allowed to verify From January 25 to February 7, 2014, respondents allege
scores but not to look at the papers. that the Headquarters Tactics Group (HTG) conducted an
informal review to check the findings of the HC. During the
d. Last 23 January 2014, Captain course of the investigation, Prof. Berong was said to have
Dulawan clarified if indeed Cadet confirmed with the Officer-in-Charge of the HC that
NARCISO and ARCANGEL verified classes started as scheduled (i.e., 3:05 p.m. or 1505H),
grades. The two cadets said that they and that Cadet 1CL Barrawed, the acting class marcher of
verified something with me after the ENG412, verified before the Commandant, Assistant
OR432 class and they were with Commandant, and STO that the class started not earlier
Cadet CUDIA. That the statements of than scheduled.
the three (3) cadets are all the same
and consistent, thus[,] I honor that as Meantime, on February 4, 2014, the OIC of the HC
true. forwarded the Formal Investigation Report to the Staff
Judge Advocate (SJA) for review. The next day, the SJA
found the report to be legally in order.

2. As to the aspect of dismissing late, I could On February 8, 2014, Colonel Rozzano D. Briguez (Col.
not really account for the specific time that I Briguez), the Commandant of Cadets, affirmed the HC
dismissed the class. To this date, I [cannot] findings and recommended to Vice Admiral Edgar
really recall an account that is more than two Abogado, then PMA Superintendent, the separation from
(2) months earlier. According to my records, the PMA of Cadet 1CL Cudia for violation of the First Tenet
there was a lecture followed by an LE during of the Honor Code (Lying, pursuant to Sec. VII.12.b of the
(sic) on 14 November 2013. To determine CCAFPR S-2008). On the same date, Special Orders No.
the time of my dismissal, maybe it can be 26 was issued by the PMA Headquarters placing Cadet
verified with the other members of class I 1CL Cudia on indefinite leave of absence without pay and
was handling on that said date.30 allowances effective February 10, 2014 pending approval
of his separation by the AFP-GHQ, barring him from future
Respondents contend that the HC denied the appeal the appointment and/or admission as cadet, and not
same day, January 24, as it found no reason to conduct a permitting him to qualify for any entrance requirements to
re-trial based on the arguments and evidence the PMA.33chanroblesvirtuallawlibrary
presented.31 Petitioners, however, claim that the written
appeal was not acted upon until the filing of the petition-in- Two days later, Vice Admiral Abogado approved the
intervention.32chanroblesvirtuallawlibrary recommendation to dismiss Cadet 1CL Cudia.
Spokesperson Major Agnes Lynette Flores (Maj. Flores)
On February 13, 2014, Cadet 1CL Cudia submitted a letter confirmed the HC order to ostracize Cadet 1CL Cudia.
to the Office of the Commandant of Cadets requesting for Among his offenses were: breach of confidentiality by
reinstatement by the PMA of his status as a putting documents in the social media, violation of the
cadet.34chanroblesvirtuallawlibrary PMA Honor Code, lack of initiative to resign, and smearing
the name of the PMA.37chanroblesvirtuallawlibrary
Four days passed, Annavee P. Cudia (Annavee), the
sister of Cadet 1CL Cudia, posted his plight in her On February 24, 2014, Cadet 1CL Cudia requested the
Facebook account. The day after, the Spouses Cudia CRAB for additional time, until March 4, 2014, to file an
gave a letter to Major General Oscar Lopez (Maj. Gen. appeal on the ground that his intended witnesses were in
Lopez), the new PMA Superintendent, asking to recognize on-the-job training (OJT).38 As additional evidence to
the 8-1 voting of the HC,35copies of which were furnished support his appeal, he also requested for copies of the
to the AFP Chief of Staff and other concerned military Minutes of the HC proceedings, relevant documents
officials. Subsequently, Maj. Gen. Lopez was directed to pertaining to the case, and video footages and recordings
review Cadet 1CL Cudias case. The latter, in turn, referred of the HC hearings.
the matter to the Cadet Review and Appeals Board
(CRAB). The next day, Cadet 1CL Cudia and his family engaged
the services of the Public Attorneys Office (PAO) in
On February 19, 2014, Cadet 1CL Cudia made his Baguio City.
personal appeal letter to Maj. Gen. Lopez. On even date,
the AFP Chief of Staff ordered a reinvestigation following The CRAB conducted a review of the case based on the
the viral Facebook post of Annavee demanding the following: (a) letter of appeal of the Spouses Cudia dated
intervention of the military leadership. February 18, 2014; (b) directive from the AFP-GHQ to
reinvestigate the case; and (c) guidance from Maj. Gen.
Petitioners claim that, on February 21, 2014, Special Lopez.
Order No. 1 was issued directing all PMA cadets to
ostracize Cadet 1CL Cudia by not talking to him and by On February 26, 2014, Brigadier General Andre M.
separating him from all activities/functions of the cadets. It Costales, Jr. (Brig. Gen. Costales, Jr.), the CRAB
is said that any violation shall be a Class 1 offense Chairman, informed Cadet 1CL Cudia that, pending
entailing 45 demerits, 90 hours touring, and 90 hours approval of the latters request for extension, the CRAB
confinement. Cadet 1CL Cudia was not given a copy of the would continue to review the case and submit its
order and learned about it only from the recommendations based on whatever evidence and
media.36 According to an alleged news report, PMA testimonies received, and that it could not favorably
consider his request for copies of the HC minutes, relevant On March 11, 2014, PAO received a letter from Maj. Gen.
documents, and video footages and recordings of the HC Lopez stating the denial of Cadet 1CL Cudias requests for
hearings since it was neither the appropriate nor the extension of time to file an Appeal Memorandum in view
authorized body to take action thereon.39 Subsequently, of the ample time already given, and to be furnished with
upon verbal advice, Cadet 1CL Cudia wrote a letter to Maj. a copy of relevant documents because of confidentiality
Gen. Lopez reiterating his and presumption of regularity of the HC
request.40chanroblesvirtuallawlibrary proceedings.45 Cadet 1CL Cudia, through PAO, then filed
an Appeal Memorandum46 before the CRAB.
Two days after, the Spouses Cudia filed a letter-complaint
before the CHR-Cordillera Administrative Region (CAR) On March 12, 2014, Spouses Cudia wrote a letter to
Office against the HC members and Maj. Gracilla for President Benigno Simeon C. Aquino III (Pres. Aquino),
alleged violation of the human rights of Cadet 1CL Cudia, who is the Commander-in-Chief of the AFP, attaching
particularly his rights to due process, education, and thereto the Appeal Memorandum.47On the same day,
privacy of communication.41chanroblesvirtuallawlibrary Special Orders No. 48 was issued by the PMA constituting
a Fact-Finding Board/Investigation Body composed of the
On March 4, 2014, Cadet 1CL Cudia, through the PAO, CRAB members and PMA senior officers to conduct a
moved for additional time, until March 19, 2014, to file his deliberate investigation pertaining to Cadet 1CL Cudias
appeal and submit evidence. PAO also wrote a letter to Appeal Memorandum.48 The focus of the inquiry was not
AFP Chief of Staff General Emmanuel T. Bautista (Gen. just to find out whether the appeal has merit or may be
Bautista) seeking for immediate directive to the PMA to considered but also to investigate possible involvement of
expeditiously and favorably act on Cadet 1CL Cudias other cadets and members of the command related to the
requests.42chanroblesvirtuallawlibrary incident and to establish specific violation of policy or
regulations that had been violated by other cadets and
Exactly a week prior to the commencement exercises members of the HC.49chanroblesvirtuallawlibrary
of Siklab Diwa Class, the following events
transpired:chanRoblesvirtualLawlibrary On March 13, 2014, the Cudia family and the Chief Public
Attorney had a dialogue with Maj. Gen. Lopez.
On March 10, 2014, Annavee sought the assistance of
PAO Chief Public Attorney Persida V. Rueda-Acosta.43 On On March 14, 2014, the CHR-CAR came out with its
the other hand, the CRAB submitted a report to the AFP- preliminary findings, which recommended the
GHQ upholding the dismissal of Cadet 1CL following:chanRoblesvirtualLawlibrary
Cudia.44chanroblesvirtuallawlibrary
a. For the PMA and the Honor Committee to of Staff, affirming the CRABs denial of Cadet 1CL Cudias
respect and uphold the 8 Guilty 1 Not guilty appeal. It held:chanRoblesvirtualLawlibrary
vote;chanrobleslaw After review, The Judge Advocate General, AFP finds that
the action of the PMA CRAB in denying the appeal for
b. For the PMA and the Honor Committee to reinvestigation is legally in order. There was enough
officially pronounce Cdt Cudia as Not Guilty evidence to sustain the finding of guilt and the proprietary
of the charge filed against him before the (sic) of the punishment imposed. Also, your son was
Honor Committee;chanrobleslaw afforded sufficient time to file his appeal from the date he
was informed of the final verdict on January 21, 2014,
c. For the PMA to restore Cadet Cudias rights when the decision of the Honor Committee was read to
and entitlements as a full-fledge graduating him in person, until the time the PMA CRAB conducted its
cadet and allow him to graduate on Sunday, review on the case. Moreover, the continued stay of your
16 March 2014;chanrobleslaw son at the Academy was voluntary. As such, he remained
subject to the Academys policy regarding visitation.
d. For the PMA to fully cooperate with the CHR Further, there was no violation of his right to due process
in the investigation of Cudias Case.50 considering that the procedure undertaken by the Honor
Committee and PMA CRAB was consistent with existing
On March 15, 2014, Cadet 1CL Cudia and his family had policy. Thus, the previous finding and recommendation of
a meeting with Pres. Aquino and Department of National the Honor Committee finding your son, subject Cadet
Defense (DND) Secretary Voltaire T. Gazmin. The guilty of Lying and recommending his separation from
President recommended that they put in writing their the Academy is sustained.
appeal, requests, and other concerns. According to
respondents, the parties agreed that Cadet 1CL Cudia In view of the foregoing, this Headquarters resolved to
would not join the graduation but it was without prejudice deny your appeal for lack of merit.51
to the result of the appeal, which was elevated to the AFP
Chief of Staff. The President then tasked Gen. Bautista to Thereafter, the Fact-Finding Board/Investigating Body
handle the reinvestigation of the case, with Maj. Gen. issued its Final Investigation Report on March 23, 2014
Oscar Lopez supervising the group conducting the review. denying Cadet 1CL Cudias appeal.52 Subsequently, on
April 28, 2014, the special investigation board tasked to
Four days after Siklab Diwa Class graduation day, probe the case submitted its final report to the
petitioner Renato S. Cudia received a letter dated March President.53 Pursuant to the administrative appeals
11, 2014 from the Office of the AFP Adjutant General and process, the DND issued a Memorandum dated May 23,
signed by Brig. Gen. Ronald N. Albano for the AFP Chief 2014, directing the Office of AFP Chief of Staff to submit
the complete records of the case for purposes of DND
review and recommendation for disposition by the 2.1officially proclaim Cadet Cudia a graduate and alumnus
President.54chanroblesvirtuallawlibrary of the Philippine Military Academy;
2.2issue to Cadet Cudia the corresponding Diploma for the
Meanwhile, on May 22, 2014, the CHR-CAR issued its degree of Bachelors of Science; and
Resolution with respect to CHR-CAR Case No. 2014- 2.3Issue to Cadet Cudia the corresponding official
0029, concluding and recommending as transcript of his academic records for his BS degree,
follows:chanRoblesvirtualLawlibrary without conditions therein as to his status as a PMA
WHEREFORE, PREMISES CONSIDERED, the cadet.
Commission on Human Rights-CAR Office
finds PROBABLE CAUSE FOR HUMAN RIGHTS
VIOLATIONS against the officers and members of the 3. The Public Attorneys Office to provide legal
PMA Honor Committee and certain PMA officials, services to Cadet Cudia in pursuing
specifically for violations of the rights of CADET ALDRIN administrative, criminal and civil suits
JEFF P. CUDIA to dignity, due process, education, against the officers and members of the
privacy/privacy of communication, and good life. Honor Committee named hereunder, for
violation of the Honor Code and System and
IN VIEW OF THE FOREGOING, the CHR-CAR the Procedure in Formal Investigation,
Office RESOLVED to indorse to competent authorities for dishonesty, violation of the secrecy of the
their immediate appropriate action on the following ballot, tampering the true result of the voting,
recommendations:chanRoblesvirtualLawlibrary perjury, intentional omission in the Minutes
of substantive part of the formal trial
1. The Philippine Military Academy must set proceedings which are prejudicial to the
aside the 9-Guilty, 0-Not Guilty verdict interest of justice and Cadet Cudias
against Cadet Aldrin Jeff P. Cudia, for being fundamental rights to dignity, non-
null and void; to uphold and respect the 8- discrimination and due process, which led to
Guilty, 1-Not Guilty voting result and make the infringement of his right to education and
an official pronouncement of NOT GUILTY even transgressing his right to a good life.
in favor of Cadet Cudia;chanrobleslaw
3.1 Cdt 1CL MIKE ANTHONY MOGUL, now 2nd Lt. of the
2. The PMA, the AFP Chief of Staff, and the AFP
President in whose hands rest the ends of 3.2 Cdt 1CL RHONA K. SALVACION, now 2nd Lt. of the
justice and fate of Cadet Cudia, AFP
to:chanRoblesvirtualLawlibrary 3.3 Cdt 2CL ARWI C. MARTINEZ
3.4 Cdt 2CL RENATO A. CARIO, JR.
3.5 Cdt 2CL NIKO ANGELO C. TARAYAO exhaustion of administrative
3.6 Cdt 1CL JEANELYN P. CABRIDO, now 2nd Lt. of the remedies;chanrobleslaw
AFP
3.7 Cdt 1CL KIM ADRIAN R. MARTAL, now 2nd Lt. of the 6. The Secretary of National Defense, the Chief
AFP of Staff of the Armed Forces of the
3.8 Cdt 1CL JAIRUS O. FANTIN, now 2nd Lt. of the AFP Philppines, the PMA Superintendent, to
3.9 Cdt 1CL BRYAN SONNY S. ARLEGUI, now 2nd Lt. of immediately cause the comprehensive
the AFP review of all rules of procedures, regulations,
3.10Cdt 1CL DALTON JOHN G. LAGURA, now 2nd Lt. of policies, including the so-called practices in
the AFP the implementation of the Honor Code; and,
3.11Cdt 1CL BIANCHIHEIMER L. EDRA, now 2nd Lt. of thereafter, adopt new policies, rules of
the AFP procedures and relevant regulations which
3.12Cdt 4CL JENNIFER A. CUARTERON (recorder) are human-rights based and consistent with
3.13Cdt 3CL LEONCIO NICO A. DE JESUS II (recorder) the Constitution and other applicable
laws;chanrobleslaw

4. The Office of the AFP Chief of Staff and the 7. The Congress of the Philippines to consider
PMA competent authorities should the enactment of a law defining and
investigate and file appropriate charges penalizing ostracism and discrimination,
against Maj. VLADIMIR P. GRACILLA, for which is apparently being practiced in the
violation of the right to privacy of Cadet PMA, as a criminal offense in this
Cudia and/or failure, as intelligence officer, jurisdiction;chanrobleslaw
to ensure the protection of the right to
privacy of Cudia who was then billeted at the 8. His Excellency The President of the
PMA Holding Center;chanrobleslaw Philippines to certify as priority, the passage
of an anti-ostracism and/or anti-
5. The Office of the AFP Chief of Staff and PMA discrimination law; and
competent authorities should investigate
Maj. DENNIS ROMMEL HINDANG for his 9. Finally, for the AFP Chief of Staff and the
failure and ineptness to exercise his PMA authorities to ensure respect and
responsibility as a competent Tactical Officer protection of the rights of those who testified
and a good father of his cadets, in this case, for the cause of justice and truth as well as
to Cadet Cudia; for failure to respect human rights of Cadet Cudia.
RESOLVED FURTHER, to monitor the actions by the officer, based on his purported conversation with one
competent authorities on the foregoing CHR Honor Committee member, lacks personal knowledge on
recommendations. the deliberations of the said Committee and is hearsay at
best.
Let copy of this resolution be served by personal service
or by substituted service to the complainants (the spouses Similarly, the initial recommendations of the Commission
Renato and Filipina Cudia; and Aldrin Jeff P. Cudia), and on Human Rights cannot be adopted as basis that Cadet
all the respondents. Also, to the PMA Superintendent, the Cudias due process rights were violated. Apart from being
AFP Chief of Staff, the Secretary of National Defense, His explicitly preliminary in nature, such recommendations are
Excellency The President of the Philippines, The Public anchored on a finding that there was an 8-1 vote which, as
Attorneys Office. discussed above, is not supported by competent evidence.

SO RESOLVED.55 In the evaluation of Cadet Cudias case, this Office has


On June 11, 2014, the Office of the President sustained been guided by the precept that military law is regarded to
the findings of the AFP Chief of Staff and the CRAB. The be in a class of its own, applicable only to military
letter, which was addressed to the Spouses Cudia and personnel because the military constitutes an armed
signed by Executive Secretary Paquito N. Ochoa, Jr., organization requiring a system of discipline separate from
stated in whole:chanRoblesvirtualLawlibrary that of civilians (Gonzales v. Abaya, G.R. No. 164007, 10
This refers to your letters to the President dated 12 March August 2005 citing Calley v. Callaway, 519 F. 2d 184
2014 and 26 March 2014 appealing for a reconsideration [1975] and Orloff v. Willoughby, 345 US 83 [1953]). Thus,
of the decision of the Philippine Military Academy (PMA) this Office regarded the findings of the AFP Chief,
Honor Committee on the case of your son, Cadet 1CL particularly his conclusion that there was nothing irregular
Aldrin Jeff Cudia. in the proceedings that ensued, as carrying great weight.

After carefully studying the records of the case of Cadet Accordingly, please be informed that the President has
Cudia, the decision of the Chief of Staff of the Armed sustained the findings of the AFP Chief and the PMA
Forces of the Philippines (AFP), and the Honor Code CRAB.56
System of the AFP Cadet Corps, this Office has found no The Issues
substantial basis to disturb the findings of the AFP and the
PMA Cadet Review Appeals Board (CRAB). There is no To petitioners, the issues for resolution
competent evidence to support the claim that the decision are:chanRoblesvirtualLawlibrary
of the Honor Committee members was initially at 8 Guilty I.
votes and 1 Not Guilty vote. The lone affidavit of an
Military Academy violated their own rules
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE and principles as embodied in the Honor
HONOR COMMITTEE AND THE CADET REVIEW AND Code
APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN DISMISSING CADET FIRST CLASS E. The Honor Committee, the Cadet Review
ALDRIN JEFF P. CUDIA FROM THE ACADEMY IN and Appeals Board and the Philippine
UTTER DISREGARD OF HIS RIGHT TO DUE PROCESS Military Academy, in deciding Cadet First
Class Aldrin Jeff Cudias case, grossly and
CONSIDERING THAT: in bad faith, misapplied the Honor Code so
as to defy the 1987 Constitution,
A. Despite repeated requests for relevant notwithstanding the unquestionable fact that
documents regarding his case, Cadet First the former should yield to the latter.
Class Aldrin Jeff Cudia was deprived of his
right to have access to evidence which II
would have proven his defense, would have
totally belied the charge against him, and WHETHER THE PHILIPPINE MILITARY ACADEMY, THE
more importantly, would have shown the HONOR COMMITTEE AND THE CADET REVIEW AND
irregularity in the Honor Committees hearing APPEALS BOARD COMMITTED GRAVE ABUSE OF
and rendition of decision DISCRETION IN HOLDING THAT CADET FIRST CLASS
ALDRIN JEFF P. CUDIA LIED, THEREBY VIOLATING
B. Cadet First Class Aldrin Jeff Cudia was THE HONOR CODE
vaguely informed of the decisions arrived at
by the Honor Committee, the Cadet Review III
and Appeals Board and the Philippine
Military Academy WHETHER THE RESULT OF THE FACT-FINDING
INVESTIGATION INDEPENDENTLY CONDUCTED BY
C. The Honor Committee, the Cadet Review THE COMMISSION ON HUMAN RIGHTS IS OF SUCH
and Appeals Board and the Philippine GREAT WEIGHT AND PERSUASIVE NATURE THAT
Military Academy have afforded Cadet First THIS HONORABLE COURT MAY HONOR, UPHOLD
Class Aldrin Jeff Cudia nothing but a sham AND RESPECT57
trial
On the other hand, in support of their prayer to dismiss the
D. The Honor Committee, the Cadet Review petition, respondents presented the issues
and Appeals Board and the Philippine below:chanRoblesvirtualLawlibrary
PROCEDURAL GROUNDS INTERFERING WITH LEGITIMATE MILITARY
MATTERS.
I.
SUBSTANTIVE GROUNDS
THE MANDAMUS PETITION PRAYING THAT CADET
CUDIA BE INCLUDED IN THE LIST OF GRADUATES OF VI.
SIKLAB DIWA CLASS OF 2014 AND BE ALLOWED TO
TAKE PART IN THE COMMENCEMENT EXERCISES CADET CUDIA HAS NECESSARILY AND
HAS ALREADY BEEN RENDERED MOOT. VOLUNTARILY RELINQUISHED CERTAIN CIVIL
LIBERTIES BY VIRTUE OF HIS ENTRY INTO THE PMA.
II.
VII.
THE ISSUES RAISED IN THE PETITIONS ARE
ACTUALLY FACTUAL WHICH ARE BEYOND THE THE PMA ENJOYS THE ACADEMIC FREEDOM WHICH
SCOPE OF A PETITION FOR CERTIORARI, AUTHORIZES IT TO IMPOSE DISCIPLINARY
PROHIBITION AND MANDAMUS. MEASURES AND PUNISHMENT AS IT DEEMS FIT AND
CONSISTENT WITH THE PECULIAR NEEDS OF THE
III. ACADEMY.

MANDAMUS DOES NOT LIE TO COMPEL VIII.


RESPONDENTS TO GRANT THE RELIEFS PRAYED
FOR. CADET CUDIA WAS PROPERLY AFFORDED
PROCEDURAL DUE PROCESS.
IV. The PMA has regulatory authority to administratively
terminate cadets despite the absence of statutory
IT IS PREMATURE TO INVOKE JUDICIAL REDRESS authority.
PENDING THE DECISION OF THE PRESIDENT ON
CADET CUDIAS APPEAL. Violation of the Honor Code warrants the administrative
dismissal of a guilty cadet.
V.
Cadet Cudia violated the first tenet of the Honor Code by
WITH UTMOST DUE RESPECT, THE HONORABLE providing untruthful statements in the explanation for his
COURT MUST EXERCISE CAREFUL RESTRAINT AND tardiness.
REFRAIN FROM UNDULY OR PREMATURELY
The higher authorities of the PMA did not blindly adopt the and academic when the graduation ceremonies of the
findings of the Honor Committee. PMA Siklab Diwa Class took place on March 16, 2014.
Also, a petition for mandamus is improper since it does not
The procedural safeguards in a student disciplinary case lie to compel the performance of a discretionary duty.
were properly accorded to Cadet Cudia. Invoking Garcia v. The Faculty Admission Committee,
Loyola School of Theology,59 respondents assert that a
The subtle evolution in the voting process of the Honor mandamus petition could not be availed of to compel an
Committee, by incorporating executive academic institution to allow a student to continue studying
session/chambering, was adopted to further strengthen therein because it is merely a privilege and not a right. In
the voting procedure of the Honor Committee. this case, there is a clear failure on petitioners part to
establish that the PMA has the ministerial duty to include
Cadet Lagura voluntarily changed his vote without any Cadet 1CL Cudia in the list, much less award him with
pressure from the other voting members of the Honor academic honors and commission him to the Philippine
Committee. Navy. Similar to the case of University of San Agustin, Inc.
v. Court of Appeals,60 it is submitted that the PMA may
Ostracism is not a sanctioned practice of the PMA. rightfully exercise its discretionary power on who may be
admitted to study pursuant to its academic freedom.
The findings of the Commission on Human Rights are not
binding on the Honorable Court, and are, at best, In response, petitioners contend that while the plea to
recommendatory. allow Cadet 1CL Cudia to participate in the PMA 2014
commencement exercises could no longer be had, the
Cadet Cudia was not effectively deprived of his future Court may still grant the other reliefs prayed for. They add
when he was dismissed from the PMA.58 that Garcia enunciated that a respondent can be ordered
The Ruling of the Court to act in a particular manner when there is a violation of a
constitutional right, and that the certiorari aspect of the
PROCEDURAL GROUNDS petition must still be considered because it is within the
province of the Court to determine whether a branch of the
Propriety of a petition for mandamus government or any of its officials has acted without or in
excess of jurisdiction or with grave abuse of discretion
Respondents argue that the mandamus aspect of the amounting to lack or excess thereof.
petition praying that Cadet 1CL Cudia be included in the
list of graduating cadets and for him to take part in the We agree that a petition for mandamus is improper.
commencement exercises was already rendered moot
Under Section 3, Rule 65 of the Rules of Civil Procedure, 2. direct the PMA to allow Cadet Cudia to take
a petition for mandamus may be filed when any tribunal, part in the commencement exercises if he
corporation, board, officer, or person unlawfully neglects completed all the requirements for his
the performance of an act which the law specifically baccalaureate degree;chanrobleslaw
enjoins as a duty resulting from an office, trust, or station.
It may also be filed when any tribunal, corporation, board, 3. direct the PMA to award unto Cadet Cudia
officer, or person unlawfully excludes another from the use the academic honors he deserves, and the
and enjoyment of a right or office to which such other is commission as a new Philippine Navy
entitled. ensign;chanrobleslaw

For mandamus to lie, the act sought to be enjoined must 4. direct the Honor Committee to submit to the
be a ministerial act or duty. An act is ministerial if the act CRAB of the PMA all its records of the
should be performed "[under] a given state of facts, in a proceedings taken against Cadet Cudia,
prescribed manner, in obedience to the mandate of a legal including the video footage and audio
authority, without regard to or the exercise of [the tribunal recordings of the deliberations and voting,
or corporation's] own judgment upon the propriety or for the purpose of allowing the CRAB to
impropriety of the act done." The tribunal, corporation, conduct intelligent review of the case of
board, officer, or person must have no choice but to Cadet Cudia;chanrobleslaw
perform the act specifically enjoined by law. This is
opposed to a discretionary act whereby the officer has the 5. direct the PMAs CRAB to conduct a
choice to decide how or when to perform the review de novo of all the records without
duty.61chanroblesvirtuallawlibrary requiring Cadet Cudia to submit new
evidence if it was physically impossible to do
In this case, petitioners pray for, among so;chanrobleslaw
others:chanRoblesvirtualLawlibrary
6. direct the PMAs CRAB to take into account
Also, after due notice and hearing, it is prayed of the Court
the certification signed by Dr. Costales, the
to issue a Writ of
new evidence consisting of the affidavit of a
Mandamus to:chanRoblesvirtualLawlibrary
military officer declaring under oath that the
cadet who voted not guilty revealed to this
1. direct the PMA to include Cadet Cudia in the
officer that this cadet was coerced into
list of graduates of Siklab Diwa Class of
changing his vote, and other new evidence if
2014 of the PMA, including inclusion in the
there is any;chanrobleslaw
yearbook;chanrobleslaw
7. direct the PMAs CRAB to give Cadet Cudia With respect to the prayer directing the PMA to restore
the right to a counsel who is allowed to Cadet 1CL Cudias rights and entitlements as a full-
participate actively in the proceedings as fledged graduating cadet, including his diploma, awards,
well as in the cross-examinations during the and commission as a new Philippine Navy ensign, the
exercise of the right to confront witnesses same cannot be granted in a petition for mandamus on the
against him; and basis of academic freedom, which We shall discuss in
more detail below. Suffice it to say at this point that these
8. direct the Honor Committee in case of matters are within the ambit of or encompassed by the
remand of the case by the CRAB to allow right of academic freedom; therefore, beyond the province
Cadet Cudia a representation of a counsel.62 of the Court to decide.64 The powers to confer degrees at
the PMA, grant awards, and commission officers in the
Similarly, petitioner-intervenor seeks for the following military service are discretionary acts on the part of the
reliefs:chanRoblesvirtualLawlibrary President as the AFP Commander-in-Chief. Borrowing the
A. x x x words of Garcia:chanRoblesvirtualLawlibrary
There are standards that must be met. There are policies
B. a Writ of Mandamus be issued to be pursued. Discretion appears to be of the essence. In
commanding:chanRoblesvirtualLawlibrary terms of Hohfeld's terminology, what a student in the
position of petitioner possesses is a privilege rather than a
a.) The PMA, Honor Committee, and CRAB to respect and right. She [in this case, Cadet 1CL Cudia] cannot therefore
uphold the 8 Guilty - 1 Not Guilty vote; satisfy the prime and indispensable requisite of
b.) The PMA, Honor Committee, and CRAB to officially a mandamus proceeding.65
pronounce Cadet Cudia as Not Guilty of the charge filed
against him before the Honor Committee; Certainly, mandamus is never issued in doubtful cases. It
c.) The PMA to restore Cadet Cudias rights and cannot be availed against an official or government
entitlements as a full-fledged graduating cadet, agency whose duty requires the exercise of discretion or
including his diploma and awards.63 judgment.66 For a writ to issue, petitioners should have a
Anent the plea to direct the PMA to include Cadet 1CL clear legal right to the thing demanded, and there should
Cudia in the list of graduates of Siklab Diwa Class of 2014 be an imperative duty on the part of respondents to
and to allow him to take part in the commencement perform the act sought to be
exercises, the same was rendered moot and academic mandated.67chanroblesvirtuallawlibrary
when the graduation ceremonies pushed through on
March 16, 2014 without including Cadet 1CL Cudia in the The same reasons can be said as regards the other reliefs
roll of graduates. being sought by petitioners, which pertain to the HC and
the CRAB proceedings. In the absence of a clear and
unmistakable provision of a law, a mandamus petition Honor Code and Honor System; and the conclusion on
does not lie to require anyone to a specific course of whether Cadet 1CL Cudias explanation constitutes lying.
conduct or to control or review the exercise of discretion; Even if the instant case involves questions of fact,
it will not issue to compel an official to do anything which petitioners still hold that the Court is empowered to settle
is not his duty to do or which is his duty not to do or give mixed questions of fact and law.
to the applicant anything to which he is not entitled by
law.68chanroblesvirtuallawlibrary Petitioners are correct.
There is a question of law when the issue does not call for
The foregoing notwithstanding, the resolution of the case an examination of the probative value of evidence
must proceed since, as argued by petitioners, the Court is presented, the truth or falsehood of facts being admitted
empowered to settle via petition for certiorari whether and the doubt concerns the correct application of law and
there is grave abuse of discretion on the part of jurisprudence on the matter. On the other hand, there is a
respondents in dismissing Cadet 1CL Cudia from the question of fact when the doubt or controversy arises as
PMA. to the truth or falsity of the alleged facts. When there is no
dispute as to fact, the question of whether or not the
Factual nature of the issues conclusion drawn therefrom is correct is a question of
law.69
According to respondents, the petition raises issues that The petition does not exclusively present factual matters
actually require the Court to make findings of fact because for the Court to decide. As pointed out, the all-
it sets forth several factual disputes which include, among encompassing issue of more importance is the
others: the tardiness of Cadet 1CL Cudia in his ENG412 determination of whether a PMA cadet has rights to due
class and his explanation thereto, the circumstances that process, to education, and to property in the context of the
transpired in the investigation of his Honor Code violation, Honor Code and the Honor System, and, if in the
the proceedings before the HC, and the allegation that affirmative, the extent or limit thereof. Notably, even
Cadet 1CL Lagura was forced to change his vote during respondents themselves raise substantive grounds that
the executive session/chambering. We have to resolve. In support of their contention that the
Court must exercise careful restraint and should refrain
In opposition, petitioners claim that the instant controversy from unduly or prematurely interfering in legitimate military
presents legal issues. Rather than determining which matters, they argue that Cadet 1CL Cudia has necessarily
between the two conflicting versions of the parties is true, and voluntarily relinquished certain civil liberties by virtue
the case allegedly centers on the application, appreciation, of his entry into the PMA, and that the Academy enjoys
and interpretation of a persons rights to due process, to academic freedom authorizing the imposition of
education, and to property; the interpretation of the PMA disciplinary measures and punishment as it deems fit and
consistent with the peculiar needs of the PMA. These
issues, aside from being purely legal questions, are of first From the unfolding of events, petitioners, however,
impression; hence, the Court must not hesitate to make a consider that President Aquino effectively denied the
categorical ruling. appeal of Cadet 1CL Cudia. They claim that his family
exerted insurmountable efforts to seek reconsideration of
Exhaustion of administrative remedies the HC recommendation from the AFP officials and the
President, but was in vain. The circumstances prior to,
Respondents assert that the Court must decline during, and after the PMA 2014 graduation rites, which
jurisdiction over the petition pending President Aquinos was attended by President Aquino after he talked to Cadet
resolution of Cadet 1CL Cudia appeal. They say that there 1CL Cudias family the night before, foreclose the
is an obvious non-exhaustion of the full administrative possibility that the challenged findings would still be
process. While Cadet 1CL Cudia underwent the review overturned. In any case, petitioners insist that the rule on
procedures of his guilty verdict at the Academy level the exhaustion of administrative remedies is not absolute
determination by the SJA of whether the HC acted based on the Corsiga v. Defensor72and Verceles v. BLR-
according to the established procedures of the Honor DOLE73 rulings.
System, the assessment by the Commandant of Cadets of
the procedural and legal correctness of the guilty verdict, We rule for petitioners.
the evaluation of the PMA Superintendent to warrant the
administrative separation of the guilty cadet, and the In general, no one is entitled to judicial relief for a
appellate review proceedings before the CRAB he still supposed or threatened injury until the prescribed
appealed to the President, who has the utmost latitude in administrative remedy has been exhausted. The rationale
making decisions affecting the military. It is contended that behind the doctrine of exhaustion of administrative
the Presidents power over the persons and actions of the remedies is that courts, for reasons of law, comity, and
members of the armed forces is recognized in B/Gen. convenience, should not entertain suits unless the
(Ret.) Gudani v. Lt./Gen. Senga70 and in Section 3171 of available administrative remedies have first been resorted
Commonwealth Act (C.A.) No. 1 (also known as "The to and the proper authorities, who are competent to act
National Defense Act"). As such, the President could still upon the matter complained of, have been given the
overturn the decision of the PMA. In respondents view, appropriate opportunity to act and correct their alleged
the filing of this petition while the case is pending errors, if any, committed in the administrative forum.74 In
resolution of the President is an irresponsible defiance, if the U.S. case of Ringgold v. United States,75 which was
not a personal affront. For them, comity dictates that courts cited by respondents, it was specifically held that in a
of justice should shy away from a dispute until the system typical case involving a decision by military authorities, the
of administrative redress has been completed. plaintiff must exhaust his remedies within the military
before appealing to the court, the doctrine being designed Petitioners essentially raise the lack of due process in the
both to preserve the balance between military and civilian dismissal of Cadet 1CL Cudia from the PMA. Thus, it may
authorities and to conserve judicial resources. be a ground to give due course to the petition despite the
non-exhaustion of administrative remedies. Yet more
Nonetheless, there are exceptions to the rule. In this significant is the fact that during the pendency of this case,
jurisdiction, a party may directly resort to judicial remedies particularly on June 11, 2014, the Office of the President
if any of the following is finally issued its ruling, which sustained the findings of the
present:chanRoblesvirtualLawlibrary AFP Chief and the CRAB. Hence, the occurrence of this
supervening event bars any objection to the petition based
1. when there is a violation of due process; on failure to exhaust administrative remedies.
2. when the issue involved is purely a legal
question; Courts interference within military affairs
3. when the administrative action is patently
illegal amounting to lack or excess of Respondents cite the U.S. cases of Bois v.
jurisdiction; Marsh77 and Schlesinger v. Councilman78 to support their
4. when there is estoppel on the part of the contention that judicial intervention would pose substantial
administrative agency concerned; threat to military discipline and that there should be a
5. when there is irreparable injury; deferential review of military statutes and regulations since
6. when the respondent is a department political branches have particular expertise and
secretary whose acts as an alter ego of the competence in assessing military needs. Likewise,
President bear the implied and assumed in Orloff v. Willoughby79and Parker v. Levy,80 it was
approval of the latter; allegedly opined by the U.S. Supreme Court that the
7. when to require exhaustion of administrative military constitutes a specialized community governed by
remedies would be unreasonable; a separate discipline from that of the civilian. According to
8. when it would amount to a nullification of a respondents, the U.S. courts respect to the military
claim; recognizes that constitutional rights may apply differently
9. when the subject matter is a private land in in the military context than in civilian society as a whole.
land case proceedings; Such military deference is exercised either by refusing to
10. when the rule does not provide a plain, apply due process and equal protection doctrines in
speedy and adequate remedy; and military cases or applying them but with leniency.
11. when there are circumstances indicating the
urgency of judicial intervention.76 In respondents view, although Philippine courts have the
power of judicial review in cases attended with grave
abuse of discretion amounting to lack or excess of investigation.
jurisdiction, policy considerations call for the widest
latitude of deference to military affairs. Such respect is Petitioners contentions are tenable.
exercised by the court where the issues to be resolved
entail a substantial consideration of legitimate Admittedly, the Constitution entrusts the political branches
governmental interest. They suppose that allowing Cadet of the government, not the courts, with superintendence
1CL Cudias case to prosper will set an institutionally and control over the military because the courts generally
dangerous precedent, opening a Pandoras box of other lack the competence and expertise necessary to evaluate
challenges against the specialized system of discipline of military decisions and they are ill-equipped to determine
the PMA. They state that with the PMAs mandate to train the impact upon discipline that any particular intrusion
cadets for permanent commission in the AFP, its upon military authority might have.84 Nevertheless, for the
disciplinary rules and procedure necessarily must impose sake of brevity, We rule that the facts as well as the legal
a different standard of conduct compared with civilian issues in the U.S. cases cited by respondents are not on
institutions. all fours with the case of Cadet 1CL Cudia. Instead, what
applies is the 1975 U.S. case of Andrews v.
Petitioners, on the other hand, consider that this Court is Knowlton,85 which similarly involved cadets who were
part of the States check-and-balance machinery, separated from the United States Military Academy due to
specifically mandated by Article VIII of the 1987 Honor Code violations. Following Wasson v.
Constitution to ensure that no branch of the government or Trowbridge86 and Hagopian v. Knowlton,87 Andrews re-
any of its officials acts without or in excess of jurisdiction affirmed the power of the district courts to review
or with grave abuse of discretion amounting to lack or procedures used at the service academies in the
excess of jurisdiction. They assert that judicial non- separation or dismissal of cadets and midshipmen. While
interference in military affairs is not deemed as absolute it recognized the constitutional permissibility of the
even in the U.S. They cite Schlesinger and Parker, which military to set and enforce uncommonly high standards of
were invoked by respondents, as well as Burns v. conduct and ethics, it said that the courts have expanded
Wilson81 and Harmon v. Brucker,82 wherein the U.S. at an accelerated pace the scope of judicial access for
Supreme Court reviewed the proceedings of military review of military determinations. Later, in Kolesa v.
tribunals on account of issues posed concerning due Lehman,88 it was opined that it has been well settled that
process and violations of constitutional rights. Also, federal courts have jurisdiction "where there is a
in Magno v. De Villa83 decided by this Court, petitioners substantial claim that prescribed military procedures
note that We, in fact, exercised the judicial power to violates one's constitutional rights." By 1983, the U.S.
determine whether the AFP and the members of the court Congress eventually made major revisions to the Uniform
martial acted with grave abuse of discretion in their military Code of Military Justice (UCMJ) by expressly providing,
among others, for a direct review by the U.S. Supreme review. While the Academy has long had the informal
Court of decisions by the militarys highest appellate practice of referring all alleged violations to the Cadet
authority.89chanroblesvirtuallawlibrary Honor Committee, the relationship between that
committee and the separation process has to a degree
Even without referring to U.S. cases, the position of been formalized. x x x
petitioners is still formidable. In this jurisdiction, Section 1
Article VIII of the 1987 Constitution expanded the scope of Regardless of whether the relationship be deemed formal
judicial power by mandating that the duty of the courts of or informal, the Honor Committee under its own
justice includes not only to settle actual controversies procedures provides that a single "not guilty" vote by a
involving rights which are legally demandable and member ends the matter, while a "guilty" finding confronts
enforceable but also to determine whether or not there a cadet with the hard choice of either resigning or electing
has been a grave abuse of discretion amounting to lack or to go before a Board of Officers. An adverse finding there
excess of jurisdiction on the part of any branch or results not only in formal separation from the Academy but
instrumentality of the Government even if the latter does also in a damaging record that will follow the cadet through
not exercise judicial, quasi-judicial or ministerial life. Accordingly, we conclude that the Cadet Honor
functions.90 Grave abuse of discretion implies such Committee, acting not unlike a grand jury, is clearly part of
capricious and whimsical exercise of judgment as is the process whereby a cadet can ultimately be adjudged
equivalent to lack of jurisdiction or where the power is to have violated the Cadet Honor Code and be separated
exercised in an arbitrary or despotic manner by reason of from the Academy. Therefore, the effect of the committee's
passion or personal hostility, which must be so patent and procedures and determinations on the separation process
gross as to amount to an evasion of positive duty or to a is sufficiently intertwined with the formal governmental
virtual refusal to perform the duty enjoined or to act at all activity which may follow as to bring it properly under
in contemplation of law.91chanroblesvirtuallawlibrary judicial review.92
No one is above the law, including the military. In fact, the
The proceedings of the Cadet Honor Committee can, for present Constitution declares it as a matter of principle that
purposes of the Due Process Clause, be considered a civilian authority is, at all times, supreme over the
governmental activity. As ruled military.93 Consistent with the republican system of checks
in Andrews:chanRoblesvirtualLawlibrary and balances, the Court has been entrusted, expressly or
The relationship between the Cadet Honor Committee and by necessary implication, with both the duty and the
the separation process at the Academy has been obligation of determining, in appropriate cases, the validity
sufficiently formalized, and is sufficiently interdependent, of any assailed legislative or executive
so as to bring that committee's activities within the action.94chanroblesvirtuallawlibrary
definition of governmental activity for the purposes of our
SUBSTANTIVE GROUNDS Code and the Honor System in deciding Cadet 1CL
Cudias case considering that these should not be
Cadets relinquishment of certain civil liberties implemented at the expense of human rights, due process,
and fair play. Further, under the doctrine of constitutional
Respondents assert that the standard of rights applicable supremacy, they can never overpower or defy the 1987
to a cadet is not the same as that of a civilian because the Constitution since the former should yield to the latter.
formers rights have already been recalibrated to best Petitioners stress that the statement that a cadet can be
serve the military purpose and necessity. They claim that compelled to surrender some civil rights and liberties in
both Gudani and Lt. Col. Kapunan, Jr. v. Gen. De order for the Code and System to be implemented simply
Villa95 recognized that, to a certain degree, individual pertains to what cadets have to sacrifice in order to prove
rights of persons in the military service may be curtailed by that they are men or women of integrity and honor, such
the rules of military discipline in order to ensure its as the right to entertain vices and the right to freely choose
effectiveness in fulfilling the duties required to be what they want to say or do. In the context of disciplinary
discharged under the law. Respondents remind that, as a investigation, it does not contemplate a surrender of the
military student aspiring to a commissioned post in the right to due process but, at most, refers to the cadets
military service, Cadet 1CL Cudia voluntarily gave up rights to privacy and to remain silent.
certain civil and political rights which the rest of the civilian
population enjoys. The deliberate surrender of certain We concur with the stand of petitioners.
freedoms on his part is embodied in the cadets Honor
Code Handbook. It is noted that at the beginning of their Of course, a student at a military academy must be
academic life in the PMA, Cadet 1CL Cudia, along with the prepared to subordinate his private interests for the proper
rest of Cadet Corps, took an oath and undertaking to stand functioning of the educational institution he attends to, one
by the Honor Code and the Honor System. that is with a greater degree than a student at a civilian
public school.99 In fact, the Honor Code and Honor System
To say that a PMA cadet surrenders his fundamental Handbook of the PMA expresses that, [as] a training
human rights, including the right to due process, is, for environment, the Cadet Corps is a society which has its
petitioners, contrary to the provisions of Section 3, Article own norms. Each member binds himself to what is good
II of the 1987 Constitution,96Executive Order (E.O.) No. for him, his subordinates, and his peers. To be part of the
17897 (as amended by E.O. No. 100598), AFP Code of Cadet Corps requires the surrender of some basic rights
Ethics, Oath of Cadet Corps to the Honor Code and the and liberties for the good of the
Honor System, military professionalism, and, in general, group. chanroblesvirtuallawlibrary
100

military culture. They maintain that the HC, the CRAB, and
the PMA, grossly and in bad faith misapplied the Honor It is clear, however, from the teachings
of Wasson and Hagopian, which were adopted were restricted to better serve the greater military purpose.
by Andrews, that a cadet facing dismissal from the military
academy for misconduct has constitutionally protected Academic freedom of the PMA
private interests (life, liberty, or property); hence,
disciplinary proceedings conducted within the bounds of Petitioners posit that there is no law providing that a guilty
procedural due process is a must.101 For that reason, the finding by the HC may be used by the PMA to dismiss or
PMA is not immune from the strictures of due process. recommend the dismissal of a cadet from the PMA. They
Where a person's good name, reputation, honor, or argue that Honor Code violation is not among those listed
integrity is at stake because of what the government is as justifications for the attrition of cadets considering that
doing to him, the minimal requirements of the due process the Honor Code and the Honor System do not state that a
clause must be satisfied.102 Likewise, the cadet faces far guilty cadet is automatically terminated or dismissed from
more severe sanctions of being expelled from a course of service. To them, the Honor Code and Honor System are
college instruction which he or she has pursued with a gentlemans agreement that cannot take precedence
view to becoming a career officer and of probably being over public interest in the defense of the nation and in
forever denied that career.103chanroblesvirtuallawlibrary view of the taxpayers money spent for each cadet.
Petitioners contend that, based on the Civil Code, all
The cases of Gudani and Kapunan, Jr. are inapplicable as written or verbal agreements are null and void if they
they do not specifically pertain to dismissal proceedings of violate the law, good morals, good customs, public policy,
a cadet in a military academy due to honor violation. and public safety.
In Gudani, the Court denied the petition that sought to
annul the directive from then President Gloria Macapagal- In opposition, respondents claim that the PMA may
Arroyo, which enjoined petitioners from testifying before impose disciplinary measures and punishment as it deems
the Congress without her consent. We ruled that fit and consistent with the peculiar needs of the Academy.
petitioners may be subjected to military discipline for their Even without express provision of a law, the PMA has
defiance of a direct order of the AFP Chief of Staff. On the regulatory authority to administratively dismiss erring
other hand, in Kapunan, Jr., this Court upheld the cadets since it is deemed reasonably written into C.A. No.
restriction imposed on petitioner since the conditions for 1. Moreover, although said law grants to the President the
his house arrest (particularly, that he may not issue any authority of terminating a cadets appointment, such power
press statements or give any press conference during the may be delegated to the PMA Superintendent, who may
period of his detention) are justified by the requirements of exercise direct supervision and control over the cadets.
military discipline. In these two cases, the constitutional
rights to information, transparency in matters of public Respondents likewise contend that, as an academic
concern, and to free speech not to due process clause institution, the PMA has the inherent right to promulgate
reasonable norms, rules and regulations that it may deem Although schools have the prerogative to choose what to
necessary for the maintenance of school discipline, which teach, how to teach, and who to teach, the same does not
is specifically mandated by Section 3 (2),104 Article XIV of go so far as to deprive a student of the right to graduate
the 1987 Constitution. As the premiere military educational when there is clear evidence that he is entitled to the same
institution of the AFP in accordance with Section since, in such a case, the right to graduate becomes a
30,105 Article III of C.A. No. 1 and Sections 58 and vested right which takes precedence over the limited and
59,106 Chapter 9, Subtitle II, Title VIII, Book IV of E.O. No. restricted right of the educational institution.
292 (Administrative Code of 1987?), the PMA is an
institution that enjoys academic freedom guaranteed by While both parties have valid points to consider, the
Section 5 (2),107 Article XIV of the 1987 Constitution. arguments of respondents are more in line with the facts
In Miriam College Foundation, Inc. v. Court of of this case.
Appeals,108 it was held that concomitant with such
freedom is the right and duty to instill and impose discipline We have ruled that the school-student relationship is
upon its students. Also, consistent with Isabelo, Jr. v. contractual in nature. Once admitted, a students
Perpetual Help College of Rizal, Inc.109 and Ateneo de enrolment is not only semestral in duration but for the
Manila University v. Capulong,110 the PMA has the entire period he or she is expected to complete it.111 An
freedom on who to admit (and, conversely, to expel) given institution of learning has an obligation to afford its
the high degree of discipline and honor expected from its students a fair opportunity to complete the course they
students who are to form part of the AFP. seek to pursue.112 Such contract is imbued with public
interest because of the high priority given by the
For respondents, Cadet 1CL Cudia cannot, therefore, Constitution to education and the grant to the State of
belatedly assail the Honor Code as basis of the HCs supervisory and regulatory powers over all educational
decision to recommend his dismissal from the PMA. When institutions.113chanroblesvirtuallawlibrary
he enlisted for enrolment and studied in the PMA for four
years, he knew or should have been fully aware of the The school-student relationship has also been held as
standards of discipline imposed on all cadets and the reciprocal. [It] has consequences appurtenant to and
corresponding penalty for failing to abide by these inherent in all contracts of such kind it gives rise to
standards. bilateral or reciprocal rights and obligations. The school
undertakes to provide students with education sufficient to
In their Reply, petitioners counter that, as shown enable them to pursue higher education or a profession.
in Isabelo, Jr. and Ateneo, academic freedom is not On the other hand, the students agree to abide by the
absolute and cannot be exercised in blatant disregard of academic requirements of the school and to observe its
the right to due process and the 1987 Constitution. rules and regulations.114chanroblesvirtuallawlibrary
relations, particularly those pertaining to student discipline,
Academic freedom or, to be precise, the institutional may be regarded as vital, not merely to the smooth and
autonomy of universities and institutions of higher efficient operation of the institution, but to its very
learning,115 has been enshrined in our survival.122 As a Bohemian proverb puts it: "A school
without discipline is like a mill without water." Insofar as the
Constitutions of 1935, 1973, and 1987.116 In Garcia, this water turns the mill, so does the school's disciplinary
Court espoused the concurring opinion of U.S. Supreme power assure its right to survive and continue
Court Justice Felix Frankfurter in Sweezy v. New operating.123 In this regard, the Court has always
Hampshire,117 which enumerated the four essential recognized the right of schools to impose disciplinary
freedoms of a university: To determine for itself on sanctions, which includes the power to dismiss or expel,
academic grounds (1) who may teach, (2) what may be on students who violate disciplinary rules.124 In Miriam
taught, (3) how it shall be taught, and (4) who may be College Foundation, Inc. v. Court of Appeals,125this Court
admitted to study.118 An educational institution has the elucidated:chanRoblesvirtualLawlibrary
power to adopt and enforce such rules as may be deemed The right of the school to discipline its students is at once
expedient for its government, this being incident to the apparent in the third freedom, i.e., "how it shall be taught."
very object of incorporation, and indispensable to the A school certainly cannot function in an atmosphere of
successful management of the college.119 It can decide for anarchy.
itself its aims and objectives and how best to attain them,
free from outside coercion or interference except when Thus, there can be no doubt that the establishment of an
there is an overriding public welfare which would call for educational institution requires rules and regulations
some restraint.120 Indeed, academic freedom has never necessary for the maintenance of an orderly educational
been meant to be an unabridged license. It is a privilege program and the creation of an educational environment
that assumes a correlative duty to exercise it responsibly. conducive to learning. Such rules and regulations are
An equally telling precept is a long recognized mandate, equally necessary for the protection of the students,
so well expressed in Article 19 of the Civil Code, that every faculty, and property.
person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone Moreover, the school has an interest in teaching the
his due, and observe honesty and good student discipline, a necessary, if not indispensable, value
faith. chanroblesvirtuallawlibrary
121 in any field of learning. By instilling discipline, the school
teaches discipline. Accordingly, the right to discipline the
The schools power to instill discipline in their students is student likewise finds basis in the freedom "what to teach."
subsumed in their academic freedom and that the
establishment of rules governing university-student Incidentally, the school not only has the right but
the duty to develop discipline in its students. The Art. XIV, 5 (2) of the Constitution provides that
Constitution no less imposes such duty. "[a]cademic freedom shall be enjoyed in all institutions of
higher learning." This is nothing new. The 1935
[All educational institutions] shall inculcate patriotism and Constitution and the 1973 Constitution likewise provided
nationalism, foster love of humanity, respect for human for the academic freedom or, more precisely, for the
rights, appreciation of the role of national heroes in the institutional autonomy of universities and institutions of
historical development of the country, teach the rights and higher learning. As pointed out by this Court in Garcia v.
duties of citizenship, strengthen ethical and spiritual Faculty Admission Committee, Loyola School of Theology,
values, develop moral character and personal discipline, it is a freedom granted to "institutions of higher learning"
encourage critical and creative thinking, broaden scientific which is thus given "a wide sphere of authority certainly
and technological knowledge, and promote vocational extending to the choice of students." If such institution of
efficiency. higher learning can decide who can and who cannot study
in it, it certainly can also determine on whom it can confer
In Angeles vs. Sison, we also said that discipline was a the honor and distinction of being its graduates.
means for the school to carry out its responsibility to help
its students "grow and develop into mature, responsible, Where it is shown that the conferment of an honor or
effective and worthy citizens of the community." distinction was obtained through fraud, a university has the
right to revoke or withdraw the honor or distinction it has
Finally, nowhere in the above formulation is the right to thus conferred. This freedom of a university does not
discipline more evident than in "who may be admitted to terminate upon the "graduation" of a student, as the Court
study." If a school has the freedom to determine whom to of Appeals held. For it is precisely the "graduation" of such
admit, logic dictates that it also has the right to determine a student that is in question. It is noteworthy that the
whom to exclude or expel, as well as upon whom to investigation of private respondent's case began before
impose lesser sanctions such as suspension and the her graduation. If she was able to join the graduation
withholding of graduation privileges.126 ceremonies on April 24, 1993, it was because of too many
The power of the school to impose disciplinary measures investigations conducted before the Board of Regents
extends even after graduation for any act done by the finally decided she should not have been allowed to
student prior thereto. In University of the Phils. Board of graduate.
Regents v. Court of Appeals,127 We upheld the universitys
withdrawal of a doctorate degree already conferred on a Wide indeed is the sphere of autonomy granted to
student who was found to have committed intellectual institutions of higher learning, for the constitutional grant of
dishonesty in her dissertation. academic freedom, to quote again from Garcia v. Faculty
Thus:chanRoblesvirtualLawlibrary Admission Committee, Loyola School of Theology, "is not
to be construed in a niggardly manner or in a grudging students have a concomitant duty to learn under the rules
fashion." laid down by the school.131 Every citizen has a right to
select a profession or course of study, subject to fair,
Under the U.P. Charter, the Board of Regents is the reasonable, and equitable admission and academic
highest governing body of the University of the Philippines. requirements.132chanroblesvirtuallawlibrary
It has the power to confer degrees upon the
recommendation of the University Council. It follows that if The PMA is not different. As the primary training and
the conferment of a degree is founded on error or fraud, educational institution of the AFP, it certainly has the right
the Board of Regents is also empowered, subject to the to invoke academic freedom in the enforcement of its
observance of due process, to withdraw what it has internal rules and regulations, which are the Honor Code
granted without violating a student's rights. An institution and the Honor System in particular.
of higher learning cannot be powerless if it discovers that
an academic degree it has conferred is not rightfully The Honor Code is a set of basic and fundamental ethical
deserved. Nothing can be more objectionable than and moral principle. It is the minimum standard for cadet
bestowing a university's highest academic degree upon an behavior and serves as the guiding spirit behind each
individual who has obtained the same through fraud or cadets action. It is the cadets responsibility to maintain
deceit. The pursuit of academic excellence is the the highest standard of honor. Throughout a cadets stay
university's concern. It should be empowered, as an act of in the PMA, he or she is absolutely bound thereto. It binds
self-defense, to take measures to protect itself from as well the members of the Cadet Corps from its alumni or
serious threats to its integrity. the member of the so-called Long Gray Line.

While it is true that the students are entitled to the right to Likewise, the Honor Code constitutes the foundation for
pursue their education, the USC as an educational the cadets character development. It defines the desirable
institution is also entitled to pursue its academic freedom values they must possess to remain part of the Corps; it
and in the process has the concomitant right to see to it develops the atmosphere of trust so essential in a military
that this freedom is not jeopardized.128 organization; and it makes them professional military
It must be borne in mind that schools are established, not soldiers.133 As it is for character building, it should not only
merely to develop the intellect and skills of the studentry, be kept within the society of cadets. It is best adopted by
but to inculcate lofty values, ideals and attitudes; nay, the the Cadet Corps with the end view of applying it outside as
development, or flowering if you will, of the total an officer of the AFP and as a product of the
man.129 Essentially, education must ultimately be PMA.134chanroblesvirtuallawlibrary
religious, i.e., one which inculcates duty and
reverence.130 Under the rubric of "right to education," The Honor Code and System could be justified as the
primary means of achieving the cadets character minimum requirements in the Guzman case are
development and as ways by which the Academy has more apropos.
chosen to identify those who are deficient in
conduct.135 Upon the Code rests the ethical standards of Respondents rightly argued.
the Cadet Corps and it is also an institutional goal,
ensuring that graduates have strong character, Ateneo de Manila University v. Capulong141 already
unimpeachable integrity, and moral standards of the settled the issue as it held that although both Ang
highest order.136 To emphasize, the Academy's Tibay and Guzman essentially deal with the requirements
disciplinary system as a whole is characterized as of due process, the latter case is more apropos since it
"correctional and educational in nature rather than being specifically deals with the minimum standards to be
legalistic and punitive." Its purpose is to teach the cadets satisfied in the imposition of disciplinary sanctions in
"to be prepared to accept full responsibility for all that they academic institutions. That Guzman is the authority on the
do or fail to do and to place loyalty to the service above procedural rights of students in disciplinary cases was
self-interest or loyalty to friends or reaffirmed by the Court in the fairly recent case of Go v.
137
associates." chanroblesvirtuallawlibrary Colegio De San Juan De
Letran.142chanroblesvirtuallawlibrary
Procedural safeguards in a student disciplinary case
In Guzman, the Court held that there are minimum
Respondents stress that Guzman v. National standards which must be met to satisfy the demands of
138
University is more appropriate in determining the procedural due process, to
minimum standards for the imposition of disciplinary wit:chanRoblesvirtualLawlibrary
sanctions in academic institutions. Similarly, with the (1) the students must be informed in writing of the nature
guideposts set in Andrews, they believe that Cadet 1CL and cause of any accusation against them; (2) they shall
Cudia was accorded due process. have the right to answer the charges against them, with
the assistance of counsel, if desired; (3) they shall be
On the other hand, petitioners argue that the HC, the informed of the evidence against them; (4) they shall have
CRAB and the PMA fell short in observing the important the right to adduce evidence in their own behalf; and (5)
safeguards laid down in Ang Tibay v. CIR139 and Non v. the evidence must be duly considered by the investigating
Judge Dames II,140 which set the minimum standards to committee or official designated by the school authorities
satisfy the demands of procedural due process in the to hear and decide the case.143
imposition of disciplinary sanctions. For them, Guzman did We have been consistent in reminding that due process in
not entirely do away with the due process requirements disciplinary cases involving students does not entail
outlined in Ang Tibay as the Court merely stated that the proceedings and hearings similar to those prescribed for
actions and proceedings in courts of justice;144 that the through pleadings and where the opportunity to be heard
proceedings may be summary;145 that cross-examination through pleadings is accorded, there is no denial of due
is not an essential part of the investigation or process.150
hearing;146 and that the required proof in a student The PMA Honor Code explicitly recognizes that an
disciplinary action, which is an administrative case, is administrative proceeding conducted to investigate a
neither proof beyond reasonable doubt nor preponderance cadets honor violation need not be clothed with the
of evidence but only substantial evidence or such relevant attributes of a judicial proceeding. It articulates that
evidence as a reasonable mind might accept as adequate The Spirit of the Honor Code guides the Corps in
to support a conclusion.147chanroblesvirtuallawlibrary identifying and assessing misconduct. While cadets are
interested in legal precedents in cases involving Honor
What is crucial is that official action must meet minimum violations, those who hold the Spirit of the Honor Code
standards of fairness to the individual, which generally dare not look into these precedents for loopholes to justify
encompass the right of adequate notice and a meaningful questionable acts and they are not to interpret the system
opportunity to be heard.148 As held in De La Salle to their own advantage.
University, Inc. v. Court of Appeals:149
Notice and hearing is the bulwark of administrative due The Spirit of the Honor Code is a way for the cadets to
process, the right to which is among the primary rights that internalize Honor in a substantive way. Technical and
must be respected even in administrative proceedings. procedural misgivings of the legal systems may avert the
The essence of due process is simply an opportunity to be true essence of imparting the Spirit of the Code for the
heard, or as applied to administrative proceedings, an reason that it can be used to make unlawful attempt to get
opportunity to explain ones side or an opportunity to seek into the truth of matters especially when a cadet can be
reconsideration of the action or ruling complained of. So compelled to surrender some civil rights and liberties in
long as the party is given the opportunity to advocate her order for the Code and System to be implemented. By
cause or defend her interest in due course, it cannot be virtue of being a cadet, a member of the CCAFP becomes
said that there was denial of due process. a subject of the Honor Code and System. Cadets actions
are bound by the existing norms that are logically applied
A formal trial-type hearing is not, at all times and in all through the Code and System in order to realize the
instances, essential to due process it is enough that the Academys mission to produce leaders of character men
parties are given a fair and reasonable opportunity to of integrity and honor.151
explain their respective sides of the controversy and to
present supporting evidence on which a fair decision can One of the fundamental principles of the Honor System
be based. To be heard does not only mean presentation also states:chanRoblesvirtualLawlibrary
of testimonial evidence in court one may also be heard
2. The Honor System correlates with legal
procedures of the states Justice System but Considering that the case of Cadet 1CL Cudia is one of
it does not demean its Spirit by reducing the first impression in the sense that this Court has not
Code to a systematic list of externally previously dealt with the particular issue of a dismissed
observed rules. Where misinterpretations cadets right to due process, it is necessary for Us to refer
and loopholes arise through legalism and its to U.S. jurisprudence for some guidance. Notably, our
technicalities, the objective of building the armed forces have been patterned after the U.S. Army and
character of the cadets becomes futile. the U.S. military code produced a salutary effect in the
While, generally, Public Law penalizes only military justice system of the Philippines.155 Hence,
the faulty acts, the Honor System tries to pertinent case laws interpreting the U.S. military code and
examine both the action and the intention.152 practices have persuasive, if not the same, effect in this
jurisdiction.
Like in other institutions of higher learning, there is
aversion towards undue judicialization of an administrative We begin by stating that U.S. courts have uniformly viewed
hearing in the military academy. It has been said that the that due process is a flexible concept, requiring
mission of the military is unique in the sense that its consideration in each case of a variety of circumstances
primary business is to fight or be ready to fight wars should and calling for such procedural protections as the
the occasion arise, and that over-proceduralizing military particular situation
determinations necessarily gives soldiers less time to demands.156Hagopian opined:chanRoblesvirtualLawlibrar
accomplish this task.153 Extensive cadet investigations y
and complex due process hearing could sacrifice In approaching the question of what process is due before
simplicity, practicality, and timeliness. Investigations that governmental action adversely affecting private interests
last for several days or weeks, sessions that become may properly be taken, it must be recognized that due
increasingly involved with legal and procedural points, and process is not a rigid formula or simple rule of thumb to be
legal motions and evidentiary objections that are irrelevant applied undeviatingly to any given set of facts. On the
and inconsequential tend to disrupt, delay, and confuse contrary, it is a flexible concept which depends upon
the dismissal proceedings and make them unmanageable. the balancing of various factors, including the nature
Excessive delays cannot be tolerated since it is unfair to of the private right or interest that is threatened, the
the accused, to his or her fellow cadets, to the Academy, extent to which the proceeding is adversarial in
and, generally, to the Armed Forces. A good balance character, the severity and consequences of any
should, therefore, be struck to achieve fairness, action that might be taken, the burden that would be
thoroughness, and imposed by requiring use of all or part of the full
154
efficiency. chanroblesvirtuallawlibrary panoply of trial-type procedures, and the existence of
other overr