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)
TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH
VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to
be in violation of Comelec Resolution No. 9615
promulgated on January 15, 2013 particularly on the size
(even with the subsequent division of the said tarpaulin
into two), as the lawful size for election propaganda
material is only two feet (2) by three feet (3), please
order/cause the immediate removal of said election
propaganda material, otherwise, we shall be constrained
to file an election offense case against you.
We pray that the Catholic Church will be the first institution
to help the Commission on Elections inensuring the
conduct of peaceful, orderly, honest and credible
elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for
their exercise of free speech, petitioners initiated this case
through this petition for certiorari and prohibition with
application for preliminary injunction and temporary
restraining order.14 They question respondents notice
dated February 22, 2013 and letter issued on February 27,
2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents
from further proceeding in enforcing their orders for the
removal of the Team Patay tarpaulin; and (3) after notice
and hearing, a decision be rendered declaring the
questioned orders of respondents as unconstitutional and
void, and permanently restraining respondents from
enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued
a temporary restraining order enjoining respondents from
enforcing the assailed notice and letter, and set oral
arguments on March 19, 2013.16
On March 13, 2013, respondents filed their
comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before
this court is not the proper remedy to question the notice
and letter of respondents; and (2) the tarpaulin is an
election propaganda subject to regulation by COMELEC
pursuant to its mandate under Article IX-C, Section 4 of
the Constitution. Hence, respondents claim that the
issuances ordering its removal for being oversized are
valid and constitutional.18
During the hearing held on March 19, 2013, the parties 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
POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF
CHURCH AND STATE.
I limited to final decisions, orders, rulings and judgments of
PROCEDURAL ISSUES
I.A
This courts jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the
ground that the notice and letter are not final orders,
decisions, rulings, or judgments of the COMELEC En
Banc issued in the exercise of its adjudicatory powers,
reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the
COMELEC. Rule 65 is applicable especially to raise
objections relating to a grave abuse of discretion resulting
in the ouster of jurisdiction.22 As a special civil action, there
must also be a showing that there be no plain, speedy, and
adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter
are not subject to review by this court, whose power to
review is "limited only to final decisions, rulings and orders
of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead,
respondents claim that the assailed notice and letter are
reviewable only by COMELEC itself pursuant to Article IX-
C, Section 2(3) of the Constitution24 on COMELECs
power to decide all questions affecting
25
elections. Respondents invoke the cases of Ambil, Jr. v.
COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is
the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the
gubernatorial race of Eastern Samar filed the election
protest.32 At issue was the validity of the promulgation of a
COMELEC Division resolution.33 No motion for
reconsideration was filed to raise this issue before the
COMELEC En Banc. This court declared that it did not
have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the
Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its
adjudicatory or quasi-judicial powers." This decision must
be a final decision or resolution of the Comelec en banc,
not of a division, certainly not an interlocutory order of a
division.The Supreme Court has no power to review
viacertiorari, an interlocutory order or even a final
resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v.
COMELEC, this court provided exceptions to this general
rule. Repolwas another election protest case, involving the
mayoralty elections in Pagsanghan, Samar.36 This time,
the case was brought to this court because the COMELEC
First Division issued a status quo ante order against the
Regional Trial Court executing its decision pending
appeal.37 This courts ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to
review interlocutory orders of a COMELEC
Division.38However, consistent with ABS-CBN
Broadcasting Corporation v. COMELEC,39 it clarified the
exception:
This Court, however, has ruled in the past that this
procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent
miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when
the decision or resolution sought to be set aside is a nullity,
or when the need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy
available.40
Based on ABS-CBN, this court could review orders and
decisions of COMELEC in electoral contests despite
not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside
is a nullity; or
5) The need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy
available.
Ultimately, this court took jurisdiction in Repoland decided
that the status quo anteorder issued by the COMELEC
Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This
case was also an election protest case involving
candidates for the city council of Muntinlupa
City.41 Petitioners in Soriano, Jr.filed before this court a
petition for certiorari against an interlocutory order of the
COMELEC First
Division.42 While the petition was pending in this court, the
COMELEC First Division dismissed the main election
protest case.43 Sorianoapplied the general rule that only
final orders should be questioned with this court. The
ponencia for this court, however, acknowledged the
exceptions to the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents,
was a disqualification case of one of the mayoralty
candidates of Meycauayan, Bulacan.45 The COMELEC
Second Division ruled that petitioner could not qualify for
the 2007 elections due to the findings in an administrative
case that he engaged in vote buying in the 1995
elections.46No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took
cognizance of this case applying one of the exceptions in
ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a
recent election protest case involving the mayoralty
candidates of Taguig City.48 Petitioner assailed a
resolution of the COMELEC denying her motion for
reconsideration to dismiss the election protest petition for
lack of form and substance.49 This court clarified the
general rule and refused to take cognizance of the review
of the COMELEC order. While recognizing the exceptions
in ABS-CBN, this court ruled that these exceptions did not
apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited
by respondents do not operate as precedents to oust this
court from taking jurisdiction over this case. All these
cases cited involve election protests or disqualification
cases filed by the losing candidate against the winning
candidate.
In the present case, petitioners are not candidates seeking
for public office. Their petition is filed to assert their
fundamental right to expression.
Furthermore, all these cases cited by respondents
pertained to COMELECs exercise of its adjudicatory or
quasi-judicial power. This case pertains to acts of
COMELEC in the implementation of its regulatory powers.
When it issued the notice and letter, the COMELEC was
allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional
violation: the infringement on speech and the "chilling
effect" caused by respondent COMELECs notice and
letter.
Petitioners allege that respondents committed grave
abuse of discretion amounting to lack or excess of
jurisdiction in issuing the notice51 dated February 22,2013
and letter52 dated February 27, 2013 ordering the removal
of the tarpaulin.53 It is their position that these infringe on
their fundamental right to freedom of expression and
violate the principle of separation of church and state and,
thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is
determined from the allegations in the petition. Subject
matter jurisdiction is defined as the authority "to hear and
determine cases of the general class to which the
proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines
its powers."55Definitely, the subject matter in this case is
different from the cases cited by respondents.
Nothing less than the electorates political speech will be
affected by the restrictions imposed by COMELEC.
Political speech is motivated by the desire to be heard and
understood, to move people to action. It is concerned with
the sovereign right to change the contours of power
whether through the election of representatives in a
republican government or the revision of the basic text of
the Constitution. The zeal with which we protect this kind
of speech does not depend on our evaluation of the
cogency of the message. Neither do we assess whether
we should protect speech based on the motives of
COMELEC. We evaluate restrictions on freedom of
expression from their effects. We protect both speech and
medium because the quality of this freedom in practice will
define the quality of deliberation in our democratic society.
COMELECs notice and letter affect preferred speech.
Respondents acts are capable of repetition. Under the
conditions in which it was issued and in view of the novelty
of this case,it could result in a "chilling effect" that would
affect other citizens who want their voices heard on issues
during the elections. Other citizens who wish to express
their views regarding the election and other related issues
may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid
such proscribed conditions. Rule 65 is also the procedural
platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on
jurisdiction. For petitioners, it referred to this courts
expanded exercise of certiorari as provided by the
Constitution as follows:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether ornot there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the
Government.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional
mandate to decide all questions affectingelections. Article
IX-C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(3) Decide, except those involving the right to vote, all
questions affecting elections, including determination of
the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
Respondents reliance on this provision is misplaced.
We are not confronted here with the question of whether
the COMELEC, in its exercise of jurisdiction, gravely
abused it. We are confronted with the question as to
whether the COMELEC had any jurisdiction at all with its
acts threatening imminent criminal action effectively
abridging meaningful political speech.
It is clear that the subject matter of the controversy is the
effect of COMELECs notice and letter on free speech.
This does not fall under Article IX-C, Section 2(3) of the
Constitution. The use of the word "affecting" in this
provision cannot be interpreted to mean that COMELEC
has the exclusive power to decide any and allquestions
that arise during elections. COMELECs constitutional
competencies during elections should not operate to
divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is
Article VIII, Section 5(1) of the Constitution.This provision
provides for this courts original jurisdiction over petitions
for certiorari and prohibition. This should be read
alongside the expanded jurisdiction of the court in Article
VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression
by COMELEC is grave abuse of discretion. Thus, the
constitutionality of the notice and letter coming from
COMELEC is within this courts power to review.
During elections, we have the power and the duty to
correct any grave abuse of discretion or any act tainted
with unconstitutionality on the part of any government
branch or instrumentality. This includes actions by the
COMELEC. Furthermore, it is this courts constitutional
mandate to protect the people against governments
infringement of their fundamental rights. This constitutional
mandate out weighs the jurisdiction vested with the
COMELEC.
It will, thus, be manifest injustice if the court does not take
jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated
the doctrine of hierarchy of courts in directly filing their
petition before this court.
Respondents contend that petitioners failure to file the
proper suit with a lower court of concurrent jurisdiction is
sufficient ground for the dismissal of their petition.57 They
add that observation of the hierarchy of courts is
compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are
exceptions to the general rule on hierarchy of courts, none
of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona 60 on
this courts discretionary power to take cognizance of a
petition filed directly to it if warranted by "compelling
reasons, or [by] the nature and importance of the issues
raised. . . ."61 Petitioners submit that there are "exceptional
and compelling reasons to justify a direct resort [with] this
Court."62
In Baez, Jr. v. Concepcion,63 we explained the necessity
of the application of the hierarchy of courts:
The Court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not
to be ignored without serious consequences. The
strictness of the policy is designed to shield the Court from
having to deal with causes that are also well within the
competence of the lower courts, and thus leave time to the
Court to deal with the more fundamental and more
essential tasks that the Constitution has assigned to it. The
Court may act on petitions for the extraordinary writs of
certiorari, prohibition and mandamus only when absolutely
necessary or when serious and important reasons exist to
justify an exception to the policy.64
In Baez, we also elaborated on the reasons why lower
courts are allowed to issue writs of certiorari, prohibition,
and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so
remain if it is to satisfactorily perform the functions
assigned to it by the fundamental charter and immemorial
tradition. It cannot and should not be burdened with the
task of dealing with causes in the first instance. Its original
jurisdiction to issue the so-called extraordinary writs
should be exercised only where absolutely necessary or
where serious and important reasons exist therefore.
Hence, that jurisdiction should generally be exercised
relative to actions or proceedings before the Court of
Appeals, or before constitutional or other tribunals, bodies
or agencies whose acts for some reason or another are
not controllable by the Court of Appeals. Where the
issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial
Court, it is in either of these courts that the specific action
for the writs procurement must be presented. This is and
should continue to be the policy in this regard, a policy that
courts and lawyers must strictly observe.66 (Emphasis
omitted)
The doctrine that requires respect for the hierarchy of
courts was created by this court to ensure that every level
of the judiciary performs its designated roles in an effective
and efficient manner. Trial courts do not only determine
the facts from the evaluation of the evidence presented
before them. They are likewise competent to determine
issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in
relation to the Constitution.67 To effectively perform these
functions, they are territorially organized into regions and
then into branches. Their writs generally reach within
those territorial boundaries. Necessarily, they mostly
perform the all-important task of inferring the facts from the
evidence as these are physically presented before them.
In many instances, the facts occur within their territorial
jurisdiction, which properly present the actual case that
makes ripe a determination of the constitutionality of such
action. The consequences, of course, would be national in
scope. There are, however, some cases where resort to
courts at their level would not be practical considering their
decisions could still be appealed before the higher courts,
such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate
court that reviews the determination of facts and law made
by the trial courts. It is collegiate in nature. This nature
ensures more standpoints in the review of the actions of
the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial
courts, its writs can have a nationwide scope. It is
competent to determine facts and, ideally, should act on
constitutional issues thatmay not necessarily be novel
unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by
breaking new ground or further reiterating in the light of
new circumstances or in the light of some confusions of
bench or bar existing precedents. Rather than a court
of first instance or as a repetition of the actions of the Court
of Appeals, this court promulgates these doctrinal devices
in order that it truly performs that role.
In other words, the Supreme Courts role to interpret the
Constitution and act in order to protect constitutional rights
when these become exigent should not be emasculated
by the doctrine in respect of the hierarchy of courts. That
has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad
rule.68 This court has "full discretionary power to take
cognizance and assume jurisdiction [over] special civil
actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the
issues clearly and specifically raised in the petition."70 As
correctly pointed out by petitioners,71 we have provided
exceptions to this doctrine:
First, a direct resort to this court is allowed when there are
genuine issues of constitutionality that must be addressed
at the most immediate time. A direct resort to this court
includes availing of the remedies of certiorari and
prohibition toassail the constitutionality of actions of both
legislative and executive branches of the government.72
In this case, the assailed issuances of respondents
prejudice not only petitioners right to freedom of
expression in the present case, but also of others in future
similar cases. The case before this court involves an active
effort on the part of the electorate to reform the political
landscape. This has become a rare occasion when private
citizens actively engage the public in political discourse.
To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than
a technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew
out of an age that was awakened and invigorated by the
idea of new society in which man's mind was free, his fate
determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization
virtually unlimited. It is put forward as a prescription for
attaining a creative, progressive, exciting and intellectually
robust community. It contemplates a mode of life that,
through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It
spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73
In a democracy, the citizens right tofreely participate in the
exchange of ideas in furtherance of political decision-
making is recognized. It deserves the highest protection
the courts may provide, as public participation in nation-
building isa fundamental principle in our Constitution. As
such, their right to engage in free expression of ideas must
be given immediate protection by this court.
A second exception is when the issuesinvolved are of
transcendental importance.74 In these cases, the
imminence and clarity of the threat to fundamental
constitutional rights outweigh the necessity for prudence.
The doctrine relating to constitutional issues of
transcendental importance prevents courts from the
paralysis of procedural niceties when clearly faced with the
need for substantial protection.
In the case before this court, there is a clear threat to the
paramount right of freedom of speech and freedom of
expression which warrants invocation of relief from this
court. The principles laid down in this decision will likely
influence the discourse of freedom of speech in the future,
especially in the context of elections. The right to suffrage
not only includes the right to vote for ones chosen
candidate, but also the right to vocalize that choice to the
public in general, in the hope of influencing their votes. It
may be said that in an election year, the right to vote
necessarily includes the right to free speech and
expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate
resort to this court.
Third, cases of first impression75 warrant a direct resort to
this court. In cases of first impression, no jurisprudence yet
exists that will guide the lower courts on this matter. In
Government of the United States v. Purganan,76 this court
took cognizance of the case as a matter of first impression
that may guide the lower courts:
In the interest of justice and to settle once and for all the
important issue of bail in extradition proceedings, we deem
it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over
which there is, as yet, no local jurisprudence to guide lower
courts.77
This court finds that this is indeed a case of first impression
involving as it does the issue of whether the right of
suffrage includes the right of freedom of expression. This
is a question which this court has yet to provide substantial
answers to, through jurisprudence. Thus, direct resort to
this court is allowed.
Fourth, the constitutional issues raisedare better decided
by this court. In Drilon v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a
becoming modesty, to defer to the higher judgmentof this
Court in the consideration of its validity, which is better
determined after a thorough deliberation by a collegiate
body and with the concurrence of the majority of those who
participated in its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally
enshrined judicial power, that can rule with finality on
whether COMELEC committed grave abuse of discretion
or performed acts contrary to the Constitution through the
assailed issuances.
Fifth, the time element presented in this case cannot be
ignored. This case was filed during the 2013 election
period. Although the elections have already been
concluded, future cases may be filed that necessitate
urgency in its resolution. Exigency in certain situations
would qualify as an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional
organ. COMELEC is a constitutional body. In Albano v.
Arranz,80 cited by petitioners, this court held that "[i]t is
easy to realize the chaos that would ensue if the Court of
First Instance ofeach and every province were [to]
arrogate itself the power to disregard, suspend, or
contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to
impotence."81
In this case, if petitioners sought to annul the actions of
COMELEC through pursuing remedies with the lower
courts, any ruling on their part would not have been
binding for other citizens whom respondents may place in
the same situation. Besides, thiscourt affords great
respect to the Constitution and the powers and duties
imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that
their actions may be guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other
plain, speedy, and adequate remedy in the ordinary
course of law that could free them from the injurious effects
of respondents acts in violation of their right to freedom of
expression.
In this case, the repercussions of the assailed issuances
on this basic right constitute an exceptionally compelling
reason to justify the direct resort to this court. The lack of
other sufficient remedies in the course of law alone is
sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by
public welfare and the advancement of public policy, or
demanded by the broader interest of justice, or the orders
complained of were found to be patent nullities, or the
appeal was consideredas clearly an inappropriate
remedy."82 In the past, questions similar to these which
this court ruled on immediately despite the doctrine of
hierarchy of courts included citizens right to bear
arms,83 government contracts involving modernization of
voters registration lists,84 and the status and existence of
a public office.85
This case also poses a question of similar, if not greater
import. Hence, a direct action to this court is permitted.
It is not, however, necessary that all of these exceptions
must occur at the same time to justify a direct resort to this
court. While generally, the hierarchy of courts is respected,
the present case falls under the recognized exceptions
and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its
reasonableness is a political question, hence not within the
ambit of this courts power of review. They cite Justice
Vitugs separate opinion in Osmea v. COMELEC86 to
support their position:
It might be worth mentioning that Section 26, Article II, of
the Constitution also states that the "State shall guarantee
equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law." I see
neither Article IX (C)(4) nor Section 26, Article II, of the
Constitution to be all that adversarial or irreconcilably
inconsistent with the right of free expression. In any event,
the latter, being one of general application, must yield to
the specific demands of the Constitution. The freedom of
expression concededly holds, it is true, a vantage point in
hierarchy of constitutionally-enshrined rights but, like all
fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the
"poor" or between the "powerful" and the "weak" in our
society but it is to me a genuine attempt on the part of
Congress and the Commission on Elections to ensure that
all candidates are given an equal chance to media
coverage and thereby be equally perceived as giving real
life to the candidates right of free expression rather than
being viewed as an undue restriction of that freedom. The
wisdom in the enactment of the law, i.e., that which the
legislature deems to be best in giving life to the
Constitutional mandate, is not for the Court to question; it
is a matter that lies beyond the normal prerogatives of the
Court to pass upon.87
This separate opinion is cogent for the purpose it was said.
But it is not in point in this case.
The present petition does not involve a dispute between
the rich and poor, or the powerful and weak, on their equal
opportunities for media coverage of candidates and their
right to freedom of expression. This case concerns the
right of petitioners, who are non-candidates, to post the
tarpaulin in their private property, asan exercise of their
right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case.
In Taada v. Cuenco,88 this court previously elaborated on
the concept of what constitutes a political question:
What is generally meant, when it is said that a question is
political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity,
or that it has been specifically delegated to some other
department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political
debates on what the text of the law should be. In political
forums, particularly the legislature, the creation of the
textof the law is based on a general discussion of factual
circumstances, broadly construed in order to allow for
general application by the executive branch. Thus, the
creation of the law is not limited by particular and specific
facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions
based on existing facts established on a specific case-to-
case basis, where parties affected by the legal provision
seek the courts understanding of the law.
The complementary nature of the political and judicial
branches of government is essential in order to ensure that
the rights of the general public are upheld at all times. In
order to preserve this balance, branches of government
must afford due respectand deference for the duties and
functions constitutionally delegated to the other. Courts
cannot rush to invalidate a law or rule. Prudence dictates
that we are careful not to veto political acts unless we can
craft doctrine narrowly tailored to the circumstances of the
case.
The case before this court does not call for the exercise of
prudence or modesty. There is no political question. It can
be acted upon by this court through the expanded
jurisdiction granted to this court through Article VIII,
Section 1 of the Constitution.
A political question arises in constitutional issues relating
to the powers or competence of different agencies and
departments of the executive or those of the legislature.
The political question doctrine is used as a defense when
the petition asks this court to nullify certain acts that are
exclusively within the domain of their respective
competencies, as provided by the Constitution or the law.
In such situation, presumptively, this court should act with
deference. It will decline to void an act unless the exercise
of that power was so capricious and arbitrary so as to
amount to grave abuse of discretion.
The concept of a political question, however, never
precludes judicial review when the act of a constitutional
organ infringes upon a fundamental individual or collective
right. Even assuming arguendo that the COMELEC did
have the discretion to choose the manner of regulation of
the tarpaulin in question, it cannot do so by abridging the
fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political
question doctrine:
When political questions are involved, the Constitution
limits the determination to whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court
will not substitute its judgment for that of the official
concerned and decide a matter which by its nature or by
law is for the latter alone to decide.91
How this court has chosen to address the political question
doctrine has undergone an evolution since the timethat it
had been first invoked in Marcos v. Manglapus.
Increasingly, this court has taken the historical and social
context of the case and the relevance of pronouncements
of carefully and narrowly tailored constitutional doctrines.
This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the
application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the
Commission on Appointments. In times past, this would
have involved a quint essentially political question as it
related to the dominance of political parties in Congress.
However, in these cases, this court exercised its power of
judicial review noting that the requirement of interpreting
the constitutional provision involved the legality and not
the wisdom of a manner by which a constitutional duty or
power was exercised. This approach was again reiterated
in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court
declared again that the possible existence ofa political
question did not bar an examination of whether the
exercise of discretion was done with grave abuse of
discretion. In that case, this court ruled on the question of
whether there was grave abuse of discretion in the
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
question as to whether a former President resigned was
not a political question even if the consequences would be
to ascertain the political legitimacy of a successor
President.
Many constitutional cases arise from political crises. The
actors in such crises may use the resolution of
constitutional issues as leverage. But the expanded
jurisdiction of this court now mandates a duty for it to
exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social
conflict.
This courts understanding of the political question has not
been static or unbending. In Llamas v. Executive
Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner
in which the President's discretionary powers are
exercised or into the wisdom for its exercise, it is also a
settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said
powers are within the limits prescribed by the Constitution,
We will not decline to exercise our power of judicial review.
And such review does not constitute a modification or
correction of the act of the President, nor does it constitute
interference with the functions of the President.98
The concept of judicial power in relation to the concept of
the political question was discussed most extensively in
Francisco v. HRET.99 In this case, the House of
Representatives arguedthat the question of the validity of
the second impeachment complaint that was filed against
former Chief Justice Hilario Davide was a political question
beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring
and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court
becomes more feeble in light of the new Constitution which
expanded the definition of judicial power as including "the
duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government." As well observed by
retired Justice Isagani Cruz, this expanded definition of
judicial power considerably constricted the scope of
political question. He opined that the language luminously
suggests that this duty (and power) is available even
against the executive and legislative departments
including the President and the Congress, in the exercise
of their discretionary powers.100 (Emphasis in the original,
citations omitted)
Francisco also provides the cases which show the
evolution of the political question, as applied in the
following cases:
In Marcos v. Manglapus, this Court, speaking through
Madame Justice Irene Cortes, held: The present
Constitution limits resort to the political question doctrine
and broadens the scope of judicial inquiry into areas which
the Court,under previous constitutions, would have
normally left to the political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through
Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that
this Court must perform under the Constitution. Moreover,
as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of
the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does
away with the applicability of the principle in appropriate
cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani
Cruz, this Court ruled:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue presented
before us was political in nature, we would still not be
precluded from resolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even
the political question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue
involves a truly political and non-justiciable question lies in
the answer to the question of whether there are
constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within
such limits.101 (Citations omitted)
As stated in Francisco, a political question will not be
considered justiciable if there are no constitutionally
imposed limits on powers or functions conferred upon
political bodies. Hence, the existence of constitutionally
imposed limits justifies subjecting the official actions of the
body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference
to the right to free speech. Any instance that this right may
be abridged demands judicial scrutiny. It does not fall
squarely into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle
of exhaustion of administrative remedies. Respondents
insist that petitioners should have first brought the matter
to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply
with the requirement in Rule 65 that "there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary
course of law."103 They add that the proper venue to assail
the validity of the assailed issuances was in the course of
an administrative hearing to be conducted by
COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that
petitioners should resort to the remedies prescribed in
Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is
not proper in this case.
Despite the alleged non-exhaustion of administrative
remedies, it is clear that the controversy is already ripe for
adjudication. Ripeness is the "prerequisite that something
had by then been accomplished or performed by either
branch [or in this case, organ of government] before a
court may come into the picture."106
Petitioners exercise of their rightto speech, given the
message and their medium, had understandable
relevance especially during the elections. COMELECs
letter threatening the filing of the election offense against
petitioners is already an actionable infringement of this
right. The impending threat of criminal litigation is enough
to curtail petitioners speech.
In the context of this case, exhaustion of their
administrative remedies as COMELEC suggested in their
pleadings prolongs the violation of their freedom of
speech.
Political speech enjoys preferred protection within our
constitutional order. In Chavez v. Gonzales,107 Justice
Carpio in a separate opinion emphasized: "[i]f everthere is
a hierarchy of protected expressions, political expression
would occupy the highest rank, and among different kinds
of political expression, the subject of fair and honest
elections would be at the top."108 Sovereignty resides in
the people.109 Political speech is a direct exercise of the
sovereignty. The principle of exhaustion of administrative
remedies yields in order to protect this fundamental right.
Even assuming that the principle of exhaustion of
administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In
Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative
remedies may be dispensed with and judicial action may
be validly resorted to immediately: (a) when there is a
violation of due process; (b) when the issue involved is
purely a legal question; (c) when the administrative action
is patently illegal amounting to lack or excess of
jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is
irreparable injury; (f) when the respondent is a department
secretary whose acts as analter ego of the President bear
the implied and assumed approval of the latter; (g) when
to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification
of a claim; (i) when the subject matter is a private land in
land case proceedings; (j) whenthe rule does not provide
a plain, speedy and adequate remedy; or (k) when there
are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable
with the present case. First, petitioners allegethat the
assailed issuances violated their right to freedom of
expression and the principle of separation of church and
state. This is a purely legal question. Second, the
circumstances of the present case indicate the urgency of
judicial intervention considering the issue then on the RH
Law as well as the upcoming elections. Thus, to require
the exhaustion of administrative remedies in this case
would be unreasonable.
Time and again, we have held that this court "has the
power to relax or suspend the rules or to except a case
from their operation when compelling reasons so warrant,
or whenthe purpose of justice requires it, [and when]
[w]hat constitutes [as] good and sufficient cause that will
merit suspension of the rules is discretionary upon the
court".112Certainly, this case of first impression where
COMELEC has threatenedto prosecute private parties
who seek to participate in the elections by calling attention
to issues they want debated by the publicin the manner
they feel would be effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions
made by private citizens
Respondents cite the Constitution, laws, and
jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these
provisions pertain to candidates and political parties.
Petitioners are not candidates. Neither do theybelong to
any political party. COMELEC does not have the authority
to regulate the enjoyment of the preferred right to freedom
of expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the
Constitution, which provides:
Section 4. The Commission may,during the election
period, supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of
transportation and other public utilities, media of
communication or information, all grants, special
privileges, or concessions granted by the Government or
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation
or its subsidiary. Such supervision or regulation shall aim
to ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among
candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible
114
elections. (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated
by COMELEC during the plebiscite for the creation of the
Cordillera Autonomous Region.116 Columnist Pablito V.
Sanidad questioned the provision prohibiting journalists
from covering plebiscite issues on the day before and on
plebiscite day.117 Sanidad argued that the prohibition was
a violation of the "constitutional guarantees of the freedom
of expression and of the press. . . ."118 We held that the
"evil sought to be prevented by this provision is the
possibility that a franchise holder may favor or give any
undue advantage to a candidate in terms of advertising
space or radio or television time."119 This court found that
"[m]edia practitioners exercising their freedom of
expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right
to expression during this period may not be regulated by
COMELEC.121
Similar to the media, petitioners in the case at bar are
neither franchise holders nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the
Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis
supplied) Based on the enumeration made on actsthat
may be penalized, it will be inferred that this provision only
affects candidates.
Petitioners assail the "Notice to Remove Campaign
Materials" issued by COMELEC. This was followed bythe
assailed letter regarding the "election propaganda material
posted on the church vicinity promoting for or against the
candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of
campaign materials only mentions "parties" and
"candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC
may authorize political parties and party-list groups to
erect common poster areas for their candidates in not
more than ten (10) public places such as plazas, markets,
barangay centers and the like, wherein candidates can
post, display or exhibit election propaganda: Provided,
That the size ofthe poster areas shall not exceed twelve
(12) by sixteen (16) feet or its equivalent. Independent
candidates with no political parties may likewise be
authorized to erect common poster areas in not more than
ten (10) public places, the size of which shall not exceed
four (4) by six (6) feet or its equivalent. Candidates may
post any lawful propaganda material in private places with
the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially
among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615,
the rules and regulations implementing the Fair Election
Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties
and candidates may post any lawful campaign material in:
 a. Authorized common poster areasin public places
subject to the requirements and/or limitations set
forth in the next following section; and
b. Private places provided it has the consent of the
owner thereof.
The posting of campaign materials in public places outside
of the designated common poster areas and those
enumerated under Section 7 (g) of these Rules and the
like is prohibited. Persons posting the same shall be liable
together with the candidates and other persons who
caused the posting. It will be presumed that the candidates
and parties caused the posting of campaign materials
outside the common poster areas if they do not remove
the same within three (3) days from notice which shall be
issued by the Election Officer of the city or municipality
where the unlawful election propaganda are posted or
displayed.
Members of the PNP and other law enforcement agencies
called upon by the Election Officeror other officials of the
COMELEC shall apprehend the violators caught in the act,
and file the appropriate charges against them. (Emphasis
supplied)
Respondents considered the tarpaulin as a campaign
material in their issuances. The above provisions
regulating the posting of campaign materials only apply to
candidates and political parties, and petitioners are neither
of the two.
Section 3 of Republic Act No. 9006on "Lawful Election
Propaganda" also states that these are "allowed for all
registered political parties, national, regional, sectoral
parties or organizations participating under the party-list
elections and for all bona fide candidates seeking national
and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . .
." Section 6 of COMELEC Resolution No. 9615 provides
for a similar wording. These provisions show that election
propaganda refers to matter done by or on behalf of and
in coordination with candidates and political parties. Some
level of coordination with the candidates and political
parties for whom the election propaganda are released
would ensure that these candidates and political parties
maintain within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political
party.125 There was no allegation that petitioners
coordinated with any of the persons named in the tarpaulin
regarding its posting. On the other hand, petitioners
posted the tarpaulin as part of their advocacy against the
RH Law. Respondents also cite National Press Club v.
COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to
free speech during election period.127
National Press Club involved the prohibition on the sale
and donation of space and time for political
advertisements, limiting political advertisements to
COMELEC-designated space and time. This case was
brought by representatives of mass media and two
candidates for office in the 1992 elections. They argued
that the prohibition on the sale and donation of space and
time for political advertisements is tantamount to
censorship, which necessarily infringes on the freedom of
speech of the candidates.128
This court upheld the constitutionality of the COMELEC
prohibition in National Press Club. However, this case
does not apply as most of the petitioners were electoral
candidates, unlike petitioners in the instant case.
Moreover, the subject matter of National Press Club,
Section 11(b) of Republic Act No. 6646,129 only refers to a
particular kind of media such as newspapers, radio
broadcasting, or television.130 Justice Feliciano
emphasized that the provision did not infringe upon the
right of reporters or broadcasters to air their commentaries
and opinions regarding the candidates, their qualifications,
and program for government. Compared to
Sanidadwherein the columnists lost their ability to give
their commentary on the issues involving the plebiscite,
National Press Clubdoes not involve the same
infringement.
In the case at bar, petitioners lost their ability to give a
commentary on the candidates for the 2013 national
elections because of the COMELEC notice and letter. It
was not merelya regulation on the campaigns of
candidates vying for public office. Thus, National Press
Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code, defines an"election
campaign" as follows:
....
(b) The term "election campaign" or "partisan political
activity" refers to an act designed to promote the election
or defeat of a particular candidate or candidates to a public
office which shall include:
(1) Forming organizations, associations, clubs,
committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any
campaign for or against a candidate;
(2) Holding political caucuses, conferences,
meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes
and/or undertaking any campaign or propaganda
for or against a candidate;
(3) Making speeches, announcements or
commentaries, or holding interviews for or against
the election of any candidate for public office;
(4) Publishing or distributing campaign literature or
materials designed to support or oppose the
election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or
support for or against a candidate.
The foregoing enumerated acts ifperformed for the
purpose of enhancing the chances of aspirants for
nomination for candidacy to a public office by a political
party, aggroupment, or coalition of parties shall not be
considered as election campaign or partisan election
activity. Public expressions or opinions or discussions of
probable issues in a forthcoming electionor on attributes of
or criticisms against probable candidates proposed to be
nominated in a forthcoming political party convention shall
not be construed as part of any election campaign or
partisan political activity contemplated under this Article.
(Emphasis supplied)
True, there is no mention whether election campaign is
limited only to the candidates and political parties
themselves. The focus of the definition is that the act must
be "designed to promote the election or defeat of a
particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of
public concern, that is, a statement of either appreciation
or criticism on votes made in the passing of the RH law.
Thus, petitioners invoke their right to freedom of
expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for
the removal of the tarpaulin violate their fundamental right
to freedom of expression.
On the other hand, respondents contend that the tarpaulin
is an election propaganda subject to their regulation
pursuant to their mandate under Article IX-C, Section 4 of
the Constitution. Thus, the assailed notice and letter
ordering itsremoval for being oversized are valid and
constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III,
Section 4 of the Constitution:
Section 4. No law shall be passed abridging the freedom
of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the
government for redress of grievances.132
No law. . .
While it is true that the present petition assails not a law
but an opinion by the COMELEC Law Department, this
court has applied Article III, Section 4 of the Constitution
even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by
analogy Section 1119 of the Revised Ordinances of 1927
of Manila for the public meeting and assembly organized
by petitioner Primicias.134 Section 1119 requires a Mayors
permit for the use of streets and public places for purposes
such as athletic games, sports, or celebration of national
holidays.135 What was questioned was not a law but the
Mayors refusal to issue a permit for the holding of
petitioners public meeting.136 Nevertheless, this court
recognized the constitutional right to freedom of speech,
to peaceful assembly and to petition for redress of
grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the
permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a
law but COMELEC En Banc Resolution No. 98-1419
where the COMELEC resolved to approve the issuance of
a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was
similarly upheld in this case and, consequently, the
assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on
expression. The prohibition against the abridgment of
speech should not mean an absolute prohibition against
regulation. The primary and incidental burden on speech
must be weighed against a compelling state interest
clearly allowed in the Constitution. The test depends on
the relevant theory of speech implicit in the kind of society
framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom
of expression, separate and in addition to the freedom of
speech and of the press provided in the US Constitution.
The word "expression" was added in the 1987 Constitution
by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr.
Presiding Officer. On Section 9, page 2, line 29, it says:
"No law shall be passed abridging the freedom of speech."
I would like to recommend to the Committee the change of
the word "speech" to EXPRESSION; or if not, add the
words AND EXPRESSION after the word "speech,"
because it is more expansive, it has a wider scope, and it
would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the
Committee say?
FR. BERNAS: "Expression" is more broad than speech.
We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any
objection? (Silence) The Chair hears none; the
amendment is approved.
FR. BERNAS: So, that provision will now read: "No law
shall be passed abridging the freedom of speech,
expression or of the press . . . ."141 Speech may be said to
be inextricably linked to freedom itself as "[t]he right to
think is the beginning of freedom, and speech must be
protected from the government because speech is the
beginning of thought."142
II.B.2
Communication is an essential outcome of protected
speech.143 Communication exists when "(1) a speaker,
seeking to signal others, uses conventional actions
because he orshe reasonably believes that such actions
will be taken by the audience in the manner intended; and
(2) the audience so takes the actions." 144 "[I]n
communicative action[,] the hearer may respond to the
claims by . . . either accepting the speech acts claims or
opposing them with criticism or requests for
justification."145
Speech is not limited to vocal communication. "[C]onduct
is treated as a form of speech sometimes referred to as
symbolic speech[,]"146 such that "when speech and
nonspeech elements are combined in the same course of
conduct, the communicative element of the conduct may
be sufficient to bring into play the [right to freedom of
expression]."147
The right to freedom of expression, thus, applies to the
entire continuum of speech from utterances made to
conduct enacted, and even to inaction itself as a symbolic
manner of communication.
In Ebralinag v. The Division Superintendent of Schools of
Cebu,148 students who were members of the religious sect
Jehovahs Witnesses were to be expelled from school for
refusing to salute the flag, sing the national anthem, and
recite the patriotic pledge.149 In his concurring opinion,
Justice Cruz discussed how the salute is a symbolic
manner of communication and a valid form of
expression.150 He adds that freedom of speech includes
even the right to be silent:
Freedom of speech includes the right to be silent. Aptly
has it been said that the Bill of Rights that guarantees to
the individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his
mind. The salute is a symbolic manner of communication
that conveys its messageas clearly as the written or
spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face
of valid religious objections like those raised in this
petition. To impose it on the petitioners is to deny them the
right not to speak when their religion bids them to be silent.
This coercion of conscience has no place in the free
society.
The democratic system provides for the accommodation
of diverse ideas, including the unconventional and even
the bizarre or eccentric. The will of the majority prevails,
but it cannot regiment thought by prescribing the recitation
by rote of its opinions or proscribing the assertion of
unorthodox or unpopular views as inthis case. The
conscientious objections of the petitioners, no less than
the impatience of those who disagree with them, are
protected by the Constitution. The State cannot make the
individual speak when the soul within rebels.151
Even before freedom "of expression" was included in
Article III, Section 4 of the present Constitution,this court
has applied its precedent version to expressions other
than verbal utterances.
In the 1985 case of Gonzalez v. Chairman
Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only."
They contend that the classification "is without legal and
factual basis and is exercised as impermissible restraint of
artistic expression."153 This court recognized that "[m]otion
pictures are important both as a medium for the
communication of ideas and the expression of the artistic
impulse."154 It adds that "every writer,actor, or producer,
no matter what medium of expression he may use, should
be freed from the censor."155 This court found that "[the
Boards] perception of what constitutes obscenity appears
to be unduly restrictive."156 However, the petition was
dismissed solely on the ground that there were not enough
votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the
information conveyed that it forms part of the expression.
The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger
tarpaulin allows larger fonts which make it easier to view
its messages from greater distances. Furthermore, a
larger tarpaulin makes it easier for passengers inside
moving vehicles to read its content. Compared with the
pedestrians, the passengers inside moving vehicles have
lesser time to view the content of a tarpaulin. The larger
the fonts and images, the greater the probability that it will
catch their attention and, thus, the greater the possibility
that they will understand its message.
Second, the size of the tarpaulin may underscore the
importance of the message to the reader. From an
ordinary persons perspective, those who post their
messages in larger fonts care more about their message
than those who carry their messages in smaller media.
The perceived importance given by the speakers, in this
case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the
emphasis put by the speakers and onthe credibility of the
speakers themselves. Certainly, larger segments of the
public may tend to be more convinced of the point made
by authoritative figures when they make the effort to
emphasize their messages.
Third, larger spaces allow for more messages. Larger
spaces, therefore, may translate to more opportunities to
amplify, explain, and argue points which the speakers
might want to communicate. Rather than simply placing
the names and images of political candidates and an
expression of support, larger spaces can allow for brief but
memorable presentations of the candidates platforms for
governance. Larger spaces allow for more precise
inceptions of ideas, catalyze reactions to advocacies, and
contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the
possibilities of both good governance and accountability in
our government.
These points become more salient when it is the
electorate, not the candidates or the political parties, that
speaks. Too often, the terms of public discussion during
elections are framed and kept hostage by brief and catchy
but meaningless sound bites extolling the character of the
candidate. Worse, elections sideline political arguments
and privilege the endorsement by celebrities. Rather than
provide obstacles to their speech, government should in
fact encourage it. Between the candidates and the
electorate, the latter have the better incentive to demand
discussion of the more important issues. Between the
candidates and the electorate, the former have better
incentives to avoid difficult political standpoints and
instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and
place.158 They are fundamentally part of expression
protected under Article III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that
strengthen the need to protect the basic right to freedom
of expression.
First, this relates to the right ofthe people to participate in
public affairs, including the right to criticize government
actions.
Proponents of the political theory on "deliberative
democracy" submit that "substantial, open, [and] ethical
dialogue isa critical, and indeed defining, feature of a good
polity."159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the
participation of all who will beaffected by the decision." 160 It
anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To
ensure order in running the states affairs, sovereign
powers were delegated and individuals would be elected
or nominated in key government positions to represent the
people. On this note, the theory on deliberative democracy
may evolve to the right of the people to make government
accountable. Necessarily, this includes the right of the
people to criticize acts made pursuant to governmental
functions.
Speech that promotes dialogue on publicaffairs, or airs out
grievances and political discontent, should thus be
protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous
to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and
proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of
society and the maintenance of good government demand
a full discussion of public affairs."163 This court has, thus,
adopted the principle that "debate on public issues should
be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public
officials."164
Second, free speech should be encouraged under the
concept of a market place of ideas. This theory was
articulated by Justice Holmes in that "the ultimate good
desired is better reached by [the] free trade in ideas:" 165
When men have realized that time has upset many fighting
faiths, they may come to believe even more than they
believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in
ideas - that the best test of truth is the power of the thought
to get itself accepted in the competition of the market, and
that truth is the only ground upon which their wishes safely
can be carried out.166
The way it works, the exposure to the ideas of others
allows one to "consider, test, and develop their own
conclusions."167 A free, open, and dynamic market place
of ideas is constantly shaping new ones. This promotes
both stability and change where recurring points may
crystallize and weak ones may develop. Of course, free
speech is more than the right to approve existing political
beliefs and economic arrangements as it includes, "[t]o
paraphrase Justice Holmes, [the] freedom for the thought
that we hate, no less than for the thought that agrees with
us."168 In fact, free speech may "best serve its high
purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs
people to anger."169 It is in this context that we should
guard against any curtailment of the peoples right to
participate in the free trade of ideas.
Third, free speech involves self-expression that enhances
human dignity. This right is "a means of assuring individual
self-fulfillment,"170 among others. In Philippine Blooming
Mills Employees Organization v. Philippine Blooming Mills
Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition,
are not only civil rights but also political rights essential to
man's enjoyment of his life, to his happiness and to his full
and complete fulfillment.Thru these freedoms the citizens
can participate not merely in the periodic establishment of
the government through their suffrage but also in the
administration of public affairs as well as in the discipline
of abusive public officers. The citizen is accorded these
rights so that he can appeal to the appropriate
governmental officers or agencies for redress and
protection as well as for the imposition of the lawful
sanctions on erring public officers and
employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one,
"[v]oluntary associations perform [an] important
democratic role [in providing] forums for the development
of civil skills, for deliberation, and for the formation of
identity and community spirit[,] [and] are largely immune
from [any] governmental interference."173 They also
"provide a buffer between individuals and the state - a free
space for the development of individual personality,
distinct group identity, and dissident ideas - and a potential
source of opposition to the state."174 Free speech must be
protected as the vehicle to find those who have similar and
shared values and ideals, to join together and forward
common goals.
Fifth, the Bill of Rights, free speech included, is supposed
to "protect individuals and minorities against majoritarian
abuses perpetrated through [the] framework [of
democratic governance]."175 Federalist framers led by
James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who
might be tyrannized or plundered by despotic federal
officials"176 and the minorities who may be oppressed by
"dominant factions of the electorate [that] capture [the]
government for their own selfish ends[.]" 177 According to
Madison, "[i]t is of great importance in a republic not only
to guard the society against the oppression of its rulers,
but to guard one part of the society against the injustice of
the other part."178 We should strive to ensure that free
speech is protected especially in light of any potential
oppression against those who find themselves in the
fringes on public issues.
Lastly, free speech must be protected under the safety
valve theory.179 This provides that "nonviolent
manifestations of dissent reduce the likelihood of
violence[.]"180 "[A] dam about to burst . . . resulting in the
banking up of a menacing flood of sullen anger behind the
walls of restriction"181 has been used to describe the effect
of repressing nonviolent outlets.182 In order to avoid this
situation and prevent people from resorting to violence,
there is a need for peaceful methods in making passionate
dissent. This includes "free expression and political
participation"183 in that they can "vote for candidates who
share their views, petition their legislatures to [make or]
change laws, . . . distribute literature alerting other citizens
of their concerns[,]"184 and conduct peaceful rallies and
other similar acts.185 Free speech must, thus, be protected
as a peaceful means of achieving ones goal, considering
the possibility that repression of nonviolent dissent may
spill over to violent means just to drive a point.
II.B.5
Every citizens expression with political consequences
enjoys a high degree of protection. Respondents argue
that the tarpaulinis election propaganda, being petitioners
way of endorsing candidates who voted against the RH
Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional
mandate.187 Election propaganda is defined under Section
1(4) of COMELEC Resolution No. 9615 as follows:
SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election
propaganda" refers to any matter broadcasted, published,
printed, displayed or exhibited, in any medium, which
contain the name, image, logo, brand, insignia, color motif,
initials, and other symbol or graphic representation that is
capable of being associated with a candidate or party, and
is intended to draw the attention of the public or a segment
thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public
office. In broadcast media, political advertisements may
take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers,
and other forms of advertising messages or
announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website,
including, but not limited to, social networks, blogging
sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional
right to communicate their opinions, views and beliefs
about issues and candidates."188 They argue that the
tarpaulin was their statement of approval and appreciation
of the named public officials act of voting against the RH
Law, and their criticism toward those who voted in its
favor.189 It was "part of their advocacy campaign against
the RH Law,"190 which was not paid for by any candidate
or political party.191 Thus, "the questioned orders which . .
. effectively restrain[ed] and curtail[ed] [their] freedom of
expression should be declared unconstitutional and
void."192
This court has held free speech and other intellectual
freedoms as "highly ranked in our scheme of constitutional
values."193 These rights enjoy precedence and
primacy.194 In Philippine Blooming Mills, this court
discussed the preferred position occupied by freedom of
expression:
Property and property rights can belost thru prescription;
but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights
is a useless attempt to limit the power of government and
ceases to be an efficacious shield against the tyranny of
officials, of majorities, ofthe influential and powerful, and of
oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free
expression and of assembly occupy a preferred position
as they are essential to the preservation and vitality of our
civil and political institutions; and such priority "gives these
liberties the sanctity and the sanction not permitting
dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so
"when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right
of suffrage."196 A similar idea appeared in our
jurisprudence as early as 1969, which was Justice
Barredos concurring and dissenting opinion in Gonzales
v. COMELEC:197
I like to reiterate over and over, for it seems this is the
fundamental point others miss, that genuine democracy
thrives only where the power and right of the people toelect
the men to whom they would entrust the privilege to run
the affairs of the state exist. In the language of the
declaration of principles of our Constitution, "The
Philippines is a republican state. Sovereignty resides in
the people and all government authority emanates from
them" (Section 1, Article II). Translating this declaration
into actuality, the Philippines is a republic because and
solely because the people in it can be governed only by
officials whom they themselves have placed in office by
their votes. And in it is on this cornerstone that I hold it tobe
self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being
exercised in relation to suffrage or asa means to enjoy the
inalienable right of the qualified citizen to vote, they are
absolute and timeless. If our democracy and
republicanism are to be worthwhile, the conduct of public
affairs by our officials must be allowed to suffer incessant
and unabating scrutiny, favorable or unfavorable,
everyday and at all times. Every holder of power in our
government must be ready to undergo exposure any
moment of the day or night, from January to December
every year, as it is only in this way that he can rightfully
gain the confidence of the people. I have no patience for
those who would regard public dissection of the
establishment as an attribute to be indulged by the people
only at certain periods of time. I consider the freedoms of
speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as
the very means by which the right itself to vote can only be
properly enjoyed.It stands to reason therefore, that
suffrage itself would be next to useless if these liberties
cannot be untrammelled [sic] whether as to degree or
time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v.
Gonzales, this court discussed that some types of speech
may be subject to regulation:
Some types of speech may be subjected to some
regulation by the State under its pervasive police power,
in order that it may not be injurious to the equal right of
others or those of the community or society. The difference
in treatment is expected because the relevant interests of
one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctionshave
therefore been made in the treatment, analysis, and
evaluation ofthe permissible scope of restrictions on
various categories of speech. We have ruled, for example,
that in our jurisdiction slander or libel, lewd and obscene
speech, as well as "fighting words" are not entitled to
constitutional protection and may be
199
penalized. (Citations omitted)
We distinguish between politicaland commercial speech.
Political speech refers to speech "both intended and
received as a contribution to public deliberation about
some issue,"200 "foster[ing] informed and civicminded
deliberation."201 On the other hand, commercial speech
has been defined as speech that does "no more than
propose a commercial transaction."202 The expression
resulting from the content of the tarpaulin is, however,
definitely political speech. In Justice Brions dissenting
opinion, he discussed that "[t]he content of the tarpaulin,
as well as the timing of its posting, makes it subject of the
regulations in RA 9006 and Comelec Resolution No.
9615."203 He adds that "[w]hile indeed the RH issue, by
itself,is not an electoralmatter, the slant that the petitioners
gave the issue converted the non-election issue into a live
election one hence, Team Buhay and Team Patay and the
plea to support one and oppose the other."204
While the tarpaulin may influence the success or failure of
the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin
was not paid for or posted "in return for consideration" by
any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC
Resolution No. 9615, or the rules and regulations
implementing Republic Act No. 9006 as an aid to interpret
the law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election
propaganda" refers to any matter broadcasted, published,
printed, displayed or exhibited, in any medium, which
contain the name, image, logo, brand, insignia, color motif,
initials, and other symbol or graphic representation that is
capable of being associated with a candidate or party, and
is intended to draw the attention of the public or a segment
thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public
office. In broadcast media, political advertisements may
take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers,
and other forms of advertising messages or
announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website,
including, but not limited to, social networks, blogging
sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation. (Emphasis
supplied)
It is clear that this paragraph suggests that personal
opinions are not included, while sponsored messages are
covered.
Thus, the last paragraph of Section 1(1) of COMELEC
Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political
activity" refers to an act designed to promote the election
or defeat of a particular candidate or candidates to a public
office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates,
contained in blogs shall not be considered acts of election
campaigning or partisan politicalactivity unless expressed
by government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in
cyberspace, and its effects and parameters should be
deemed narrowly tailored only in relation to the facts and
issues in this case. It also appears that such wording in
COMELEC Resolution No. 9615 does not similarly appear
in Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of
political speech.
As early as 1918, in United States v. Bustos,205 this court
recognized the need for full discussion of public affairs. We
acknowledged that free speech includes the right to
criticize the conduct of public men:
The interest of society and the maintenance of good
government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men
is a scalpel in the case of free speech. The sharp incision
of its probe relieves the abscesses of official dom. Men in
public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of
a clear conscience. A public officer must not be too thin-
skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual
be exalted.206
Subsequent jurisprudence developed the right to petition
the government for redress of grievances, allowing for
criticism, save for some exceptions.207 In the 1951 case of
Espuelas v. People,208 this court noted every citizens
privilege to criticize his or her government, provided it is
"specific and therefore constructive, reasoned or
tempered, and not a contemptuous condemnation of the
entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged
violation of the Election Law provision "penaliz[ing] the
anonymous criticism of a candidate by means of posters
or circulars."211 This court explained that it is the posters
anonymous character that is being penalized.212 The
ponente adds that he would "dislike very muchto see this
decision made the vehicle for the suppression of public
opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance
of allowing individuals to vent their views. According to this
court, "[i]ts value may lie in the fact that there may be
something worth hearing from the dissenter [and] [t]hat is
to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive
criticisms against their government contributes to every
societys goal for development. It puts forward matters that
may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also
makes the government accountable for acts that violate
constitutionally protected rights.
In 1998, Osmea v. COMELEC found Section 11(b) of
Republic Act No. 6646, which prohibits mass media from
selling print space and air time for campaign except to the
COMELEC, to be a democracy-enhancing
measure.216This court mentioned how "discussion of
public issues and debate on the qualifications of
candidates in an election are essential to the proper
functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its
greatest public purposes in the context of elections when
the free exercise thereof informs the people what the
issues are, and who are supporting what issues."218 At the
heart of democracy is every advocates right to make
known what the people need to know,219 while the
meaningful exercise of ones right of suffrage includes the
right of every voter to know what they need to know in
order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the
importance of debate on public issues, and the freedom of
expression especially in relation to information that
ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public
issues should be uninhibited, robust, and wide open and
that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public
officials. Too many restrictions will deny to people the
robust, uninhibited, and wide open debate, the generating
of interest essential if our elections will truly be free, clean
and honest.
We have also ruled that the preferred freedom of
expression calls all the more for the utmost respect when
what may be curtailed is the dissemination of information
to make more meaningful the equally vital right of
suffrage.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the
freedom of expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not
the god of rights to which all other rights and even
government protection of state interest must bow." 222
The right to freedom of expression isindeed not absolute.
Even some forms of protected speech are still subjectto
some restrictions. The degree of restriction may depend
on whether the regulation is content-based or content-
neutral.223 Content-based regulations can either be based
on the viewpoint of the speaker or the subject of the
expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the
tarpaulin is a content-neutral regulation. The order was
made simply because petitioners failed to comply with the
maximum size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size
regulation is content-based as it applies only to political
speech and not to other forms of speech such as
commercial speech.225 "[A]ssuming arguendo that the size
restriction sought to be applied . . . is a mere time, place,
and manner regulation, its still unconstitutional for lack of
a clear and reasonable nexus with a constitutionally
sanctioned objective."226
The regulation may reasonably be considered as either
content-neutral or content-based.227 Regardless, the
disposition of this case will be the same. Generally,
compared with other forms of speech, the proposed
speech is content-based.
As pointed out by petitioners, the interpretation of
COMELEC contained in the questioned order applies only
to posters and tarpaulins that may affect the elections
because they deliver opinions that shape both their
choices. It does not cover, for instance, commercial
speech.
Worse, COMELEC does not point to a definite view of what
kind of expression of non-candidates will be adjudged as
"election paraphernalia." There are no existing bright lines
to categorize speech as election-related and those that are
not. This is especially true when citizens will want to use
their resources to be able to raise public issues that should
be tackled by the candidates as what has happened in this
case. COMELECs discretion to limit speech in this case is
fundamentally unbridled.
Size limitations during elections hit ata core part of
expression. The content of the tarpaulin is not easily
divorced from the size of its medium.
Content-based regulation bears a heavy presumption of
invalidity, and this court has used the clear and present
danger rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy
presumption of invalidity and is measured against the clear
and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the
restrictions imposedare neither overbroad nor
229
vague. (Citations omitted)
Under this rule, "the evil consequences sought to be
prevented must be substantive, extremely serious and the
degree of imminence extremely high."230 "Only when the
challenged act has overcome the clear and present
danger rule will it pass constitutional muster, with the
government having the burden of overcoming the
presumed unconstitutionality."231
Even with the clear and present danger test, respondents
failed to justify the regulation. There is no compelling and
substantial state interest endangered by the posting of the
tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize
the right of non-candidate petitioners to post the tarpaulin
in their private property. The size of the tarpaulin does not
affect anyone elses constitutional rights.
Content-based restraint or censorship refers to restrictions
"based on the subject matter of the utterance or
speech."232 In contrast, content-neutral regulation includes
controls merely on the incidents of the speech such as
time, place, or manner of the speech.233
This court has attempted to define "content-neutral"
restraints starting with the 1948 case of Primicias v.
Fugoso.234The ordinance in this case was construed to
grant the Mayor discretion only to determine the public
places that may be used for the procession ormeeting, but
not the power to refuse the issuance of a permit for such
procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may
be so regulated that it shall not beinjurious to the equal
enjoyment of others having equal rights, nor injurious to
the rights of the community or society."236
The earlier case of Calalang v. Williams237 involved the
National Traffic Commission resolution that prohibited the
passing of animal-drawn vehicles along certain roads at
specific hours.238 This court similarly discussed police
power in that the assailed rules carry outthe legislative
policy that "aims to promote safe transit upon and avoid
obstructions on national roads, in the interest and
convenience of the public."239
As early as 1907, United States v. Apurado240 recognized
that "more or less disorder will mark the public assembly
of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement. . . ."241 It is with this
backdrop that the state is justified in imposing restrictions
on incidental matters as time, place, and manner of the
speech.
In the landmark case of Reyes v. Bagatsing, this court
summarized the steps that permit applicants must follow
which include informing the licensing authority ahead of
time as regards the date, public place, and time of the
assembly.242 This would afford the public official time to
inform applicants if there would be valid objections,
provided that the clear and present danger test is the
standard used for his decision and the applicants are given
the opportunity to be heard.243 This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as
the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa
No. 880 as a valid content-neutral regulation. In the 2006
case of Bayan v. Ermita,244 this court discussed how Batas
Pambansa No. 880 does not prohibit assemblies but
simply regulates their time, place, and manner.245 In 2010,
this court found in Integrated Bar of the Philippines v.
Atienza246 that respondent Mayor Atienza committed
grave abuse of discretion when he modified the rally permit
by changing the venue from Mendiola Bridge to Plaza
Miranda without first affording petitioners the opportunity
to be heard.247
We reiterate that the regulation involved at bar is content-
based. The tarpaulin content is not easily divorced from
the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that
the provisions imposing a size limit for tarpaulins are
content-neutral regulations as these "restrict the
mannerby which speech is relayed but not the content of
what is conveyed."248
If we apply the test for content-neutral regulation, the
questioned acts of COMELEC will not pass the three
requirements for evaluating such restraints on freedom of
speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial
governmental interest is required for its validity,"250 and it
is subject only to the intermediate approach.251
This intermediate approach is based on the test that we
have prescribed in several cases.252 A content-neutral
government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government;
[2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incident
restriction on alleged [freedom of speech & expression] is
no greater than is essential to the furtherance of that
interest.253
On the first requisite, it is not within the constitutional
powers of the COMELEC to regulate the tarpaulin. As
discussed earlier, this is protected speech by petitioners
who are non-candidates. On the second requirement, not
only must the governmental interest be important or
substantial, it must also be compelling as to justify the
restrictions made.
Compelling governmental interest would include
constitutionally declared principles. We have held, for
example, that "the welfare of children and the States
mandate to protect and care for them, as parens
patriae,254 constitute a substantial and compelling
government interest in regulating . . . utterances in TV
broadcast."255
Respondent invokes its constitutional mandate to ensure
equal opportunity for public information campaigns among
candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that
"[s]ize limits to posters are necessary to ensure equality of
public information campaigns among candidates, as
allowing posters with different sizes gives candidates and
their supporters the incentive to post larger posters[,] [and]
[t]his places candidates with more money and/or with
deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is
"not as important as the right of [a private citizen] to freely
express his choice and exercise his right of free
speech."258 In any case, faced with both rights to freedom
of speech and equality, a prudent course would be to "try
to resolve the tension in a way that protects the right of
participation."259
Second, the pertinent election lawsrelated to private
property only require that the private property owners
consent be obtained when posting election propaganda in
the property.260 This is consistent with the fundamental
right against deprivation of property without due process
of law.261 The present facts do not involve such posting of
election propaganda absent consent from the property
owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their
authority to recommend effective measures to minimize
election spending. Specifically, Article IX-C, Section 2(7)
provides:
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis
supplied) This does not qualify as a compelling and
substantial government interest to justify regulation of the
preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are
based on the two feet (2) by three feet (3) size limitation
under Section 6(c) of COMELEC Resolution No. 9615.
This resolution implements the Fair Election Act that
provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared
to the paramount interest of the State in guaranteeing
freedom of expression, any financial considerations
behind the regulation are of marginal significance." 264 In
fact, speech with political consequences, as in this case,
should be encouraged and not curtailed. As petitioners
pointed out, the size limitation will not serve the objective
of minimizing election spending considering there is no
limit on the number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at
the legislative intent or motive in imposing the restriction,
but more so at the effects of such restriction, if
implemented. The restriction must not be narrowly tailored
to achieve the purpose. It must be demonstrable. It must
allow alternative avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the
suppression of speech. Limiting the maximum sizeof the
tarpaulin would render ineffective petitioners message
and violate their right to exercise freedom of expression.
The COMELECs act of requiring the removal of the
tarpaulin has the effect of dissuading expressions with
political consequences. These should be encouraged,
more so when exercised to make more meaningful the
equally important right to suffrage.
The restriction in the present case does not pass even the
lower test of intermediate scrutiny for content-neutral
regulations.
The action of the COMELEC in thiscase is a strong
deterrent to further speech by the electorate. Given the
stature of petitioners and their message, there are
indicators that this will cause a "chilling effect" on robust
discussion during elections.
The form of expression is just as important as the message
itself. In the words of Marshall McLuhan, "the medium is
the message."266 McLuhans colleague and mentor Harold
Innis has earlier asserted that "the materials on which
words were written down have often counted for more than
the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the
help of private individuals for the endorsement of their
electoral campaigns.
On the one extreme, this can take illicit forms such as
when endorsement materials in the form of tarpaulins,
posters, or media advertisements are made ostensibly by
"friends" but in reality are really paid for by the candidate
or political party. This skirts the constitutional value that
provides for equal opportunities for all candidates.
However, as agreed by the parties during the oral
arguments in this case, this is not the situation that
confronts us. In such cases, it will simply be a matter for
investigation and proof of fraud on the part of the
COMELEC.
The guarantee of freedom of expression to individuals
without any relationship to any political candidate should
not be held hostage by the possibility of abuse by those
seeking to be elected. It is true that there can be
underhanded, covert, or illicit dealings so as to hide the
candidates real levels of expenditures. However, labelling
all expressions of private parties that tend to have an effect
on the debate in the elections as election paraphernalia
would be too broad a remedy that can stifle genuine
speech like in this case. Instead, to address this evil, better
and more effective enforcement will be the least restrictive
means to the fundamental freedom.
On the other extreme, moved by the credentials and the
message of a candidate, others will spend their own
resources in order to lend support for the campaigns. This
may be without agreement between the speaker and the
candidate or his or her political party. In lieu of donating
funds to the campaign, they will instead use their
resources directly in a way that the candidate or political
party would have doneso. This may effectively skirt the
constitutional and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be
what candidates and political parties will carry in their
election posters or media ads. The message of petitioner,
taken as a whole, is an advocacy of a social issue that it
deeply believes. Through rhetorical devices, it
communicates the desire of Diocese that the positions of
those who run for a political position on this social issue be
determinative of how the public will vote. It primarily
advocates a stand on a social issue; only secondarily
even almost incidentally will cause the election or non-
election of a candidate.
The twin tarpaulins consist of satire of political parties.
Satire is a "literary form that employs such devices as
sarcasm, irony and ridicule to deride prevailing vices or
follies,"268 and this may target any individual or group in
society, private and government alike. It seeks to
effectively communicate a greater purpose, often used for
"political and social criticism"269 "because it tears down
facades, deflates stuffed shirts, and unmasks hypocrisy. .
. . Nothing is more thoroughly democratic than to have the
high-and-mighty lampooned and spoofed."270 Northrop
Frye, wellknown in this literary field, claimed that satire had
two defining features: "one is wit or humor founded on
fantasy or a sense of the grotesque and absurd, the other
is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not
refer to a list of dead individuals nor could the Archbishop
of the Diocese of Bacolod have intended it to mean that
the entire plan of the candidates in his list was to cause
death intentionally. The tarpaulin caricatures political
parties and parodies the intention of those in the list.
Furthermore, the list of "Team Patay" is juxtaposed with
the list of "Team Buhay" that further emphasizes the theme
of its author: Reproductive health is an important marker
for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual
messages of candidates. Election paraphernalia from
candidates and political parties are more declarative and
descriptive and contain no sophisticated literary allusion to
any social objective. Thus, they usually simply exhort the
public to vote for a person with a brief description of the
attributes of the candidate. For example "Vote for [x],
Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for
[z], Iba kami sa Makati."
This courts construction of the guarantee of freedom of
expression has always been wary of censorship or
subsequent punishment that entails evaluation of the
speakers viewpoint or the content of ones speech. This is
especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming
humility on the part of any human institution no matter how
endowed with the secular ability to decide legal
controversies with finality entails that we are not the
keepers of all wisdom.
Humanitys lack of omniscience, even acting collectively,
provides space for the weakest dissent. Tolerance has
always been a libertarian virtue whose version is
embedded in our Billof Rights. There are occasional
heretics of yesterday that have become our visionaries.
Heterodoxies have always given us pause. The
unforgiving but insistent nuance that the majority surely
and comfortably disregards provides us with the checks
upon reality that may soon evolve into creative solutions
to grave social problems. This is the utilitarian version. It
could also be that it is just part of human necessity to
evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical
document. It contains other provisions which, taken
together with the guarantee of free expression, enhances
each others value. Among these are the provisions that
acknowledge the idea of equality. In shaping doctrine
construing these constitutional values, this court needs to
exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms
as exercised in reality and, thus, render them
meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two
paradigms of free speech that separate at the point of
giving priority to equality vis--vis liberty.272
In an equality-based approach, "politically disadvantaged
speech prevails over regulation[,] but regulation promoting
political equality prevails over speech."273 This view allows
the government leeway to redistribute or equalize
speaking power, such as protecting, even implicitly
subsidizing, unpopular or dissenting voices often
systematically subdued within societys ideological
ladder.274 This view acknowledges that there are dominant
political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the
messages of others. This is especially true in a developing
or emerging economy that is part of the majoritarian world
like ours.
The question of libertarian tolerance
This balance between equality and the ability to express
so as to find ones authentic self or to participate in the self
determination of ones communities is not new only to law.
It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher
and social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background
limitation, rendering freedoms exercised within such
limitation as merely "protect[ing] the already established
machinery of discrimination."275 In his view, any
improvement "in the normal course of events" within an
unequal society, without subversion, only strengthens
existing interests of those in power and control.276
In other words, abstract guarantees of fundamental rights
like freedom of expression may become meaningless if not
taken in a real context. This tendency to tackle rights in the
abstract compromises liberties. In his words:
Liberty is self-determination, autonomythis is almost a
tautology, but a tautology which results from a whole
series of synthetic judgments. It stipulates the ability to
determine ones own life: to be able to determine what to
do and what not to do, what to suffer and what not. But the
subject of this autonomy is never the contingent, private
individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable
of being free with the others. And the problem of making
possible such a harmony between every individual liberty
and the other is not that of finding a compromise between
competitors, or between freedom and law, between
general and individual interest, common and private
welfare in an established society, but of creating the
society in which man is no longer enslaved by institutions
which vitiate self-determination from the beginning. In
other words, freedom is still to be created even for the
freest of the existing societies.277 (Emphasis in the
original)
Marcuse suggests that the democratic argument with
all opinions presented to and deliberated by the people
"implies a necessary condition, namely, that the people
must be capable of deliberating and choosing on the basis
of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must
be the result of autonomous thought."278 He submits that
"[d]ifferent opinions and philosophies can no longer
compete peacefully for adherence and persuasion on
rational grounds: the marketplace of ideas is organized
and delimited by those who determine the national and the
individual interest."279 A slant toward left manifests from
his belief that "there is a natural right of resistance for
oppressed and overpowered minorities to use extralegal
means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that
breaks away and transcends from established hierarchies,
power structures, and indoctrinations. The tolerance of
libertarian society he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from
legal scholars for "stringent protections of expressive
liberty,"281 especially by political egalitarians.
Considerations such as "expressive, deliberative, and
informational interests,"282 costs or the price of
expression, and background facts, when taken together,
produce bases for a system of stringent protections for
expressive liberties.283
Many legal scholars discuss the interest and value of
expressive liberties. Justice Brandeis proposed that
"public discussion is a political duty."284 Cass Sustein
placed political speech on the upper tier of his twotier
model for freedom of expression, thus, warranting
stringent protection.285 He defined political speech as
"both intended and received as a contribution to public
deliberation about some issue."286
But this is usually related also tofair access to
opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and
not mere formal equalitysince "favorable conditions for
realizing the expressive interest will include some
assurance of the resources required for expression and
some guarantee that efforts to express views on matters
of common concern will not be drowned out by the speech
of betterendowed citizens."288 Justice Brandeis solution is
to "remedy the harms of speech with more
speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs
seriously and embrac[ing] expression as the preferred
strategy for addressing them."290 However, in some cases,
the idea of more speech may not be enough. Professor
Laurence Tribe observed the need for context and "the
specification of substantive values before [equality] has full
meaning."291 Professor Catherine A. MacKinnon adds that
"equality continues to be viewed in a formal rather than a
substantive sense."292 Thus, more speech can only mean
more speech from the few who are dominant rather than
those who are not.
Our jurisprudence
This court has tackled these issues.
Osmea v. COMELEC affirmed National Press Club v.
COMELEC on the validity of Section 11(b) ofthe Electoral
Reforms Law of 1987.293 This section "prohibits mass
media from selling or giving free of charge print space or
air time for campaign or other political purposes, except to
the Commission on Elections."294 This court explained that
this provision only regulates the time and manner of
advertising in order to ensure media equality among
candidates.295 This court grounded this measure on
constitutional provisions mandating political
296
equality: Article IX-C, Section 4
Section 4. The Commission may, during the election
period, supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of
transportation and other public utilities, media of
communication or information, all grants, special
privileges, or concessions granted by the Government or
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation
or its subsidiary. Such supervision or regulation shall aim
to ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among
candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections.
(Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the
enactment of measures that protect and enhance the right
of all the people to human dignity, reducesocial, economic,
and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its
increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the
Constitutions guarantee for more substantive expressive
freedoms that take equality of opportunities into
consideration during elections.
The other view
However, there is also the other view. This is that
considerations of equality of opportunity or equality inthe
ability of citizens as speakers should not have a bearing in
free speech doctrine. Under this view, "members of the
public are trusted to make their own individual evaluations
of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are
best left to a freely competitive ideological market."297 This
is consistent with the libertarian suspicion on the use of
viewpoint as well as content to evaluate the constitutional
validity or invalidity of speech.
The textual basis of this view is that the constitutional
provision uses negative rather than affirmative language.
It uses speech as its subject and not
speakers.298 Consequently, the Constitution protects free
speech per se, indifferent to the types, status, or
associations of its speakers.299 Pursuant to this,
"government must leave speakers and listeners in the
private order to their own devices in sorting out the relative
influence of speech."300
Justice Romeros dissenting opinion in Osmea v.
COMELEC formulates this view that freedom of speech
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
of public concern."301 She adds:
And since so many imponderables may affect the outcome
of elections qualifications of voters and candidates,
education, means of transportation, health, public
discussion, private animosities, the weather, the threshold
of a voters resistance to pressure the utmost ventilation
of opinion of men and issues, through assembly,
association and organizations, both by the candidate and
the voter, becomes a sine qua non for elections to truly
reflect the will of the electorate.302 (Emphasis supplied)
Justice Romeros dissenting opinion cited an American
case, if only to emphasize free speech primacy such
that"courts, as a rule are wary to impose greater
restrictions as to any attempt to curtail speeches with
political content,"303 thus:
the concept that the government may restrict the speech
of some elements in our society in order to enhance the
relative voice of the others is wholly foreign to the First
Amendment which was designed to "secure the widest
possible dissemination of information from diverse and
antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes submission
"that the market place of ideas is still the best alternative
to censorship."305
Parenthetically and just to provide the whole detail of the
argument, the majority of the US Supreme Court in the
campaign expenditures case of Buckley v. Valeo
"condemned restrictions (even if content-neutral) on
expressive liberty imposed in the name of enhanc[ing] the
relative voice of others and thereby equaliz[ing] access to
the political arena."306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit
placed on the amount which a person can speak, which
takes out of his exclusive judgment the decision of when
enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on
political campaigning inherently constricts the sum of
public information and runs counter to our profound
national commitment that debate on public issues should
be uninhibited, robust, and wide-open."308
In fact, "[c]onstraining those who have funds or have been
able to raise funds does not ease the plight of those
without funds in the first place . . . [and] even if ones main
concern isslowing the increase in political costs, it may be
more effective torely on market forces toachieve that result
than on active legal intervention."309 According to Herbert
Alexander, "[t]o oppose limitations is not necessarily to
argue that the skys the limit [because in] any campaign
there are saturation levels and a point where spending no
longer pays off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into
consideration the constitutional respect for human
potentiality and the effect of speech. It valorizes the ability
of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take
into consideration the effects it will have in a deliberative
democracy. Skewed distribution of resources as well as
the cultural hegemony of the majority may have the effect
of drowning out the speech and the messages of those in
the minority. In a sense, social inequality does have its
effect on the exercise and effect of the guarantee of free
speech. Those who have more will have better access to
media that reaches a wider audience than those who have
less. Those who espouse the more popular ideas will have
better reception than the subversive and the dissenters of
society.To be really heard and understood, the
marginalized view normally undergoes its own degree of
struggle.
The traditional view has been to tolerate the viewpoint of
the speaker and the content of his or her expression. This
view, thus, restricts laws or regulation that allows public
officials to make judgments of the value of such viewpoint
or message content. This should still be the principal
approach.
However, the requirements of the Constitution regarding
equality in opportunity must provide limits to some
expression during electoral campaigns.
Thus clearly, regulation of speech in the context of
electoral campaigns made by candidates or the members
of their political parties or their political parties may be
regulated as to time, place, and manner. This is the effect
of our rulings in Osmea v. COMELEC and National Press
Club v. COMELEC.
Regulation of speech in the context of electoral campaigns
made by persons who are not candidates or who do not
speak as members of a political party which are, taken as
a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional.
Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming
from the electorate including those that can catalyze
candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.
This does not mean that there cannot be a specie of
speech by a private citizen which will not amount toan
election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of persons
who are not candidates or who do not speak as members
of a political party if they are not candidates, only if what is
regulated is declarative speech that, taken as a whole, has
for its principal object the endorsement of a candidate
only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of
enhancing the opportunity of all candidates to be heard
and considering the primacy of the guarantee of free
expression, and (d) demonstrably the least restrictive
means to achieve that object. The regulation must only be
with respect to the time, place, and manner of the rendition
of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this
purpose, it will notmatter whether the speech is made with
or on private property.
This is not the situation, however, in this case for two
reasons. First, as discussed, the principal message in the
twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice
Antonio Carpio, the present law Section 3.3 of Republic
Act No. 9006 and Section 6(c) of COMELEC Resolution
No. 9615 if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins
without any relation to the distance from the intended
average audience will be arbitrary. At certain distances,
posters measuring 2 by 3 feet could no longer be read by
the general public and, hence, would render speech
meaningless. It will amount to the abridgement of speech
with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the
meaningful exercise of the right to suffrage,312 the present
case also involves ones right to property.313
Respondents argue that it is the right of the state to
prevent the circumvention of regulations relating to
election propaganda by applying such regulations to
private individuals.314 Certainly, any provision or regulation
can be circumvented. But we are not confronted with this
possibility. Respondents agree that the tarpaulin in
question belongs to petitioners. Respondents have also
agreed, during the oral arguments, that petitioners were
neither commissioned nor paid by any candidate or
political party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the
tarpaulin remains the private property of petitioners. Their
right to use their property is likewise protected by the
Constitution.
In Philippine Communications Satellite Corporation v.
Alcuaz:315
Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary
or unreasonable infringement of property rights is void,
because it is repugnant to the constitutional guaranties of
due process and equal protection of the laws.316 (Citation
omitted)
This court in Adiong held that a restriction that regulates
where decals and stickers should be posted is "so broad
that it encompasses even the citizens private
property."317 Consequently, it violates Article III, Section 1
of the Constitution which provides thatno person shall be
deprived of his property without due process of law. This
court explained:
Property is more than the mere thing which a person owns,
it includes the right to acquire, use, and dispose of it; and
the Constitution, in the 14th Amendment, protects these
essential attributes.
Property is more than the mere thing which a person owns.
It is elementary that it includes the right to acquire, use,
and dispose of it. The Constitution protects these essential
attributes of property. Holden v. Hardy, 169 U.S. 366, 391,
41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists
of the free use, enjoyment, and disposal of a persons
acquisitions without control or diminution save by the law
of the land. 1 Cooleys Bl. Com. 127. (Buchanan v. Warley
245 US 60 [1917])318
This court ruled that the regulation in Adiong violates
private property rights:
The right to property may be subject to a greater degree
of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the
Government must be exceptionally convincing and
irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and
invasive that it prohibits the posting or display of election
propaganda in any place, whether public or private, except
inthe common poster areas sanctioned by COMELEC.
This means that a private person cannot post his own
crudely prepared personal poster on his own front dooror
on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what
overzealous and partisan police officers, armed with a
copy of the statute or regulation, may do.319 Respondents
ordered petitioners, who are private citizens, to remove the
tarpaulin from their own property. The absurdity of the
situation is in itself an indication of the unconstitutionality
of COMELECs interpretation of its powers.
Freedom of expression can be intimately related with the
right to property. There may be no expression when there
is no place where the expression may be made.
COMELECs infringement upon petitioners property rights
as in the present case also reaches out to infringement on
their fundamental right to speech.
Respondents have not demonstrated thatthe present state
interest they seek to promote justifies the intrusion into
petitioners property rights. Election laws and regulations
must be reasonable. It must also acknowledge a private
individuals right to exercise property rights. Otherwise, the
due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act
intend to prevent the posting of election propaganda in
private property without the consent of the owners of such
private property. COMELEC has incorrectly implemented
these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain
petitioners from posting the tarpaulin in their own private
property is an impermissible encroachments on the right
to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the
COMELEC in issuing the questioned notice and letter
violated the right of petitioners to the free exercise of their
religion.
At the outset, the Constitution mandates the separation of
church and state.320 This takes many forms. Article III,
Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. Noreligious test shall
be required for the exercise of civil or political rights.
There are two aspects of this provision.321 The first is the
none stablishment clause.322 Second is the free exercise
and enjoyment of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests,
bishops, ustadz, imams, or any other religious make such
act immune from any secular regulation.324 The religious
also have a secular existence. They exist within a society
that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin.
But not all acts of a bishop amounts to religious
expression. This notwithstanding petitioners claim that
"the views and position of the petitioners, the Bishop and
the Diocese of Bacolod, on the RH Bill is inextricably
connected to its Catholic dogma, faith, and moral
teachings. . . ."325
The difficulty that often presents itself in these cases stems
from the reality that every act can be motivated by moral,
ethical, and religious considerations. In terms of their
effect on the corporeal world, these acts range from belief,
to expressions of these faiths, to religious ceremonies, and
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
not subscribe to any religion, may not have any religious
bearing.
Definitely, the characterizations ofthe religious of their acts
are not conclusive on this court. Certainly, our powers of
adjudication cannot be blinded by bare claims that acts are
religious in nature.
Petitioners erroneously relied on the case of Ebralinag v.
The Division Superintendent of Schools of Cebu 326 in
claiming that the court "emphatically" held that the
adherents ofa particular religion shall be the ones to
determine whether a particular matter shall be considered
ecclesiastical in nature.327 This court in
Ebralinagexempted Jehovahs Witnesses from
participating in the flag ceremony "out of respect for their
religious beliefs, [no matter how] "bizarre" those
beliefsmay seem to others."328 This court found a balance
between the assertion of a religious practice and the
compelling necessities of a secular command. It was an
early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of
benevolent neutrality:
With religion looked upon with benevolence and not
hostility, benevolent neutrality allows accommodation of
religion under certain circumstances. Accommodations
are government policies that take religion specifically
intoaccount not to promote the governments favored form
of religion, but to allow individuals and groups to exercise
their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the
exercise of, a persons or institutions religion. As Justice
Brennan explained, the "government [may] take religion
into account . . . to exempt, when possible, from generally
applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may
flourish."330
This court also discussed the Lemon test in that case, such
that a regulation is constitutional when: (1) it has a secular
legislative purpose; (2) it neither advances nor inhibits
religion; and (3) it does not foster an excessive
entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on
its face, "does not convey any religious doctrine of the
Catholic church."332 That the position of the Catholic
church appears to coincide with the message of the
tarpaulin regarding the RH Law does not, by itself, bring
the expression within the ambit of religious speech. On the
contrary, the tarpaulin clearly refers to candidates
classified under "Team Patay" and "Team Buhay"
according to their respective votes on the RH Law.
The same may be said of petitioners reliance on papal
encyclicals to support their claim that the expression onthe
tarpaulin is an ecclesiastical matter. With all due respect
to the Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of
the Catholic religion in the Philippines as regards the RH
Law does not suffice to qualify the posting by one of its
members of a tarpaulin as religious speech solely on such
basis. The enumeration of candidates on the face of the
tarpaulin precludes any doubtas to its nature as speech
with political consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in
Austria v. National Labor Relations Commission333 cited
by petitioners finds no application in the present case. The
posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for
excommunication, ordinations of religious ministers,
administration of sacraments and other activities
withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting
to do what it thought was its duty in this case. However, it
was misdirected.
COMELECs general role includes a mandate to ensure
equal opportunities and reduce spending among
candidates and their registered political parties. It is not to
regulate or limit the speech of the electorate as it strives to
participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a
caricature of those who are running for public office.Their
message may be construed generalizations of very
complex individuals and party-list organizations.
They are classified into black and white: as belonging to
"Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still
protected speech.
That petitioners chose to categorize them as purveyors of
death or of life on the basis of a single issue and a
complex piece of legislation at that can easily be
interpreted as anattempt to stereo type the candidates and
party-list organizations. Not all may agree to the way their
thoughts were expressed, as in fact there are other
Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room
to consider being more broad-minded and non-
judgmental. Some may have expected that the authors
would give more space to practice forgiveness and
humility.
But, the Bill of Rights enumerated in our Constitution is an
enumeration of our fundamental liberties. It is not a
detailed code that prescribes good conduct. It provides
space for all to be guided by their conscience, not only in
the act that they do to others but also in judgment of the
acts of others.
Freedom for the thought we can disagree with can be
wielded not only by those in the minority. This can often be
expressed by dominant institutions, even religious ones.
That they made their point dramatically and in a large way
does not necessarily mean that their statements are true,
or that they have basis, or that they have been expressed
in good taste.
Embedded in the tarpaulin, however, are opinions
expressed by petitioners. It is a specie of expression
protected by our fundamental law. It is an expression
designed to invite attention, cause debate, and hopefully,
persuade. It may be motivated by the interpretation of
petitioners of their ecclesiastical duty, but their
parishioners actions will have very real secular
consequences. Certainly, provocative messages do
matter for the elections.
What is involved in this case is the most sacred of speech
forms: expression by the electorate that tends to rouse the
public to debate contemporary issues. This is not
speechby candidates or political parties to entice votes. It
is a portion of the electorate telling candidates the
conditions for their election. It is the substantive content of
the right to suffrage.
This. is a form of speech hopeful of a quality of democracy
that we should all deserve. It is protected as a fundamental
and primordial right by our Constitution. The expression in
the medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The
temporary restraining order previously issued is hereby
made permanent. The act of the COMELEC in issuing the
assailed notice dated February 22, 2013 and letter dated 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
lesser penalty shall be applied in accordance with Article
63 of the Revised Penal Code. Accordingly, the accused
Former President Joseph Ejercito Estrada is hereby
sentenced to suffer the penalty of Reclusion Perpetua and
the accessory penalties of civil interdiction during the
period of sentence and perpetual absolute disqualification.
The period within which accused Former President Joseph
Ejercito Estrada has been under detention shall be
credited to him in full as long as he agrees voluntarily in
writing to abide by the same disciplinary rules imposed
upon convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act
No. 7080, as amended by Republic Act No. 7659, the
Court hereby declares the forfeiture in favor of the
government of the following:
(1) The total amount of Five Hundred Forty[-]Two
Million Seven Hundred Ninety[-]One Thousand
Pesos (P545,291,000.00), with interest and income
earned, inclusive of the amount of Two Hundred
Million Pesos (P200,000,000.00), deposited in the
name and account of the Erap Muslim Youth
Foundation.
(2) The amount of One Hundred Eighty[-]Nine
Million Pesos (P189,000,000.00), inclusive of
interests and income earned, deposited in the Jose
Velarde account.
(3) The real property consisting of a house and lot
dubbed as "Boracay Mansion" located at #100 11th
Street, New Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy"
Estrada and Atty. Edward S. Serapio are hereby ordered
cancelled and released to the said accused or their duly
authorized representatives upon presentation of the
original receipt evidencing payment thereof and subject to
the usual accounting and auditing procedures. Likewise,
the hold-departure orders issued against the said accused
are hereby recalled and declared functus oficio.4
On October 25, 2007, however, former President Gloria
Macapagal Arroyo (former President Arroyo) extended
executive clemency, by way of pardon, to former President
Estrada. The full text of said pardon states:
MALACAAN PALACE
MANILA
By the President of the Philippines
PARDON
WHEREAS, this Administration has a policy of releasing
inmates who have reached the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under
detention for six and a half years,
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
upon me by the Constitution, I hereby grant executive
clemency to JOSEPH EJERCITO ESTRADA, convicted
by the Sandiganbayan of Plunder and imposed a penalty
of Reclusion Perpetua. He is hereby restored to his civil
and political rights.
The forfeitures imposed by the Sandiganbayan remain in
force and in full, including all writs and processes issued
by the Sandiganbayan in pursuance hereof, except for the
bank account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO
ESTRADA, this pardon shall take effect.
Given under my hand at the City of Manila, this 25th Day
of October, in the year of Our Lord, two thousand and
seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President
Estrada "received and accepted"6 the pardon by affixing
his signature beside his handwritten notation thereon.
On November 30, 2009, former President Estrada filed a
Certificate of Candidacy7 for the position of President.
During that time, his candidacy earned three oppositions
in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to
Deny Due Course and Cancel Certificate of Candidacy"
filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA
No. 09-028 (DC), a petition for "Disqualification as
Presidential Candidate" filed by Evilio C. Pormento
(Pormento); and (3) SPA No. 09-104 (DC), a "Petition to
Disqualify Estrada Ejercito, Joseph M.from Running as
President due to Constitutional Disqualification and
Creating Confusion to the Prejudice of Estrada, Mary Lou
B" filed by Mary Lou Estrada. In separate
Resolutions8 dated January 20, 2010 by the COMELEC,
Second Division, however, all three petitions were
effectively dismissed on the uniform grounds that (i) the
Constitutional proscription on reelection applies to a sitting
president; and (ii) the pardon granted to former President
Estrada by former President Arroyo restored the formers
right to vote and be voted for a public office. The
subsequent motions for reconsideration thereto were
denied by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized
elections, however, former President Estrada only
managed to garner the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento
sought recourse to this Court and filed a petition for
certiorari, which was docketed as G.R. No. 191988,
entitled "Atty. Evilio C. Pormento v. Joseph ERAP Ejercito
Estrada and Commission on Elections." But in a
Resolution9 dated August 31, 2010, the Court dismissed
the aforementioned petition on the ground of mootness
considering that former President Estrada lost his
presidential bid.
On October 2, 2012, former President Estrada once more
ventured into the political arena, and filed a Certificate of
Candidacy,10 this time vying for a local elective post, that
ofthe Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this
case, filed a Petition for Disqualification against former
President Estrada before the COMELEC. The petition was
docketed as SPA No. 13-211 (DC). Risos Vidal anchored
her petition on the theory that "[Former President Estrada]
is Disqualified to Run for Public Office because of his
Conviction for Plunder by the Sandiganbayan in Criminal
Case No. 26558 entitled People of the Philippines vs.
Joseph Ejercito Estrada Sentencing Him to Suffer the
Penalty of Reclusion Perpetuawith Perpetual Absolute
Disqualification."11 She relied on Section 40 of the Local
Government Code (LGC), in relation to Section 12 of the
Omnibus Election Code (OEC), which state respectively,
that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons
are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an
offense involving moral turpitude or for an offense
punishable by one (1) year or more of
imprisonment, within two (2) years after serving
sentence; (b) Those removed from office as a result
of an administrative case;
(c) Those convicted by final judgment for violating
the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical
cases here or abroad;
(f) Permanent residents in a foreign country or
those who have acquired the right to reside abroad
and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble minded. (Emphasis
supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been
declared by competent authority insane or incompetent, or
has been sentenced by final judgmentfor subversion,
insurrection, rebellion, or for any offense for which he has
been sentenced to a penalty of more than eighteen
months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any public office,
unless he has been given plenary pardon or granted
amnesty. (Emphases supplied.)
In a Resolution dated April 1, 2013,the COMELEC,
Second Division, dismissed the petition for disqualification,
the fallo of which reads:
WHEREFORE, premises considered, the instant petition
is hereby DISMISSED for utter lack of merit.12
The COMELEC, Second Division, opined that "[h]aving
taken judicial cognizance of the consolidated resolution for
SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the
10 May 2010 En Banc resolution affirming it, this
Commission will not be labor the controversy further.
Moreso, [Risos-Vidal] failed to present cogent proof
sufficient to reverse the standing pronouncement of this
Commission declaring categorically that [former President
Estradas] right to seek public office has been effectively
restored by the pardon vested upon him by former
President Gloria M. Arroyo. Since this Commission has
already spoken, it will no longer engage in disquisitions of
a settled matter lest indulged in wastage of government
resources."13
The subsequent motion for reconsideration filed by Risos-
Vidal was denied in a Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Courts
jurisdiction by filing the present petition. She presented
five issues for the Courts resolution, to wit:
I. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT RESPONDENT ESTRADAS
PARDON WAS NOT CONDITIONAL;
II. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
NOT FINDING THAT RESPONDENT ESTRADA IS
DISQUALIFIED TO RUN AS MAYOR OF MANILA
UNDER SEC. 40 OF THE LOCAL
GOVERNMENTCODE OF 1991 FOR HAVING
BEEN CONVICTED OF PLUNDER, AN OFFENSE
INVOLVING MORAL TURPITUDE;
III. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
DISMISSING THE PETITION FOR
DISQUALIFICATION ON THE GROUND THAT
THE CASE INVOLVES THE SAME OR SIMILAR
ISSUES IT ALREADY RESOLVED IN THE CASES
OF "PORMENTO VS. ESTRADA", SPA NO. 09-
028 (DC) AND IN "RE: PETITION TO DISQUALIFY
ESTRADA EJERCITO, JOSEPH M. FROM
RUNNING AS PRESIDENT, ETC.," SPA NO. 09-
104 (DC);
IV. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
NOT RULING THAT RESPONDENT ESTRADAS
PARDON NEITHER RESTORED HIS RIGHT OF
SUFFRAGE NOR REMITTED HIS PERPETUAL
ABSOLUTE DISQUALIFICATION FROM
SEEKING PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
 NOT HAVING EXERCISED ITS POWER TO
MOTU PROPRIO DISQUALIFY RESPONDENT
ESTRADA IN THE FACE OF HIS PATENT
DISQUALIFICATION TO RUN FOR PUBLIC
OFFICE BECAUSE OF HIS PERPETUAL AND
ABSOLUTE DISQUALIFICATION TO SEEK
PUBLIC OFFICE AND TO VOTE RESULTING
FROM HIS CRIMINAL CONVICTION FOR
PLUNDER.14
While this case was pending beforethe Court, or on May
13, 2013, the elections were conducted as scheduled and
former President Estrada was voted into office with
349,770 votes cast in his favor. The next day, the local
board of canvassers proclaimed him as the duly elected
Mayor of the City of Manila.
On June 7, 2013, Lim, one of former President Estradas
opponents for the position of Mayor, moved for leave to
intervene in this case. His motion was granted by the Court
in a Resolution15 dated June 25, 2013. Lim subscribed to
Risos-Vidals theory that former President Estrada is
disqualified to run for and hold public office as the pardon
granted to the latter failed to expressly remit his perpetual
disqualification. Further, given that former President
Estrada is disqualified to run for and hold public office, all
the votes obtained by the latter should be declared stray,
and, being the second placer with 313,764 votes to his
name, he (Lim) should be declared the rightful winning
candidate for the position of Mayor of the City of Manila.
The Issue
Though raising five seemingly separate issues for
resolution, the petition filed by Risos-Vidal actually
presents only one essential question for resolution by the
Court, that is, whether or not the COMELEC committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in ruling that former President Estrada is
qualified to vote and be voted for in public office as a result
of the pardon granted to him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by
pointing out that the pardon granted to former President
Estrada was conditional as evidenced by the latters
express acceptance thereof. The "acceptance," she
claims, is an indication of the conditional natureof the
pardon, with the condition being embodied in the third
Whereas Clause of the pardon, i.e., "WHEREAS, Joseph
Ejercito Estrada has publicly committed to no longer seek
any elective position or office." She explains that the
aforementioned commitment was what impelled former
President Arroyo to pardon former President Estrada,
without it, the clemency would not have been extended.
And any breach thereof, that is, whenformer President
Estrada filed his Certificate of Candidacy for President and
Mayor of the City of Manila, he breached the condition of
the pardon; hence, "he ought to be recommitted to prison
to serve the unexpired portion of his sentence x x x and
disqualifies him as a candidate for the mayoralty [position]
of Manila."16
Nonetheless, Risos-Vidal clarifies that the fundamental
basis upon which former President Estrada mustbe
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 crime of plunder is both an offense punishable by
imprisonment of one year or more and involving moral
turpitude; such that former President Estrada must be
disqualified to run for and hold public elective office.
Even with the pardon granted to former President Estrada,
however, Risos-Vidal insists that the same did not operate
to make available to former President Estrada the
exception provided under Section 12 of the OEC, the
pardon being merely conditional and not absolute or
plenary. Moreover, Risos-Vidal puts a premium on the
ostensible requirements provided under Articles 36 and 41
of the Revised Penal Code, to wit:
ART. 36. Pardon; its effects. A pardon shall not work the
restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the
terms of the pardon.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by the
sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal
Their accessory penalties. The penalties of reclusion
perpetua and reclusion temporal shall carry with them that
of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer
even though pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the
pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it
is not enough that a pardon makes a general statement
that such pardon carries with it the restoration of civil and
political rights. By virtue of Articles 36 and 41, a pardon
restoring civil and political rights without categorically
making mention what specific civil and political rights are
restored "shall not work to restore the right to hold public
office, or the right of suffrage; nor shall it remit the
accessory penalties of civil interdiction and perpetual
absolute disqualification for the principal penalties of
reclusion perpetua and reclusion temporal."17 In other
words, she considers the above constraints as mandatory
requirements that shun a general or implied restoration of
civil and political rights in pardons.
Risos-Vidal cites the concurring opinions of Associate
Justices Teodoro R. Padilla and Florentino P. Feliciano in
Monsanto v. Factoran, Jr.18 to endorse her position that
"[t]he restoration of the right to hold public office to one
who has lost such right by reason of conviction in a
criminal case, but subsequently pardoned, cannot be left
to inference, no matter how intensely arguable, but must
be statedin express, explicit, positive and specific
language."
Applying Monsantoto former President Estradas case,
Risos-Vidal reckons that "such express restoration is
further demanded by the existence of the condition in the
[third] [W]hereas [C]lause of the pardon x x x indubitably
indicating that the privilege to hold public office was not
restored to him."19
On the other hand, the Office ofthe Solicitor General
(OSG) for public respondent COMELEC, maintains that
"the issue of whether or not the pardon extended to [former
President Estrada] restored his right to run for public office
had already been passed upon by public respondent
COMELEC way back in 2010 via its rulings in SPA Nos.
09-024, 09-028 and 09-104, there is no cogent reason for
it to reverse its standing pronouncement and declare
[former President Estrada] disqualified to run and be voted
as mayor of the City of Manila in the absence of any new
argument that would warrant its reversal. To be sure,
public respondent COMELEC correctly exercised its
discretion in taking judicial cognizance of the aforesaid
rulings which are known toit and which can be verified from
its own records, in accordance with Section 2, Rule 129 of
the Rules of Court on the courts discretionary power to
take judicial notice of matters which are of public
knowledge, orare capable of unquestionable
demonstration, or ought to be known to them because of
their judicial functions."20
Further, the OSG contends that "[w]hile at first glance, it is
apparent that [former President Estradas] conviction for
plunder disqualifies him from running as mayor of Manila
under Section 40 of the [LGC], the subsequent grant of
pardon to him, however, effectively restored his right to run
for any public office."21 The restoration of his right to run
for any public office is the exception to the prohibition
under Section 40 of the LGC, as provided under Section
12 of the OEC. As to the seeming requirement of Articles
36 and 41 of the Revised Penal Code, i.e., the express
restoration/remission of a particular right to be stated in the
pardon, the OSG asserts that "an airtight and rigid
interpretation of Article 36 and Article 41 of the [RPC] x x
x would be stretching too much the clear and plain
meaning of the aforesaid provisions."22 Lastly, taking into
consideration the third Whereas Clause of the pardon
granted to former President Estrada, the OSG supports
the position that it "is not an integral part of the decree of
the pardon and cannot therefore serve to restrict its
effectivity."23
Thus, the OSG concludes that the "COMELEC did not
commit grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the assailed
Resolutions."24
For his part, former President Estrada presents the
following significant arguments to defend his stay in office:
that "the factual findings of public respondent COMELEC,
the Constitutional body mandated to administer and
enforce all laws relative to the conduct of the elections,
[relative to the absoluteness of the pardon, the effects
thereof, and the eligibility of former President Estrada to
seek public elective office] are binding [and conclusive] on
this Honorable Supreme Court;" that he "was granted an
absolute pardon and thereby restored to his full civil and
political rights, including the right to seek public elective
office such as the mayoral (sic) position in the City of
Manila;" that "the majority decision in the case of Salvacion
A. Monsanto v. Fulgencio S. Factoran, Jr.,which was
erroneously cited by both Vidal and Lim as authority for
their respective claims, x x x reveal that there was no
discussion whatsoever in the ratio decidendi of the
Monsanto case as to the alleged necessity for an
expressed restoration of the right to hold public office in
the pardon as a legal prerequisite to remove the subject
perpetual special disqualification;" that moreover, the
"principal question raised in this Monsanto case is whether
or not a public officer, who has been granted an absolute
pardon by the Chief Executive, is entitled to reinstatement
toher former position without need of a new appointment;"
that his "expressed acceptance [of the pardon] is not proof
that the pardon extended to [him] is conditional and not
absolute;" that this case is a mere rehash of the casesfiled
against him during his candidacy for President back in
2009-2010; that Articles 36 and 41 of the Revised Penal
Code "cannot abridge or diminish the pardoning power of
the President expressly granted by the Constitution;" that
the text of the pardon granted to him substantially, if not
fully, complied with the requirement posed by Article 36 of
the Revised Penal Code as it was categorically stated in
the said document that he was "restored to his civil and
political rights;" that since pardon is an act of grace, it must
be construed favorably in favor of the grantee;25 and that
his disqualification will result in massive
disenfranchisement of the hundreds of thousands of
Manileos who voted for him.26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute
pardon that fully restored allhis civil and political rights,
which naturally includes the right to seek public elective
office, the focal point of this controversy. The wording of
the pardon extended to former President Estrada is
complete, unambiguous, and unqualified. It is likewise
unfettered by Articles 36 and 41 of the Revised Penal
Code. The only reasonable, objective, and constitutional
interpretation of the language of the pardon is that the
same in fact conforms to Articles 36 and 41 of the Revised
Penal Code. Recall that the petition for disqualification
filed by Risos-Vidal against former President Estrada,
docketed as SPA No. 13-211 (DC), was anchored on
Section 40 of the LGC, in relation to Section 12 of the
OEC, that is, having been convicted of a crime punishable
by imprisonment of one year or more, and involving moral
turpitude, former President Estrada must be disqualified to
run for and hold public elective office notwithstanding the
fact that he is a grantee of a pardon that includes a
statement expressing "[h]e is hereby restored to his civil
and political rights." Risos-Vidal theorizes that former
President Estrada is disqualified from running for Mayor of
Manila inthe May 13, 2013 Elections, and remains
disqualified to hold any local elective post despite the
presidential pardon extended to him in 2007 by former
President Arroyo for the reason that it (pardon) did not
expressly provide for the remission of the penalty of
perpetual absolute disqualification, particularly the
restoration of his (former President Estrada) right to vote
and bevoted upon for public office. She invokes Articles 36
and 41 of the Revised Penal Code as the foundations of
her theory.
It is insisted that, since a textual examination of the pardon
given to and accepted by former President Estrada does
not actually specify which political right is restored, it could
be inferred that former President Arroyo did not
deliberately intend to restore former President Estradas
rights of suffrage and to hold public office, orto otherwise
remit the penalty of perpetual absolute disqualification.
Even if her intention was the contrary, the same cannot be
upheld based on the pardons text.
The pardoning power of the President cannot be limited by
legislative action.
The 1987 Constitution, specifically Section 19 of Article VII
and Section 5 of Article IX-C, provides that the President
of the Philippines possesses the power to grant pardons,
along with other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the President may
grant reprieves, commutations, and pardons, and remit
fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and
regulations shall be granted by the President without the
favorable recommendation of the Commission.
It is apparent from the foregoing constitutional provisions
that the only instances in which the President may not
extend pardon remain to be in: (1) impeachment cases; (2)
cases that have not yet resulted in a final conviction; and
(3) cases involving violations of election laws, rules and
regulations in which there was no favorable
recommendation coming from the COMELEC. Therefore,
it can be argued that any act of Congress by way of statute
cannot operate to delimit the pardoning power of the
President.
In Cristobal v. Labrador27 and Pelobello v.
28
Palatino, which were decided under the 1935
Constitution,wherein the provision granting pardoning
power to the President shared similar phraseology with
what is found in the present 1987 Constitution, the Court
then unequivocally declared that "subject to the limitations
imposed by the Constitution, the pardoning power cannot
be restricted or controlled by legislative action." The Court
reiterated this pronouncement in Monsanto v. Factoran,
Jr.29 thereby establishing that, under the present
Constitution, "a pardon, being a presidential prerogative,
should not be circumscribed by legislative action." Thus, it
is unmistakably the long-standing position of this Court
that the exercise of the pardoning power is discretionary in
the President and may not be interfered with by Congress
or the Court, except only when it exceeds the limits
provided for by the Constitution.
This doctrine of non-diminution or non-impairment of the
Presidents power of pardon by acts of Congress,
specifically through legislation, was strongly adhered to by
an overwhelming majority of the framers of the 1987
Constitution when they flatly rejected a proposal to carve
out an exception from the pardoning power of the
President in the form of "offenses involving graft and
corruption" that would be enumerated and defined by
Congress through the enactment of a law. The following is
the pertinent portion lifted from the Record of the
Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be
recognized to introduce an amendment on the same
section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for
violations of corrupt practices laws may be limited by
legislation.
I suggest that this be deletedon the grounds that, first,
violations of corrupt practices may include a very little
offense like stealing P10; second, which I think is more
important, I get the impression, rightly or wrongly, that
subconsciously we are drafting a constitution on the
premise that all our future Presidents will bebad and
dishonest and, consequently, their acts will be lacking in
wisdom. Therefore, this Article seems to contribute
towards the creation of an anti-President Constitution or a
President with vast responsibilities but no corresponding
power except to declare martial law. Therefore, I request
that these lines be deleted.
MR. REGALADO. Madam President,may the Committee
react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution
of Commissioner Davide because of the fact that similar to
the provisions on the Commission on Elections, the
recommendation of that Commission is required before
executive clemency isgranted because violations of the
election laws go into the very political life of the country.
With respect to violations of our Corrupt Practices Law, we
felt that it is also necessary to have that subjected to the
same condition because violation of our Corrupt Practices
Law may be of such magnitude as to affect the very
economic systemof the country. Nevertheless, as a
compromise, we provided here that it will be the Congress
that will provide for the classification as to which
convictions will still require prior recommendation; after all,
the Congress could take into account whether or not the
violation of the Corrupt Practices Law is of such magnitude
as to affect the economic life of the country, if it is in the
millions or billions of dollars. But I assume the Congress in
its collective wisdom will exclude those petty crimes of
corruption as not to require any further stricture on the
exercise of executive clemency because, of course, there
is a whale of a difference if we consider a lowly clerk
committing malversation of government property or funds
involving one hundred pesos. But then, we also anticipate
the possibility that the corrupt practice of a public officer is
of such magnitude as to have virtually drained a
substantial portion of the treasury, and then he goes
through all the judicial processes and later on, a President
who may have close connections with him or out of
improvident compassion may grant clemency under such
conditions. That is why we left it to Congress to provide
and make a classification based on substantial distinctions
between a minor act of corruption or an act of substantial
proportions. SR. TAN. So, why do we not just insert the
word GROSS or GRAVE before the word "violations"?
MR. REGALADO. We feel that Congress can make a
better distinction because "GRAVE" or "GROSS" can be
misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed
amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is
essentially an executive power, and that is precisely why
it is called executive clemency. In this sentence, which the
amendment seeks to delete, an exception is being made.
Congress, which is the legislative arm, is allowed to intrude
into this prerogative of the executive. Then it limits the
power of Congress to subtract from this prerogative of the
President to grant executive clemency by limiting the
power of Congress to only corrupt practices laws. There
are many other crimes more serious than these. Under this
amendment, Congress cannot limit the power of executive
clemency in cases of drug addiction and drug pushing
which are very, very serious crimes that can endanger the
State; also, rape with murder, kidnapping and treason.
Aside from the fact that it is a derogation of the power of
the President to grant executive clemency, it is also
defective in that it singles out just one kind of crime. There
are far more serious crimes which are not included.
MR. REGALADO. I will just make one observation on that.
We admit that the pardoning power is anexecutive power.
But even in the provisions on the COMELEC, one will
notice that constitutionally, it is required that there be a
favorable recommendation by the Commission on
Elections for any violation of election laws.
At any rate, Commissioner Davide, as the principal
proponent of that and as a member of the Committee, has
explained in the committee meetings we had why he
sought the inclusion of this particular provision. May we
call on Commissioner Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the
proposal. We have just approved the Article on
Accountability of Public Officers. Under it, it is mandated
that a public office is a public trust, and all government
officers are under obligation to observe the utmost of
responsibility, integrity, loyalty and efficiency, to lead
modest lives and to act with patriotism and justice.
In all cases, therefore, which would go into the verycore of
the concept that a public office is a public trust, the
violation is itself a violation not only of the economy but the
moral fabric of public officials. And that is the reason we
now want that if there is any conviction for the violation of
the Anti-Graft and Corrupt Practices Act, which, in effect,
is a violation of the public trust character of the public
office, no pardon shall be extended to the offender, unless
some limitations are imposed.
Originally, my limitation was, it should be with the
concurrence of the convicting court, but the Committee left
it entirely to the legislature to formulate the mechanics at
trying, probably, to distinguish between grave and less
grave or serious cases of violation of the Anti-Graft and
Corrupt Practices Act. Perhaps this is now the best time,
since we have strengthened the Article on Accountability
of Public Officers, to accompany it with a mandate that the
Presidents right to grant executive clemency for offenders
or violators of laws relating to the concept of a public office
may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is
recognized.
MR. SARMIENTO. May I briefly speak in favor of the
amendment by deletion.
Madam President, over and over again, we have been
saying and arguing before this Constitutional Commission
that we are emasculating the powers of the presidency,
and this provision to me is another clear example of that.
So, I speak against this provision. Even the 1935 and the
1973 Constitutions do not provide for this kind of provision.
I am supporting the amendment by deletion of
Commissioner Tan.
MR. ROMULO. Commissioner Tingson would like to be
recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the
amendment by deletion because I am in sympathy with the
stand of Commissioner Francisco "Soc" Rodrigo. I do
believe and we should remember that above all the
elected or appointed officers of our Republic, the leader is
the President. I believe that the country will be as the
President is, and if we systematically emasculate the
power of this presidency, the time may come whenhe will
be also handcuffed that he will no longer be able to act like
he should be acting.
So, Madam President, I am in favor of the deletion of this
particular line.
MR. ROMULO. Commissioner Colayco would like to be
recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to
recommend the approval of proposals, but now I find that
the proposal of Commissioner Tan is worthy of approval of
this body.
Why are we singling out this particular offense? There are
other crimes which cast a bigger blot on the moral
character of the public officials.
Finally, this body should not be the first one to limit the
almost absolute power of our Chief Executive in deciding
whether to pardon, to reprieve or to commute the sentence
rendered by the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be
recognized, and after him will be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The
Sandiganbayan has been called the Anti-Graft Court, so if
this is allowed to stay, it would mean that the Presidents
power togrant pardon or reprieve will be limited to the
cases decided by the Anti-Graft Court, when as already
stated, there are many provisions inthe Revised Penal
Code that penalize more serious offenses.
Moreover, when there is a judgment of conviction and the
case merits the consideration of the exercise of executive
clemency, usually under Article V of the Revised Penal
Code the judge will recommend such exercise of
clemency. And so, I am in favor of the amendment
proposed by Commissioner Tan for the deletion of this last
sentence in Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor
Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which
will again chip more powers from the President. In case of
other criminals convicted in our society, we extend
probation to them while in this case, they have already
been convicted and we offer mercy. The only way we can
offer mercy to them is through this executive clemency
extended to them by the President. If we still close this
avenue to them, they would be prejudiced even worse
than the murderers and the more vicious killers in our
society. I do not think they deserve this opprobrium and
punishment under the new Constitution.
I am in favor of the proposed amendment of Commissioner
Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President,
prefers to submit this to the floor and also because of the
objection of the main proponent, Commissioner Davide.
So we feel that the Commissioners should vote on this
question.
VOTING
THE PRESIDENT. As many as are in favor of the
proposed amendment of Commissioner Tan to delete the
last sentence of Section 17 appearing on lines 7, 8 and 9,
please raise their hand. (Several Members raised their
hand.)
As many as are against, please raise their hand. (Few
Members raised their hand.)
The results show 34 votes in favor and 4 votes against; the
amendment is approved.30 (Emphases supplied.)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that
Articles 36 and 41 of the Revised Penal Code cannot, in
any way, serve to abridge or diminish the exclusive power
and prerogative of the President to pardon persons
convicted of violating penal statutes.
The Court cannot subscribe to Risos-Vidals interpretation
that the said Articles contain specific textual commands
which must be strictly followed in order to free the
beneficiary of presidential grace from the disqualifications
specifically prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code
provides:
ART. 36. Pardon; its effects. A pardon shall not work the
restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the
terms of the pardon.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by the
sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal
Their accessory penalties. The penalties of reclusion
perpetua and reclusion temporal shall carry with them that
of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer
even though pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the
pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of
law, as proposed by Risos-Vidal, is unwarranted,
especially so if it will defeat or unduly restrict the power of
the President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the
words of a statute are clear, plain, and free from ambiguity,
it must be given its literal meaning and applied without
attempted interpretation. Verba legis non est recedendum.
From the words of a statute there should be no
departure.31 It is this Courts firm view that the phrase in
the presidential pardon at issue which declares that former
President Estrada "is hereby restored to his civil and
political rights" substantially complies with the requirement
of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with
Risos Vidal that there was no express remission and/or
restoration of the rights of suffrage and/or to hold public
office in the pardon granted to former President Estrada,
as required by Articles 36 and 41 of the Revised Penal
Code.
Justice Leonen posits in his Dissent that the
aforementioned codal provisions must be followed by the
President, as they do not abridge or diminish the
Presidents power to extend clemency. He opines that they
do not reduce the coverage of the Presidents pardoning
power. Particularly, he states:
Articles 36 and 41 refer only to requirements of convention
or form. They only provide a procedural prescription. They
are not concerned with areas where or the instances when
the President may grant pardon; they are only concerned
with how he or she is to exercise such power so that no
other governmental instrumentality needs to intervene to
give it full effect.
All that Articles 36 and 41 do is prescribe that, if the
President wishes to include in the pardon the restoration
of the rights of suffrage and to hold public office, or the
remission of the accessory penalty of perpetual absolute
disqualification,he or she should do so expressly. Articles
36 and 41 only ask that the President state his or her
intentions clearly, directly, firmly, precisely, and
unmistakably. To belabor the point, the President retains
the power to make such restoration or remission, subject
to a prescription on the manner by which he or she is to
state it.32
With due respect, I disagree with the overbroad statement
that Congress may dictate as to how the President may
exercise his/her power of executive clemency. The form or
manner by which the President, or Congress for that
matter, should exercise their respective Constitutional
powers or prerogatives cannot be interfered with unless it
is so provided in the Constitution. This is the essence of
the principle of separation of powers deeply ingrained in
our system of government which "ordains that each of the
three great branches of government has exclusive
cognizance of and is supreme in matters falling within its
own constitutionally allocated sphere."33 Moreso, this
fundamental principle must be observed if noncompliance
with the form imposed by one branch on a co-equal and
coordinate branch will result into the diminution of an
exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal
Code should be construed in a way that will give full effect
to the executive clemency granted by the President,
instead of indulging in an overly strict interpretation that
may serve to impair or diminish the import of the pardon
which emanated from the Office of the President and duly
signed by the Chief Executive himself/herself. The said
codal provisions must be construed to harmonize the
power of Congress to define crimes and prescribe the
penalties for such crimes and the power of the President
to grant executive clemency. All that the said provisions
impart is that the pardon of the principal penalty does
notcarry with it the remission of the accessory penalties
unless the President expressly includes said accessory
penalties in the pardon. It still recognizes the Presidential
prerogative to grant executive clemency and, specifically,
to decide to pardon the principal penalty while excluding
its accessory penalties or to pardon both. Thus, Articles 36
and 41 only clarify the effect of the pardon so decided upon
by the President on the penalties imposedin accordance
with law.
A close scrutiny of the text of the pardon extended to
former President Estrada shows that both the principal
penalty of reclusion perpetua and its accessory penalties
are included in the pardon. The first sentence refers to the
executive clemency extended to former President Estrada
who was convicted by the Sandiganbayan of plunder and
imposed a penalty of reclusion perpetua. The latter is the
principal penalty pardoned which relieved him of
imprisonment. The sentence that followed, which states
that "(h)e is hereby restored to his civil and political rights,"
expressly remitted the accessory penalties that attached
to the principal penalty of reclusion perpetua. Hence, even
if we apply Articles 36 and 41 of the Revised Penal Code,
it is indubitable from the textof the pardon that the
accessory penalties of civil interdiction and perpetual
absolute disqualification were expressly remitted together
with the principal penalty of reclusion perpetua.
In this jurisdiction, the right toseek public elective office is
recognized by law as falling under the whole gamut of civil
and political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as
the "Citizenship Retention and Reacquisition Act of 2003,"
reads as follows:
Section 5. Civil and Political Rights and Liabilities. Those
who retain or reacquire Philippine citizenship under this
Act shall enjoy full civil and political rights and be subject
to all attendant liabilities and responsibilities under existing
laws of the Philippines and the following conditions: (1)
Those intending to exercise their right of suffrage must
meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as
"The Overseas Absentee Voting Act of 2003" and other
existing laws;
(2) Those seeking elective public office in the
Philippines shall meet the qualifications for holding
such public office as required by the Constitution
and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and
sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an
oath;
(3) Those appointed to any public office shall
subscribe and swear an oath of allegiance to the
Republic of the Philippines and its duly constituted
authorities prior to their assumption of office:
Provided, That they renounce their oath of
allegiance to the country where they took that oath;
(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;
and
(5) That right to vote or be elected or appointed to
any public office in the Philippines cannot be
exercised by, or extended to, those who:
(a) are candidates for or are occupying any
public office in the country of which theyare
naturalized citizens; and/or
(b) are in active service as commissioned or
non commissioned officers in the armed
forces of the country which they are
naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and
Political Rights, to which the Philippines is a signatory,
acknowledges the existence of said right. Article 25(b) of
the Convention states: Article 25
Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in Article 2 and
without unreasonable restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections
which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free expression
of the will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on
Elections,35 the Court unequivocally referred to the right to
seek public elective office as a political right, to wit:
Stated differently, it is an additional qualification for
elective office specific only to Filipino citizens who re-
acquire their citizenship under Section 3 of R.A. No. 9225.
It is the operative act that restores their right to run for
public office. The petitioners failure to comply there with
in accordance with the exact tenor of the law, rendered
ineffectual the Declaration of Renunciation of Australian
Citizenship she executed on September 18, 2006. As
such, she is yet to regain her political right to seek elective
office. Unless she executes a sworn renunciation of her
Australian citizenship, she is ineligible to run for and hold
any elective office in the Philippines. (Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek
public elective office is unequivocally considered as a
political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President
Estrada admits no other interpretation other than to mean
that, upon acceptance of the pardon granted tohim, he
regained his FULL civil and political rights including the
right to seek elective office.
On the other hand, the theory of Risos-Vidal goes beyond
the plain meaning of said penal provisions; and prescribes
a formal requirement that is not only unnecessary but, if
insisted upon, could be in derogation of the constitutional
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
opinions in Monsanto v. Factoran, Jr.36 to justify her
argument that an absolute pardon must expressly state
that the right to hold public office has been restored, and
that the penalty of perpetual absolute disqualification has
been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced.
Although the learned views of Justices Teodoro R. Padilla
and Florentino P. Feliciano are to be respected, they do
not form partof the controlling doctrine nor to be
considered part of the law of the land. On the contrary, a
careful reading of the majority opinion in Monsanto,
penned by no less than Chief Justice Marcelo B. Fernan,
reveals no statement that denotes adherence to a
stringent and overly nuanced application of Articles 36 and
41 of the Revised Penal Code that will in effect require the
President to use a statutorily prescribed language in
extending executive clemency, even if the intent of the
President can otherwise be deduced from the text or words
used in the pardon. Furthermore, as explained above, the
pardon here is consistent with, and not contrary to, the
provisions of Articles 36 and 41.
The disqualification of former President Estrada under
Section 40 of the LGC in relation to Section 12 of the OEC
was removed by his acceptance of the absolute pardon
granted to him.
Section 40 of the LGC identifies who are disqualified from
running for any elective local position. Risos-Vidal argues
that former President Estrada is disqualified under item
(a), to wit:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years
after serving sentence[.] (Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar
prohibitions, but it provides for an exception, to wit:
Section 12. Disqualifications. x x x unless he has been
given plenary pardon or granted amnesty. (Emphasis
supplied.)
As earlier stated, Risos-Vidal maintains that former
President Estradas conviction for plunder disqualifies him
from running for the elective local position of Mayor of the
City of Manila under Section 40(a) of the LGC. However,
the subsequent absolute pardon granted to former
President Estrada effectively restored his right to seek
public elective office. This is made possible by reading
Section 40(a) of the LGC in relation to Section 12 of the
OEC.
While it may be apparent that the proscription in Section
40(a) of the LGC is worded in absolute terms, Section 12
of the OEC provides a legal escape from the prohibition
a plenary pardon or amnesty. In other words, the latter
provision allows any person who has been granted plenary
pardon or amnesty after conviction by final judgment of an
offense involving moral turpitude, inter alia, to run for and
hold any public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC
to candidates running for local elective positions is not
unprecedented. In Jalosjos, Jr. v. Commission on
Elections,37 the Court acknowledged the aforementioned
provision as one of the legal remedies that may be availed
of to disqualify a candidate in a local election filed any day
after the last day for filing of certificates of candidacy, but
not later than the date of proclamation.38 The pertinent
ruling in the Jalosjos case is quoted as follows:
What is indisputably clear is that false material
representation of Jalosjos is a ground for a petition under
Section 78. However, since the false material
representation arises from a crime penalized by prision
mayor, a petition under Section 12 ofthe Omnibus Election
Code or Section 40 of the Local Government Code can
also be properly filed. The petitioner has a choice whether
to anchor his petition on Section 12 or Section 78 of the
Omnibus Election Code, or on Section 40 of the Local
Government Code. The law expressly provides multiple
remedies and the choice of which remedy to adopt
belongs to petitioner.39 (Emphasis supplied.)
The third preambular clause of the pardon did not operate
to make the pardon conditional.
Contrary to Risos-Vidals declaration, the third preambular
clause of the pardon, i.e., "[w]hereas, Joseph Ejercito
Estrada has publicly committed to no longer seek any
elective position or office," neither makes the pardon
conditional, nor militate against the conclusion that former
President Estradas rights to suffrage and to seek public
elective office have been restored.
This is especially true as the pardon itself does not
explicitly impose a condition or limitation, considering the
unqualified use of the term "civil and political rights"as
being restored. Jurisprudence educates that a preamble is
not an essential part of an act as it is an introductory or
preparatory clause that explains the reasons for the
enactment, usually introduced by the word
"whereas."40 Whereas clauses do not form part of a statute
because, strictly speaking, they are not part of the
operative language of the statute.41 In this case, the
whereas clause at issue is not an integral part of the
decree of the pardon, and therefore, does not by itself
alone operate to make the pardon conditional or to make
its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the
pardon.
On this matter, the Court quotes with approval a relevant
excerpt of COMELEC Commissioner Maria Gracia
Padacas separate concurring opinion in the assailed April
1, 2013 Resolution of the COMELEC in SPA No. 13-211
(DC), which captured the essence of the legal effect of
preambular paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20
January 2010 Resolution did not conclude upon. Here,
Petitioner Risos-Vidal raised the same argument with
respect to the 3rd "whereas clause" or preambular
paragraph of the decree of pardon. It states that "Joseph
Ejercito Estrada has publicly committed to no longer seek
any elective position or office." On this contention, the
undersigned reiterates the ruling of the Commission that
the 3rd preambular paragraph does not have any legal or
binding effect on the absolute nature of the pardon
extended by former President Arroyo to herein
Respondent. This ruling is consistent with the traditional
and customary usage of preambular paragraphs. In the
case of Echegaray v. Secretary of Justice, the Supreme
Court ruled on the legal effect of preambular paragraphs
or whereas clauses on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law.
It is merely an introduction to show its intent or purposes.
It cannot be the origin of rights and obligations. Where the
meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation
much less prevail over its text.
If former President Arroyo intended for the pardon to be
conditional on Respondents promise never to seek a
public office again, the former ought to have explicitly
stated the same in the text of the pardon itself. Since
former President Arroyo did not make this an integral part
of the decree of pardon, the Commission is constrained to
rule that the 3rd preambular clause cannot be interpreted
as a condition to the pardon extended to former President
Estrada.42 (Emphasis supplied.)
Absent any contrary evidence, former President Arroyos
silence on former President Estradas decision torun for
President in the May 2010 elections against, among
others, the candidate of the political party of former
President Arroyo, after the latters receipt and acceptance
of the pardon speaks volume of her intention to restore him
to his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency
extended by the President is in issue, the Court must turn
to the only evidence available to it, and that is the pardon
itself. From a detailed review ofthe four corners of said
document, nothing therein gives an iota of intimation that
the third Whereas Clause is actually a limitation, proviso,
stipulation or condition on the grant of the pardon, such
that the breach of the mentioned commitment not to seek
public office will result ina revocation or cancellation of said
pardon. To the Court, what it is simply is a statement of
fact or the prevailing situation at the time the executive
clemency was granted. It was not used as a condition to
the efficacy orto delimit the scope of the pardon.
Even if the Court were to subscribe to the view that the
third Whereas Clausewas one of the reasons to grant the
pardon, the pardon itself does not provide for the attendant
consequence of the breach thereof. This Court will be hard
put to discern the resultant effect of an eventual
infringement. Just like it will be hard put to determine which
civil or political rights were restored if the Court were to
take the road suggested by Risos-Vidal that the statement
"[h]e is hereby restored to his civil and political rights"
excludes the restoration of former President Estradas
rights to suffrage and to hold public office. The
aforequoted text ofthe executive clemency granted does
not provide the Court with any guide asto how and where
to draw the line between the included and excluded
political rights.
Justice Leonen emphasizes the point that the ultimate
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
coverage of the pardon whether the pardon granted to
former President Estrada was so expansive as to have
restored all his political rights, inclusive of the rights of
suffrage and to hold public office. Justice Leonen is of the
view that the pardon in question is not absolute nor plenary
in scope despite the statement that former President
Estrada is "hereby restored to his civil and political rights,"
that is, the foregoing statement restored to former
President Estrada all his civil and political rights except the
rights denied to him by the unremitted penalty of perpetual
absolute disqualification made up of, among others, the
rights of suffrage and to hold public office. He adds that
had the President chosen to be so expansive as to include
the rights of suffrage and to hold public office, she should
have been more clear on her intentions.
However, the statement "[h]e is hereby restored to his civil
and political rights," to the mind of the Court, iscrystal clear
the pardon granted to former President Estrada was
absolute, meaning, it was not only unconditional, it was
unrestricted in scope, complete and plenary in character,
as the term "political rights"adverted to has a settled
meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that
the omission of the qualifying word "full" can be construed
as excluding the restoration of the rights of suffrage and to
hold public office. There appears to be no distinction as to
the coverage of the term "full political rights" and the term
"political rights" used alone without any qualification. How
to ascribe to the latter term the meaning that it is "partial"
and not "full" defies ones understanding. More so, it will
be extremely difficult to identify which of the political rights
are restored by the pardon, when the text of the latter is
silent on this matter. Exceptions to the grant of pardon
cannot be presumed from the absence of the qualifying
word "full" when the pardon restored the "political rights"
of former President Estrada without any exclusion or
reservation.
Therefore, there can be no other conclusion but to say that
the pardon granted to former President Estrada was
absolute in the absence of a clear, unequivocal and
concrete factual basis upon which to anchor or support the
Presidential intent to grant a limited pardon.
To reiterate, insofar as its coverageis concerned, the text
of the pardon can withstand close scrutiny even under the
provisions of Articles 36 and 41 of the Revised Penal
Code.
The COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the
assailed Resolutions.
In light of the foregoing, contrary to the assertions of Risos-
Vidal, the COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions.
The Court has consistently held that a petition for
certiorariagainst actions of the COMELEC is confined only
to instances of grave abuse of discretion amounting to
patentand substantial denial of due process, because the
COMELEC is presumed to be most competent in matters
falling within its domain.43
As settled in jurisprudence, grave abuse of discretion is
the arbitrary exercise of power due to passion, prejudice
or personal hostility; or the whimsical, arbitrary, or
capricious exercise of power that amounts to an evasion
or refusal to perform a positive duty enjoined by law or to
act at all in contemplation of law. For an act to be
condemned as having been done with grave abuse of
discretion, such an abuse must be patent and gross.44
The arguments forwarded by Risos-Vidal fail to adequately
demonstrate any factual or legal bases to prove that the
assailed COMELEC Resolutions were issued in a
"whimsical, arbitrary or capricious exercise of power that
amounts to an evasion orrefusal to perform a positive duty
enjoined by law" or were so "patent and gross" as to
constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court
finds it unnecessary to separately discuss Lim's petition-
in-intervention, which substantially presented the same
arguments as Risos-Vidal's petition.
WHEREFORE, the petition for certiorari and petition-
inintervention are DISMISSED. The Resolution dated April
1, 2013 of the Commission on Elections, Second Division,
and the Resolution dated April 23, 2013 of the
Commission on Elections, En bane, both in SPA No. 13-
211 (DC), are AFFIRMED.
SO ORDERED.
G.R. No. 202943, March 25, 2015
THE DEPARTMENT OF HEALTH, REPRESENTED BY
SECRETARY ENRIQUE T. ONA, AND THE FOOD AND
DRUG ADMINISTRATION (FORMERLY THE BUREAU
OF FOOD AND DRUGS), REPRESENTED BY
ASSISTANT SECRETARY OF HEALTH NICOLAS B.
LUTERO III, OFFICER-IN-
CHARGE, Petitioners, v. PHILIP MORRIS PHILIPPINES
MANUFACTURING, INC., Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision2 dated August 26, 2011 and the
Resolution3 dated August 3, 2012 rendered by the Court
of Appeals (CA) in CA-G.R. SP No. 109493, finding grave
abuse of discretion on the part of petitioners the
Department of Health (DOH) and the Food and Drug
Administration (FDA), then known as the Bureau of Food
and Drugs (BFAD), for denying respondent Philip Morris
Philippines Manufacturing, Inc.s (PMPMI) permit
applications for its tobacco sales promotions.
The Facts
On November 19, 2008, PMPMI, through the advertising
agency PCN Promopro, Inc. (PCN), by virtue of Article
1164 of Republic Act No. (RA) 73945 or the Consumer Act
of the Philippines, applied for a sales promotion permit
before the BFAD, now the FDA, for its Gear Up
Promotional Activity (Gear Up Promo).6 The application
included the mechanics for the promotional activity, as well
as relevant materials and fees.7
With more than fifteen (15) days lapsing without the BFAD
formally acting upon the application, PMPMI then inquired
about its status. However, PMPMI was only verbally
informed of the existence of a Memorandum issued by the
DOH purportedly prohibiting tobacco companies from
conducting any tobacco promotional activities in the
country. On January 8, 2009, PCN requested8 the BFAD
to formally place on record the lack of any formal action on
its Gear Up Promo application.9
Meanwhile, on November 28, 2008, PMPMI, through
another advertising agency, Arc Worldwide Philippines
Co. (AWPC), filed another application for a sales
promotional permit, this time for its Golden Stick
Promotional Activity (Golden Stick Promo) which the
BFAD, however, refused outright, pursuant to a directive
of the BFAD Director that all permit applications for
promotional activities of tobacco companies will no longer
be accepted. Despite inquiries, the BFAD merely advised
AWPC to await the formal written notice regarding its
application.10
Eventually, in a letter11 dated January 5, 2009, the BFAD,
through Director IV Leticia Barbara B. Gutierrez, M.S. (Dir.
Gutierrez), denied PMPMIs Gear Up Promo application in
accordance with the instructions of the Undersecretary of
Health for Standards and Regulations, directing that as of
July 1, 2008, all promotions, advertisements and/or
sponsorships of tobacco products are already prohibited,
based on the provisions of RA 921112 or the Tobacco
Regulation Act of 2003.13
On January 19, 2009, PMPMI filed an administrative
appeal14 before the DOH Secretary, assailing the BFADs
denial of its Gear Up Promo application, as well as its
refusal to accept the Golden Stick Promo application. In its
appeal, PMPMI maintained that under RA
9211, promotion is not prohibited but
merely restricted, and that while there are specific
provisions therein totally banning tobacco advertising and
sponsorships, no similar provision could be found
banning promotion.15 It likewise averred that it had
acquired a vested right over the granting of its sales
promotional permit applications, considering that the
BFAD has been granting such applications prior to
January 5, 2009. Finally, it insisted that the denial of its
promotional permit applications was tantamount to a
violation of its right to due process as well as their right to
property.16
The DOH Ruling
In a Consolidated Decision17 dated April 30, 2009, then
DOH Secretary Francisco T. Duque III (Sec. Duque)
denied PMPMIs appeal, as well as all other similar actions
filed by other tobacco companies and thereby affirmed the
action of the BFAD denying their sales promotional permit
applications, pursuant to the provisions of RA 9211.18
In denying PMPMIs and other tobacco companies
promotional applications, the DOH ruled that the issuance
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.
Moreover, previous approvals of sales promotional permit
applications made by the BFAD did not create a vested
right on the part of the tobacco companies to have all
applications approved.19
The DOH likewise ruled that the intent and purpose of RA
9211 was to completely ban tobacco
advertisements, promotions, and sponsorships, as
promotion is inherent in both advertising and sponsorship.
As such, if RA 9211 completely
prohibited advertisements and sponsorships, then it is
clear that promotion, which is necessarily included in both
activities, is likewise prohibited, explaining further that the
provisions of RA 9211 should not be interpreted in a way
as would render them ridiculous or meaningless.20
Lastly, the DOH cited the Philippines obligation to observe
the provisions of the Framework Convention on Tobacco
Control (FCTC), an international treaty, which has been
duly ratified and adopted by the country on June 6, 2005. 21
Aggrieved, PMPMI elevated the matter to the
CA via petition for certiorari and mandamus,22docketed
as CA G.R. SP No. 109493, ascribing grave abuse of
discretion upon the DOH in refusing to grant its sales
promotional permit applications, maintaining, inter alia,
that RA 9211 still allows promotion activities
notwithstanding the phase-out of advertising and
sponsorship activities after July 1, 2008.
The CA Ruling
In a Decision23 dated August 26, 2011, the CA granted the
petition and nullified the Consolidated Decision of the DOH
upon a finding that the provisions of RA 9211 were clear
when it
distinguished promotion from advertising and sponsorshi
p, so much so that while the latter two (2) activities were
completely banned as of July 1, 2008, the same does not
hold true with regard to promotion, which was
only restricted. The CA held that the DOH cannot
exercise carte blanche authority to deny PMPMIs
promotional permit applications, adding that [w]hen the
law is clear and free from any doubt or ambiguity, there is
no room for construction or interpretation, only for
application.24
Furthermore, it ruled that the DOH is bereft of any authority
to enforce the provisions of RA 9211, in view of the
creation of the Inter-Agency CommitteeTobacco (IAC-
Tobacco) under Section 29 of the said law, which shall
have the exclusive power and function to administer and
implement the provisions of [RA 9211] x x x.25 Thus, even
though PMPMI originally applied for sales promotional
permits under Article 116 in relation to Article 109 of RA
7394, from which the DOH derives its authority to regulate
tobacco sales promotions, the said provision has already
been repealed by Section 39 of RA 9211,26 which states:
Section 39. Repealing Clause. DOH Administrative
Orders No. 10[,] s. 1993 and No. 24[,] s. 2003 are hereby
repealed. Article 94 of Republic Act No. 7394, as
amended, otherwise known as the Consumer Act of the
Philippines, is hereby amended.
All other laws, decrees, ordinances, administrative orders,
rules and regulations, or any part thereof, which are
inconsistent with this Act are likewise repealed or
amended accordingly.
Hence, the CA ruled that the DOH wrongfully arrogated
unto itself the authority given to the IAC-Tobacco to
administer and implement the provisions of RA 9211,
which includes regulation of tobacco promotions.27
Dissatisfied, the DOH, through the Office of the Solicitor
General (OSG), moved for the reconsideration28 of the
said Decision, which the CA denied in a
Resolution29 dated August 3, 2012, hence, this petition.
The Issues Before the Court
The essential issues to be resolved are: (a) whether or not
the CA erred in finding that the authority of the DOH,
through the BFAD, to regulate tobacco sales promotions
under Article 116 in relation to Article 109 of RA 7394 had
already been impliedly repealed by RA 9211, which
created the IAC-Tobacco and granted upon it the
exclusive authority to administer and implement the
provisions thereof; and (b) whether or not the CA erred in
ascribing grave abuse of discretion upon the DOH when
the latter held that RA 9211 has also completely prohibited
tobacco promotions as of July 1, 2008.
The Courts Ruling
The petition is bereft of merit.
At the core of the present controversy are the pertinent
provisions of RA 7394, i.e., Article 116 in relation to Article
109, to wit:
Article 116. Permit to Conduct Promotion. No person
shall conduct any sales campaigns, including beauty
contest, national in character, sponsored and promoted by
manufacturing enterprises without first securing a
permit from the concerned department at least thirty
(30) calendar days prior to the commencement thereof.
Unless an objection or denial is received within fifteen (15)
days from filing of the application, the same shall be
deemed approved and the promotion campaign or activity
may be conducted: Provided, That any sales promotion
campaign using medical prescriptions or any part thereof
or attachment thereto for raffles or a promise of reward
shall not be allowed, nor a permit be issued therefor.
(Emphasis supplied)
Article 109. Implementing Agency. The Department of
Trade and Industry shall enforce the provisions of this
Chapter and its implementing rules and regulations:
Provided, That with respect to food, drugs, cosmetics,
devices, and hazardous substances, it shall be
enforced by the Department of Health. (Emphasis and
underscoring supplied)
The DOH derives its authority to rule upon applications
for sales promotion permits from the above-cited
provisions. On the other hand, Section 29 of RA 9211
creating the IAC-Tobacco provides:
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.
The IAC-Tobacco shall be chaired by the Secretary of the
Department of Trade and Industry (DTI) with the Secretary
of the Department of Health (DOH) as Vice Chairperson.
The IAC-Tobacco shall have the following as members:
a. Secretary of the Department of Agriculture
(DA);
b. Secretary of the Department of Justice
(DOJ);
c. Secretary of the Department of Finance
(DOF);
d. Secretary of the Department of Environment
and Natural Resources (DENR);
e. Secretary of the Department of Science and
Technology (DOST);
f. Secretary of the Department of Education
(DepEd);
g. Administrator of the National Tobacco
Administration (NTA);
h. A representative from the Tobacco Industry
to be nominated by the legitimate and
recognized associations of the industry; and
i. A representative from a nongovernment
organization (NGO) involved in public health
promotion nominated by DOH in
consultation with the concerned NGOs[.]
The Department Secretaries may designate their
Undersecretaries as their authorized representative to the
IAC. (Emphasis and underscoring supplied)
It is the CAs pronouncement that the creation of the IAC-
Tobacco effectively and impliedly repealed30 the above-
quoted provisions of RA 7394, thereby removing the
authority of the DOH to rule upon applications for sales
promotional permits filed by tobacco companies such as
those filed by PMPMI subject of this case.
On the other hand, while the DOH and the BFAD concede
that the creation of the IAC-Tobacco expressly grants
upon the IAC-Tobacco the exclusive power and function to
administer and implement its provisions, they nevertheless
maintain that RA 9211 did not remove their authority under
RA 7394 to regulate tobacco sales promotions.31 They
point out that this much can be deduced from the lack of
provisions in RA 9211 and its implementing rules laying
down the procedure for the processing of applications for
tobacco sales promotions permit.32 As such, the DOH,
through the BFAD, retains the authority to rule on PMPMIs
promotional permit applications.
The Court agrees with the CA.
After a meticulous examination of the above-quoted
pertinent provisions of RA 7394 and RA 9211, the Court
finds that the latter law impliedly repealed the relevant
provisions of the former with respect to the authority of the
DOH to regulate tobacco sales promotions.
At this point, the Court notes that both laws separately
treat promotion as one of the activities related to tobacco:
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
be activities that fall under sales promotion as
contemplated in the said provision, PMPMI filed its permit
applications under Article 116 of RA 7394 before the
BFAD.
Meanwhile, Section 4 (l) of RA 9211 defines promotion
as follows:
Section 4. Definition of Terms. As used in this Act:
The Court has judiciously scrutinized the above definitions
and finds that there is no substantial difference between
the activities that would fall under the purview of sales
promotion in RA 7394, as well as those under promotion
in RA 9211, as would warrant a delineation in the authority
to regulate its conduct. In fact, the techniques, activities,
and methods mentioned in the definition of sales
promotion can be subsumed under the more
comprehensive and broad scope of promotion.
In order to fully understand the depth and scope of these
marketing activities, the Court finds it necessary to go
beyond the ambit of the definitions provided in our laws.
Outside RA 7394, sales promotion refers to activities
which make use of media and non-media marketing
communication for a pre-determined, limited time to
increase consumer demand, stimulate market demand or
improve product availability,33 to provide added value or
incentives to consumers, wholesalers, retailers, or other
organizational customers to stimulate immediate sales
and product interest, trial, or purchase. 34 Examples of
devices used in sales promotion are contests, coupons,
freebies, point-of-purchase displays, premiums, raffle
prizes, product samples, sweepstakes, and rebates.35
On the other hand, promotion is a term frequently used
in marketing which pertains to raising customer
awareness of a product or brand, generating sales, and
creating brand loyalty36 which utilize the following
subcategories: personal selling, advertising, sales
promotion, direct marketing, and publicity.37 The three
basic objectives of promotion are: (1) to present
information to consumers as well as others; (2) to increase
demand; and (3) to differentiate a product.38 Promotion
can be done through various methods, e.g., internet
advertisements, special events, endorsements, incentives
in the purchase of a product like discounts (i.e., coupons),
free items, or contests.39
Consequently, if sales promotion is considered as one of
the subcategories of promotion, it is clear, therefore, that
promotion necessarily incorporates the activities that fall
under sales promotion. Considering that the common
and fundamental purpose of these marketing strategies is
to raise customer awareness in order to increase
consumer demand or sales, drawing a demarcation line
between promotion and sales promotion as two distinct
and separate activities would be unnecessarily stretching
their meanings and, accordingly, sow more confusion.
Moreover, the techniques, methods, and devices through
which sales promotion are usually accomplished can
likewise be considered as activities relating to promotion,
like raffle contests, which necessarily require prizes and
drawing of winners, discounts, and freebies.
Concomitantly, while the Court acknowledges the attempt
of the Department of Justice (DOJ), through its DOJ
Opinion No. 29, series of 2004,40 (DOJ Opinion) to
reconcile and harmonize the apparently conflicting
provisions of RA 7394 and RA 9211 in this respect, to the
Courts mind, it is more logical to conclude that sales
promotion and promotion are actually one and the
same. The DOJ, in fact, referred41 to product promotion
in RA 9211 as promotion per se which, therefore, can be
taken to mean an all-encompassing activity or marketing
strategy which may reasonably and logically include sales
promotion. Besides, the DOJ Opinion is merely
persuasive and not necessarily controlling.42
Furthermore, the declared policy of RA 9211 where
promotion is defined includes the institution of a
balanced policy whereby the use, sale and
advertisements of tobacco products shall be regulated in
order to promote a healthful environment and protect the
citizens from the hazards of tobacco smoke x x
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
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS
(DPWH), Respondents.
DECISION
BERSAMIN, J.:
The issue to be determined concerns the demand of the
petitioner to have access to the North Luzon Expressway
(NLEX) by way of an easement of right of way. The
demand was rebuffed by the respondents, and upheld by
both the trial and appellate courts.
The Case
On appeal by review on certiorari is the decision
promulgated on October 27, 2004,1 whereby the Court of
Appeals (CA) affirmed the dismissal of the petitioner's
complaint for specific performance by the Regional Trial
Court (RTC) in Malolos, Bulacan, Branch 7, through the
order issued on March 6, 2002.2
Antecedents
The petitioner owned a parcel of land located at the right
side of the Sta. Rita Exit of the NLEX situated at Barangay
Sta. Rita, Guiguinto, Bulacan and covered by Transfer
Certificate of Title (TCT) No. T-134222 in its name issued
by the Registry of Deeds of Bulacan.3 The parcel of land
was bounded by an access fence along the NLEX. In its
letter dated September 7, 2001,4 the petitioner requested
that respondent Toll Regulatory Board (TRB) grant an
easement of right of way, contending that it had been
totally deprived of the enjoyment and possession of its
property by the access fence that had barred its entry into
and exit from the NLEX. On September 26, 2001,
however, the TRB denied the petitioner's request,
explaining thusly:
It is with regret that we cannot favorably consider your
client's request at this point in time. Said request is
inconsistent with the provision of Section 7.0 of Republic
Act No. 2000, also known as the Limited Access Highway
Act. Moreover, allowing easement of right-of-way may
have detrimental/adverse effect on the scheduled
rehabilitation and improvement of the North Luzon
Expressway Interchanges, as well as on the operational
problems, i.e. traffic conflicts that may arise, if approved.5
Thereafter, the petitioner sued the TRB and Engr. Jaime
S. Dumlao, the TRB's Executive Director, in the
RTC,6demanding specific performance, the grant of the
easement of right of way and damages (Civil Case No. 37-
M-2002). The petitioner amended its complaint to implead
the Philippine National Construction Corporation (PNCC)
and the Department of Public Works and Highways
(DPWH) as indispensable parties.7
The petitioner alleged in its amended complaint that the
access fence had totally deprived it of the use and
enjoyment of its property by preventing ingress and egress
to its property; that the only access leading to its property
was the road network situated in front of its property; that
it was thereby deprived of its property without due process
of law and just compensation; and that it was also denied
equal protection of the law because adjacent property
owners had been given ingress and egress access to their
properties. It prayed that the RTC:
1. Immediately issue a writ of preliminary
injunction/temporary restraining order enjoining the
defendants, its agents and/or representatives from
depriving plaintiff to ingress and egress of its
property;
2. After due hearing:
a) Render the foregoing writ of preliminary
injunction perpetual;
b) Granting plaintiff a right of way;
c) Declare the condemnation of plaintiff's
property as null and void. Alternatively,
plaintiff prays that defendants be ordered to
pay plaintiff a just and fair compensation of
the latter's property in the amount of not less
than Four Thousand Pesos (Ps. 4,000.00)
per square meter;
d) To pay plaintiff the amount of THREE
HUNDRED THOUSAND PESOS (Ps.
300,000.00) and Ps. 5,000.00 per court
appearance by way of Attorney's fees;
e) To pay plaintiff Moral and Exemplary
Damages in the amount of Ps. 200,000.00;
and
f) To pay plaintiff the costs of suit.
Plaintiff further prays for such other reliefs and remedies
as may be deemed just and equitable under the premises.8
Appearing for the TRB, the Office of the Solicitor General
(OSG) filed a Motion to Dismiss with Opposition to the
Application for the Issuance of Temporary Restraining
Order and/or Writ of Preliminary Injunction based on the
following grounds:9
I.
THE HONORABLE COURT HAS NO JURISDICTION
OVER THE CASE
II.
THE PETITION ST A TES NO CAUSE OF ACTION
CONSIDERING THAT: A. PLAINTIFF IS NOT THE REAL
PARTY IN INTEREST B. EASEMENT WILL NOT LIE
BECAUSE THE LIMITED ACCESS TO THE NORTH
LUZON EXPRESSWAY IS ALLOWED UNDER
REPUBLIC ACT 2000 C. THE STATE CANNOT BE SUED
WITHOUT ITS CONSENT
III.
THE REQUISITES FOR THE ISSUANCE OF
TEMPORARY RESTRAINING ORDER AND/OR WRIT
OF INJUNCTION ARE NOT PRESENT
IV.
THE COMPLAINT HAS NO LEGAL BASIS, THE
PROPER REMEDY AVAILABLE IN THIS CASE IS NOT
COMPLAINT BUT A PETITION roR CERTIORARI
UNDER RULE 65 OF THE RULES OF COURT.
In its order dated March 6, 2002,10 the RTC granted the
motion to dismiss, observing as follows:
The present action against the defendants Toll Regulatory
Board and its Executive Director, Engr. Jaime S. Dumlao,
Jr., could be considered as a suit against the state without
its consent as among the reliefs prayed for in the complaint
is to require the said defendants to pay, jointly and
severally, a just and reasonable compensation of the
plaintiff's property which, if awarded in the judgment
against said defendants, would ultimately involve an
appropriation by the state of the amount needed to pay the
compensation and damages so awarded. Moreover, as
pointed out by the defendants-movants, defendant Jaime
S. Dumlao, Jr. is sued in his official capacity so that the
instant complaint against him is tantamount to a claim
against the state which cannot be sued without its consent.
This principle applies with equal force as regards new
defendant Department of Public Works and Highways
(DPWH).
Defendant Philippine National Construction Corporation
(PNCC), on the other hand, was impleaded as additional
defendant being the entity that operates the North Luzon
Expressway and was primarily responsible in depriving the
plaintiff of the use and enjoyment of its property by reason
of the construction of the access or right of way fence that
prevents ingress to and egress from the subject property,
considering further that the other defendants had refused
to grant plaintiff's request for an casement of right of way.
The main objective and prayer of the plaintiff is for this
court to issue a writ of injunction that will restrain the
defendants from depriving it of ingress and egress to its
property in question or to grant to it a right of way to its
property.
Suffice it to say that the main relief sought by the plaintiff
is beyond the jurisdiction of this court to grant as provided
for under Presidential Decree No. 1818 and Republic Act
No. 8975 which essentially prohibit the courts from issuing
temporary restraining orders and/or writs of injunction
against government infrastructure projects, and which
expressly declares any such TRO or writ of injunction void
under Section 3 of R.A. No. 8975.
In view of all the foregoing, the motion to dismiss is hereby
GRANTED.
WHEREFORE, the instant complaint is hereby
DISMISSED.
SO ORDERED.11
The petitioner sought reconsideration, but the R TC denied
its motion on July 25, 2002.12
The petitioner appealed.13
Judgment of the CA
On October 27, 2004, the CA promulgated its assailed
judgment, affirming the RTC's dismissal of the complaint,
to wit:
The law is clear. Plaintiff-appellant does not deny that the
NLEX is a limited access facility. Neither did it put forward
any reason why it should not be covered by the said law.
Plaintiff-appellant, therefore, cannot expect any court to
issue a decision in its favor in violation of an existing law.
The Court further notes that plaintiff-appellant skirted this
issue in its pleadings perhaps because it recognizes the
fact that its prayers in the complaint before the trial court
is in violation of the said law.
Moreover, as pointed out by defendants-appellees (Rollo,
p. 19 and 127-128), when plaintiff-appellant acquired the
property on December 14, 1999 (See: Records, p. 33), the
NLEX was already in existence and as a matter of fact
Entry No. 189568 in the title indicated that a portion of the
property was already sold to the Republic of the
Philippines (See: Dorsal portion, Records, p. 33). It is basic
that a person cannot demand an easement of right of way
if the isolation of the property was due to owner's own act
(Art. 649, NCC; Villanueva v Velasco, 346 SCRA
99[2000]). In the present case, when the plaintiff-appellant
bought the property in 1999, the NLEX was already in
existence and so was the access fence. In short, its
predecessors-in-interest allowed the property to be
isolated. Plaintiff-appellant is now bound by the acts of its
predecessors-in-interest.
Moreover, as admitted by plaintiff-appellant in its amended
complaint, there is a road network in front of the property
which serves as its access (Records, p. 28). It is settled
that to be able to demand a compulsory right of way, the
dominant estate must not have adequate access to a
public highway (Villanueva v Velasco, supra). Plaintiff
appellant did not complaint about the adequacy of the
existing road works.
Also, as pointed out by defendants-appellees, the action
below was one for specific performance which is proper
only in case of contractual breach. In the present case,
plaintiff-appellant cannot claim that defendants-appellees
committed a breach of contract because there is precisely
no contract between them.
As to the matter of non-suability, the Court notes that while
defendant-appellee PNCC is a government owned and
controlled corporation, the other defendants-appellees are
either agencies of the State (DPWH and TRB) or an
employee of a government agency. Plaintiff appellant
argued that the principle of non-suability of the state does
not apply when the government acted in a non-
governmental capacity. The Court, however, notes that
plaintiff-appellant merely cites cases to this effect but did
not put forward any argument why the maintenance of
NLEX should be considered as a non-governmental
function. It cannot be denied that the maintenance of the
highways is part of the necessary functions of the
government of maintaining public infrastructures.
Coming now to PNCC although it is not strictly a
government agency, its function is a necessary incident to
a government function and, hence, it should likewise enjoy
immunity from suit (See: Union Insurance Society qf
Canton, Ltd. v Republic of the Philippines, 46 SCRA 120
(1972]).
As to the assertion that no expropriation proceeding was
taken against the subject property, the Court agrees with
the PNCC that these arguments were not raised in the
Court below and, hence, is no longer proper at this stage.
Moreover, the Court notes that the proper party to
complain against the alleged lack of proper expropriation
proceeding is the previous owner, when portion of the
property was sold to the Republic of the Philippines in
1979.
WHEREFORE, the appealed Order dated March 6, 2002
of the Regional Trial Court of Malolos, Bulacan, Branch 7,
in Civil Case No. 37-M-2002 is hereby AFFIRMED.
SO ORDERED.14
Issues
The present appeal is anchored on the following grounds,
namely:
FIRST
THE DECISION OF THE COURT OF APPEALS IS
REPUGNANT TO THE DUE PROCESS AND EQUAL
PROTECTION CLAUSE ENSHRINED IN OUR
CONSTITUTION AND PREY AILING JURISPRUDENCE.
SECOND
THE COURT OF APPEALS COMMITTED A GRAVE
ABUSE OF DISCRETION IN DECLARING THAT ENTRY
NO. 189568 IN THE TITLE OF HEREIN PETITIONER
WAS ALREADY IN EXISTENCE WHICH SHOWED THAT
EVEN BEFORE THE ACQUISITION OF THE PROPERTY
IN 1999, THE NLEX WAS ALREADY IN EXISTENCE
AND SO WAS THE ACCESS FENCE. THUS, ITS
PREDECESSORS-IN-INTEREST ALLOWED THE
PROPERTY TO BE ISOLATED.
THIRD
THE COURT OF APPEALS SERIOUSLY ERRED IN
DECLARING THAT RESPONDENT PNCC, ALTHOUGH
NOT STRICTLY A GOVERNMENT AGENCY, SHOULD
LIKEWISE ENJOY IMMUNITY FROM SUIT.15
The foregoing grounds boil down to the issue of whether
Civil Case No. 37-M-2002 was properly dismissed.
Ruling
We concur with both lower courts.
In our view, the TRB, Dumlao and the DPWH correctly
invoked the doctrine of sovereign immunity in their favor.
The TRB and the DPWH performed purely or essentially
government or public functions. As such, they were
invested with the inherent power of sovereignty. Being
unincorporated agencies or entities of the National
Government, they could not be sued as such. On his part,
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
the doctrine of sovereign immunity in the following
manner:
An unincorporated government agency without any
separate juridical personality of its own enjoys immunity
from suit because it is invested with an inherent power of
sovereignty. Accordingly, a claim for damages against the
agency cannot prosper; otherwise, the doctrine of
sovereign immunity is violated. However, the need to
distinguish between an unincorporated government
agency performing governmental function and one
performing proprietary functions has arisen. The immunity
has been upheld in favor of the former because its function
is governmental or incidental to such function; it has not
been upheld in favor of the latter whose function was not
in pursuit of a necessary function of government but was
essentially a business. Nonetheless, the petitioner
properly argued that the PNCC, being a private business
entity, was not immune from suit. The PNCC was
incorporated in 1966 under its original name of
Construction Development Corporation of the Philippines
(CDCP) for a term of fifty years pursuant to the Corporation
Code.17 In 1983, the CDCP changed its corporate name to
the PNCC to reflect the extent of the Government's equity
investment in the company, a situation that came about
after the government financial institutions converted their
loans into equity following the CDCP's inability to pay the
loans.18 Hence, the Government owned 90.3% of the
equity of the PNCC, and only 9.70% of the PNCC's voting
equity remained under private ownership.19 Although the
majority or controlling shares of the PNCC belonged to the
Government, the PNCC was essentially a private
corporation due to its having been created in accordance
with the Corporation Code, the general corporation
statute.20 More specifically, the PNCC was an acquired
asset corporation under Administrative Order No. 59, and
was subject to the regulation and jurisdiction of the
Securities and Exchange Commission.21Consequently,
the doctrine of sovereign immunity had no application to
the PNCC.
The foregoing conclusion as to the PNCC notwithstanding,
the Court affirms the dismissal of the complaint due to lack
of jurisdiction and due to lack of cause of action.
It appears that the petitioner's complaint principally sought
to restrain the respondents from implementing an access
fence on its property, and to direct them to grant it a right
of way to the NLEX. Clearly, the reliefs being sought by
the petitioner were beyond the jurisdiction of the RTC
because no court except the Supreme Court could issue
an injunction against an infrastructure project of the
Government. This is because Presidential Decree No.
1818, issued on January 16, 1981, prohibited judges from
issuing restraining orders against government
infrastructure projects, stating in its sole provision: "No
court in the Philippines shall have jurisdiction to issue any
restraining order, preliminary injunction or preliminary
order, preliminary mandatory injunction in any case,
dispute or controversy involving an infrastructure project."
Presidential Decree No. 1818 was amended by Republic
Act No. 8975,22 approved on November 7, 2000, whose
pertinent parts provide:
Section 3. Prohibition on the Issuance of Temporary
Restrainin;; Orders, Preliminary Injunctions and
Preliminary Mandatory Injunctions.-No court, except the
Supreme Court, shall issue any temporary restraining
order, preliminary injunction or preliminary mandatory
injunction against the government, or any of its
subdivisions, officials or any person or entity, whether
public or private, acting under the government's direction,
to restrain, prohibit or compel the following acts:
(a) Acquisition, clearance and development of the
right-of-way and/or site or location of any national
government project;
(b) Bidding or awarding of contract/project of the
national government as defined under Section 2
hereof;
(c) Commencement, prosecution, execution,
implementation, operation of any such contract or
project;
(d) Termination or rescission of any such
contract/project; and
(e) The undertaking or authorization of any other
lawful activity necessary for such contract/project.
This prohibition shall apply in all cases, disputes or
controversies instituted by a private party, including but not
limited to cases filed by bidders or those claiming to have
rights through such bidders involving such
contract/project. This prohibition shall not apply when the
matter is of extreme urgency involving a constitutional
issue, such that unless a temporary restraining order is
issued, grave injustice and irreparable injury will arise. The
applicant shall file a bond, in an amount to be fixed by the
court, which bond shall accrue in favor of the government
if the court should finally decide that the applicant was not
entitled to the relief sought.
If after due hearing the court finds that the award of the
contract is null and void, the court may, if appropriate
under the circumstances, award the contract to the
qualified and winning bidder or order a rebidding of the
same, without prejudice to any liability that the guilty party
may incur under existing laws.
Section 4. Nullity of Writs and Orders.-Any temporary
restraining order, preliminary injunction or preliminary
mandatory injunction issued in violation of Section 3
hereof is void and of no force and effect.
Section 5. Designation of Regional Trial Courts.-The
Supreme Court may designate regional trial courts to act
as commissioners with the sole function of receiving facts
of the case involving acquisition, clearance and
development of right-of-way for government infrastructure
projects. The designated regional trial comt shall within
thirty (30) days from the date of receipt of the referral,
forward its findings of facts to the Supreme Court for
appropriate action. x x x
As to what was embraced by the term infrastructure project
as used in Presidential Decree No. 1818, the Court has
ruled in Francisco, Jr. v. UEMMARA Philippines
Corporation:23
PD 1818 proscribes the issuance of a writ of preliminary
injunction in any case involving an infrastructure project of
the government. The aim of the prohibition, as expressed
in its second whereas clause, is to prevent delay in the
implementation or execution of government infrastructure
projects (particularly through the use of provisional
remedies) to the detriment of the greater good since it
disrupts the pursuit of essential government projects and
frustrates the economic development effort of the nation.
Petitioner argues that the collection of toll fees is not an
infrastructure project of the government. He cites the
definition of "infrastructure projects" we used in Republic
v. Silerio: The term "infrastructure projects" means
"construction, improvement and rehabilitation of roads,
and bridges, railways, airports, seaports, communication
facilities, irrigation, flood control and drainage, water
supply and sewage systems, shore protection, power
facilities, national buildings, school buildings, hospital
buildings, and other related construction projects that form
part of the government capital investment."
xxxx
The definition of infrastructure projects specifically
includes the improvement and rehabilitation of roads and
not just its construction. Accordingly, even if the Coastal
Road was merely upgraded and not constructed from
scratch, it is still covered by the definition. Moreover, PD
1818 itself states that any person, entity or governmental
official cannot be prohibited from continuing the execution
or implementation of such project or pursuing any lawful
activity necessary for such execution or implementation.
Undeniably, the collection of toll fees is part of the
execution or implementation of the MCTEP as agreed
upon in the TOA. The TOA is valid since it has not been
nullified. Thus it is a legitimate source of rights and
obligations. It has the force and effect of law between the
contracting parties and is entitled to recognition by this
Court. The MCTEP is an infrastructure project of the
government forming part of the government capital
investment considering that under the TOA, the
government owns the expressways comprising the
project. (Emphasis supplied.)
There can be no question that the respondents'
maintenance of safety measures, including the
establishment of the access fence along the NLEX, was a
component of the continuous improvement and
development of the NLEX. Consequently, the lower courts
could not validly restrain the implementation of the access
fence by granting the petitioner its right of way without
exceeding its jurisdiction.
Nor did the establishment of the access fence violate the
petitioner's constitutional and legal rights.
It is relevant to mention that the access fence was put up
pursuant to Republic Act No. 2000 (Limited Access
Highway Act), the enforcement of which was under the
authority of the DOTC. Clarifying the DOTC's jurisdiction
under this law in Mirasol v. Department of Public Works
and Highways,24 the Court has said
RA 2000, otherwise known as the Limited Access Highway
Act, was approved on 22 June 1957. Section 4 of RA 2000
provides that "[t]he Department of Public Works and
Communications is authorized to do so design any limited
access facility and to so regulate, restrict, or prohibit
access as to best serve the traffic for which such facility is
intended." The RTC construed this authorization to
regulate, restrict, or prohibit access to limited access
facilities to apply to the Department of Public Works and
Highways (DPWH).
The RTC's ruling is based on a wrong premise. The RTC
assumed that the DPWH derived its authority from its
predecessor, the Department of Public Works and
Communications, which is expressly authorized to
regulate, restrict, or prohibit access to limited access
facilities under Section 4 of RA 2000. However, such
assumption fails to consider the evolution of the
Department of Public Works and Communications.
xxxx
Upon the ratification of the 1987 Constitution in February
1987, the former Ministry of Public Works and Highways
became the Department of Public Works and Highways
(DPWH) and the former Ministry of Transportation and
Communications became the Department of
Transportation and Communications (DOTC).
DPWH issued DO 74 and DO 215 declaring certain
expressways as limited access facilities on 5 April 1993
and 25 June 1998, respectively. Later, the TRB, under the
DPWH, issued the Revised Rules and Regulations on
Limited Access Facilities. However, on 23 July 1979, long
before these department orders and regulations were
issued, the Ministry of Public Works, Transportation and
Communications was divided into two agencies - the
Ministry of Public Works and the Ministry of Transportation
and Communications - by virtue of EO 546. The question
is, which of these two agencies is now authorized to
regulate, restrict, or prohibit access to limited access
facilities?
Under Section 1 of EO 546, the Ministry of Public Works
(now DPWH) assumed the public works functions of the
Ministry of Public Works, Transportation and
Communications. On the other hand, among the functions
of the Ministry of Transportation and Communications
(now Department of Transportation and Communications
[DOTC]) were to (1) formulate and recommend national
policies and guidelines for the preparation and
implementation of an integrated and comprehensive
transportation and communications systems at the
national, regional, and local levels; and (2) regulate,
whenever necessary, activities relative to transportation
and communications and prescribe and collect fees in the
exercise of such power. Clearly, under EO 546, it is the
DOTC, not the DPWH, which has authority to regulate,
restrict, or prohibit access to limited access facilities.
Even under Executive Order No. 125 (EO 125) and
Executive Order No. 125-A (EO 125-A), which further
reorganized the DOTC, the authority to administer and
enforce all laws, rules and regulations relative to
transportation is clearly with the DOTC.
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
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES
(IBP), Petitioner,
vs.
SECRETARY FLORENCIO B. ABAD OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT
(DBM), Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP
REUBEN M. ABANTE AND REV. JOSE L.
GONZALEZ,Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE
SENATE OF THE PHILIPPINES, REPRESENTED BY
SENATE PRESIDENT FRANKLIN M. DRILON; THE
HOUSE OF REPRESENTATIVES, REPRESENTED BY
SPEAKER FELICIANO BELMONTE, JR.; THE
EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.; THE
DEPARTMENT OF BUDGET AND MANAGEMENT,
REPRESENTED BY SECRETARY FLORENCIO ABAD;
THE DEPARTMENT OF FINANCE, REPRESENTED BY
SECRETARY CESAR V. PURISIMA; AND THE
BUREAU OF TREASURY, REPRESENTED BY
ROSALIA V. DE LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE), REPRESENTED BY ITS 1ST VICE
PRESIDENT, SANTIAGO DASMARINAS, JR.;
ROSALINDA NARTATES, FOR HERSELF AND AS
NATIONAL PRESIDENT OF THE CONSOLIDATED
UNION OF EMPLOYEES NATIONAL HOUSING
AUTHORITY (CUE-NHA); MANUEL BACLAGON, FOR
HIMSELF AND AS PRESIDENT OF THE SOCIAL
WELFARE EMPLOYEES ASSOCIATION OF THE
PHILIPPINES, DEPARTMENT OF SOCIAL WELFARE
AND DEVELOPMENT CENTRAL OFFICE (SWEAP-
DSWD CO); ANTONIA PASCUAL, FOR HERSELF AND
AS NATIONAL PRESIDENT OF THE DEPARTMENT OF
AGRARIAN REFORM EMPLOYEES ASSOCIATION
(DAREA); ALBERT MAGALANG, FOR HIMSELF AND
AS PRESIDENT OF THE ENVIRONMENT AND
MANAGEMENT BUREAU EMPLOYEES UNION
(EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND
AS PRESIDENT OF THE KAPISANAN PARA SA
KAGALINGAN NG MGA KAW ANI NG MMDA (KKK-
MMDA),Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES; PAQUITO OCHOA,
JR., EXECUTIVE SECRETARY; AND HON.
FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x 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
to the mandate of this law. Expediency must not be
allowed to sap its strength nor greed for power debase its
rectitude.1
Before the Court are the Motion for Reconsideration2 filed
by the respondents, and the Motion for Partial
Reconsideration3 filed by the petitioners in G.R. No.
209442.
III
PETITIONERS HAVE NEITHER BEEN INJURED NOR
THREATENED WITH INJURY AS A RESULT OF THE
OPERATION OF THE DAP AND THEREFORE SHOULD
HAVE BEEN HELD TO HAVE NO STANDING TO BRING
THESE SUITS FOR CERTIORARI AND PROHIBITION
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
We deny the motion for reconsideration of the petitioners
in G.R. No. 209442, and partially grant the motion for
reconsideration of the respondents.
The procedural challenges raised by the respondents,
being a mere rehash of their earlier arguments herein, are
dismissed for being already passed upon in the assailed
decision.
As to the substantive challenges, the Court discerns that
the grounds are also reiterations of the arguments that
were already thoroughly discussed and passed upon in
the assailed decision. However, certain declarations in our
July 1, 2014 Decision are modified in order to clarify
certain matters and dispel further uncertainty.
1.
The Courts power of judicial review
The respondents argue that the Executive has not violated
the GAA because savings as a conceptis an ordinary
species of interpretation that calls for legislative, instead of
judicial, determination.11
This argument cannot stand.
The consolidated petitions distinctly raised the question of
the constitutionality of the acts and practices under the
DAP, particularly their non-conformity with Section 25(5),
Article VI of the Constitution and the principles of
separation of power and equal protection. Hence, the
matter is still entirely within the Courts competence, and
its determination does not pertain to Congress to the
exclusion of the Court. Indeed, the interpretation of the
GAA and its definition of savings is a foremost judicial
function. This is because the power of judicial review
vested in the Court is exclusive. As clarified in Endencia
and Jugo v. David:12
Under our system of constitutional government, the
Legislative department is assigned the power to make and
enact laws. The Executive department is charged with the
execution of carrying out of the provisions of said laws. But
the interpretation and application of said laws belong
exclusively to the Judicial department. And this authority
to interpret and apply the laws extends to the Constitution.
Before the courts can determine whether a law is
constitutional or not, it will have to interpret and ascertain
the meaning not only of said law, but also of the pertinent
portion of the Constitution in order to decide whether there
is a conflict between the two, because if there is, then the
law will have to give way and has to be declared invalid
and unconstitutional.
xxxx
We have already said that the Legislature under our form
of government is assigned the task and the power to make
and enact laws, but not to interpret them. This is more true
with regard to the interpretation of the basic law, the
Constitution, which is not within the sphere of the
Legislative department. If the Legislature may declare
what a law means, or what a specific portion of the
Constitution means, especially after the courts have in
actual case ascertain its meaning by interpretation and
applied it in a decision, this would surely cause confusion
and instability in judicial processes and court decisions.
Under such a system, a final court determination of a case
based on a judicial interpretation of the law of the
Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the
Constitution by the Legislative department. That would be
neither wise nor desirable, besides being clearly violative
of the fundamental, principles of our constitutional system
of government, particularly those governing the separation
of powers.13
The respondents cannot also ignore the glaring fact that
the petitions primarily and significantly alleged grave
abuse of discretion on the part of the Executive in the
implementation of the DAP. The resolution of the petitions
thus demanded the exercise by the Court of its
aforedescribed power of judicial review as mandated by
the Constitution.
2.
Strict construction on the accumulation and utilization of
savings
The decision of the Court has underscored that the
exercise of the power to augment shall be strictly
construed by virtue of its being an exception to the general
rule that the funding of PAPs shall be limited to the amount
fixed by Congress for the purpose.14 Necessarily, savings,
their utilization and their management will also be strictly
construed against expanding the scope of the power to
augment.15 Such a strict interpretation is essential in order
to keep the Executive and other budget implementors
within the limits of their prerogatives during budget
execution, and to prevent them from unduly transgressing
Congress power of the purse.16 Hence, regardless of the
perceived beneficial purposes of the DAP, and regardless
of whether the DAP is viewed as an effective tool of
stimulating the national economy, the acts and practices
under the DAP and the relevant provisions of NBC No. 541
cited in the Decision should remain illegal and
unconstitutional as long as the funds used to finance the
projects mentioned therein are sourced from savings that
deviated from the relevant provisions of the GAA, as well
as the limitation on the power to augment under Section
25(5), Article VI of the Constitution. In a society governed
by laws, even the best intentions must come within the
parameters defined and set by the Constitution and the
law. Laudable purposes must be carried out through legal
methods.17
Respondents contend, however, that withdrawn
unobligated allotments and unreleased appropriations
under the DAP are savings that may be used for
augmentation, and that the withdrawal of unobligated
allotments were made pursuant to Section 38 Chapter 5,
Book VI of the Administrative Code;18 that Section 38 and
Section 39, Chapter 5, Book VI of the Administrative Code
are consistent with Section 25(5), Article VI of the
Constitution, which, taken together, constitute "a
framework for which economic managers of the nation
may pull various levers in the form of authorization from
Congress to efficiently steer the economy towards the
specific and general purposes of the GAA;" 19 and that the
Presidents augmentation of deficient items is in
accordance with the standing authority issued by
Congress through Section 39.
Section 25(5), Article VI of the Constitution states:
Section 25. x x x x x x x
5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the President of
the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for
their respective offices from savings in other items of their
respective appropriations.
xxxx
Section 38 and Section 39, Chapter 5, Book VI of the
Administrative Code provide:
Section 38. Suspension of Expenditure of Appropriations.
- Except as otherwise provided in the General
Appropriations Act and whenever in his judgment the
public interest so requires, the President, upon notice to
the head of office concerned, is authorized to suspend or
otherwise stop further expenditure of funds allotted for any
agency, or any other expenditure authorized in the
General Appropriations Act, except for personal services
appropriations used for permanent officials and
employees.
Section 39. Authority to Use Savings in Appropriations to
Cover Deficits.Except as otherwise provided in the
General Appropriations Act, any savings in the regular
appropriations authorized in the General Appropriations
Act for programs and projects of any department, office or
agency, may, with the approval of the President, be used
to cover a deficit in any other item of the regular
appropriations: Provided, that the creation of new
positions or increase of salaries shall not be allowed to be
funded from budgetary savings except when specifically
authorized by law: Provided, further, that whenever
authorized positions are transferred from one program or
project to another within the same department, office or
agency, the corresponding amounts appropriated for
personal services are also deemed transferred, without,
however increasing the total outlay for personal services
of the department, office or agency concerned. (Bold
underscoring supplied for emphasis)
In the Decision, we said that:
Unobligated allotments, on the other hand, were
encompassed by the first part of the definition of "savings"
in the GAA, that is, as "portions or balances of any
programmed appropriation in this Act free from any
obligation or encumbrance." But the first part of the
definition was further qualified by the three enumerated
instances of when savings would be realized. As such,
unobligated allotments could not be indiscriminately
declared as savings without first determining whether any
of the three instances existed. This signified that the
DBMs withdrawal of unobligated allotments had
disregarded the definition of savings under the GAAs.
xxxx
The respondents rely on Section 38, Chapter 5, Book VI
of the Administrative Code of 1987 to justify the withdrawal
of unobligated allotments. But the provision authorized
only the suspension or stoppage of further expenditures,
not the withdrawal of unobligated allotments, to wit:
xxxx
Moreover, the DBM did not suspend or stop further
expenditures in accordance with Section 38, supra, but
instead transferred the funds to other PAPs.20
We now clarify.
Section 38 refers to the authority of the President "to
suspend or otherwise stop further expenditure of funds
allotted for any agency, or any other expenditure
authorized in the General Appropriations Act." When the
President suspends or stops expenditure of funds, savings
are not automatically generated until it has been
established that such funds or appropriations are free from
any obligation or encumbrance, and that the work, activity
or purpose for which the appropriation is authorized has
been completed, discontinued or abandoned.
It is necessary to reiterate that under Section 5.7 of NBC
No. 541, the withdrawn unobligated allotments may be:
5.7.1 Reissued for the original programs and projects of
the agencies/OUs concerned, from which the allotments
were withdrawn;
5.7.2 Realigned to cover additional funding for other
existing programs and projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of
any agency and to fund priority programs and projects not
considered in the 2012 budget but expected to be started
or implemented during the current year.
Although the withdrawal of unobligated allotments may
have effectively resulted in the suspension or stoppage of
expenditures through the issuance of negative Special
Allotment Release Orders (SARO), the reissuance of
withdrawn allotments to the original programs and projects
is a clear indication that the program or project from which
the allotments were withdrawn has not been discontinued
or abandoned. Consequently, as we have pointed out in
the Decision, "the purpose for which the withdrawn funds
had been appropriated was not yet fulfilled, or did not yet
cease to exist, rendering the declaration of the funds as
savings impossible."21 In this regard, the withdrawal and
transfer of unobligated allotments remain unconstitutional.
But then, whether the withdrawn allotments have actually
been reissued to their original programs or projects is a
factual matter determinable by the proper tribunal.
Also, withdrawals of unobligated allotments pursuant to
NBC No. 541 which shortened the availability of
appropriations for MOOE and capital outlays, and those
which were transferred to PAPs that were not determined
to be deficient, are still constitutionally infirm and invalid.
At this point, it is likewise important to underscore that the
reversion to the General Fund of unexpended balances of
appropriations savings included pursuant to Section 28
Chapter IV, Book VI of the Administrative Code22 does not
apply to the Constitutional Fiscal Autonomy Group
(CFAG), which include the Judiciary, Civil Service
Commission, Commission on Audit, Commission on
Elections, Commission on Human Rights, and the Office
of the Ombudsman. The reason for this is that the fiscal
autonomy enjoyed by the CFAG
x x x contemplates a guarantee of full flexibility to allocate
and utilize their resources with the wisdom and dispatch
that their needs require. It recognizes the power and
authority to levy, assess and collect fees, fix rates of
compensation not exceeding the highest rates authorized
by law for compensation and pay plans of the government
and allocate and disburse such sums as may be provided
by law or prescribed by them in the course of the discharge
of their functions.
Fiscal autonomy means freedom from outside control. If
the Supreme Court says it needs 100 typewriters but DBM
rules we need only 10 typewriters and sends its
recommendations to Congress without even informing us,
the autonomy given by the Constitution becomes an empty
and illusory platitude.
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize
the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only of the express
mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of
powers upon which the entire fabric of our constitutional
system is based. x x x23
On the other hand, Section 39 is evidently in conflict with
the plain text of Section 25(5), Article VI of the Constitution
because it allows the President to approve the use of any
savings in the regular appropriations authorized in the
GAA for programs and projects of any department, office
or agency to cover a deficit in any other item of the regular
appropriations. As such, Section 39 violates the mandate
of Section 25(5) because the latter expressly limits the
authority of the President to augment an item in the GAA
to only those in his own Department out of the savings in
other items of his own Departments appropriations.
Accordingly, Section 39 cannot serve as a valid authority
to justify cross-border transfers under the DAP.
Augmentations under the DAP which are made by the
Executive within its department shall, however, remain
valid so long as the requisites under Section 25(5) are
complied with.
In this connection, the respondents must always be
reminded that the Constitution is the basic law to which all
laws must conform. No act that conflicts with the
Constitution can be valid.24 In Mutuc v. Commission on
Elections,25therefore, we have emphasized the
importance of recognizing and bowing to the supremacy of
the Constitution:
x x x The concept of the Constitution as the fundamental
law, setting forth the criterion for the validity of any public
act whether proceeding from the highest official or the
lowest functionary, is a postulate of our system of
government. That is to manifest fealty to the rule of law,
with priority accorded to that which occupies the topmost
rung in the legal hierarchy. The three departments of
government in the discharge of the functions with which it
is [sic] entrusted have no choice but to yield obedience to
its commands. Whatever limits it imposes must be
observed. Congress in the enactment of statutes must
ever be on guard lest the restrictions on its authority,
whether substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore or
disregard what it ordains. In its task of applying the law to
the facts as found in deciding cases, the judiciary is called
upon to maintain inviolate what is decreed by the
fundamental law. Even its power of judicial review to pass
upon the validity of the acts of the coordinate branches in
the course of adjudication is a logical corollary of this basic
principle that the Constitution is paramount. It overrides
any governmental measure that fails to live up to its
mandates. Thereby there is a recognition of its being the
supreme law.
Also, in Biraogo v. Philippine Truth Commission of
2010,26 we have reminded that: The role of the
Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government
are established, limited and defined, and by which these
powers are distributed among the several departments.
The Constitution is the basic and paramount law to which
all other laws must conform and to which all persons,
including the highest officials of the land, must defer.
Constitutional doctrines must remain steadfast no matter
what may be the tides of time. It cannot be simply made to
sway and accommodate the call of situations and much
more tailor itself to the whims and caprices of government
and the people who run it.27
3.
The power to augment cannot be used to fund non-
existent provisions in the GAA
The respondents posit that the Court has erroneously
invalidated all the DAP-funded projects by overlooking the
difference between an item and an allotment class, and by
concluding that they do not have appropriation cover; and
that such error may induce Congress and the Executive
(through the DBM) to ensure that all items should have at
least P1 funding in order to allow augmentation by the
President.28
At the outset, we allay the respondents apprehension
regarding the validity of the DAP funded projects. It is to
be emphatically indicated that the Decision did not declare
the en masse invalidation of the 116 DAP-funded projects.
To be sure, the Court recognized the encouraging effects
of the DAP on the countrys economy,29 and
acknowledged its laudable purposes, most especially
those directed towards infrastructure development and
efficient delivery of basic social services.30 It bears
repeating that the DAP is a policy instrument that the
Executive, by its own prerogative, may utilize to spur
economic growth and development.
Nonetheless, the Decision did find doubtful those projects
that appeared to have no appropriation cover under the
relevant GAAs on the basis that: (1) the DAP funded
projects that originally did not contain any appropriation for
some of the expense categories (personnel, MOOE and
capital outlay); and (2) the appropriation code and the
particulars appearing in the SARO did not correspond with
the program specified in the GAA. The respondents
assert, however, that there is no constitutional requirement
for Congress to create allotment classes within an item.
What is required is for Congress to create items to comply
with the line-item veto of the President.31
After a careful reexamination of existing laws and
jurisprudence, we find merit in the respondents argument.
Indeed, Section 25(5) of the 1987 Constitution mentions of
the term item that may be the object of augmentation by
the President, the Senate President, the Speaker of the
House, the Chief Justice, and the heads of the
Constitutional Commissions. In Belgica v. Ochoa,32 we
said that an item that is the distinct and several part of the
appropriation bill, in line with the item-veto power of the
President, must contain "specific appropriations of money"
and not be only general provisions, thus:
For the President to exercise his item-veto power, it
necessarily follows that there exists a proper "item" which
may be the object of the veto. An item, as defined in the
field of appropriations, pertains to "the particulars, the
details, the distinct and severable parts of the
appropriation or of the bill." In the case of Bengzon v.
Secretary of Justice of the Philippine Islands, the US
Supreme Court characterized an item of appropriation as
follows:
An item of an appropriation bill obviously means an item
which, in itself, is a specific appropriation of money, not
some general provision of law which happens to be put
into an appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation
bill, to ensure that the President may be able to exercise
his power of item veto, must contain "specific
appropriations of money" and notonly "general provisions"
which provide for parameters of appropriation.
Further, it is significant to point out that an item of
appropriation must be an item characterized by singular
correspondence meaning an allocation of a specified
singular amount for a specified singular purpose,
otherwise known as a "line-item." This treatment not only
allows the item to be consistent with its definition as a
"specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the
foregoing formulation, the existing Calamity Fund,
Contingent Fund and the Intelligence Fund, being
appropriations which state a specified amount for a
specific purpose, would then be considered as "line-item"
appropriations which are rightfully subject to item veto.
Likewise, it must be observed that an appropriation may
be validly apportioned into component percentages or
values; however, it is crucial that each percentage or value
must be allocated for its own corresponding purpose for
such component to be considered as a proper line-item.
Moreover, as Justice Carpio correctly pointed out, a valid
appropriation may even have several related purposes
that are by accounting and budgeting practice considered
as one purpose, e.g., MOOE (maintenance and other
operating expenses), in which case the related purposes
shall be deemed sufficiently specific for the exercise of the
Presidents item veto power. Finally, special purpose
funds and discretionary funds would equally square with
the constitutional mechanism of item-veto for as long as
they follow the rule on singular correspondence as herein
discussed. x x x (Emphasis supplied)33
Accordingly, the item referred to by Section 25(5) of the
Constitution is the last and indivisible purpose of a
program in the appropriation law, which is distinct from the
expense category or allotment class. There is no
specificity, indeed, either in the Constitution or in the
relevant GAAs that the object of augmentation should be
the expense category or allotment class. In the same vein,
the President cannot exercise his veto power over an
expense category; he may only veto the item to which that
expense category belongs to.
Further, in Nazareth v. Villar,34 we clarified that there must
be an existing item, project or activity, purpose or object of
expenditure with an appropriation to which savings may be
transferred for the purpose of augmentation. Accordingly,
so long as there is an item in the GAA for which Congress
had set aside a specified amount of public fund, savings
may be transferred thereto for augmentation purposes.
This interpretation is consistent not only with the
Constitution and the GAAs, but also with the degree of
flexibility allowed to the Executive during budget execution
in responding to unforeseeable contingencies.
Nonetheless, this modified interpretation does not take
away the cave at that only DAP projects found in the
appropriate GAAs may be the subject of augmentation by
legally accumulated savings. Whether or not the 116 DAP-
funded projects had appropriation cover and were validly
augmented require factual determination that is not within
the scope of the present consolidated petitions under Rule
65.
4.
Cross-border transfers are constitutionally impermissible
The respondents assail the pronouncement of
unconstitutionality of cross-border transfers made by the
President. They submit that Section 25(5), Article VI of the
Constitution prohibits only the transfer of appropriation, not
savings. They relate that cross-border transfers have been
the practice in the past, being consistent with the
Presidents role as the Chief Executive.35
In view of the clarity of the text of Section 25(5), however,
the Court stands by its pronouncement, and will not brook
any strained interpretations.
5.
Unprogrammed funds may only be released upon proof
that the total revenues exceeded the target
Based on the 2011, 2012 and 2013 GAAs, the
respondents contend that each source of revenue in the
budget proposal must exceed the respective target to
authorize release of unprogrammed funds. Accordingly,
the Courts ruling thereon nullified the intention of the
authors of the unprogrammed fund, and renders useless
the special provisions in the relevant GAAs.36
The respondents contentions are without merit.
To recall, the respondents justified the use of
unprogrammed funds by submitting certifications from the
Bureau of Treasury and the Department of Finance (DOF)
regarding the dividends derived from the shares of stock
held by the Government in government-owned and
controlled corporations.37 In the decision, the Court has
held that the requirement under the relevant GAAs should
be construed in light of the purpose for which the
unprogrammed funds were denominated as "standby
appropriations." Hence, revenue targets should be
considered as a whole, not individually; otherwise, we
would be dealing with artificial revenue surpluses. We
have even cautioned that the release of unprogrammed
funds based on the respondents position could be
unsound fiscal management for disregarding the budget
plan and fostering budget deficits, contrary to the
Governments surplus budget policy.38
While we maintain the position that aggregate revenue
collection must first exceed aggregate revenue target as a
pre-requisite to the use of unprogrammed funds, we clarify
the respondents notion that the release of unprogrammed
funds may only occur at the end of the fiscal year.
There must be consistent monitoring as a component of
the budget accountability phase of every agencys
performance in terms of the agencys budget utilization as
provided in Book VI, Chapter 6, Section 51 and Section 52
of the Administrative Code of 1987,which state:
SECTION 51. Evaluation of Agency Performance.The
President, through the Secretary shall evaluate on a
continuing basis the quantitative and qualitative measures
of agency performance as reflected in the units of work
measurement and other indicators of agency
performance, including the standard and actual costs per
unit of work.
SECTION 52. Budget Monitoring and Information
System.The Secretary of Budget shall determine
accounting and other items of information, financial or
otherwise, needed to monitor budget performance and to
assess effectiveness of agencies operations and shall
prescribe the forms, schedule of submission, and other
components of reporting systems, including the
maintenance of subsidiary and other records which will
enable agencies to accomplish and submit said
information requirements: Provided, that the Commission
on Audit shall, in coordination with the Secretary of
Budget, issue rules and regulations that may be applicable
when the reporting requirements affect accounting
functions of agencies: Provided, further, that the
applicable rules and regulations shall be issued by the
Commission on Audit within a period of thirty (30) days
after the Department of Budget and Management
prescribes the reporting requirements.
Pursuant to the foregoing, the Department of Budget and
Management (DBM) and the Commission on Audit (COA)
require agencies under various joint circulars to submit
budget and financial accountability reports (BFAR) on a
regular basis,39 one of which is the Quarterly Report of
Income or Quarterly Report of Revenue and Other
Receipts.40 On the other hand, as Justice Carpio points
out in his Separate Opinion, the Development Budget
Coordination Committee (DBCC) sets quarterly revenue
targets for aspecific fiscal year.41 Since information on
both actual revenue collections and targets are made
available every quarter, or at such time as the DBM may
prescribe, actual revenue surplus may be determined
accordingly and eleases from the unprogrammed fund
may take place even prior to the end of the fiscal year.42
In fact, the eleventh special provision for unprogrammed
funds in the 2011 GAA requires the DBM to submit
quarterly reports stating the details of the use and releases
from the unprogrammed funds, viz:
11. Reportorial Requirement. The DBM shall submit to the
House Committee on Appropriations and the Senate
Committee on Finance separate quarterly reports stating
the releases from the Unprogrammed Fund, the amounts
released and purposes thereof, and the recipient
departments, bureaus, agencies or offices, GOCCs and
GFIs, including the authority under which the funds are
released under Special Provision No. 1 of the
Unprogrammed Fund.
Similar provisions are contained in the 2012 and 2013
GAAs.43
However, the Courts construction of the provision on
unprogrammed funds is a statutory, not a constitutional,
interpretation of an ambiguous phrase. Thus, the
construction should be given prospective effect.44
6.
The presumption of good faith stands despite the obiter
pronouncement
The remaining concern involves the application of the
operative fact doctrine.
The respondents decry the misapplication of the operative
fact doctrine, stating:
110. The doctrine of operative fact has nothing to do with
the potential liability of persons who acted pursuant to a
then-constitutional statute, order, or practice. They are
presumed to have acted in good faith and the court cannot
load the dice, so to speak, by disabling possible defenses
in potential suits against so-called "authors, proponents
and implementors." The mere nullification are still deemed
valid on the theory that judicial nullification is a contingent
or unforeseen event.
111. The cases before us are about the statutory and
constitutional interpretations of so-called acts and
practices under a government program, DAP. These are
not civil, administrative, or criminal actions against the
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
implication of paragraphs 3 and 4 of page 90 of the
Decision, violates the constitutional presumption of
innocence, and is inconsistent with the Honorable Courts
recognition that "the implementation of the DAP yielded
undeniably positive results that enhanced the economic
welfare of the country."
112. The policy behind the operative fact doctrine is
consistent with the idea that regardless of the nullification
of certain acts and practices under the DAP and/or NBC
No. 541, it does not operate to impute bad faith to authors,
proponents and implementors who continue to enjoy the
presumption of innocence and regularity in the
performance of official functions and duties. Good faith is
presumed, whereas bad faith requires the existence of
facts. To hold otherwise would send a chilling effect to all
public officers whether of minimal or significant discretion,
the result of which would be a dangerous paralysis of
bureaucratic activity.45 (Emphasis supplied)
In the speech he delivered on July 14, 2014, President
Aquino III also expressed the view that in applying the
doctrine of operative fact, the Court has already presumed
the absence of good faith on the part of the authors,
proponents and implementors of the DAP, so that they
would have to prove good faith during trial.46
Hence, in their Motion for Reconsideration, the
respondents now urge that the Court should extend the
presumption of good faith in favor of the President and his
officials who co-authored, proposed or implemented the
DAP.47
The paragraphs 3 and 4 of page 90 of the Decision alluded
to by the respondents read:
Nonetheless, as Justice Brion has pointed out during the
deliberations, the doctrine of operative fact does not
always apply, and is not always the consequence of every
declaration of constitutional invalidity. It can be invoked
only in situations where the nullification of the effects of
what used to be a valid law would result in inequity and
injustice; but where no such result would ensue, the
general rule that an unconstitutional law is totally
ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine
of operative fact can apply only to the PAPs that can no
longer be undone, and whose beneficiaries relied in good
faith on the validity of the DAP, but cannot apply to the
authors, proponents and implementors of the DAP, unless
there are concrete findings of good faith in their favor by
the proper tribunals determining their criminal, civil,
administrative and other liabilities.48 (Bold underscoring is
supplied)
The quoted text of paragraphs 3 and 4 shows that the
Court has neither thrown out the presumption of good faith
nor imputed bad faith to the authors, proponents and
implementors of the DAP. The contrary is true, because
the Court has still presumed their good faith by pointing
out that "the doctrine of operative fact xxx cannot apply to
the authors, proponents and implementors of the DAP,
unless there are concrete findings of good faith in their
favor by the proper tribunals determining their criminal,
civil, administrative and other liabilities." Note that the
proper tribunals can make "concrete findings of good faith
in their favor" only after a full hearing of all the parties in
any given case, and such a hearing can begin to proceed
only after according all the presumptions, particularly that
of good faith, by initially requiring the complainants,
plaintiffs or accusers to first establish their complaints or
charges before the respondent authors, proponents and
implementors of the DAP.
It is equally important to stress that the ascertainment of
good faith, or the lack of it, and the determination of
whether or not due diligence and prudence were
exercised, are questions of fact.49 The want of good faith
is thus better determined by tribunals other than this Court,
which is not a trier of facts.50
For sure, the Court cannot jettison the presumption of
good faith in this or in any other case.1wphi1 The
presumption is a matter of law. It has had a long history.
Indeed, good faith has long been established as a legal
principle even in the heydays of the Roman Empire. 51In
Soriano v. Marcelo,52 citing Collantes v. Marcelo,53 the
Court emphasizes the necessity of the presumption of
good faith, thus:
Well-settled is the rule that good faith is always presumed
and the Chapter on Human Relations of the Civil Code
directs every person, inter alia, to observe good faith which
springs from the fountain of good conscience. Specifically,
a public officer is presumed to have acted in good faith in
the performance of his duties. Mistakes committed by a
public officer are not actionable absent any clear showing
that they were motivated by malice or gross negligence
amounting to bad faith. "Bad faith" does not simply
connote bad moral judgment or negligence. There must be
some dishonest purpose or some moral obliquity and
conscious doing of a wrong, a breach of a sworn duty
through some motive or intent or ill will. It partakes of the
nature of fraud. It contemplates a state of mind
affirmatively operating with furtive design or some motive
of self-interest or ill will for ulterior purposes.
The law also requires that the public officers action
caused undue injury to any party, including the
government, or gave any private party unwarranted
benefits, advantage or preference in the discharge of his
functions. x x x
The Court has further explained in Philippine Agila
Satellite, Inc. v. Trinidad-Lichauco: 54
We do not doubt the existence of the presumptions of
"good faith" or "regular performance of official duty", yet
these presumptions are disputable and may be
contradicted and overcome by other evidence. Many civil
actions are oriented towards overcoming any number of
these presumptions, and a cause of action can certainly
be geared towards such effect. The very purpose of trial is
to allow a party to present evidence to overcome the
disputable presumptions involved. Otherwise, if trial is
deemed irrelevant or unnecessary, owing to the perceived
indisputability of the presumptions, the judicial exercise
would be relegated to a mere ascertainment of what
presumptions apply in a given case, nothing more.
Consequently, the entire Rules of Court is rendered as
excess verbiage, save perhaps for the provisions laying
down the legal presumptions.
Relevantly, the authors, proponents and implementors of
the DAP, being public officers, further enjoy the
presumption of regularity in the performance of their
functions. This presumption is necessary because they
are clothed with some part of the sovereignty of the State,
and because they act in the interest of the public as
required by law.55 However, the presumption may be
disputed.56
At any rate, the Court has agreed during its deliberations
to extend to the proponents and implementors of the DAP
the benefit of the doctrine of operative fact. This is because
they had nothing to do at all with the adoption of the invalid
acts and practices.
7.
The PAPs under the DAP remain effective under the
operative fact doctrine
As a general rule, the nullification of an unconstitutional
law or act carries with it the illegality of its effects.
However, in cases where nullification of the effects will
result in inequity and injustice, the operative fact doctrine
may apply.57In so ruling, the Court has essentially
recognized the impact on the beneficiaries and the country
as a whole if its ruling would pave the way for the
nullification of the P144.378 Billions58 worth of
infrastructure projects, social and economic services
funded through the DAP. Bearing in mind the disastrous
impact of nullifying these projects by virtue alone of the
invalidation of certain acts and practices under the DAP,
the Court has upheld the efficacy of such DAP-funded
projects by applying the operative fact doctrine. For this
reason, we cannot sustain the Motion for Partial
Reconsideration of the petitioners in G.R. No. 209442.
IN VIEW OF THE FOREGOING, and SUBJECT TO THE
FOREGOING CLARIFICATIONS, the Court PARTIALLY
GRANTS the Motion for Reconsideration filed by the
respondents, and DENIES the Motion for Partial
Reconsideration filed by the petitioners in G.R. No.
209442 for lack of merit.
ACCORDINGLY, the dispositive portion of the Decision
promulgated on July 1, 2014 is hereby MODIFIED as
follows:
WHEREFORE, the Court PARTIALLY GRANTS the
petitions for certiorari and prohibition; and DECLARES the
following acts and practices under the Disbursement
Acceleration Program, National Budget Circular No. 541
and related executive issuances UNCONSTITUTIONAL
for being in violation of Section 25(5), Article VI of the 1987
Constitution and the doctrine of separation of powers,
namely:
(a) The withdrawal of unobligated allotments from
the implementing agencies, and the declaration of
the withdrawn unobligated allotments and
unreleased appropriations as savings prior to the
end of the fiscal year without complying with the
 statutory definition of savings contained in the
General Appropriations Acts; and
(b) The cross-border transfers of the savings of the
Executive to augment the appropriations of other
offices outside the Executive.
The Court further DECLARES VOID the use of
unprogrammed funds despite the absence of a
certification by the National Treasurer that the revenue
collections exceeded the revenue targets for non-
compliance with the conditions provided in the relevant
General Appropriations Acts.
SO ORDERED.
UDK-15143, January 21, 2015
IN THE MATTER OF: SAVE THE SUPREME COURT
JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY
MOVEMENT v. ABOLITION OF JUDICIARY
DEVELOPMENT FUND (JDF) AND REDUCTION OF
FISCAL AUTONOMY.
RESOLUTION
LEONEN, J.:
This case involves the proposed bills abolishing the
Judiciary Development Fund1 and replacing it with the
Judiciary Support Fund. Funds collected from the
proposed Judiciary Support Fund shall be remitted to the
national treasury and Congress shall determine how the
funds will be used.2chanroblesvirtuallawlibrary
Petitioner Rolly Mijares (Mijares) prays for the issuance of
a writ of mandamus in order to compel this court to
exercise its judicial independence and fiscal autonomy
against the perceived hostility of
Congress.3chanroblesvirtuallawlibrary
This matter was raised to this court through the
letter4 dated August 27, 2014, signed by Mijares and
addressed to the Chief Justice and the Associate Justices
of the Supreme Court. The letter is
captioned:chanRoblesvirtualLawlibrary
Petition for Mandamus with Manifestation to invoke the
Judicial Independence and Fiscal Autonomy as mandated
under the Constitution5
The letter was referred to the Clerk of Court En Banc for
appropriate action.6 It was then docketed as UDK-
15143.7chanroblesvirtuallawlibrary
In the letter-petition, Mijares alleges that he is a Filipino
citizen, and a concerned taxpayer[.]8 He filed this petition
as part of his continuing crusade to defend and uphold the
Constitution9 because he believes in the rule of law.10 He
is concerned about the threats against the judiciary after
this court promulgated Priority Development Assistance
Fund11 case on November 19, 2013 and Disbursement
Acceleration Program12 case on July 1, 2014.
The complaint implied that certain acts of members of
Congress and the President after the promulgation of
these cases show a threat to judicial independence.
In the first week of July 2014, Ilocos Norte Representative
Rodolfo Farias filed House Bill No. 4690, which would
require this court to remit its Judiciary Development Fund
collections to the national
treasury.13chanroblesvirtuallawlibrary
A week later, or on July 14, 2014, Iloilo Representative Niel
Tupas, Jr., filed House Bill No. 4738 entitled The Act
Creating the Judicial Support Fund (JSF) under the
National Treasury, repealing for the purpose Presidential
Decree No. 1949.14chanroblesvirtuallawlibrary
On the same day, President Benigno Simeon C. Aquino III
addressed the nation:chanRoblesvirtualLawlibrary
My message to the Supreme Court: We do not want two
equal branches of government to go head to head,
needing a third branch to step in to intervene. We find it
difficult to understand your decision. You had done
something similar in the past, and you tried to do it again;
there are even those of the opinion that what you
attempted to commit was graver, if we were to base it on
your decision. Abiding by the principle of presumption of
regularity, we assumed that you did the right thing; after
all, you are the ones who should ostensibly have a better
understanding of the law. And now, when we use the same
mechanismwhich, you yourselves have admitted,
benefit our countrymenwhy is it then that we are wrong?
We believe that the majority of you, like us, want only the
best for the Filipino people. To the honorable justices of
the Supreme Court: Help us help our countrymen. We ask
that you review your decision, this time taking into
consideration the points I have raised tonight. The nation
hopes for your careful deliberation and response. And I
hope that once youve examined the arguments I will
submit, regarding the law and about our economy,
solidarity will ensuethus strengthening the entire
governments capability to push for the interests of the
nation.15
The issue for resolution is whether petitioner Rolly Mijares
has sufficiently shown grounds for this court to grant the
petition and issue a writ of mandamus.
Petitioner argues that Congress gravely abused its
discretion with a blatant usurpation of judicial
independence and fiscal autonomy of the Supreme
Court.16chanroblesvirtuallawlibrary
Petitioner points out that Congress is exercising its power
in an arbitrary and despotic manner by reason of passion
or personal hostility by abolishing the Judiciary
Development Fund (JDF) of the Supreme
Court.17chanroblesvirtuallawlibrary
With regard to his prayer for the issuance of the writ of
mandamus, petitioner avers that Congress should not act
as wreckers of the law18 by threatening to clip the
powers of the High Tribunal[.]19Congress committed a
blunder of monumental proportions20 when it reduced
the judiciarys 2015 budget.21chanroblesvirtuallawlibrary
Petitioner prays that this court exercise its powers to
REVOKE/ABROGATE and EXPUNGE whatever
irreconcilable contravention of existing laws affecting the
judicial independence and fiscal autonomy as mandated
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
Constitution, is subject to certain limitations. Petitioner
must comply with all the requisites for judicial review
before this court may take cognizance of the case. The
requisites are:chanRoblesvirtualLawlibrary
(1) there must be an actual case or controversy calling for
the exercise of judicial power;
(2) the person challenging the act must have the standing
to question the validity of the subject act or issuance;
otherwise stated, he must have a personal and
substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement;
(3) the question of constitutionality must be raised at the
earliest opportunity; and
(4) the issue of constitutionality must be the very lis mota of
the case.23
Petitioners failure to comply with the first two requisites
warrants the outright dismissal of this petition.
I
The petition does not comply with the requisites of
judicial review
No actual case or controversy
Judicial Department
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
(Emphasis supplied)
One of the requirements for this court to exercise its power
of judicial review is the existence of an actual controversy.
This means that there must be an existing case or
controversy that is appropriate or ripe for determination,
not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion.24 As emphasized
by this court in Information Technology Foundation of the
Phils. v. Commission on Elections:25
It is well-established in this jurisdiction that . . . for a court
to exercise its power of adjudication, there must be an
actual case or controversy one which involves a conflict
of legal rights, an assertion of opposite legal claims
susceptible of judicial resolution; the case must not be
moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. . . .
[C]ourts do not sit to adjudicate mere academic questions
to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciable
definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a
legal right, on the one hand, and a denial thereof on the
other; that is, it must concern a real and not a merely
theoretical question or issue. There ought to be an actual
and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished
from an opinion advising what the law would be upon a
hypothetical state of facts.26
For this court to rule on constitutional issues, there must
first be a justiciable controversy. Pleadings before this
court must show a violation of an existing legal right or a
controversy that is ripe for judicial determination. In the
concurring opinion in Belgica v.
Ochoa:chanRoblesvirtualLawlibrary
Basic in litigation raising constitutional issues is the
requirement that there must be an actual case or
controversy. This Court cannot render an advisory opinion.
We assume that the Constitution binds all other
constitutional departments, instrumentalities, and organs.
We are aware that in the exercise of their various powers,
they do interpret the text of the Constitution in the light of
contemporary needs that they should address. A policy
that reduces this Court to an adviser for official acts by the
other departments that have not yet been done would
unnecessarily tax our resources. It is inconsistent with our
role as final arbiter and adjudicator and weakens the entire
system of the Rule of Law. Our power of judicial review is
a duty to make a final and binding construction of law. This
power should generally be reserved when the
departments have exhausted any and all acts that would
remedy any perceived violation of right. The rationale that
defines the extent of our doctrines laying down exceptions
to our rules on justiciability are clear: Not only should the
pleadings show a convincing violation of a right, but the
impact should be shown to be so grave, imminent, and
irreparable that any delayed exercise of judicial review or
deference would undermine fundamental principles that
should be enjoyed by the party complaining or the
constituents that they legitimately represent.27 (Emphasis
supplied)
The reason for this requirement was explained in Angara
v. Electoral Commission:28
Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated
to actualities. Narrowed as its function is in this manner,
the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary
in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as
expressed through their representatives in the executive
and legislative departments of the government.29
Petitioners allegations show that he wants this court to
strike down the proposed bills abolishing the Judiciary
Development Fund. This court, however, must act only
within its powers granted under the Constitution. This court
is not empowered to review proposed bills because a bill
is not a law.
Montesclaros v. COMELEC30 involved the postponement
of the 2002 Sangguniang Kabataan Elections and the
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
issuance of a temporary restraining order.32 One of the
reliefs prayed for was:chanRoblesvirtualLawlibrary
a) To prevent, annul or declare unconstitutional any law,
decree, Comelec resolution/directive and other
respondents issuances, orders and actions and the like in
postponing the May 6, 2002 SK elections.33
This court held that:chanRoblesvirtualLawlibrary
. . . petitioners instituted this petition to: (1) compel public
respondents to hold the SK elections on May 6, 2002 and
should it be postponed, the SK elections should be held
not later than July 15, 2002; (2) prevent public
respondents from passing laws and issuing resolutions
and orders that would lower the membership age in the
SK. . . . Congress. Absent a clear violation of specific
. . . .
Petitioners prayer to prevent Congress from enacting into
law a proposed bill lowering the membership age in the
SK does not present an actual justiciable controversy. A
proposed bill is not subject to judicial review because it is
not a law. A proposed bill creates no right and imposes no
duty legally enforceable by the Court. A proposed bill,
having no legal effect, violates no constitutional right or
duty. The Court has no power to declare a proposed bill
constitutional or unconstitutional because that would be in
the nature of rendering an advisory opinion on a proposed
act of Congress. The power of judicial review cannot be
exercised in vacuo. . . .
. . . .
Thus, there can be no justiciable controversy involving the
constitutionality of a proposed bill. The Court can exercise
its power of judicial review only after a law is enacted, not
before.
Under the separation of powers, the Court cannot restrain
Congress from passing any law, or from setting into motion
the legislative mill according to its internal rules. Thus, the
following acts of Congress in the exercise of its legislative
powers are not subject to judicial restraint: the filing of bills
by members of Congress, the approval of bills by each
chamber of Congress, the reconciliation by the Bicameral
Committee of approved bills, and the eventual approval
into law of the reconciled bills by each chamber of
constitutional limitations or of constitutional rights of
private parties, the Court cannot exercise its power of
judicial review over the internal processes or procedures
of Congress.
. . . .
. . . To do so would destroy the delicate system of checks
and balances finely crafted by the Constitution for the
three co-equal, coordinate and independent branches of
government.34 (Emphasis supplied, citations omitted)
Similar to Montesclaros, petitioner is asking this court to
stop Congress from passing laws that will abolish the
Judiciary Development Fund. This court has explained
that the filing of bills is within the legislative power of
Congress and is not subject to judicial restraint[.]35 A
proposed bill produces no legal effects until it is passed
into law. Under the Constitution, the judiciary is mandated
to interpret laws. It cannot speculate on the
constitutionality or unconstitutionality of a bill that
Congress may or may not pass. It cannot rule on mere
speculations or issues that are not ripe for judicial
determination.36 The petition, therefore, does not present
any actual case or controversy that is ripe for this courts
determination.
Petitioner has no legal standing
Even assuming that there is an actual case or controversy
that this court must resolve, petitioner has no legal
standing to question the validity of the proposed bill. The
rule on legal standing has been discussed in David v.
Macapagal-Arroyo:37
Locus standi is defined as a right of appearance in a court
of justice on a given question. In private suits, standing is
governed by the real-parties-in interest rule as contained
in Section 2, Rule 3 of the 1997 Rules of Civil Procedure,
as amended. It provides that every action must be
prosecuted or defended in the name of the real party in
interest. Accordingly, the real-party-in interest is the laudable, it does not, by itself, clothe him with the requisite
party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the
suit. Succinctly put, the plaintiffs standing is based on his
own right to the relief sought.
The difficulty of determining locus standi arises in public
suits. Here, the plaintiff who asserts a public right in
assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person
who is affected no differently from any other person. He
could be suing as a stranger, or in the category of a
citizen, or taxpayer. In either case, he has to adequately
show that he is entitled to seek judicial protection. In other
words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as
a citizen or taxpayer.
. . . .
This Court adopted the direct injury test in our
jurisdiction. In People v. Vera, it held that the person who
impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained,
or will sustain direct injury as a result. The Vera doctrine
was upheld in a litany of cases, such as, Custodio v.
President of the Senate, Manila Race Horse Trainers
Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v.
Felix.38
Petitioner has not shown that he has sustained or will
sustain a direct injury if the proposed bill is passed into
law. While his concern for judicial independence is
standing to question the constitutionality of a proposed bill
that may only affect the judiciary.
This court, however, has occasionally relaxed the rules on
standing when the issues involved are of transcendental
importance to the public. Specifically, this court has stated
that:chanRoblesvirtualLawlibrary
the rule on standing is a matter of procedure, hence, can
be relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of
paramount public interest.39
Transcendental importance is not defined in our
jurisprudence, thus, in Francisco v. House of
Representatives:40
There being no doctrinal definition of transcendental
importance, the following instructive determinants
formulated by former Supreme Court Justice Florentino P.
Feliciano are instructive: (1) the character of the funds or
other assets involved in the case; (2) the presence of a
clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any
other party with a more direct and specific interest in
raising the questions being raised.41
A mere invocation of transcendental importance in the
pleading is not enough for this court to set aside
procedural rules:chanRoblesvirtualLawlibrary
Whether an issue is of transcendental importance is a
matter determined by this court on a case-to-case basis.
An allegation of transcendental importance must be
supported by the proper allegations.42
None of the determinants in Francisco are present in this
case. The events feared by petitioner are merely
speculative and conjectural.
In addition to the determinants in Francisco, it must also
be shown that there is a clear or imminent threat to
fundamental rights. In an opinion in Imbong v. Ochoa:43
The Responsible Parenthood and Reproductive Health
Act of 2012 should not be declared unconstitutional in
whole or in any of its parts given the petitions filed in this
case.
None of the petitions properly present an actual case or
controversy, which deserves the exercise of our
awesome power of judicial review. It is our duty not to rule
on the abstract and speculative issues barren of actual
facts. These consolidated petitions, which contain bare
allegations, do not provide the proper venue to decide on
fundamental issues. The law in question is needed social
legislation.
That we rule on these special civil actions for certiorari and
prohibition which amounts to a pre-enforcement free-
wheeling facial review of the statute and the implementing
rules and regulations is very bad precedent. The issues
are far from justiciable. Petitioners claim in their class suits
that they entirely represent a whole religion, the Filipino
nation and, worse, all the unborn. The intervenors also
claim the same representation: Filipinos and Catholics.
Many of the petitions also sue the President of the
Republic.
We should apply our rules rigorously and dismiss these
cases. The transcendental importance of the issues they
want us to decide will be better served when we wait for
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
these cases.44 (Emphasis supplied)
The events feared by petitioner are contingent on the
passing of the proposed bill in Congress. The threat of
imminent injury is not yet manifest since there is no
guarantee that the bill will even be passed into law. There
is no transcendental interest in this case to justify the
relaxation of technical rules.
II
Requisites for the issuance of a writ of mandamus not
shown
Rule 65, Section 3 of the 1997 Rules of Civil Procedure
provides that:chanRoblesvirtualLawlibrary
Rule 65
CERTIORARI, PROHIBITION AND MANDAMUS
SEC. 3. Petition for mandamus. When any tribunal,
corporation, board, officer or person unlawfully neglects
the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment
be rendered commanding the respondent, immediately or
at some other time to be specified by the court, to do the
act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-
forum shopping as provided in the third paragraph of
section 3, Rule 46.cralawred
The writ of mandamus will issue when the act sought to be
performed is ministerial.45 An act is ministerial when it
does not require the exercise of judgment and the act is
performed in compliance with a legal mandate.46 In a
petition for mandamus, the burden of proof is on petitioner
to show that one is entitled to the performance of a legal
right and that respondent has a corresponding duty to
perform the act.47 Mandamus will not lie to compel an
official to do anything which is not his duty to do or which
it is his duty not to do, or to give to the applicant anything
to which he is not entitled by
law.48chanroblesvirtuallawlibrary
In this case, petitioner has not shown how he is entitled to
the relief prayed for. Hence, this court cannot be
compelled to exercise its power of judicial review since
there is no actual case or controversy.
Final note
The judiciary is the weakest branch of government. It is
true that courts have power to declare what law is given a
set of facts, but it does not have an army to enforce its
writs. Courts do not have the power of the purse. Except
for a constitutional provision that requires that the budget
of the judiciary should not go below the appropriation for
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,
rehabilitation, and repair of the halls of justice. 60 This
allocation would have been used to help fund the repair of
existing halls of justice and the construction of new halls
of justice in the entire country, including those courts
destroyed by Typhoon Yolanda and the 2013 earthquake.
The entire budget for the judiciary, however, does not only
come from the national government. The Constitution
grants fiscal autonomy to the judiciary to maintain its
independence.61 In Bengzon v. Drilon:62
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize
the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only of the express
mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of
powers upon which the entire fabric of our constitutional
system is based.63
Courts, therefore, must also be accountable with their own
budget. The Judiciary Development Fund, used to
augment the expenses of the judiciary, is regularly
accounted for by this court on a quarterly basis. The
financial reports are readily available at the Supreme
Court website.64chanroblesvirtuallawlibrary
These funds, however, are still not enough to meet the
expenses of lower courts and guarantee credible
compensation for their personnel. The reality is that halls
of justice exist because we rely on the generosity of local
government units that provide additional subsidy to our
judges.65 If not, the budget for the construction, repair, and
rehabilitation of halls of justice is with the Department of
Justice.66chanroblesvirtuallawlibrary
As a result, our fiscal autonomy and judicial independence
are often undermined by low levels of budgetary outlay,
the lack of provision for maintenance and operating
expenses, and the reliance on local government units and
the Department of Justice.
Courts are not constitutionally built to do political lobbying.
By constitutional design, it is a co-equal department to the
Congress and the Executive. By temperament, our
arguments are legal, not political. We are best when we
lay down all our premises in the finding of facts,
interpretation of the law and understanding of precedents.
We are not trained to produce a political statement or a
media release.67chanroblesvirtuallawlibrary
Because of the nature of courts, that is that it has to
decide in favor of one party, we may not have a political
base. Certainly, we should not even consider building a
political base. All we have is an abiding faith that we should
do what we could to ensure that the Rule of Law prevails.
It seems that we have no champions when it comes to
ensuring the material basis for fiscal autonomy or judicial
independence.68chanroblesvirtuallawlibrary
For this reason, we appreciate petitioners concern for the
judiciary. It is often only through the vigilance of private
citizens that issues relating to the judiciary can be
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
or Republic Act No. 10354. The second tarpaulin is the
subject of the present case.4 This tarpaulin contains the
heading "Conscience Vote" and lists candidates as either
"(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH)
Team Patay" with an "X" mark.5 The electoral candidates
were classified according to their vote on the adoption of
Republic Act No. 10354, otherwise known as the RH
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
candidate. Petitioners also conceded that the tarpaulin
contains names ofcandidates for the 2013 elections, but
not of politicians who helped in the passage of the RH Law
but were not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V.
Majarucon, in her capacity as Election Officer of Bacolod
City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop
Vicente M. Navarra. The election officer ordered the
tarpaulins removal within three (3) days from receipt for
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
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the
tarpaulin was neither sponsored nor paid for by any
On February 25, 2013, petitioners replied10 requesting,
among others, that (1) petitioner Bishop be given a definite
ruling by COMELEC Law Department regarding the
tarpaulin; and (2) pending this opinion and the availment
of legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department
issued a letter12 ordering the immediate removal of the
tarpaulin; otherwise, it will be constrained to file an election
offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to
petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this
City, Atty. Mavil Majarucon, had already given you notice
on February 22, 2013 as regards the election propaganda
material posted on the church vicinity promoting for or
against the candidates and party-list groups with the
following names and messages, particularly described as
follows:
Material size : six feet (6) by ten feet (10)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH)
TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH
VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to
be in violation of Comelec Resolution No. 9615
promulgated on January 15, 2013 particularly on the size
(even with the subsequent division of the said tarpaulin
into two), as the lawful size for election propaganda
material is only two feet (2) by three feet (3), please
order/cause the immediate removal of said election
propaganda material, otherwise, we shall be constrained
to file an election offense case against you.
We pray that the Catholic Church will be the first institution
to help the Commission on Elections inensuring the
conduct of peaceful, orderly, honest and credible
elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for
their exercise of free speech, petitioners initiated this case
through this petition for certiorari and prohibition with
application for preliminary injunction and temporary
restraining order.14 They question respondents notice
dated February 22, 2013 and letter issued on February 27,
2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents
from further proceeding in enforcing their orders for the
removal of the Team Patay tarpaulin; and (3) after notice
and hearing, a decision be rendered declaring the
questioned orders of respondents as unconstitutional and
void, and permanently restraining respondents from
enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued
a temporary restraining order enjoining respondents from
enforcing the assailed notice and letter, and set oral
arguments on March 19, 2013.16
On March 13, 2013, respondents filed their
comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before
this court is not the proper remedy to question the notice 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
BY ELECTION OFFICER MAJARUCON AND THE 27
FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF
SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN
POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF
CHURCH AND STATE.
I limited to final decisions, orders, rulings and judgments of
PROCEDURAL ISSUES
I.A
This courts jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the
ground that the notice and letter are not final orders,
decisions, rulings, or judgments of the COMELEC En
Banc issued in the exercise of its adjudicatory powers,
reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the
COMELEC. Rule 65 is applicable especially to raise
objections relating to a grave abuse of discretion resulting
in the ouster of jurisdiction.22 As a special civil action, there
must also be a showing that there be no plain, speedy, and
adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter
are not subject to review by this court, whose power to
review is "limited only to final decisions, rulings and orders
of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead,
respondents claim that the assailed notice and letter are
reviewable only by COMELEC itself pursuant to Article IX-
C, Section 2(3) of the Constitution24 on COMELECs
power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v.
COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is
the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the
gubernatorial race of Eastern Samar filed the election
protest.32 At issue was the validity of the promulgation of a
COMELEC Division resolution.33 No motion for
reconsideration was filed to raise this issue before the
COMELEC En Banc. This court declared that it did not
have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the
Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its
adjudicatory or quasi-judicial powers." This decision must
be a final decision or resolution of the Comelec en banc,
not of a division, certainly not an interlocutory order of a
division.The Supreme Court has no power to review
viacertiorari, an interlocutory order or even a final
resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v.
COMELEC, this court provided exceptions to this general
rule. Repolwas another election protest case, involving the
mayoralty elections in Pagsanghan, Samar.36 This time,
the case was brought to this court because the COMELEC
First Division issued a status quo ante order against the
Regional Trial Court executing its decision pending
appeal.37 This courts ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to
review interlocutory orders of a COMELEC
38
Division. However, consistent with ABS-CBN
Broadcasting Corporation v. COMELEC,39 it clarified the
exception:
This Court, however, has ruled in the past that this
procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent
miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when
the decision or resolution sought to be set aside is a nullity,
or when the need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy
available.40
Based on ABS-CBN, this court could review orders and
decisions of COMELEC in electoral contests despite
not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside
is a nullity; or
5) The need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy
available.
Ultimately, this court took jurisdiction in Repoland decided
that the status quo anteorder issued by the COMELEC
Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This
case was also an election protest case involving
candidates for the city council of Muntinlupa
City.41 Petitioners in Soriano, Jr.filed before this court a
petition for certiorari against an interlocutory order of the
COMELEC First
Division.42 While the petition was pending in this court, the
COMELEC First Division dismissed the main election
protest case.43 Sorianoapplied the general rule that only
final orders should be questioned with this court. The
ponencia for this court, however, acknowledged the
exceptions to the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents,
was a disqualification case of one of the mayoralty
candidates of Meycauayan, Bulacan.45 The COMELEC
Second Division ruled that petitioner could not qualify for
the 2007 elections due to the findings in an administrative
case that he engaged in vote buying in the 1995
elections.46No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took
cognizance of this case applying one of the exceptions in
ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a
recent election protest case involving the mayoralty
candidates of Taguig City.48 Petitioner assailed a
resolution of the COMELEC denying her motion for
reconsideration to dismiss the election protest petition for
lack of form and substance.49 This court clarified the
general rule and refused to take cognizance of the review
of the COMELEC order. While recognizing the exceptions
in ABS-CBN, this court ruled that these exceptions did not
apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited
by respondents do not operate as precedents to oust this
court from taking jurisdiction over this case. All these
cases cited involve election protests or disqualification
cases filed by the losing candidate against the winning
candidate.
In the present case, petitioners are not candidates seeking
for public office. Their petition is filed to assert their
fundamental right to expression.
Furthermore, all these cases cited by respondents
pertained to COMELECs exercise of its adjudicatory or
quasi-judicial power. This case pertains to acts of
COMELEC in the implementation of its regulatory powers.
When it issued the notice and letter, the COMELEC was
allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional
violation: the infringement on speech and the "chilling
effect" caused by respondent COMELECs notice and
letter.
Petitioners allege that respondents committed grave
abuse of discretion amounting to lack or excess of
jurisdiction in issuing the notice51 dated February 22,2013
and letter52 dated February 27, 2013 ordering the removal
of the tarpaulin.53 It is their position that these infringe on
their fundamental right to freedom of expression and
violate the principle of separation of church and state and,
thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is
determined from the allegations in the petition. Subject
matter jurisdiction is defined as the authority "to hear and
determine cases of the general class to which the
proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines
its powers."55Definitely, the subject matter in this case is
different from the cases cited by respondents.
Nothing less than the electorates political speech will be
affected by the restrictions imposed by COMELEC.
Political speech is motivated by the desire to be heard and
understood, to move people to action. It is concerned with
the sovereign right to change the contours of power
whether through the election of representatives in a
republican government or the revision of the basic text of
the Constitution. The zeal with which we protect this kind
of speech does not depend on our evaluation of the
cogency of the message. Neither do we assess whether
we should protect speech based on the motives of
COMELEC. We evaluate restrictions on freedom of
expression from their effects. We protect both speech and
medium because the quality of this freedom in practice will
define the quality of deliberation in our democratic society.
COMELECs notice and letter affect preferred speech.
Respondents acts are capable of repetition. Under the
conditions in which it was issued and in view of the novelty
of this case,it could result in a "chilling effect" that would
affect other citizens who want their voices heard on issues
during the elections. Other citizens who wish to express
their views regarding the election and other related issues
may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid
such proscribed conditions. Rule 65 is also the procedural
platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on
jurisdiction. For petitioners, it referred to this courts
expanded exercise of certiorari as provided by the
Constitution as follows:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether ornot there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the
Government.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional
mandate to decide all questions affectingelections. Article
IX-C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(3) Decide, except those involving the right to vote, all
questions affecting elections, including determination of
the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
Respondents reliance on this provision is misplaced.
We are not confronted here with the question of whether
the COMELEC, in its exercise of jurisdiction, gravely
abused it. We are confronted with the question as to
whether the COMELEC had any jurisdiction at all with its
acts threatening imminent criminal action effectively
abridging meaningful political speech.
It is clear that the subject matter of the controversy is the
effect of COMELECs notice and letter on free speech.
This does not fall under Article IX-C, Section 2(3) of the
Constitution. The use of the word "affecting" in this
provision cannot be interpreted to mean that COMELEC
has the exclusive power to decide any and allquestions
that arise during elections. COMELECs constitutional
competencies during elections should not operate to
divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is
Article VIII, Section 5(1) of the Constitution.This provision
provides for this courts original jurisdiction over petitions
for certiorari and prohibition. This should be read
alongside the expanded jurisdiction of the court in Article
VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression
by COMELEC is grave abuse of discretion. Thus, the
constitutionality of the notice and letter coming from
COMELEC is within this courts power to review.
During elections, we have the power and the duty to
correct any grave abuse of discretion or any act tainted
with unconstitutionality on the part of any government
branch or instrumentality. This includes actions by the
COMELEC. Furthermore, it is this courts constitutional
mandate to protect the people against governments
infringement of their fundamental rights. This constitutional
mandate out weighs the jurisdiction vested with the
COMELEC.
It will, thus, be manifest injustice if the court does not take
jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated
the doctrine of hierarchy of courts in directly filing their
petition before this court.
Respondents contend that petitioners failure to file the
proper suit with a lower court of concurrent jurisdiction is
sufficient ground for the dismissal of their petition.57 They
add that observation of the hierarchy of courts is
compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are
exceptions to the general rule on hierarchy of courts, none
of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona 60 on
this courts discretionary power to take cognizance of a
petition filed directly to it if warranted by "compelling
reasons, or [by] the nature and importance of the issues
raised. . . ."61 Petitioners submit that there are "exceptional
and compelling reasons to justify a direct resort [with] this
Court."62
In Baez, Jr. v. Concepcion,63 we explained the necessity
of the application of the hierarchy of courts:
The Court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not
to be ignored without serious consequences. The
strictness of the policy is designed to shield the Court from
having to deal with causes that are also well within the
competence of the lower courts, and thus leave time to the
Court to deal with the more fundamental and more
essential tasks that the Constitution has assigned to it. The
Court may act on petitions for the extraordinary writs of
certiorari, prohibition and mandamus only when absolutely
necessary or when serious and important reasons exist to
justify an exception to the policy.64
In Baez, we also elaborated on the reasons why lower
courts are allowed to issue writs of certiorari, prohibition,
and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so
remain if it is to satisfactorily perform the functions
assigned to it by the fundamental charter and immemorial
tradition. It cannot and should not be burdened with the
task of dealing with causes in the first instance. Its original
jurisdiction to issue the so-called extraordinary writs
should be exercised only where absolutely necessary or
where serious and important reasons exist therefore.
Hence, that jurisdiction should generally be exercised
relative to actions or proceedings before the Court of
Appeals, or before constitutional or other tribunals, bodies
or agencies whose acts for some reason or another are
not controllable by the Court of Appeals. Where the
issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial
Court, it is in either of these courts that the specific action
for the writs procurement must be presented. This is and
should continue to be the policy in this regard, a policy that
courts and lawyers must strictly observe.66 (Emphasis
omitted)
The doctrine that requires respect for the hierarchy of
courts was created by this court to ensure that every level
of the judiciary performs its designated roles in an effective
and efficient manner. Trial courts do not only determine
the facts from the evaluation of the evidence presented
before them. They are likewise competent to determine
issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in
relation to the Constitution.67 To effectively perform these
functions, they are territorially organized into regions and
then into branches. Their writs generally reach within
those territorial boundaries. Necessarily, they mostly
perform the all-important task of inferring the facts from the
evidence as these are physically presented before them.
In many instances, the facts occur within their territorial
jurisdiction, which properly present the actual case that
makes ripe a determination of the constitutionality of such
action. The consequences, of course, would be national in
scope. There are, however, some cases where resort to
courts at their level would not be practical considering their
decisions could still be appealed before the higher courts,
such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate
court that reviews the determination of facts and law made
by the trial courts. It is collegiate in nature. This nature
ensures more standpoints in the review of the actions of
the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial
courts, its writs can have a nationwide scope. It is
competent to determine facts and, ideally, should act on
constitutional issues thatmay not necessarily be novel
unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by
breaking new ground or further reiterating in the light of
new circumstances or in the light of some confusions of
bench or bar existing precedents. Rather than a court
of first instance or as a repetition of the actions of the Court
of Appeals, this court promulgates these doctrinal devices
in order that it truly performs that role.
In other words, the Supreme Courts role to interpret the
Constitution and act in order to protect constitutional rights
when these become exigent should not be emasculated
by the doctrine in respect of the hierarchy of courts. That
has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad
rule.68 This court has "full discretionary power to take
cognizance and assume jurisdiction [over] special civil
actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the
issues clearly and specifically raised in the petition."70 As
correctly pointed out by petitioners,71 we have provided
exceptions to this doctrine:
First, a direct resort to this court is allowed when there are
genuine issues of constitutionality that must be addressed
at the most immediate time. A direct resort to this court
includes availing of the remedies of certiorari and
prohibition toassail the constitutionality of actions of both
legislative and executive branches of the government.72
In this case, the assailed issuances of respondents
prejudice not only petitioners right to freedom of
expression in the present case, but also of others in future
similar cases. The case before this court involves an active
effort on the part of the electorate to reform the political
landscape. This has become a rare occasion when private
citizens actively engage the public in political discourse.
To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than
a technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew
out of an age that was awakened and invigorated by the
idea of new society in which man's mind was free, his fate
determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization
virtually unlimited. It is put forward as a prescription for
attaining a creative, progressive, exciting and intellectually
robust community. It contemplates a mode of life that,
through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It
spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73
In a democracy, the citizens right tofreely participate in the
exchange of ideas in furtherance of political decision-
making is recognized. It deserves the highest protection
the courts may provide, as public participation in nation-
building isa fundamental principle in our Constitution. As
such, their right to engage in free expression of ideas must
be given immediate protection by this court.
A second exception is when the issuesinvolved are of
transcendental importance.74 In these cases, the
imminence and clarity of the threat to fundamental
constitutional rights outweigh the necessity for prudence.
The doctrine relating to constitutional issues of
transcendental importance prevents courts from the
paralysis of procedural niceties when clearly faced with the
need for substantial protection.
In the case before this court, there is a clear threat to the
paramount right of freedom of speech and freedom of
expression which warrants invocation of relief from this
court. The principles laid down in this decision will likely
influence the discourse of freedom of speech in the future,
especially in the context of elections. The right to suffrage
not only includes the right to vote for ones chosen
candidate, but also the right to vocalize that choice to the
public in general, in the hope of influencing their votes. It
may be said that in an election year, the right to vote
necessarily includes the right to free speech and
expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate
resort to this court.
Third, cases of firstimpression75 warrant a direct resort to
this court. In cases of first impression, no jurisprudence yet
exists that will guide the lower courts on this matter. In
Government of the United States v. Purganan,76 this court
took cognizance of the case as a matter of first impression
that may guide the lower courts:
In the interest of justice and to settle once and for all the
important issue of bail in extradition proceedings, we deem
it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over
which there is, as yet, no local jurisprudence to guide lower
courts.77
This court finds that this is indeed a case of first impression
involving as it does the issue of whether the right of
suffrage includes the right of freedom of expression. This
is a question which this court has yet to provide substantial
answers to, through jurisprudence. Thus, direct resort to
this court is allowed.
Fourth, the constitutional issues raisedare better decided
by this court. In Drilon v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a
becoming modesty, to defer to the higher judgmentof this
Court in the consideration of its validity, which is better
determined after a thorough deliberation by a collegiate
body and with the concurrence of the majority of those who
participated in its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally
enshrined judicial power, that can rule with finality on
whether COMELEC committed grave abuse of discretion
or performed acts contrary to the Constitution through the
assailed issuances.
Fifth, the time element presented in this case cannot be
ignored. This case was filed during the 2013 election
period. Although the elections have already been
concluded, future cases may be filed that necessitate
urgency in its resolution. Exigency in certain situations
would qualify as an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional
organ. COMELEC is a constitutional body. In Albano v.
Arranz,80 cited by petitioners, this court held that "[i]t is
easy to realize the chaos that would ensue if the Court of
First Instance ofeach and every province were [to]
arrogate itself the power to disregard, suspend, or
contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to
impotence."81
In this case, if petitioners sought to annul the actions of
COMELEC through pursuing remedies with the lower
courts, any ruling on their part would not have been
binding for other citizens whom respondents may place in
the same situation. Besides, thiscourt affords great
respect to the Constitution and the powers and duties
imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that
their actions may be guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other
plain, speedy, and adequate remedy in the ordinary
course of law that could free them from the injurious effects
of respondents acts in violation of their right to freedom of
expression.
In this case, the repercussions of the assailed issuances
on this basic right constitute an exceptionally compelling
reason to justify the direct resort to this court. The lack of
other sufficient remedies in the course of law alone is
sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by
public welfare and the advancement of public policy, or
demanded by the broader interest of justice, or the orders
complained of were found to be patent nullities, or the
appeal was consideredas clearly an inappropriate
remedy."82 In the past, questions similar to these which
this court ruled on immediately despite the doctrine of
hierarchy of courts included citizens right to bear
arms,83 government contracts involving modernization of
voters registration lists,84 and the status and existence of
a public office.85
This case also poses a question of similar, if not greater
import. Hence, a direct action to this court is permitted.
It is not, however, necessary that all of these exceptions
must occur at the same time to justify a direct resort to this
court. While generally, the hierarchy of courts is respected,
the present case falls under the recognized exceptions
and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its
reasonableness is a political question, hence not within the
ambit of this courts power of review. They cite Justice
Vitugs separate opinion in Osmea v. COMELEC86 to
support their position:
It might be worth mentioning that Section 26, Article II, of
the Constitution also states that the "State shall guarantee
equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law." I see
neither Article IX (C)(4) nor Section 26, Article II, of the
Constitution to be all that adversarial or irreconcilably
inconsistent with the right of free expression. In any event,
the latter, being one of general application, must yield to
the specific demands of the Constitution. The freedom of
expression concededly holds, it is true, a vantage point in
hierarchy of constitutionally-enshrined rights but, like all
fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the
"poor" or between the "powerful" and the "weak" in our
society but it is to me a genuine attempt on the part of
Congress and the Commission on Elections to ensure that
all candidates are given an equal chance to media
coverage and thereby be equally perceived as giving real
life to the candidates right of free expression rather than
being viewed as an undue restriction of that freedom. The
wisdom in the enactment of the law, i.e., that which the
legislature deems to be best in giving life to the
Constitutional mandate, is not for the Court to question; it
is a matter that lies beyond the normal prerogatives of the
Court to pass upon.87
This separate opinion is cogent for the purpose it was said.
But it is not in point in this case.
The present petition does not involve a dispute between
the rich and poor, or the powerful and weak, on their equal
opportunities for media coverage of candidates and their
right to freedom of expression. This case concerns the
right of petitioners, who are non-candidates, to post the
tarpaulin in their private property, asan exercise of their
right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case.
In Taada v. Cuenco,88 this court previously elaborated on
the concept of what constitutes a political question:
What is generally meant, when it is said that a question is
political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity,
or that it has been specifically delegated to some other
department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political
debates on what the text of the law should be. In political
forums, particularly the legislature, the creation of the
textof the law is based on a general discussion of factual
circumstances, broadly construed in order to allow for
general application by the executive branch. Thus, the
creation of the law is not limited by particular and specific
facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions
based on existing facts established on a specific case-to-
case basis, where parties affected by the legal provision
seek the courts understanding of the law.
The complementary nature of the political and judicial
branches of government is essential in order to ensure that
the rights of the general public are upheld at all times. In
order to preserve this balance, branches of government
must afford due respectand deference for the duties and
functions constitutionally delegated to the other. Courts
cannot rush to invalidate a law or rule. Prudence dictates
that we are careful not to veto political acts unless we can
craft doctrine narrowly tailored to the circumstances of the
case.
The case before this court does not call for the exercise of
prudence or modesty. There is no political question. It can
be acted upon by this court through the expanded
jurisdiction granted to this court through Article VIII,
Section 1 of the Constitution.
A political question arises in constitutional issues relating
to the powers or competence of different agencies and
departments of the executive or those of the legislature.
The political question doctrine is used as a defense when
the petition asks this court to nullify certain acts that are
exclusively within the domain of their respective
competencies, as provided by the Constitution or the law.
In such situation, presumptively, this court should act with
deference. It will decline to void an act unless the exercise
of that power was so capricious and arbitrary so as to
amount to grave abuse of discretion.
The concept of a political question, however, never
precludes judicial review when the act of a constitutional
organ infringes upon a fundamental individual or collective
right. Even assuming arguendo that the COMELEC did
have the discretion to choose the manner of regulation of
the tarpaulin in question, it cannot do so by abridging the
fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political
question doctrine:
When political questions are involved, the Constitution
limits the determination to whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court
will not substitute its judgment for that of the official
concerned and decide a matter which by its nature or by
law is for the latter alone to decide.91
How this court has chosen to address the political question
doctrine has undergone an evolution since the timethat it
had been first invoked in Marcos v. Manglapus.
Increasingly, this court has taken the historical and social
context of the case and the relevance of pronouncements
of carefully and narrowly tailored constitutional doctrines.
This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the
application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the
Commission on Appointments. In times past, this would
have involved a quint essentially political question as it
related to the dominance of political parties in Congress.
However, in these cases, this court exercised its power of
judicial review noting that the requirement of interpreting
the constitutional provision involved the legality and not
the wisdom of a manner by which a constitutional duty or
power was exercised. This approach was again reiterated
in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court
declared again that the possible existence ofa political
question did not bar an examination of whether the
exercise of discretion was done with grave abuse of
discretion. In that case, this court ruled on the question of
whether there was grave abuse of discretion in the
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
question as to whether a former President resigned was
not a political question even if the consequences would be
to ascertain the political legitimacy of a successor
President.
Many constitutional cases arise from political crises. The
actors in such crises may use the resolution of
constitutional issues as leverage. But the expanded
jurisdiction of this court now mandates a duty for it to
exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social
conflict.
This courts understanding of the political question has not
been static or unbending. In Llamas v. Executive
Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner
in which the President's discretionary powers are
exercised or into the wisdom for its exercise, it is also a
settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said
powers are within the limits prescribed by the Constitution,
We will not decline to exercise our power of judicial review.
And such review does not constitute a modification or
correction of the act of the President, nor does it constitute
interference with the functions of the President.98
The concept of judicial power in relation to the concept of
the political question was discussed most extensively in
Francisco v. HRET.99 In this case, the House of
Representatives arguedthat the question of the validity of
the second impeachment complaint that was filed against
former Chief Justice Hilario Davide was a political question
beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring
and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court
becomes more feeble in light of the new Constitution which
expanded the definition of judicial power as including "the
duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government." As well observed by
retired Justice Isagani Cruz, this expanded definition of
judicial power considerably constricted the scope of
political question. He opined that the language luminously
suggests that this duty (and power) is available even
against the executive and legislative departments
including the President and the Congress, in the exercise
of their discretionary powers.100 (Emphasis in the original,
citations omitted)
Francisco also provides the cases which show the
evolution of the political question, as applied in the
following cases:
In Marcos v. Manglapus, this Court, speaking through
Madame Justice Irene Cortes, held: The present
Constitution limits resort to the political question doctrine
and broadens the scope of judicial inquiry into areas which
the Court,under previous constitutions, would have
normally left to the political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through
Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that
this Court must perform under the Constitution. Moreover,
as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of
the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does
away with the applicability of the principle in appropriate
cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani
Cruz, this Court ruled:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue presented
before us was political in nature, we would still not be
precluded from resolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even
the political question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue
involves a truly political and non-justiciable question lies in
the answer to the question of whether there are
constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within
such limits.101 (Citations omitted)
As stated in Francisco, a political question will not be
considered justiciable if there are no constitutionally
imposed limits on powers or functions conferred upon
political bodies. Hence, the existence of constitutionally
imposed limits justifies subjecting the official actions of the
body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference
to the right to free speech. Any instance that this right may
be abridged demands judicial scrutiny. It does not fall
squarely into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle
of exhaustion of administrative remedies. Respondents
insist that petitioners should have first brought the matter
to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply
with the requirement in Rule 65 that "there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary
course of law."103 They add that the proper venue to assail
the validity of the assailed issuances was in the course of
an administrative hearing to be conducted by
COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that
petitioners should resort to the remedies prescribed in
Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is
not proper in this case.
Despite the alleged non-exhaustion of administrative
remedies, it is clear that the controversy is already ripe for
adjudication. Ripeness is the "prerequisite that something
had by then been accomplished or performed by either
branch [or in this case, organ of government] before a
court may come into the picture."106
Petitioners exercise of their rightto speech, given the
message and their medium, had understandable
relevance especially during the elections. COMELECs
letter threatening the filing of the election offense against
petitioners is already an actionable infringement of this
right. The impending threat of criminal litigation is enough
to curtail petitioners speech.
In the context of this case, exhaustion of their
administrative remedies as COMELEC suggested in their
pleadings prolongs the violation of their freedom of
speech.
Political speech enjoys preferred protection within our
constitutional order. In Chavez v. Gonzales,107 Justice
Carpio in a separate opinion emphasized: "[i]f everthere is
a hierarchy of protected expressions, political expression
would occupy the highest rank, and among different kinds
of political expression, the subject of fair and honest
elections would be at the top."108 Sovereignty resides in
the people.109 Political speech is a direct exercise of the
sovereignty. The principle of exhaustion of administrative
remedies yields in order to protect this fundamental right.
Even assuming that the principle of exhaustion of
administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In
Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative
remedies may be dispensed with and judicial action may
be validly resorted to immediately: (a) when there is a
violation of due process; (b) when the issue involved is
purely a legal question; (c) when the administrative action
is patently illegal amounting to lack or excess of
jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is
irreparable injury; (f) when the respondent is a department
secretary whose acts as analter ego of the President bear
the implied and assumed approval of the latter; (g) when
to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification
of a claim; (i) when the subject matter is a private land in
land case proceedings; (j) whenthe rule does not provide
a plain, speedy and adequate remedy; or (k) when there
are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable
with the present case. First, petitioners allegethat the
assailed issuances violated their right to freedom of
expression and the principle of separation of church and
state. This is a purely legal question. Second, the
circumstances of the present case indicate the urgency of
judicial intervention considering the issue then on the RH
Law as well as the upcoming elections. Thus, to require
the exhaustion of administrative remedies in this case
would be unreasonable.
Time and again, we have held that this court "has the
power to relax or suspend the rules or to except a case
from their operation when compelling reasons so warrant,
or whenthe purpose of justice requires it, [and when]
[w]hat constitutes [as] good and sufficient cause that will
merit suspension of the rules is discretionary upon the
court".112Certainly, this case of first impression where
COMELEC has threatenedto prosecute private parties
who seek to participate in the elections by calling attention
to issues they want debated by the publicin the manner
they feel would be effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions
made by private citizens
Respondents cite the Constitution, laws, and
jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these
provisions pertain to candidates and political parties.
Petitioners are not candidates. Neither do theybelong to
any political party. COMELEC does not have the authority
to regulate the enjoyment of the preferred right to freedom
of expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the
Constitution, which provides:
Section 4. The Commission may,during the election
period, supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of
transportation and other public utilities, media of
communication or information, all grants, special
privileges, or concessions granted by the Government or
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation
or its subsidiary. Such supervision or regulation shall aim
to ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among
candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible
114
elections. (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated
by COMELEC during the plebiscite for the creation of the
Cordillera Autonomous Region.116 Columnist Pablito V.
Sanidad questioned the provision prohibiting journalists
from covering plebiscite issues on the day before and on
plebiscite day.117 Sanidad argued that the prohibition was
a violation of the "constitutional guarantees of the freedom
of expression and of the press. . . ."118 We held that the
"evil sought to be prevented by this provision is the
possibility that a franchise holder may favor or give any
undue advantage to a candidate in terms of advertising
space or radio or television time."119 This court found that
"[m]edia practitioners exercising their freedom of
expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right
to expression during this period may not be regulated by
COMELEC.121
Similar to the media, petitioners in the case at bar are
neither franchise holders nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the
Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis
supplied) Based on the enumeration made on actsthat
may be penalized, it will be inferred that this provision only
affects candidates.
Petitioners assail the "Notice to Remove Campaign
Materials" issued by COMELEC. This was followed bythe
assailed letter regarding the "election propaganda material
posted on the church vicinity promoting for or against the
candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of
campaign materials only mentions "parties" and
"candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC
may authorize political parties and party-list groups to
erect common poster areas for their candidates in not
more than ten (10) public places such as plazas, markets,
barangay centers and the like, wherein candidates can
post, display or exhibit election propaganda: Provided,
That the size ofthe poster areas shall not exceed twelve
(12) by sixteen (16) feet or its equivalent. Independent
candidates with no political parties may likewise be
authorized to erect common poster areas in not more than
ten (10) public places, the size of which shall not exceed
four (4) by six (6) feet or its equivalent. Candidates may
post any lawful propaganda material in private places with
the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially
among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615,
the rules and regulations implementing the Fair Election
Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties
and candidates may post any lawful campaign material in:
a. Authorized common poster areasin public places
subject to the requirements and/or limitations set
forth in the next following section; and
b. Private places provided it has the consent of the
owner thereof.
The posting of campaign materials in public places outside
of the designated common poster areas and those
enumerated under Section 7 (g) of these Rules and the
like is prohibited. Persons posting the same shall be liable
together with the candidates and other persons who
caused the posting. It will be presumed that the candidates
and parties caused the posting of campaign materials
outside the common poster areas if they do not remove
the same within three (3) days from notice which shall be
issued by the Election Officer of the city or municipality
where the unlawful election propaganda are posted or
displayed.
Members of the PNP and other law enforcement agencies
called upon by the Election Officeror other officials of the
COMELEC shall apprehend the violators caught in the act,
and file the appropriate charges against them. (Emphasis
supplied)
Respondents considered the tarpaulin as a campaign
material in their issuances. The above provisions
regulating the posting of campaign materials only apply to
candidates and political parties, and petitioners are neither
of the two.
Section 3 of Republic Act No. 9006on "Lawful Election
Propaganda" also states that these are "allowed for all
registered political parties, national, regional, sectoral
parties or organizations participating under the party-list
elections and for all bona fide candidates seeking national
and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . .
." Section 6 of COMELEC Resolution No. 9615 provides
for a similar wording. These provisions show that election
propaganda refers to matter done by or on behalf of and
in coordination with candidates and political parties. Some
level of coordination with the candidates and political
parties for whom the election propaganda are released
would ensure that these candidates and political parties
maintain within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political
party.125 There was no allegation that petitioners
coordinated with any of the persons named in the tarpaulin
regarding its posting. On the other hand, petitioners
posted the tarpaulin as part of their advocacy against the
RH Law. Respondents also cite National Press Club v.
COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to
free speech during election period.127
National Press Club involved the prohibition on the sale
and donation of space and time for political
advertisements, limiting political advertisements to
COMELEC-designated space and time. This case was
brought by representatives of mass media and two
candidates for office in the 1992 elections. They argued
that the prohibition on the sale and donation of space and
time for political advertisements is tantamount to
censorship, which necessarily infringes on the freedom of
speech of the candidates.128
This court upheld the constitutionality of the COMELEC
prohibition in National Press Club. However, this case
does not apply as most of the petitioners were electoral
candidates, unlike petitioners in the instant case.
Moreover, the subject matter of National Press Club,
Section 11(b) of Republic Act No. 6646,129 only refers to a
particular kind of media such as newspapers, radio
broadcasting, or television.130 Justice Feliciano
emphasized that the provision did not infringe upon the
right of reporters or broadcasters to air their commentaries
and opinions regarding the candidates, their qualifications,
and program for government. Compared to
Sanidadwherein the columnists lost their ability to give
their commentary on the issues involving the plebiscite,
National Press Clubdoes not involve the same
infringement.
In the case at bar, petitioners lost their ability to give a
commentary on the candidates for the 2013 national
elections because of the COMELEC notice and letter. It
was not merelya regulation on the campaigns of
candidates vying for public office. Thus, National Press
Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code, defines an"election
campaign" as follows:
....
(b) The term "election campaign" or "partisan political
activity" refers to an act designed to promote the election
or defeat of a particular candidate or candidates to a public
office which shall include:
(1) Forming organizations, associations, clubs,
committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any
campaign for or against a candidate;
(2) Holding political caucuses, conferences,
meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes
and/or undertaking any campaign or propaganda
for or against a candidate;
(3) Making speeches, announcements or
commentaries, or holding interviews for or against
the election of any candidate for public office;
 (4) Publishing or distributing campaign literature or
materials designed to support or oppose the
election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or
support for or against a candidate.
The foregoing enumerated acts ifperformed for the
purpose of enhancing the chances of aspirants for
nomination for candidacy to a public office by a political
party, aggroupment, or coalition of parties shall not be
considered as election campaign or partisan election
activity. Public expressions or opinions or discussions of
probable issues in a forthcoming electionor on attributes of
or criticisms against probable candidates proposed to be
nominated in a forthcoming political party convention shall
not be construed as part of any election campaign or
partisan political activity contemplated under this Article.
(Emphasis supplied)
True, there is no mention whether election campaign is
limited only to the candidates and political parties
themselves. The focus of the definition is that the act must
be "designed to promote the election or defeat of a
particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of
public concern, that is, a statement of either appreciation
or criticism on votes made in the passing of the RH law.
Thus, petitioners invoke their right to freedom of
expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for
the removal of the tarpaulin violate their fundamental right
to freedom of expression.
On the other hand, respondents contend that the tarpaulin
is an election propaganda subject to their regulation
pursuant to their mandate under Article IX-C, Section 4 of
the Constitution. Thus, the assailed notice and letter
ordering itsremoval for being oversized are valid and
constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III,
Section 4 of the Constitution:
Section 4. No law shall be passed abridging the freedom
of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the
government for redress of grievances.132
No law. . .
While it is true that the present petition assails not a law
but an opinion by the COMELEC Law Department, this
court has applied Article III, Section 4 of the Constitution
even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by
analogy Section 1119 of the Revised Ordinances of 1927
of Manila for the public meeting and assembly organized
by petitioner Primicias.134 Section 1119 requires a Mayors
permit for the use of streets and public places for purposes
such as athletic games, sports, or celebration of national
holidays.135 What was questioned was not a law but the
Mayors refusal to issue a permit for the holding of
petitioners public meeting.136 Nevertheless, this court
recognized the constitutional right to freedom of speech,
to peaceful assembly and to petition for redress of
grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the
permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a
law but COMELEC En Banc Resolution No. 98-1419
where the COMELEC resolved to approve the issuance of
a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was
similarly upheld in this case and, consequently, the
assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on
expression. The prohibition against the abridgment of
speech should not mean an absolute prohibition against
regulation. The primary and incidental burden on speech
must be weighed against a compelling state interest
clearly allowed in the Constitution. The test depends on
the relevant theory of speech implicit in the kind of society
framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom
of expression, separate and in addition to the freedom of
speech and of the press provided in the US Constitution.
The word "expression" was added in the 1987 Constitution
by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr.
Presiding Officer. On Section 9, page 2, line 29, it says:
"No law shall be passed abridging the freedom of speech."
I would like to recommend to the Committee the change of
the word "speech" to EXPRESSION; or if not, add the
words AND EXPRESSION after the word "speech,"
because it is more expansive, it has a wider scope, and it
would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the
Committee say?
FR. BERNAS: "Expression" is more broad than speech.
We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any
objection? (Silence) The Chair hears none; the
amendment is approved.
FR. BERNAS: So, that provision will now read: "No law
shall be passed abridging the freedom of speech,
expression or of the press . . . ."141 Speech may be said to
be inextricably linked to freedom itself as "[t]he right to
think is the beginning of freedom, and speech must be
protected from the government because speech is the
beginning of thought."142
II.B.2
Communication is an essential outcome of protected
speech.143 Communication exists when "(1) a speaker,
seeking to signal others, uses conventional actions
because he orshe reasonably believes that such actions
will be taken by the audience in the manner intended; and
(2) the audience so takes the actions." 144 "[I]n
communicative action[,] the hearer may respond to the
claims by . . . either accepting the speech acts claims or
opposing them with criticism or requests for
justification."145
Speech is not limited to vocal communication. "[C]onduct
is treated as a form of speech sometimes referred to as
symbolic speech[,]"146 such that "when speech and
nonspeech elements are combined in the same course of
conduct, the communicative element of the conduct may
be sufficient to bring into play the [right to freedom of
expression]."147
The right to freedom of expression, thus, applies to the
entire continuum of speech from utterances made to
conduct enacted, and even to inaction itself as a symbolic
manner of communication.
In Ebralinag v. The Division Superintendent of Schools of
Cebu,148 students who were members of the religious sect
Jehovahs Witnesses were to be expelled from school for
refusing to salute the flag, sing the national anthem, and
recite the patriotic pledge.149 In his concurring opinion,
Justice Cruz discussed how the salute is a symbolic
manner of communication and a valid form of
expression.150 He adds that freedom of speech includes
even the right to be silent:
Freedom of speech includes the right to be silent. Aptly
has it been said that the Bill of Rights that guarantees to
the individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his
mind. The salute is a symbolic manner of communication
that conveys its messageas clearly as the written or
spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face
of valid religious objections like those raised in this
petition. To impose it on the petitioners is to deny them the
right not to speak when their religion bids them to be silent.
This coercion of conscience has no place in the free
society.
The democratic system provides for the accommodation
of diverse ideas, including the unconventional and even
the bizarre or eccentric. The will of the majority prevails,
but it cannot regiment thought by prescribing the recitation
by rote of its opinions or proscribing the assertion of
unorthodox or unpopular views as inthis case. The
conscientious objections of the petitioners, no less than
the impatience of those who disagree with them, are
protected by the Constitution. The State cannot make the
individual speak when the soul within rebels.151
Even before freedom "of expression" was included in
Article III, Section 4 of the present Constitution,this court
has applied its precedent version to expressions other
than verbal utterances.
In the 1985 case of Gonzalez v. Chairman
Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only."
They contend that the classification "is without legal and
factual basis and is exercised as impermissible restraint of
artistic expression."153 This court recognized that "[m]otion
pictures are important both as a medium for the
communication of ideas and the expression of the artistic
impulse."154 It adds that "every writer,actor, or producer,
no matter what medium of expression he may use, should
be freed from the censor."155 This court found that "[the
Boards] perception of what constitutes obscenity appears
to be unduly restrictive."156 However, the petition was
dismissed solely on the ground that there were not enough
votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the
information conveyed that it forms part of the expression.
The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger
tarpaulin allows larger fonts which make it easier to view
its messages from greater distances. Furthermore, a
larger tarpaulin makes it easier for passengers inside
moving vehicles to read its content. Compared with the
pedestrians, the passengers inside moving vehicles have
lesser time to view the content of a tarpaulin. The larger
the fonts and images, the greater the probability that it will
catch their attention and, thus, the greater the possibility
that they will understand its message.
Second, the size of the tarpaulin may underscore the
importance of the message to the reader. From an
ordinary persons perspective, those who post their
messages in larger fonts care more about their message
than those who carry their messages in smaller media.
The perceived importance given by the speakers, in this
case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the
emphasis put by the speakers and onthe credibility of the
speakers themselves. Certainly, larger segments of the
public may tend to be more convinced of the point made
by authoritative figures when they make the effort to
emphasize their messages.
Third, larger spaces allow for more messages. Larger
spaces, therefore, may translate to more opportunities to
amplify, explain, and argue points which the speakers
might want to communicate. Rather than simply placing
the names and images of political candidates and an
expression of support, larger spaces can allow for brief but
memorable presentations of the candidates platforms for
governance. Larger spaces allow for more precise
inceptions of ideas, catalyze reactions to advocacies, and
contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the
possibilities of both good governance and accountability in
our government.
These points become more salient when it is the
electorate, not the candidates or the political parties, that
speaks. Too often, the terms of public discussion during
elections are framed and kept hostage by brief and catchy
but meaningless sound bites extolling the character of the
candidate. Worse, elections sideline political arguments
and privilege the endorsement by celebrities. Rather than
provide obstacles to their speech, government should in
fact encourage it. Between the candidates and the
electorate, the latter have the better incentive to demand
discussion of the more important issues. Between the
candidates and the electorate, the former have better
incentives to avoid difficult political standpoints and
instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and
place.158 They are fundamentally part of expression
protected under Article III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that
strengthen the need to protect the basic right to freedom
of expression.
First, this relates to the right ofthe people to participate in
public affairs, including the right to criticize government
actions.
Proponents of the political theory on "deliberative
democracy" submit that "substantial, open, [and] ethical
dialogue isa critical, and indeed defining, feature of a good
polity."159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the
participation of all who will beaffected by the decision." 160 It
anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To
ensure order in running the states affairs, sovereign
powers were delegated and individuals would be elected
or nominated in key government positions to represent the
people. On this note, the theory on deliberative democracy
may evolve to the right of the people to make government
accountable. Necessarily, this includes the right of the
people to criticize acts made pursuant to governmental
functions.
Speech that promotes dialogue on publicaffairs, or airs out
grievances and political discontent, should thus be
protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous
to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and
proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of
society and the maintenance of good government demand
a full discussion of public affairs."163 This court has, thus,
adopted the principle that "debate on public issues should
be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public
officials."164
Second, free speech should be encouraged under the
concept of a market place of ideas. This theory was
articulated by Justice Holmes in that "the ultimate good
desired is better reached by [the] free trade in ideas:" 165
When men have realized that time has upset many fighting
faiths, they may come to believe even more than they
believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in
ideas - that the best test of truth is the power of the thought
to get itself accepted in the competition of the market, and
that truth is the only ground upon which their wishes safely
can be carried out.166
The way it works, the exposure to the ideas of others
allows one to "consider, test, and develop their own
conclusions."167 A free, open, and dynamic market place
of ideas is constantly shaping new ones. This promotes
both stability and change where recurring points may
crystallize and weak ones may develop. Of course, free
speech is more than the right to approve existing political
beliefs and economic arrangements as it includes, "[t]o
paraphrase Justice Holmes, [the] freedom for the thought
that we hate, no less than for the thought that agrees with
us."168 In fact, free speech may "best serve its high
purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs
people to anger."169 It is in this context that we should
guard against any curtailment of the peoples right to
participate in the free trade of ideas.
Third, free speech involves self-expression that enhances
human dignity. This right is "a means of assuring individual
self-fulfillment,"170 among others. In Philippine Blooming
Mills Employees Organization v. Philippine Blooming Mills
Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition,
are not only civil rights but also political rights essential to
man's enjoyment of his life, to his happiness and to his full
and complete fulfillment.Thru these freedoms the citizens
can participate not merely in the periodic establishment of
the government through their suffrage but also in the
administration of public affairs as well as in the discipline
of abusive public officers. The citizen is accorded these
rights so that he can appeal to the appropriate
governmental officers or agencies for redress and
protection as well as for the imposition of the lawful
sanctions on erring public officers and
employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one,
"[v]oluntary associations perform [an] important
democratic role [in providing] forums for the development
of civil skills, for deliberation, and for the formation of
identity and community spirit[,] [and] are largely immune
from [any] governmental interference."173 They also
"provide a buffer between individuals and the state - a free
space for the development of individual personality,
distinct group identity, and dissident ideas - and a potential
source of opposition to the state."174 Free speech must be
protected as the vehicle to find those who have similar and
shared values and ideals, to join together and forward
common goals.
Fifth, the Bill of Rights, free speech included, is supposed
to "protect individuals and minorities against majoritarian
abuses perpetrated through [the] framework [of
democratic governance]."175 Federalist framers led by
James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who
might be tyrannized or plundered by despotic federal
officials"176 and the minorities who may be oppressed by
"dominant factions of the electorate [that] capture [the]
government for their own selfish ends[.]" 177 According to
Madison, "[i]t is of great importance in a republic not only
to guard the society against the oppression of its rulers,
but to guard one part of the society against the injustice of
the other part."178 We should strive to ensure that free
speech is protected especially in light of any potential
oppression against those who find themselves in the
fringes on public issues.
Lastly, free speech must be protected under the safety
valve theory.179 This provides that "nonviolent
manifestations of dissent reduce the likelihood of
violence[.]"180 "[A] dam about to burst . . . resulting in the
banking up of a menacing flood of sullen anger behind the
walls of restriction"181 has been used to describe the effect
of repressing nonviolent outlets.182 In order to avoid this
situation and prevent people from resorting to violence,
there is a need for peaceful methods in making passionate
dissent. This includes "free expression and political
participation"183 in that they can "vote for candidates who
share their views, petition their legislatures to [make or]
change laws, . . . distribute literature alerting other citizens
of their concerns[,]"184 and conduct peaceful rallies and
other similar acts.185 Free speech must, thus, be protected
as a peaceful means of achieving ones goal, considering
the possibility that repression of nonviolent dissent may
spill over to violent means just to drive a point.
II.B.5
Every citizens expression with political consequences
enjoys a high degree of protection. Respondents argue
that the tarpaulinis election propaganda, being petitioners
way of endorsing candidates who voted against the RH
Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional
mandate.187 Election propaganda is defined under Section
1(4) of COMELEC Resolution No. 9615 as follows:
SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election
propaganda" refers to any matter broadcasted, published,
printed, displayed or exhibited, in any medium, which
contain the name, image, logo, brand, insignia, color motif,
initials, and other symbol or graphic representation that is
capable of being associated with a candidate or party, and
is intended to draw the attention of the public or a segment
thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public
office. In broadcast media, political advertisements may
take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers,
and other forms of advertising messages or
announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website,
including, but not limited to, social networks, blogging
sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional
right to communicate their opinions, views and beliefs
about issues and candidates."188 They argue that the
tarpaulin was their statement of approval and appreciation
of the named public officials act of voting against the RH
Law, and their criticism toward those who voted in its
favor.189 It was "part of their advocacy campaign against
the RH Law,"190 which was not paid for by any candidate
or political party.191 Thus, "the questioned orders which . .
. effectively restrain[ed] and curtail[ed] [their] freedom of
expression should be declared unconstitutional and
void."192
This court has held free speech and other intellectual
freedoms as "highly ranked in our scheme of constitutional
values."193 These rights enjoy precedence and
primacy.194 In Philippine Blooming Mills, this court
discussed the preferred position occupied by freedom of
expression:
Property and property rights can belost thru prescription;
but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights
is a useless attempt to limit the power of government and
ceases to be an efficacious shield against the tyranny of
officials, of majorities, ofthe influential and powerful, and of
oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free
expression and of assembly occupy a preferred position
as they are essential to the preservation and vitality of our
civil and political institutions; and such priority "gives these
liberties the sanctity and the sanction not permitting
dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so
"when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right
of suffrage."196 A similar idea appeared in our
jurisprudence as early as 1969, which was Justice
Barredos concurring and dissenting opinion in Gonzales
v. COMELEC:197
I like to reiterate over and over, for it seems this is the
fundamental point others miss, that genuine democracy
thrives only where the power and right of the people toelect
the men to whom they would entrust the privilege to run
the affairs of the state exist. In the language of the
declaration of principles of our Constitution, "The
Philippines is a republican state. Sovereignty resides in
the people and all government authority emanates from
them" (Section 1, Article II). Translating this declaration
into actuality, the Philippines is a republic because and
solely because the people in it can be governed only by
officials whom they themselves have placed in office by
their votes. And in it is on this cornerstone that I hold it tobe
self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being
exercised in relation to suffrage or asa means to enjoy the
inalienable right of the qualified citizen to vote, they are
absolute and timeless. If our democracy and
republicanism are to be worthwhile, the conduct of public
affairs by our officials must be allowed to suffer incessant
and unabating scrutiny, favorable or unfavorable,
everyday and at all times. Every holder of power in our
government must be ready to undergo exposure any
moment of the day or night, from January to December
every year, as it is only in this way that he can rightfully
gain the confidence of the people. I have no patience for
those who would regard public dissection of the
establishment as an attribute to be indulged by the people
only at certain periods of time. I consider the freedoms of
speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as
the very means by which the right itself to vote can only be
properly enjoyed.It stands to reason therefore, that
suffrage itself would be next to useless if these liberties
cannot be untrammelled [sic] whether as to degree or
time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v.
Gonzales, this court discussed that some types of speech
may be subject to regulation:
Some types of speech may be subjected to some
regulation by the State under its pervasive police power,
in order that it may not be injurious to the equal right of
others or those of the community or society. The difference
in treatment is expected because the relevant interests of
one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctionshave
therefore been made in the treatment, analysis, and
evaluation ofthe permissible scope of restrictions on
various categories of speech. We have ruled, for example,
that in our jurisdiction slander or libel, lewd and obscene
speech, as well as "fighting words" are not entitled to
constitutional protection and may be
penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech.
Political speech refers to speech "both intended and
received as a contribution to public deliberation about
some issue,"200 "foster[ing] informed and civicminded
deliberation."201 On the other hand, commercial speech
has been defined as speech that does "no more than
propose a commercial transaction."202 The expression
resulting from the content of the tarpaulin is, however,
definitely political speech. In Justice Brions dissenting
opinion, he discussed that "[t]he content of the tarpaulin,
as well as the timing of its posting, makes it subject of the
regulations in RA 9006 and Comelec Resolution No.
9615."203 He adds that "[w]hile indeed the RH issue, by
itself,is not an electoralmatter, the slant that the petitioners
gave the issue converted the non-election issue into a live
election one hence, Team Buhay and Team Patay and the
plea to support one and oppose the other."204
While the tarpaulin may influence the success or failure of
the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin
was not paid for or posted "in return for consideration" by
any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC
Resolution No. 9615, or the rules and regulations
implementing Republic Act No. 9006 as an aid to interpret
the law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election
propaganda" refers to any matter broadcasted, published,
printed, displayed or exhibited, in any medium, which
contain the name, image, logo, brand, insignia, color motif,
initials, and other symbol or graphic representation that is
capable of being associated with a candidate or party, and
is intended to draw the attention of the public or a segment
thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public
office. In broadcast media, political advertisements may
take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers,
and other forms of advertising messages or
announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website,
including, but not limited to, social networks, blogging
sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation. (Emphasis
supplied)
It is clear that this paragraph suggests that personal
opinions are not included, while sponsored messages are
covered.
Thus, the last paragraph of Section 1(1) of COMELEC
Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political
activity" refers to an act designed to promote the election
or defeat of a particular candidate or candidates to a public
office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates,
contained in blogs shall not be considered acts of election
campaigning or partisan politicalactivity unless expressed
by government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in
cyberspace, and its effects and parameters should be
deemed narrowly tailored only in relation to the facts and
issues in this case. It also appears that such wording in
COMELEC Resolution No. 9615 does not similarly appear
in Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of
political speech.
As early as 1918, in United States v. Bustos,205 this court
recognized the need for full discussion of public affairs. We
acknowledged that free speech includes the right to
criticize the conduct of public men:
The interest of society and the maintenance of good
government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men
is a scalpel in the case of free speech. The sharp incision
of its probe relieves the abscesses of official dom. Men in
public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of
a clear conscience. A public officer must not be too thin-
skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual
be exalted.206
Subsequent jurisprudence developed the right to petition
the government for redress of grievances, allowing for
criticism, save for some exceptions.207 In the 1951 case of
Espuelas v. People,208 this court noted every citizens
privilege to criticize his or her government, provided it is
"specific and therefore constructive, reasoned or
tempered, and not a contemptuous condemnation of the
entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged
violation of the Election Law provision "penaliz[ing] the
anonymous criticism of a candidate by means of posters
or circulars."211 This court explained that it is the posters
anonymous character that is being penalized.212 The
ponente adds that he would "dislike very muchto see this
decision made the vehicle for the suppression of public
opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance
of allowing individuals to vent their views. According to this
court, "[i]ts value may lie in the fact that there may be
something worth hearing from the dissenter [and] [t]hat is
to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive
criticisms against their government contributes to every
societys goal for development. It puts forward matters that
may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also
makes the government accountable for acts that violate
constitutionally protected rights.
In 1998, Osmea v. COMELEC found Section 11(b) of
Republic Act No. 6646, which prohibits mass media from
selling print space and air time for campaign except to the
COMELEC, to be a democracy-enhancing
measure.216This court mentioned how "discussion of
public issues and debate on the qualifications of
candidates in an election are essential to the proper
functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its
greatest public purposes in the context of elections when
the free exercise thereof informs the people what the
issues are, and who are supporting what issues."218 At the
heart of democracy is every advocates right to make
known what the people need to know,219 while the
meaningful exercise of ones right of suffrage includes the
right of every voter to know what they need to know in
order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the
importance of debate on public issues, and the freedom of
expression especially in relation to information that
ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public
issues should be uninhibited, robust, and wide open and
that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public
officials. Too many restrictions will deny to people the
robust, uninhibited, and wide open debate, the generating
of interest essential if our elections will truly be free, clean
and honest.
We have also ruled that the preferred freedom of
expression calls all the more for the utmost respect when
what may be curtailed is the dissemination of information
to make more meaningful the equally vital right of
suffrage.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the
freedom of expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not
the god of rights to which all other rights and even
government protection of state interest must bow." 222
The right to freedom of expression isindeed not absolute.
Even some forms of protected speech are still subjectto
some restrictions. The degree of restriction may depend
on whether the regulation is content-based or content-
neutral.223 Content-based regulations can either be based
on the viewpoint of the speaker or the subject of the
expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the
tarpaulin is a content-neutral regulation. The order was
made simply because petitioners failed to comply with the
maximum size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size
regulation is content-based as it applies only to political
speech and not to other forms of speech such as
commercial speech.225 "[A]ssuming arguendo that the size
restriction sought to be applied . . . is a mere time, place,
and manner regulation, its still unconstitutional for lack of
a clear and reasonable nexus with a constitutionally
sanctioned objective."226
The regulation may reasonably be considered as either
content-neutral or content-based.227 Regardless, the
disposition of this case will be the same. Generally,
compared with other forms of speech, the proposed
speech is content-based.
As pointed out by petitioners, the interpretation of
COMELEC contained in the questioned order applies only
to posters and tarpaulins that may affect the elections
because they deliver opinions that shape both their
choices. It does not cover, for instance, commercial
speech.
Worse, COMELEC does not point to a definite view of what
kind of expression of non-candidates will be adjudged as
"election paraphernalia." There are no existing bright lines
to categorize speech as election-related and those that are
not. This is especially true when citizens will want to use
their resources to be able to raise public issues that should
be tackled by the candidates as what has happened in this
case. COMELECs discretion to limit speech in this case is
fundamentally unbridled.
Size limitations during elections hit ata core part of
expression. The content of the tarpaulin is not easily
divorced from the size of its medium.
Content-based regulation bears a heavy presumption of
invalidity, and this court has used the clear and present
danger rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy
presumption of invalidity and is measured against the clear
and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the
restrictions imposedare neither overbroad nor
229
vague. (Citations omitted)
Under this rule, "the evil consequences sought to be
prevented must be substantive, extremely serious and the
degree of imminence extremely high."230 "Only when the
challenged act has overcome the clear and present
danger rule will it pass constitutional muster, with the
government having the burden of overcoming the
presumed unconstitutionality."231
Even with the clear and present danger test, respondents
failed to justify the regulation. There is no compelling and
substantial state interest endangered by the posting of the
tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize
the right of non-candidate petitioners to post the tarpaulin
in their private property. The size of the tarpaulin does not
affect anyone elses constitutional rights.
Content-based restraint or censorship refers to restrictions
"based on the subject matter of the utterance or
speech."232 In contrast, content-neutral regulation includes
controls merely on the incidents of the speech such as
time, place, or manner of the speech.233
This court has attempted to define "content-neutral"
restraints starting with the 1948 case of Primicias v.
Fugoso.234The ordinance in this case was construed to
grant the Mayor discretion only to determine the public
places that may be used for the procession ormeeting, but
not the power to refuse the issuance of a permit for such
procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may
be so regulated that it shall not beinjurious to the equal
enjoyment of others having equal rights, nor injurious to
the rights of the community or society."236
The earlier case of Calalang v. Williams237 involved the
National Traffic Commission resolution that prohibited the
passing of animal-drawn vehicles along certain roads at
specific hours.238 This court similarly discussed police
power in that the assailed rules carry outthe legislative
policy that "aims to promote safe transit upon and avoid
obstructions on national roads, in the interest and
convenience of the public."239
As early as 1907, United States v. Apurado240 recognized
that "more or less disorder will mark the public assembly
of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement. . . ."241 It is with this
backdrop that the state is justified in imposing restrictions
on incidental matters as time, place, and manner of the
speech.
In the landmark case of Reyes v. Bagatsing, this court
summarized the steps that permit applicants must follow
which include informing the licensing authority ahead of
time as regards the date, public place, and time of the
assembly.242 This would afford the public official time to
inform applicants if there would be valid objections,
provided that the clear and present danger test is the
standard used for his decision and the applicants are given
the opportunity to be heard.243 This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as
the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa
No. 880 as a valid content-neutral regulation. In the 2006
case of Bayan v. Ermita,244 this court discussed how Batas
Pambansa No. 880 does not prohibit assemblies but
simply regulates their time, place, and manner.245 In 2010,
this court found in Integrated Bar of the Philippines v.
Atienza246 that respondent Mayor Atienza committed
grave abuse of discretion when he modified the rally permit
by changing the venue from Mendiola Bridge to Plaza
Miranda without first affording petitioners the opportunity
to be heard.247
We reiterate that the regulation involved at bar is content-
based. The tarpaulin content is not easily divorced from
the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that
the provisions imposing a size limit for tarpaulins are
content-neutral regulations as these "restrict the
mannerby which speech is relayed but not the content of
what is conveyed."248
If we apply the test for content-neutral regulation, the
questioned acts of COMELEC will not pass the three
requirements for evaluating such restraints on freedom of
speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial
governmental interest is required for its validity," 250 and it
is subject only to the intermediate approach.251
This intermediate approach is based on the test that we
have prescribed in several cases.252 A content-neutral
government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government;
[2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incident
restriction on alleged [freedom of speech & expression] is
no greater than is essential to the furtherance of that
interest.253
On the first requisite, it is not within the constitutional
powers of the COMELEC to regulate the tarpaulin. As
discussed earlier, this is protected speech by petitioners
who are non-candidates. On the second requirement, not
only must the governmental interest be important or
substantial, it must also be compelling as to justify the
restrictions made.
Compelling governmental interest would include
constitutionally declared principles. We have held, for
example, that "the welfare of children and the States
mandate to protect and care for them, as parens
patriae,254 constitute a substantial and compelling
government interest in regulating . . . utterances in TV
broadcast."255
Respondent invokes its constitutional mandate to ensure
equal opportunity for public information campaigns among
candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that
"[s]ize limits to posters are necessary to ensure equality of
public information campaigns among candidates, as
allowing posters with different sizes gives candidates and
their supporters the incentive to post larger posters[,] [and]
[t]his places candidates with more money and/or with
deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is
"not as important as the right of [a private citizen] to freely
express his choice and exercise his right of free
speech."258 In any case, faced with both rights to freedom
of speech and equality, a prudent course would be to "try
to resolve the tension in a way that protects the right of
participation."259
Second, the pertinent election lawsrelated to private
property only require that the private property owners
consent be obtained when posting election propaganda in
the property.260 This is consistent with the fundamental
right against deprivation of property without due process
of law.261 The present facts do not involve such posting of
election propaganda absent consent from the property
owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their
authority to recommend effective measures to minimize
election spending. Specifically, Article IX-C, Section 2(7)
provides:
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis
supplied) This does not qualify as a compelling and
substantial government interest to justify regulation of the
preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are
based on the two feet (2) by three feet (3) size limitation
under Section 6(c) of COMELEC Resolution No. 9615.
This resolution implements the Fair Election Act that
provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared
to the paramount interest of the State in guaranteeing
freedom of expression, any financial considerations
behind the regulation are of marginal significance." 264 In
fact, speech with political consequences, as in this case,
should be encouraged and not curtailed. As petitioners
pointed out, the size limitation will not serve the objective
of minimizing election spending considering there is no
limit on the number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at
the legislative intent or motive in imposing the restriction,
but more so at the effects of such restriction, if
implemented. The restriction must not be narrowly tailored
to achieve the purpose. It must be demonstrable. It must
allow alternative avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the
suppression of speech. Limiting the maximum sizeof the
tarpaulin would render ineffective petitioners message
and violate their right to exercise freedom of expression.
The COMELECs act of requiring the removal of the
tarpaulin has the effect of dissuading expressions with
political consequences. These should be encouraged,
more so when exercised to make more meaningful the
equally important right to suffrage.
The restriction in the present case does not pass even the
lower test of intermediate scrutiny for content-neutral
regulations.
The action of the COMELEC in thiscase is a strong
deterrent to further speech by the electorate. Given the
stature of petitioners and their message, there are
indicators that this will cause a "chilling effect" on robust
discussion during elections.
The form of expression is just as important as the message
itself. In the words of Marshall McLuhan, "the medium is
the message."266 McLuhans colleague and mentor Harold
Innis has earlier asserted that "the materials on which
words were written down have often counted for more than
the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the
help of private individuals for the endorsement of their
electoral campaigns.
On the one extreme, this can take illicit forms such as
when endorsement materials in the form of tarpaulins,
posters, or media advertisements are made ostensibly by
"friends" but in reality are really paid for by the candidate
or political party. This skirts the constitutional value that
provides for equal opportunities for all candidates.
However, as agreed by the parties during the oral
arguments in this case, this is not the situation that
confronts us. In such cases, it will simply be a matter for
investigation and proof of fraud on the part of the
COMELEC.
The guarantee of freedom of expression to individuals
without any relationship to any political candidate should
not be held hostage by the possibility of abuse by those
seeking to be elected. It is true that there can be
underhanded, covert, or illicit dealings so as to hide the
candidates real levels of expenditures. However, labelling
all expressions of private parties that tend to have an effect
on the debate in the elections as election paraphernalia
would be too broad a remedy that can stifle genuine
speech like in this case. Instead, to address this evil, better
and more effective enforcement will be the least restrictive
means to the fundamental freedom.
On the other extreme, moved by the credentials and the
message of a candidate, others will spend their own
resources in order to lend support for the campaigns. This
may be without agreement between the speaker and the
candidate or his or her political party. In lieu of donating
funds to the campaign, they will instead use their
resources directly in a way that the candidate or political
party would have doneso. This may effectively skirt the
constitutional and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be
what candidates and political parties will carry in their
election posters or media ads. The message of petitioner,
taken as a whole, is an advocacy of a social issue that it
deeply believes. Through rhetorical devices, it
communicates the desire of Diocese that the positions of
those who run for a political position on this social issue be
determinative of how the public will vote. It primarily
advocates a stand on a social issue; only secondarily
even almost incidentally will cause the election or non-
election of a candidate.
The twin tarpaulins consist of satire of political parties.
Satire is a "literary form that employs such devices as
sarcasm, irony and ridicule to deride prevailing vices or
follies,"268 and this may target any individual or group in
society, private and government alike. It seeks to
effectively communicate a greater purpose, often used for
"political and social criticism"269 "because it tears down
facades, deflates stuffed shirts, and unmasks hypocrisy. .
. . Nothing is more thoroughly democratic than to have the
high-and-mighty lampooned and spoofed."270 Northrop
Frye, wellknown in this literary field, claimed that satire had
two defining features: "one is wit or humor founded on
fantasy or a sense of the grotesque and absurd, the other
is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not
refer to a list of dead individuals nor could the Archbishop
of the Diocese of Bacolod have intended it to mean that
the entire plan of the candidates in his list was to cause
death intentionally. The tarpaulin caricatures political
parties and parodies the intention of those in the list.
Furthermore, the list of "Team Patay" is juxtaposed with
the list of "Team Buhay" that further emphasizes the theme
of its author: Reproductive health is an important marker
for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual
messages of candidates. Election paraphernalia from
candidates and political parties are more declarative and
descriptive and contain no sophisticated literary allusion to
any social objective. Thus, they usually simply exhort the
public to vote for a person with a brief description of the
attributes of the candidate. For example "Vote for [x],
Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for
[z], Iba kami sa Makati."
This courts construction of the guarantee of freedom of
expression has always been wary of censorship or
subsequent punishment that entails evaluation of the
speakers viewpoint or the content of ones speech. This is
especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming
humility on the part of any human institution no matter how
endowed with the secular ability to decide legal
controversies with finality entails that we are not the
keepers of all wisdom.
Humanitys lack of omniscience, even acting collectively,
provides space for the weakest dissent. Tolerance has
always been a libertarian virtue whose version is
embedded in our Billof Rights. There are occasional
heretics of yesterday that have become our visionaries.
Heterodoxies have always given us pause. The
unforgiving but insistent nuance that the majority surely
and comfortably disregards provides us with the checks
upon reality that may soon evolve into creative solutions
to grave social problems. This is the utilitarian version. It
could also be that it is just part of human necessity to
evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical
document. It contains other provisions which, taken
together with the guarantee of free expression, enhances
each others value. Among these are the provisions that
acknowledge the idea of equality. In shaping doctrine
construing these constitutional values, this court needs to
exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms
as exercised in reality and, thus, render them
meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two
paradigms of free speech that separate at the point of
giving priority to equality vis--vis liberty.272
In an equality-based approach, "politically disadvantaged
speech prevails over regulation[,] but regulation promoting
political equality prevails over speech."273 This view allows
the government leeway to redistribute or equalize
speaking power, such as protecting, even implicitly
subsidizing, unpopular or dissenting voices often
systematically subdued within societys ideological
ladder.274 This view acknowledges that there are dominant
political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the
messages of others. This is especially true in a developing
or emerging economy that is part of the majoritarian world
like ours.
The question of libertarian tolerance
This balance between equality and the ability to express
so as to find ones authentic self or to participate in the self
determination of ones communities is not new only to law.
It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher
and social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background
limitation, rendering freedoms exercised within such
limitation as merely "protect[ing] the already established
machinery of discrimination."275 In his view, any
improvement "in the normal course of events" within an
unequal society, without subversion, only strengthens
existing interests of those in power and control.276
In other words, abstract guarantees of fundamental rights
like freedom of expression may become meaningless if not
taken in a real context. This tendency to tackle rights in the
abstract compromises liberties. In his words:
Liberty is self-determination, autonomythis is almost a
tautology, but a tautology which results from a whole
series of synthetic judgments. It stipulates the ability to
determine ones own life: to be able to determine what to
do and what not to do, what to suffer and what not. But the
subject of this autonomy is never the contingent, private
individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable
of being free with the others. And the problem of making
possible such a harmony between every individual liberty
and the other is not that of finding a compromise between
competitors, or between freedom and law, between
general and individual interest, common and private
welfare in an established society, but of creating the
society in which man is no longer enslaved by institutions
which vitiate self-determination from the beginning. In
other words, freedom is still to be created even for the
freest of the existing societies.277 (Emphasis in the
original)
Marcuse suggests that the democratic argument with
all opinions presented to and deliberated by the people
"implies a necessary condition, namely, that the people
must be capable of deliberating and choosing on the basis
of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must
be the result of autonomous thought."278 He submits that
"[d]ifferent opinions and philosophies can no longer
compete peacefully for adherence and persuasion on
rational grounds: the marketplace of ideas is organized
and delimited by those who determine the national and the
individual interest."279 A slant toward left manifests from
his belief that "there is a natural right of resistance for
oppressed and overpowered minorities to use extralegal
means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that
breaks away and transcends from established hierarchies,
power structures, and indoctrinations. The tolerance of
libertarian society he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from
legal scholars for "stringent protections of expressive
liberty,"281 especially by political egalitarians.
Considerations such as "expressive, deliberative, and
informational interests,"282 costs or the price of
expression, and background facts, when taken together,
produce bases for a system of stringent protections for
expressive liberties.283
Many legal scholars discuss the interest and value of
expressive liberties. Justice Brandeis proposed that
"public discussion is a political duty."284 Cass Sustein
placed political speech on the upper tier of his twotier
model for freedom of expression, thus, warranting
stringent protection.285 He defined political speech as
"both intended and received as a contribution to public
deliberation about some issue."286
But this is usually related also tofair access to
opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and
not mere formal equalitysince "favorable conditions for
realizing the expressive interest will include some
assurance of the resources required for expression and
some guarantee that efforts to express views on matters
of common concern will not be drowned out by the speech
of betterendowed citizens."288 Justice Brandeis solution is
to "remedy the harms of speech with more
speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs
seriously and embrac[ing] expression as the preferred
strategy for addressing them."290 However, in some cases,
the idea of more speech may not be enough. Professor
Laurence Tribe observed the need for context and "the
specification of substantive values before [equality] has full
meaning."291 Professor Catherine A. MacKinnon adds that
"equality continues to be viewed in a formal rather than a
substantive sense."292 Thus, more speech can only mean
more speech from the few who are dominant rather than
those who are not.
Our jurisprudence
This court has tackled these issues.
Osmea v. COMELEC affirmed National Press Club v.
COMELEC on the validity of Section 11(b) ofthe Electoral
Reforms Law of 1987.293 This section "prohibits mass
media from selling or giving free of charge print space or
air time for campaign or other political purposes, except to
the Commission on Elections."294 This court explained that
this provision only regulates the time and manner of
advertising in order to ensure media equality among
candidates.295 This court grounded this measure on
constitutional provisions mandating political
equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election
period, supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of
transportation and other public utilities, media of
communication or information, all grants, special
privileges, or concessions granted by the Government or
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation
or its subsidiary. Such supervision or regulation shall aim
to ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among
candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections.
(Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the
enactment of measures that protect and enhance the right
of all the people to human dignity, reducesocial, economic,
and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its
increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the
Constitutions guarantee for more substantive expressive
freedoms that take equality of opportunities into
consideration during elections.
The other view
However, there is also the other view. This is that
considerations of equality of opportunity or equality inthe
ability of citizens as speakers should not have a bearing in
free speech doctrine. Under this view, "members of the
public are trusted to make their own individual evaluations
of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are
best left to a freely competitive ideological market."297 This
is consistent with the libertarian suspicion on the use of
viewpoint as well as content to evaluate the constitutional
validity or invalidity of speech.
The textual basis of this view is that the constitutional
provision uses negative rather than affirmative language.
It uses speech as its subject and not
speakers.298 Consequently, the Constitution protects free
speech per se, indifferent to the types, status, or
associations of its speakers.299 Pursuant to this,
"government must leave speakers and listeners in the
private order to their own devices in sorting out the relative
influence of speech."300
Justice Romeros dissenting opinion in Osmea v.
COMELEC formulates this view that freedom of speech
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
of public concern."301 She adds:
And since so many imponderables may affect the outcome
of elections qualifications of voters and candidates,
education, means of transportation, health, public
discussion, private animosities, the weather, the threshold
of a voters resistance to pressure the utmost ventilation
of opinion of men and issues, through assembly,
association and organizations, both by the candidate and
the voter, becomes a sine qua non for elections to truly
reflect the will of the electorate.302 (Emphasis supplied)
Justice Romeros dissenting opinion cited an American
case, if only to emphasize free speech primacy such
that"courts, as a rule are wary to impose greater
restrictions as to any attempt to curtail speeches with
political content,"303 thus:
the concept that the government may restrict the speech
of some elements in our society in order to enhance the
relative voice of the others is wholly foreign to the First
Amendment which was designed to "secure the widest
possible dissemination of information from diverse and
antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes submission
"that the market place of ideas is still the best alternative
to censorship."305
Parenthetically and just to provide the whole detail of the
argument, the majority of the US Supreme Court in the
campaign expenditures case of Buckley v. Valeo
"condemned restrictions (even if content-neutral) on
expressive liberty imposed in the name of enhanc[ing] the
relative voice of others and thereby equaliz[ing] access to
the political arena."306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit
placed on the amount which a person can speak, which
takes out of his exclusive judgment the decision of when
enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on
political campaigning inherently constricts the sum of
public information and runs counter to our profound
national commitment that debate on public issues should
be uninhibited, robust, and wide-open."308
In fact, "[c]onstraining those who have funds or have been
able to raise funds does not ease the plight of those
without funds in the first place . . . [and] even if ones main
concern isslowing the increase in political costs, it may be
more effective torely on market forces toachieve that result
than on active legal intervention."309 According to Herbert
Alexander, "[t]o oppose limitations is not necessarily to
argue that the skys the limit [because in] any campaign
there are saturation levels and a point where spending no
longer pays off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into
consideration the constitutional respect for human
potentiality and the effect of speech. It valorizes the ability
of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take
into consideration the effects it will have in a deliberative
democracy. Skewed distribution of resources as well as
the cultural hegemony of the majority may have the effect
of drowning out the speech and the messages of those in
the minority. In a sense, social inequality does have its
effect on the exercise and effect of the guarantee of free
speech. Those who have more will have better access to
media that reaches a wider audience than those who have
less. Those who espouse the more popular ideas will have
better reception than the subversive and the dissenters of
society.To be really heard and understood, the
marginalized view normally undergoes its own degree of
struggle.
The traditional view has been to tolerate the viewpoint of
the speaker and the content of his or her expression. This
view, thus, restricts laws or regulation that allows public
officials to make judgments of the value of such viewpoint
or message content. This should still be the principal
approach.
However, the requirements of the Constitution regarding
equality in opportunity must provide limits to some
expression during electoral campaigns.
Thus clearly, regulation of speech in the context of
electoral campaigns made by candidates or the members
of their political parties or their political parties may be
regulated as to time, place, and manner. This is the effect
of our rulings in Osmea v. COMELEC and National Press
Club v. COMELEC.
Regulation of speech in the context of electoral campaigns
made by persons who are not candidates or who do not
speak as members of a political party which are, taken as
a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional.
Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming
from the electorate including those that can catalyze
candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.
This does not mean that there cannot be a specie of
speech by a private citizen which will not amount toan
election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of persons
who are not candidates or who do not speak as members
of a political party if they are not candidates, only if what is
regulated is declarative speech that, taken as a whole, has
for its principal object the endorsement of a candidate
only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of
enhancing the opportunity of all candidates to be heard
and considering the primacy of the guarantee of free
expression, and (d) demonstrably the least restrictive
means to achieve that object. The regulation must only be
with respect to the time, place, and manner of the rendition
of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this
purpose, it will notmatter whether the speech is made with
or on private property.
This is not the situation, however, in this case for two
reasons. First, as discussed, the principal message in the
twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice
Antonio Carpio, the present law Section 3.3 of Republic
Act No. 9006 and Section 6(c) of COMELEC Resolution
No. 9615 if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins
without any relation to the distance from the intended
average audience will be arbitrary. At certain distances,
posters measuring 2 by 3 feet could no longer be read by
the general public and, hence, would render speech
meaningless. It will amount to the abridgement of speech
with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the
meaningful exercise of the right to suffrage,312 the present
case also involves ones right to property.313
Respondents argue that it is the right of the state to
prevent the circumvention of regulations relating to
election propaganda by applying such regulations to
private individuals.314 Certainly, any provision or regulation
can be circumvented. But we are not confronted with this
possibility. Respondents agree that the tarpaulin in
question belongs to petitioners. Respondents have also
agreed, during the oral arguments, that petitioners were
neither commissioned nor paid by any candidate or
political party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the
tarpaulin remains the private property of petitioners. Their
right to use their property is likewise protected by the
Constitution.
In Philippine Communications Satellite Corporation v.
Alcuaz:315
Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary
or unreasonable infringement of property rights is void,
because it is repugnant to the constitutional guaranties of
due process and equal protection of the laws.316 (Citation
omitted)
This court in Adiong held that a restriction that regulates
where decals and stickers should be posted is "so broad
that it encompasses even the citizens private
property."317 Consequently, it violates Article III, Section 1
of the Constitution which provides thatno person shall be
deprived of his property without due process of law. This
court explained:
Property is more than the mere thing which a person owns,
it includes the right to acquire, use, and dispose of it; and
the Constitution, in the 14th Amendment, protects these
essential attributes.
Property is more than the mere thing which a person owns.
It is elementary that it includes the right to acquire, use,
and dispose of it. The Constitution protects these essential
attributes of property. Holden v. Hardy, 169 U.S. 366, 391,
41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists
of the free use, enjoyment, and disposal of a persons
acquisitions without control or diminution save by the law
of the land. 1 Cooleys Bl. Com. 127. (Buchanan v. Warley
245 US 60 [1917])318
This court ruled that the regulation in Adiong violates
private property rights:
The right to property may be subject to a greater degree
of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the
Government must be exceptionally convincing and
irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and
invasive that it prohibits the posting or display of election
propaganda in any place, whether public or private, except
inthe common poster areas sanctioned by COMELEC.
This means that a private person cannot post his own
crudely prepared personal poster on his own front dooror
on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what
overzealous and partisan police officers, armed with a
copy of the statute or regulation, may do.319 Respondents
ordered petitioners, who are private citizens, to remove the
tarpaulin from their own property. The absurdity of the
situation is in itself an indication of the unconstitutionality
of COMELECs interpretation of its powers.
Freedom of expression can be intimately related with the
right to property. There may be no expression when there
is no place where the expression may be made.
COMELECs infringement upon petitioners property rights
as in the present case also reaches out to infringement on
their fundamental right to speech.
Respondents have not demonstrated thatthe present state
interest they seek to promote justifies the intrusion into
petitioners property rights. Election laws and regulations
must be reasonable. It must also acknowledge a private
individuals right to exercise property rights. Otherwise, the
due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act
intend to prevent the posting of election propaganda in
private property without the consent of the owners of such
private property. COMELEC has incorrectly implemented
these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain
petitioners from posting the tarpaulin in their own private
property is an impermissible encroachments on the right
to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the
COMELEC in issuing the questioned notice and letter
violated the right of petitioners to the free exercise of their
religion.
At the outset, the Constitution mandates the separation of
church and state.320 This takes many forms. Article III,
Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. Noreligious test shall
be required for the exercise of civil or political rights.
There are two aspects of this provision.321 The first is the
none stablishment clause.322 Second is the free exercise
and enjoyment of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests,
bishops, ustadz, imams, or any other religious make such
act immune from any secular regulation.324 The religious
also have a secular existence. They exist within a society
that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin.
But not all acts of a bishop amounts to religious
expression. This notwithstanding petitioners claim that
"the views and position of the petitioners, the Bishop and
the Diocese of Bacolod, on the RH Bill is inextricably
connected to its Catholic dogma, faith, and moral
teachings. . . ."325
The difficulty that often presents itself in these cases stems
from the reality that every act can be motivated by moral,
ethical, and religious considerations. In terms of their
effect on the corporeal world, these acts range from belief,
to expressions of these faiths, to religious ceremonies, and
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
not subscribe to any religion, may not have any religious
bearing.
Definitely, the characterizations ofthe religious of their acts
are not conclusive on this court. Certainly, our powers of
adjudication cannot be blinded by bare claims that acts are
religious in nature.
Petitioners erroneously relied on the case of Ebralinag v.
The Division Superintendent of Schools of Cebu 326 in
claiming that the court "emphatically" held that the
adherents ofa particular religion shall be the ones to
determine whether a particular matter shall be considered
ecclesiastical in nature.327 This court in
Ebralinagexempted Jehovahs Witnesses from
participating in the flag ceremony "out of respect for their
religious beliefs, [no matter how] "bizarre" those
beliefsmay seem to others."328 This court found a balance
between the assertion of a religious practice and the
compelling necessities of a secular command. It was an
early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of
benevolent neutrality:
With religion looked upon with benevolence and not
hostility, benevolent neutrality allows accommodation of
religion under certain circumstances. Accommodations
are government policies that take religion specifically
intoaccount not to promote the governments favored form
of religion, but to allow individuals and groups to exercise
their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the
exercise of, a persons or institutions religion. As Justice
Brennan explained, the "government [may] take religion
into account . . . to exempt, when possible, from generally
applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may
flourish."330
This court also discussed the Lemon test in that case, such
that a regulation is constitutional when: (1) it has a secular
legislative purpose; (2) it neither advances nor inhibits
religion; and (3) it does not foster an excessive
entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on
its face, "does not convey any religious doctrine of the
Catholic church."332 That the position of the Catholic
church appears to coincide with the message of the
tarpaulin regarding the RH Law does not, by itself, bring
the expression within the ambit of religious speech. On the
contrary, the tarpaulin clearly refers to candidates
classified under "Team Patay" and "Team Buhay"
according to their respective votes on the RH Law.
The same may be said of petitioners reliance on papal
encyclicals to support their claim that the expression onthe
tarpaulin is an ecclesiastical matter. With all due respect
to the Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of
the Catholic religion in the Philippines as regards the RH
Law does not suffice to qualify the posting by one of its
members of a tarpaulin as religious speech solely on such
basis. The enumeration of candidates on the face of the
tarpaulin precludes any doubtas to its nature as speech
with political consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in
Austria v. National Labor Relations Commission333 cited
by petitioners finds no application in the present case. The
posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for
excommunication, ordinations of religious ministers,
administration of sacraments and other activities
withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting
to do what it thought was its duty in this case. However, it
was misdirected.
COMELECs general role includes a mandate to ensure
equal opportunities and reduce spending among
candidates and their registered political parties. It is not to
regulate or limit the speech of the electorate as it strives to
participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a
caricature of those who are running for public office.Their
message may be construed generalizations of very
complex individuals and party-list organizations.
They are classified into black and white: as belonging to
"Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still
protected speech.
That petitioners chose to categorize them as purveyors of
death or of life on the basis of a single issue and a
complex piece of legislation at that can easily be
interpreted as anattempt to stereo type the candidates and
party-list organizations. Not all may agree to the way their
thoughts were expressed, as in fact there are other
Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room
to consider being more broad-minded and non-
judgmental. Some may have expected that the authors
would give more space to practice forgiveness and
humility.
But, the Bill of Rights enumerated in our Constitution is an
enumeration of our fundamental liberties. It is not a
detailed code that prescribes good conduct. It provides
space for all to be guided by their conscience, not only in
the act that they do to others but also in judgment of the
acts of others.
Freedom for the thought we can disagree with can be
wielded not only by those in the minority. This can often be
expressed by dominant institutions, even religious ones.
That they made their point dramatically and in a large way
does not necessarily mean that their statements are true,
or that they have basis, or that they have been expressed
in good taste.
Embedded in the tarpaulin, however, are opinions
expressed by petitioners. It is a specie of expression
protected by our fundamental law. It is an expression
designed to invite attention, cause debate, and hopefully,
persuade. It may be motivated by the interpretation of
petitioners of their ecclesiastical duty, but their
parishioners actions will have very real secular
consequences. Certainly, provocative messages do
matter for the elections.
What is involved in this case is the most sacred of speech
forms: expression by the electorate that tends to rouse the
public to debate contemporary issues. This is not
speechby candidates or political parties to entice votes. It
is a portion of the electorate telling candidates the
conditions for their election. It is the substantive content of
the right to suffrage.
This. is a form of speech hopeful of a quality of democracy
that we should all deserve. It is protected as a fundamental
and primordial right by our Constitution. The expression in
the medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The
temporary restraining order previously issued is hereby
made permanent. The act of the COMELEC in issuing the 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

LEONEN, J.:
When a government entity engages the legal services of
private counsel, it must do so with the necessary
authorization required by law; otherwise, its officials bind
themselves to be personally liable for compensating
private counsels services.
Corporate Counsel denied the request.8 Clark
Development Corporation then filed a request for
reconsideration.9
On May 20, 2002, the Office of the Government Corporate
Counsel, through Government Corporate Counsel Amado
D. Valdez (Government Corporate Counsel Valdez),
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
terms and conditions of the retainership.12 It instructed
Clark Development Corporation to submit a copy of the
contract to the Office of the Government Corporate
Counsel after all the parties concerned have signed it.13
In the meantime, Laguesma Magsalin Consulta and
Gastardo commenced rendering legal services to Clark
Development Corporation. At this point, Clark
Development Corporation had yet to secure the
authorization and clearance from the Office of the
Government Corporate Counsel or the concurrence of the
Commission on Audit of the retainership contract.
According to the law firm, Clark Development
Corporations officers assured the law firm that it was in
the process of securing the approval of the Commission
on Audit.14
On June 28, 2002, Clark Development Corporation,
through its Board of Directors, approved Laguesma
Magsalin Consulta and Gastardos engagement as private
counsel.15 In 2003, it also approved the assignment of
additional labor cases to the law firm.16
On July 13, 2005, Clark Development Corporation
requested the Commission on Audit for concurrence of the
retainership contract it executed with Laguesma Magsalin
Consulta and Gastardo.17 According to the law firm, it was
only at this pointwhen Clark Development Corporation
informed them that the Commission on Audit required the
clearance and approval of the Office of the Government
Corporate Counsel before it could approve the release of
Clark Development Corporations funds to settle the legal
fees due to the law firm.18
On August 5, 2005, State Auditor IVElvira G. Punzalan
informed Clark Development Corporation that itsrequest
for clearance could not be acted upon until the Office of
the Government Corporate Counsel approves the
retainership contract with finality.19
On August 10, 2005, Clark Development Corporation sent
a letterrequest to the Office of the Government Corporate
Counsel for the final approval of the retainership contract,
in compliance with the Commission on Audits
requirements.20
On December 22, 2005, GovernmentCorporate Counsel
Agnes VST Devanadera (Government Corporate Counsel
Devanadera) denied Clark Development Corporations
request for approval on the ground that the proforma
retainership contract given to them was not "based on the
premise that the monthly retainers fee and concomitant
charges are reasonable and could pass in audit by
COA."21 She found that Clark Development Corporation
adopted instead the law firms proposals concerning the
payment of a retainers fee on a per case basis without
informing the Office of the Government Corporate
Counsel. She, however, ruled that the law firm was entitled
to payment under the principle of quantum meruitand
subject to Clark Development Corporation Boards
approval and the usual government auditing rules and
regulations.22
On December 27, 2005, Clark Development Corporation
relayed Government Corporate Counsel Devanaderas
letter to the Commissions Audit Team Leader, highlighting
the portion on the approval of payment to Laguesma
Magsalin Consulta and Gastardo on the basis of quantum
meruit.23
On November 9, 2006, the Commission on Audits Office
of the General Counsel, Legal and Adjudication Sector
issued a "Third Indorsement"24 denying Clark
Development Corporations request for clearance, citing
its failure to secure a prior written concurrence of the
Commission on Audit and the approval with finality of the
Office of the Government Corporate Counsel.25 It also
stated that its request for concurrence was made three (3)
years after engaging the legal services of the law firm.26
On December 4, 2006, Laguesma Magsalin Consulta and
Gastardo appealed the "Third Indorsement"to the
Commission on Audit. On December 12, 2006, Clark
Development Corporation also filed a motion for
reconsideration.27
On September 27, 2007, the Commission on Audit
rendered the assailed decision denying the appeal and
motion for reconsideration. It ruled that Clark Development
Corporation violated Commission on Audit Circular No. 98-
002 dated June 9, 1998 and Office of the President
Memorandum Circular No. 9 dated August 27, 1998
whenit engaged the legal services of Laguesma Magsalin
Consulta and Gastardo without the final approval and
written concurrence of the Commission on Audit.28 It also
ruled that it was not the governments responsibility to pay
the legal fees already incurred by Clark Development
Corporation, but rather by the government officials who
violated the regulations on the matter.29
Clark Development Corporation and Laguesma Magsalin
Consulta and Gastardo separately filed motions for
reconsideration,30 which the Commission on Audit denied
in the assailed resolution dated November 5, 2008. The
resolution also disallowed the payment of legal fees to the
law firm on the basis of quantum meruitsince the
Commission on Audit Circular No. 86-255 mandates that
the engagementof private counsel without prior approval
"shall be a personal liability of the officials concerned."31
Laguesma Magsalin Consulta and Gastardo filed this
petition for certiorari on December 19,
32
2008. Respondents, through the Office of the Solicitor
General, filed their comment33 dated May 7, 2009. The
reply34 was filed on September 1, 2009.
The primordial issue to be resolved by this court is whether
the Commission on Audit erred in disallowing the payment
of the legal fees to Laguesma Magsalin Consulta and
Gastardo as Clark Development Corporations private
counsel.
To resolve this issue, however, several procedural and
substantive issues must first be addressed:
Procedural:
1. Whether the petition was filed on time; and
 2. Whether petitioner is the real party-in-interest.
Substantive:
1. Whether the Commission on Audit erred in
denying Clark Development Corporations
requestfor clearance in engaging petitioner as
private counsel;
2. Whether the Commission on Audit correctly cited
Polloso v. Gangan35 and PHIVIDEC Industrial
Authority v. Capitol Steel Corporation36 in support
of its denial; and
3. Whether the Commission on Audit erred in ruling
that petitioner should not be paid on the basis of
quantum meruitand that any payment for its legal
services should be the personal liability of Clark
Development Corporations officials.
Petitioner argues that Pollosoand PHIVIDEC are not
applicable to the circumstances at hand because in both
cases, the government agency concerned had failed to
secure the approval of both the Office of the Government
Corporate Counsel and the Commission on
37
Audit. Petitioner asserts that it was able to secure
authorization from the Office of the Government Corporate
Counsel prior to rendering services to Clark Development
Corporation for all but two (2) of the labor cases assigned
to it.38 It argues that the May 20, 2002 letter from
Government Corporate Counsel Valdez was tantamount
to a grant of authorization since it granted Clark
Development Corporations request for reconsideration.39
In their comment,40 respondents argue that petitioner is
not a real party-in-interest to the case.41 They argue that it
is Clark Development Corporation, and not petitioner, who
isa real party-in-interest since the subject of the assailed
decision was the denial of the corporations request for
clearance.42
Respondents also allege that it was only on July 13, 2005,
or three (3) years after the hiring of petitioner, when Clark
Development Corporation requested the Commission on
Audits concurrence of the retainership contract between
Clark Development Corporation and petitioner.43 They
argue that the retainership contract was not approved with
finality by the Office of the Government Corporate
Counsel.44 Further, Polloso and PHIVIDE Care applicable
to this case since both cases involve the "indispensability
of [the] prior written concurrence of both [the Office of the
Government Corporate Counsel] and the [Commission on
Audit] before any [government-owned and controlled
corporation] can hire an external counsel."45
In its reply,46 petitioner argues that it is a real party-in-
interest since "it rendered its services to [Clark
Development Corporation], which ultimately redounded to
the benefit of the Republic"47 and that "it deserves to be
paid what is its due as a matter of right."48 Petitioner also
reiterates its argument that Polloso and PHIVIDE Care not
applicable to this case since the factual antecedents are
not the same.49
The petition is denied.
The petition was filed out of time
Petitioner states that it filed this petition under Rule XI,
Section 1 of the 1997 Revised Rules of Procedure of the
Commission on Audit.50 The rule states:
RULE XI
JUDICIAL REVIEW SECTION
1. Petition for Certiorari. Any decision, order or
resolution of the Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within
thirty (30) days from receipt of a copy thereof in the
manner provided by law, the Rules of Court51 and these
Rules.
This rule is based on Article IX-A, Section 7 of the
Constitution, which states:
Section 7. Each Commission shall decide by a majority
vote of all its Members, any case or matter brought before
it within sixty days from the date of its submission for
decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules
of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any
decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy
thereof. (Emphasis supplied)
Ordinarily, a petition for certiorari under Rule 65 of the
Rules of Court has a reglementary period of 60 days from
receipt of denial of the motion for reconsideration. The
Constitution, however, specifies that the reglementary
period for assailing the decisions, orders, or rulings of the
constitutional commissions is thirty (30) days from receipt
of the decision, order, or ruling. For this reason, a separate
rule was enacted in the Rules of Court.
Rule 64 of the Rules of Civil Procedure provides the
guidelines for filing a petition for certiorari under this rule.
Section 2 of the rule specifies that "[a] judgment or final
order or resolution of the Commission on Elections and the
Commission on Audit may be brought by the aggrieved
party to the Supreme Court on certiorari under Rule 65,
except as hereinafter provided."
The phrase, "except as hereinafter provided," specifies
that any petition for certiorari filed under this rule follows
the same requisites as those of Rule 65 except for certain
provisions found only in Rule 64. One of these provisions
concerns the time given to file the petition.
Section 3 of Rule 64 of the Rules of Civil Procedure states:
SEC. 3. Time to file petition. The petition shall be filed
within thirty (30) days from notice of the judgment or final
order or resolution sought to be reviewed. The filing of a
motion for new trial or reconsideration of said judgment or
final order or resolution, if allowed under the procedural
rules of the Commission concerned, shall interrupt the
period herein fixed. If the motion is denied, the aggrieved
party may file the petition within the remaining period, but
which shall not be less than five (5) days in any event,
reckoned from notice of denial.(Emphasis supplied)
Under this rule, a party may file a petition for review on
certiorari within 30 days from notice of the judgment being
assailed. The reglementary period includes the time taken
to file the motion for reconsideration and is only interrupted
once the motion is filed. If the motion is denied, the party
may filethe petition only within the period remaining from
the notice of judgment.
The difference between Rule 64 and Rule 65 has already
been exhaustively discussed by this court in Pates v.
Commission on Elections:52
Rule 64, however, cannot simply be equated to Rule 65
even if it expressly refers to the latter rule. They exist as
separate rules for substantive reasons as discussed
below. Procedurally, the most patent difference between
the two i.e., the exception that Section 2, Rule 64 refers
to is Section 3 which provides for a special period for the
filing of petitions for certiorari from decisions or rulings of
the COMELEC en banc. The period is 30 days from notice
of the decision or ruling (instead of the 60 days that Rule
65 provides), with the intervening period used for the filing
of any motion for reconsideration deductible from the
originally granted 30 days (instead of the fresh period of
60 days that Rule 65 provides).53 (Emphasis supplied)
In this case, petitioner received the decision of the
Commission on Audit on October 16, 2007.54 It filed a
motion for reconsideration on November 6, 2007,55 or after
21 days. It received notice of the denial of its motion on
November 20, 2008.56 The receipt of this notice gave
petitioner nine (9) days, or until November 29, 2008, to file
a petition for certiorari. Since November 29, 2008 fell on a
Saturday, petitioner could still have filed on the next
working day, or on December 1, 2008. It, however, filed
the petition on December 19, 2008,57 which was well
beyond the reglementary period.
This petition could have been dismissed outright for being
filed out of time. This court, however, recognizes that there
are certain exceptions that allow a relaxation of the
procedural rules. In Barranco v. Commission on the
Settlement of Land Problems:58
The Court is fully aware that procedural rules are not to be
belittled or simply disregarded for these prescribed
procedures insure an orderly and speedy administration of
justice. However, it is equally true that litigation is not
merely a game of technicalities. Law and jurisprudence
grant to courts the prerogative to relax compliance with
procedural rules of even the most mandatory character,
mindful of the duty to reconcile both the need to put an end
to litigation speedily and the parties right to an opportunity
to be heard.
In Sanchez v. Court of Appeals, the Court restated the
reasons which may provide justification for a court to
suspend a strict adherence to procedural rules, such as:
(a) matters of life, liberty, honor or property[,] (b) the
existence of special or compelling circumstances, (c) the
merits of the case, (d) a cause not entirely attributable to
the fault or negligence of the party favored by the
suspension of the rules, (e) a lack of any showing that the
review sought is merely frivolous and dilatory, and (f) the
other party will not be unjustly prejudiced
59
thereby. (Emphasis supplied)
Considering that the issues in thiscase involve the right of
petitioner to receive due compensation on the one hand
and respondents duty to prevent the unauthorized
disbursement of public funds on the other, a relaxation of
the technical rules is in order.
Petitioner is a real party-in-interest
Respondents argue that it is Clark Development
Corporation, and not petitioner, which is the real party-in-
interest since the subject of the assailed decision and
resolution was the corporations request for clearance to
pay petitioner its legal fees. Respondents argue that any
interest petitioner may have in the case is merely
incidental.60This is erroneous.
Petitioner is a real party-in-interest, as defined in Rule 3,
Section 2 of the 1997 Rules of Civil Procedure:
SEC. 2. Parties in interest. A real party in interest is the
party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by law or these
Rules, every action must be prosecuted or defended in the
name of the real party in interest.
Petitioner does not have a "mere incidental interest,"61 and
its interest is not "merely consequential."62 Respondents
mistakenly narrow down the issue to whether they erred in
denying Clark Development Corporations request for
clearance of the retainership contract.63 In doing so, they
argue that the interested parties are limited only to Clark
Development Corporation and respondents.64
The issue at hand, however, relates to the assailed
decision and resolution of respondents, which disallowed
the disbursement of public funds for the payment of legal
fees to petitioner. Respondents admit that legal services
were performed by petitioner for which payment of legal
fees are due. The question that they resolved was which
among the parties, the government, or the officials of Clark
Development Corporation were liable.
The net effect of upholding or setting aside the assailed
Commission on Audit rulings would be to either disallow or
allow the payment of legal fees to petitioner. Petitioner,
therefore, stands to either be benefited or injured by the
suit, or entitled to its avails. It is a real party-in-interest.
Clark Development Corporations Board of Directors, on
the other hand, should have been impleaded inthis case
as a necessary party.
A necessary party is defined as "onewho is not
indispensable but who ought to be joined as a party if
complete relief is to be accorded as to those already
parties, or for a complete determination or settlement of
the claim subject of the action."65
The actions of the Board of Directors precipitated the
issues in this case. If the petition is granted, then the
officers are relieved of liability to petitioner. If the rulings of
respondents are upheld, then it is the Board of Directors
that will be liable to petitioner. Any relief in this case would
be incomplete without joining the members of the Board of
Directors.
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
unconscionable expenditure or uses of public funds and
property (Sec. 2-2, Art. IX-D, Constitutional, public funds
shall not be utilized for payment of the services of a private
legal counsel or law firm to represent government
agencies and instrumentalities, including government-
owned or controlled corporations and local government
units in court or to render legal services for them. In the
event that such legal services cannot be avoided or
isjustified under extraordinary or exceptional
circumstances for government agencies and
instrumentalities, including government-owned or
controlled corporations, the written conformity and
acquiescence of the Solicitor General or the Government
Corporate Counsel, as the case maybe, and the written
concurrence of the Commission on Audit shall first be
secured before the hiring or employment of a private
lawyer or law firm.(Emphasis supplied)
The Office of the President Memorandum Circular No. 9,
on the other hand, states:
SECTION 1.All legal matters pertainingto government-
owned or controlled corporations, their subsidiaries, other
corporate offsprings and government acquired asset
corporations (GOCCs) shall be exclusively referred to and
handled by the Office of the Government Corporate
Counsel (OGCC).
GOCCs are thereby enjoined from referring their cases
and legal matters to the Office of the Solicitor General
unless their respective charters expressly name the Office
of the Solicitor General as their legal counsel.
However, under exceptional circumstances, the OSG may
represent the GOCC concerned, Provided: This is
authorized by the President; or by the head of the office
concerned and approved by the President.
SECTION 2. All pending cases of GOCCs being handled
by the OSG, and all pending requests for opinions and
contract reviews which have been referred by saidGOCCs
to the OSG, may be retained and acted upon by the OSG;
but the latter shall inform the OGCC of the said pending
cases, requests for opinions and contract reviews, if any,
to ensure proper monitoring and coordination.
SECTION 3. GOCCs are likewise enjoined to refrain from
hiring private lawyers or law firms to handle their cases
and legal matters. But in exceptional cases, the written
conformity and acquiescence of the Solicitor General or
the Government Corporate Counsel, as the case may be,
and the written concurrence of the Commission on Audit
shall first be secured before the hiring or employment of a
private lawyer or law firm. (Emphasis supplied)
According to these rules and regulations, the general rule
is that government-owned and controlled corporations
must refer all their legal matters to the Office of the
Government Corporate Counsel. It is only in "extraordinary
or exceptional circumstances" or "exceptional cases" that
it is allowed to engage the services of private counsels.
Petitioner claims that it was hired by Clark Development
Corporation due to "numerous labor cases which need
urgent attention[.]"68 In its request for reconsideration to
the Office of the Government Corporate Counsel, Clark
Development Corporation claims that it was obtaining the
services of petitioner "acting through Atty. Ariston Vicente
R. Quirolgico, known expert in the field of labor law and
relations."69
The labor cases petitioner handled were not of a
complicated or peculiar nature that could justify the hiring
of a known expert in the field. On the contrary, these
appear to be standard labor cases of illegal dismissal and
collective bargaining agreement negotiations,70 which
Clark Development Corporations lawyers or the Office of
the Government Corporate Counsel could have handled.
Commission on Audit Circular No. 86-255 dated April 2,
1986 and Office of the President Memorandum Circular
No. 9 also require that "before the hiring or employment"of
private counsel, the "written conformity and acquiescence
of the [Government Corporate Counsel] and the written
concurrence of the Commissionon Audit shall first be
secured. . . ."
In this case, Clark Development Corporation had failed to
secure the final approval of the Office of the Government
Corporate Counsel and the written concurrence of
respondent before it engaged the services of petitioner.
When Government Corporate Counsel Valdez granted
Clark Development Corporations request for
reconsideration, the approval was merely conditional and
subject to its submission of the signed pro-forma
retainership contract provided for by the Office of the
Government Corporate Counsel. In the letter dated May
20, 2002, Government Corporate Counsel Valdez added:
For the better protection of the interests of CDC, we
hereby furnish you with a Pro-Forma Retainership
Agreement containing the suggested terms and conditions
of the retainership, which you may adopt for this purpose.
After the subject Retainership Agreement shall have been
executed between your corporation and the retained
counsel, please submit a copy thereof to our Office for our
information and file.71
Upon Clark Development Corporations failure to submit
the retainership contract, the Office of the Government
Corporate Counsel denied Clark Development
Corporations request for final approval of its legal services
contracts, including that of petitioner. In the letter72 dated
December 22, 2005, Government Corporate Counsel
Devanadera informed Clark Development Corporation
that:
[i]t appears, though, that our Pro-Forma Retainership
Agreement was not followed and CDC merely adopted the
proposal of aforesaid retainers/consultants. Also, this
Office was never informed that CDC agreed on payment
of retainers fee on a per case basis.73
In view of Clark Development Corporations failure to
secure the final conformity and acquiescence of the Office
of the Government Corporate Counsel, its retainership
contract with petitioner could not have been considered as
authorized.
The concurrence of respondents was also not secured by
Clark Development Corporation priorto hiring petitioners
services. The corporation only wrote a letter-request to
respondents three (3) years after it had engaged the
services of petitioner as private legal counsel.
The cases that the private counsel was asked to manage
are not beyond the range of reasonable competence
expected from the Office of the Government Corporate
Counsel. Certainly, the issues do not appear to be
complex or of substantial national interest to merit
additional counsel. Even so, there was no showing that the
delays in the approval also were due to circumstances not
attributable to petitioner nor was there a clear showing that
there was unreasonable delay in any action of the
approving authorities. Rather, it appears that the
procurement of the proper authorizations was mere
afterthought.
Respondents, therefore, correctly denied Clark
Development Corporations request for clearance in the
disbursement of funds to pay petitioner its standing legal
fees.
Polloso v. Ganganand PHIVIDEC
Industrial Authority v. Capitol Steel
Corporationapply in this case
Petitioner argues that Polloso does not apply since the
denial was based on the "absence of a written authority
from the OSG or OGCC[.]"74 It also argues that the
PHIVIDEC case does not apply since "the case [was]
represented by a private lawyer whose engagement was
secured without the conformity of the OGCC andthe
COA."75 Petitioner argues that, unlike these cases, Clark
Development Corporation was able to obtain the written
conformity of the Office of the Government Corporate
Counsel to engage petitioners services.
In Polloso, the legal services of Atty. Benemerito A.
Satorre were engaged by the National Power Corporation
for its Leyte-Cebu and Leyte Luzon Interconnection
Projects.76 The Commission on Audit disallowed the
payment of services to Atty. Satore on the basis of
quantum meruit, citing Commission on Audit Circular No.
86-255 dated April 2, 1986.77 In upholding the
disallowance by the Commission on Audit, this court ruled:
It bears repeating that the purpose of the circular is to
curtail the unauthorized and unnecessary disbursement of
public funds to private lawyers for services rendered to the
government. This is in line with the Commission on Audits
constitutional mandate to promulgate accounting and
auditing rules and regulations including those for the
prevention and disallowance of irregular, unnecessary,
excessive, extravagant or unconscionable expenditures or
uses of government fundsand properties. Having
determined the intent of the law, this Court has the
imperative duty to give it effect even if the policy goes
beyond the letter or words of the statute.
Hence, as the hiring of Atty. Satorre was clearly done
without the prior conformity and acquiescence of the Office
of the Solicitor General or the Government Corporate
Counsel, as well as the written concurrence of the
Commission on Audit, the payment of fees to Atty. Satorre
was correctly disallowed in audit by the COA.78
In PHIVIDEC, this court found the engagement by
PHIVIDEC Industrial Authority, a government-owned and
controlled corporation, of Atty. Cesilo Adazas legal
services to be unauthorized for the corporations failure to
secure the written conformity of the Office of the
Government Corporate Counsel and the Commission on
Audit.79Citing the provisions of Office of the President
Memorandum Circular No. 9, this court ruled that:
[i]t was only with the enactment of Memorandum Circular
No. 9 in 1998 that an exception to the general prohibition
was allowed for the first time since P.D. No. 1415 was
enacted in 1978. However, indispensable conditions
precedent were imposed before any hiring of private
lawyer could be effected. First, private counsel can be
hired only in exceptional cases. Second, the GOCC must
first secure the written conformity and acquiescence of the
Solicitor General or the Government Corporate Counsel,
as the case may be, before any hiring can be done. And
third, the written concurrence of the COA must also be
secured prior to the hiring.80 (Emphasis supplied)
The same ruling was likewise reiterated in Vargas v.
Ignes,81 wherein this court stated:
Under Section 10, Chapter 3, Title III, Book IV of the
Administrative Code of1987, it is the OGCC which shall act
as the principal law office of all GOCCs. And Section 3 of
Memorandum Circular No. 9, issued by President Estrada
on August 27, 1998, enjoins GOCCs to refrain from hiring
private lawyers or law firms to handle their cases and legal
matters. But the same Section 3 provides that in
exceptional cases, the written conformity and
acquiescence of the Solicitor General or the Government
Corporate Counsel, as the case may be, and the written
concurrence of the COA shall first be secured before the
hiring or employment of a private lawyer or law firm. In
Phividec Industrial Authority v. Capitol Steel Corporation,
we listed three (3) indispensable conditions before a
GOCC can hirea private lawyer: (1) private counsel can
only be hired in exceptional cases; (2) the GOCC must first
secure the written conformity and acquiescence of the
Solicitor General or the Government Corporate Counsel,
as the case may be; and (3) the written concurrence of the
COA must also be secured.82 (Emphasis supplied) On the
basis of Pollosoand PHIVIDEC, petitioners arguments are
unmeritorious.
Petitioner fails to understand that Commission on Audit
Circular No. 86-255 requires not only the conformity and
acquiescence of the Office of the Solicitor General or
Office of the Government Corporate Counsel but also the
written conformity of the Commission on Audit. The hiring
of private counsel becomes unauthorized if it is only the
Office of the Government Corporate Counsel that gives its
conformity. The rules and jurisprudence expressly require
that the government-owned and controlled corporation
concerned must also secure the concurrence of
respondents.
It is also erroneous for petitioner to assume that it had the
conformity and acquiescence of the Office of the
Government Corporate Counsel since Government
Corporate Counsel Valdezs approval of Clark
Development Corporations request was merely
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
hired or employed without the prior written conformity and
acquiescence of the Solicitor General or the Government
Corporate Counsel, as the case may be, as well as the
written concurrence of the Commission on Audit shall be
disallowed in audit and the same shall be a personal
liability of the officials concerned. (Emphasis supplied)
However, when Commission on Audit Circular No. 86-255
was amended by Commission on Audit Circular No. 98-
002 on June 9, 1998, it failed to retain the liability of the
officials who violated the circular.89 This gap in the law
paves the way for both the erring officials of the
government owned and controlled corporations to disclaim
any responsibility for the liabilities owing to private
practitioners.
It cannot be denied that petitioner rendered legal services
to Clark Development Corporation.1wphi1 It assisted the
corporation in litigating numerous labor cases90 during the
period of its engagement. It would be an injustice for
petitioner not to be compensated for services rendered
even if the engagement was unauthorized.
The fulfillment of the requirements of the rules and
regulations was Clark Development Corporations
responsibility, not petitioners. The Board of Directors, by
its irresponsible actions, unjustly procured for themselves
petitioners legal services without compensation.
To fill the gap created by the amendment of Commission
on Audit Circular No. 86-255, respondents correctly held
that the officials of Clark, Development Corporation who
violated the provisions of Circular No. 98-002 and Circular
No. 9 should be personally liable to pay the legal fees of
petitioner, as previously provided for in Circular No. 86-
255.
This finds support in Section 103 of the Government
Auditing Code of the Philippines,91 which states:
SEC. 103. General liability for unlawful expenditures. -
Expenditures of government funds or uses of government
property in violation of law or regulations shall be a
personal liability of the official or employee found to be
directly responsible therefor.
This court has also previously held in Gumaru v. Quirino
State College92 that:
the fee of the lawyer who rendered legal service to the
government in lieu of the OSG or the OGCC is the
personal liability of the government official who hired his
services without the prior written conformity of the OSG or
the OGCC, as the case may be.93
WHEREFORE, the petition is DISMISSED without
prejudice to petitioner filing another action against the
proper parties.
SO ORDERED.
G.R. No. 185812, January 13, 2015
MARITIME INDUSTRY
AUTHORITY, Petitioner, v. COMMISSION ON
AUDIT, Respondents.
DECISION
LEONEN, J.:
This case involves the validity of the grant of allowance
and incentives to the officers and employees of petitioner
Maritime Industry Authority. We revisit the interpretation
and application of Section 12 of the Compensation and
Position Classification Act of
1989.1chanroblesvirtuallawlibrary
The Resident Auditor issued notices of disallowance on
the allowances and incentives received by the officers and
employees of Maritime Industry Authority.2 The Legal and
Adjudication Office of the Commission on Audit upheld the
notices of disallowance issued.3 The Commission on Audit
affirmed the notices of disallowance.4 Thus, this petition
for certiorari was filed by Maritime Industry Authority.
Maritime Industry Authority is an attached agency of the
Department of Transportation and Communication and
created under Presidential Decree No.
474.5chanroblesvirtuallawlibrary
On July 1, 1989, Republic Act No. 6758, otherwise known
as An Act Prescribing a Revised Compensation and
Position Classification System in the Government and For
Other Purposes took effect. The law standardizes the
salary rates of government officials and employees.
Section 12 of Republic Act No. 6758
provides:chanRoblesvirtualLawlibrary
Section 12. Consolidation of Allowances and
Compensation. - All allowances, except for
representation and transportation allowances; clothing
and laundry allowances; subsistence allowance of marine
officers and crew on board government vessels and
hospital personnel; hazard pay; allowances of foreign
service personnel stationed abroad; and such other
additional compensation not otherwise specified herein as
may be determined by the DBM, shall be deemed included
in the standardized salary rates herein prescribed. Such
other additional compensation, whether in cash or in kind,
being received by incumbents only as of July 1, 1989 not
integrated into the standardized salary rates shall continue
to be authorized.
Existing additional compensation of any national
government official or employee paid from local funds of a
local government unit shall be absorbed into the basic
salary of said official or employee and shall be paid by the
National Government.
On September 30, 1989, the Department of Budget and
Management issued National Compensation Circular Nos.
566 and 597 implementing Republic Act No. 6758.
Maritime Industry Authority discontinued the grant of
several allowances and incentives to its officials and
employees allegedly due to the issuance of National
Compensation Circular Nos. 56 and
8
59. chanroblesvirtuallawlibrary
In the memorandum dated February 10, 2000, the
Administrator of Maritime Industry Authority recommended
to then President Joseph Ejercito Estrada the approval
and/or restoration of financial incentives, benefits, or
allowances to the officers and employees of Maritime
Industry Authority.9chanroblesvirtuallawlibrary
The allowances and incentives received by the employees
and officers of Maritime Industry Authority as of the date
of the memorandum and needing approval of the
President are the following:10chanroblesvirtuallawlibrary
(1) Per diems and commutable allowance received by the
members of the Board of Maritime Industry Authority;11
(2) Rice subsidy allowance;12 and
(3) Medical allowance.13
The allowances and incentives sought to be restored are
the following:14chanroblesvirtuallawlibrary
enhance/provide/promote employees welfare/productivity
and deter graft and corruption
activities.21chanroblesvirtuallawlibrary
The memorandum was then allegedly stamped with
approved on October 16, 2000 with the signature of the
President of the Philippines below the stamp.22 Relying on
the alleged approval of the President of the Philippines,
Maritime Industry Authority granted the allowances and
incentives to its officers and employees starting January
2001.23chanroblesvirtuallawlibrary
The Resident Auditor24 of Maritime Industry Authority then
issued the following notices of disallowance with a total
amount of ?5,565,445.02 for the allowances or benefits
received by the officers or employees from January to May
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
The Commission on Audit held that the disallowed
allowances are integrated in the standardized salary rates
under Section 12 of Republic Act No.
40
6758. chanroblesvirtuallawlibrary
Further, the alleged approval of the President for the
restoration or grant of benefits falls short of a law, as
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
to officers and employees of Maritime Industry Authority,
the authenticity of the memorandum bearing the alleged
approval of the President presented by Maritime Industry
Authority was not established.42 Only a photocopy of the
memorandum was presented. A copy of the memorandum
was also not on file in the Malacaang Records
Office.43chanroblesvirtuallawlibrary
Maritime Industry Authoritys motion for reconsideration
was denied in COA Resolution No. 2008-117 dated
December 9, 2008.44chanroblesvirtuallawlibrary
Thus, this petition for certiorari was filed by Maritime
Industry Authority assailing the Commission on Audit's
decision and resolution affirming the notices of
disallowance.
In compliance with the orders45 of this court, the
Commission on Audit filed a comment on the petition for
certiorari on June 22, 2009.46 Maritime Industry Authority
filed a reply to the comment on August 24,
2009.47chanroblesvirtuallawlibrary
The sole issue in this case is whether the allowance or
incentives granted to the officers and employees of
Maritime Industry Authority have legal basis.
We deny the petition.
I
Commission on Audit did not
commit grave abuse of discretion
The aggrieved party can assail the decision of the
Commission on Audit through a petition for certiorari under
Rule 64 before this court. A petition under Rule 64 may
prosper only after a finding that the administrative agency
committed grave abuse of discretion amounting to lack or
excess of jurisdiction. Not all errors of the Commission on
Audit is reviewable by this court. Thus,
A Rule 65 petition is a unique and special rule because it
commands limited review of the question raised. As
an extraordinary remedy, its purpose is simply to keep the
public respondent within the bounds of its jurisdiction or to
relieve the petitioner from the public respondents arbitrary
acts. In this review, the Court is confined solely to
questions of jurisdiction whenever a tribunal, board or
officer exercising judicial or quasi-judicial function acts
without jurisdiction or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction. . . .
The limitation of the Courts power of review over COA
rulings merely complements its nature as an independent
constitutional body that is tasked to safeguard the
proper use of the government and, ultimately, the peoples
property by vesting it with power to (i) determine whether
the government entities comply with the law and the rules
in disbursing public funds; and (ii) disallow legal
disbursements of these funds.48(Emphasis in the original)
Reviewing the rationale for this standard of judicial
review:chanRoblesvirtualLawlibrary
[t]his court has consistently held that findings of
administrative agencies are generally respected, unless
found to have been tainted with unfairness that amounted
to grave abuse of discretion:chanRoblesvirtualLawlibrary
It is the general policy of the Court to sustain the decisions
of administrative authorities, especially one which is
constitutionally-created not only on the basis of the
doctrine of separation of powers but also for their
presumed expertise in the laws that they are entrusted to
enforce. Findings of administrative agencies are accorded
not only respect but also finality when the decision and
order are not tainted with unfairness or arbitrariness that
would amount to grave abuse of discretion. It is only when
the COA has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess
of jurisdiction, that this Court entertains a petition
questioning its rulings. There is grave abuse of discretion
when there is an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law or to act in
contemplation of law as when the judgment rendered is
not based on law and evidence but on caprice, whim and
despotism.49
We find that no grave abuse of discretion amounting to
lack or excess of jurisdiction may be attributed to the
Commission on Audit in this case.
II
Position of the parties
Petitioner Maritime Industry Authority argues that the
allowances and incentives granted to its officers and
employees are not integrated in the standardized
salary.50 It relies on the last clause of the first sentence of
Section 12 of Republic Act No.
6758:51chanroblesvirtuallawlibrary
Section 12. Consolidation of Allowances and
Compensation. - All allowances, except for
representation and transportation allowances; clothing
and laundry allowances; subsistence allowance of marine
officers and crew on board government vessels and
hospital personnel; hazard pay; allowances of foreign
service personnel stationed abroad; and such other
additional compensation not otherwise specified herein as
may be determined by the DBM, shall be deemed included
in the standardized salary rates herein prescribed. Such
other additional compensation, whether in cash or in kind,
being received by incumbents only as of July 1, 1989 not
integrated into the standardized salary rates shall continue
to be authorized.
Existing additional compensation of any national
government official or employee paid from local funds of a
local government unit shall be absorbed into the basic
salary of said official or employee and shall be paid by the
National Government. (Emphasis supplied)
Petitioner Maritime Industry Authority understands the
clause as requiring a subsequent issuance by the
Department of Budget and Management so that other
allowances or benefits not specifically enumerated in the
provision will be excluded. It insists that a circular must be
issued by the Department of Budget and Management for
a specific allowance to be deemed integrated in the
standardized salary pursuant to Section 12 of Republic Act
No. 6758.
Since the National Compensation Circular No. 59, the
circular issued by the Department of Budget and
Management implementing Section 12, was not published,
there can be no allowance deemed integrated in the
standardized salary rates.52 It relies on Philippine Ports
Authority hired after July 1, 1989 v. Commission on
Audit53 where this court held the
following:chanRoblesvirtualLawlibrary
However, because of its lack of publication in either
the Official Gazette or in a newspaper of general
circulation, DBM-CCC No. 10 was declared ineffective on
August 12, 1998, in De Jesus v. COA, which we
quote:chanRoblesvirtualLawlibrary
In the present case under scrutiny, it is decisively clear that
D[B]M-CCC No. 10, which completely disallows payment
of allowances and other additional compensation to
government officials and employees, starting November 1,
1989, is not a mere interpretative or internal regulation. It
is something more than that. And why not, when it tends
to deprive government workers of their allowances and
additional compensation sorely needed to keep body and
soul together. At the very least, before the said circular
under attack may be permitted to substantially reduce their
income, the government officials and employees
concerned should be apprised and alerted by the
publication of the subject circular in the Official Gazette or
in a newspaper of general circulation in the Philippines
to the end that they be given amplest opportunity to voice
out whatever opposition they may have, and to ventilate
their stance on the subject matter. This approach is more
in keeping with democratic precepts and rudiments of
fairness and transparency.cralawred
In other words, during the period that DBM-CCC No. 10
was in legal limbo, the COLA and the amelioration
allowance were not effectively integrated into the
standardized salaries.
Hence, it would be incorrect to contend that because those
allowances were not effectively integrated under the first
sentence, then they were non-integrated benefits falling
under the second sentence of Section 12 of RA 6758.
Their characterization must be deemed to have also been
in legal limbo, pending the effectivity of DBM-CCC No. 10.
Consequently, contrary to the ruling of the COA, the
second sentence does not apply to the present case. By
the same token, the policy embodied in the provision
the non-diminution of benefits in favour of incumbents as
of July 1, 1989 is also inapplicable.
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

Respondent Commission on Audit argues that the alleged
lack of publication of National Compensation Circular No.
59 does not affect the integration of allowances into the
standardized salary.62 Section 12 of Republic Act No.
6758 is in itself executory in that allowances and benefits
are deemed integrated in the standardized salary except
those specifically exempted.
Further, the nature of the allowances and incentives in this
case is not similar to that of the enumerated exceptions in
Section 12 of Republic Act No. 6758.63 As held in Bureau
of Fisheries and Aquatic Resources Employees Union v.
Commission on Audit,64 the benefits excluded from the
standardized salary rates 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 their official
functions.65chanroblesvirtuallawlibrary
Finally, respondent Commission on Audit points out that
there is no law that authorizes the grant of the allowances
and incentives in addition to the salaries of the officers and
employees of petitioner Maritime Industry
Authority.66chanroblesvirtuallawlibrary
Respondent Commission on Audit points out that the
alleged approval of the President was contained in a mere
photocopy of the memorandum dated February 10, 2000.
It purportedly bears the approval and signature of the
President for the grant of the allowances and
incentives.67 The original was not presented during the
proceedings.
III
The concept of integration of allowances
The consolidation of allowances in the standardized salary
in Section 12 of Republic Act No. 6758 is a new rule in the
Philippine position classification and compensation
system. The previous laws68 on standardization of
compensation of government officials and employees do
not have this provision.
Presidential Decree No. 985,69 as amended by
Presidential Decree No. 1597,70 the law prior to Republic
Act No. 6758, repealed all laws, decrees, executive
orders, and other issuances or parts thereof that authorize
the grant of allowances of certain positions and
employees.71 Under Presidential Decree No. 985,
allowances, honoraria, and other fringe benefits may only
be granted to government employees upon approval of the
President with the recommendation of the Commissioner
of the Budget Commission.72chanroblesvirtuallawlibrary
Being a new rule, Section 12 of Republic Act No. 6758
raised several questions among government employees.
Petitions were filed before this court involving the
Commission on Audits disallowance of the grant of
allowances and incentives to government employees. This
court already settled the issues and matters raised by
petitioner Maritime Industry Authority.
The clear policy of Section 12 is to standardize salary
rates among government personnel and do away with
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;
2. clothing and laundry allowances;
3. subsistence allowance of marine officers
and crew on board government vessels;
4. subsistence allowance of hospital
personnel;
5. hazard pay; and
6. allowances of foreign service personnel
stationed abroad.75
In addition to the non-integrated allowances specified in
Section 12, the Department of Budget and Management is
delegated the authority to identify other allowances that
may be given to government employees in addition to the
standardized salary.76chanroblesvirtuallawlibrary
Action by the Department of Budget and Management is
not required to implement Section 12 integrating
allowances into the standardized salary.77 Rather, an
issuance by the Department of Budget and Management
is required only if additional non-integrated allowances will
be identified. Without this issuance from the Department
of Budget and Management, the enumerated non-
that:chanRoblesvirtualLawlibrary
R.A. 6758 further reinforced this policy by expressly
decreeing that all allowances not specifically mentioned
therein, or as may be determined by the DBM, shall be
deemed included in the standardized salary rates
prescribed.80
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
required that allowances must be listed for these to be
considered integrated in the standardized salary. This
court said:chanRoblesvirtualLawlibrary
Otherwise stated, the foregoing are the only allowances
which government employees can continue to receive in
addition to their standardized salary rates. The employee
welfare allowance of NPC personnel is clearly not among
the allowances listed above which State workers can
continue to receive under Rep. Act No. 6758 over and
above their standardized salary rates. We must
emphasize that Rep. Act No. 6758 does not require
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;
(6) allowances of foreign service personnel stationed
abroad; and
(7) such other additional compensation not otherwise
specified in Section 12 as may be determined by the
DBM.cralawred
But, while the provision enumerated certain exclusions, it
also authorized the DBM to identify such other additional
compensation that may be granted over and above the
standardized salary rates. In Philippine Ports Authority
Employees Hired After July 1, 1989 v. Commission on
Audit, the Court has ruled that while Section 12 could be
considered self-executing in regard to items (1) to (6), it
was not so in regard to item (7). The DBM still needed to
amplify item (7) since one cannot simply assume what
other allowances were excluded from the standardized
salary rates. It was only upon the issuance and effectivity
of the corresponding implementing rules and regulations
that item (7) could be deemed legally completed.
. . . .
In this case, the DBM promulgated NCC 59 [and CCC 10].
But, instead of identifying some of the additional
exclusions that Section 12 of R.A. 6758 permits it to make,
the DBM made a list of what allowances and benefits are
deemed integrated into the standardized salary rates.
More specifically, NCC 59 identified the following
allowances/additional compensation that are deemed
integrated:chanRoblesvirtualLawlibrary
. . . .
The drawing up of the above list is consistent with Section
12 above. R.A. 6758 did not prohibit the DBM from
identifying for the purpose of implementation what fell into
the class of all allowances. With respect to what
employees benefits fell outside the term apart from those
that the law specified, the DBM, said this Court in a case,
needed to promulgate rules and regulations identifying
those excluded benefits. This leads to the inevitable
conclusion that until and unless the DBM issues such rules
and regulations, the enumerated exclusions in items (1) to
(6) remain exclusive. Thus so, not being an enumerated
exclusion, COLA is deemed already incorporated in the
standardized salary rates of government employees under
the general rule of integration.88
Petitioner Maritime Industry Authoritys reliance
on Philippine Ports Authority Employees Hired After July
1, 1989 v. Commission on Audit is misplaced. As this court
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
by government employees who were hired before and
after the effectivity of Republic Act No. 6758.
Thus:chanRoblesvirtualLawlibrary
[t]he Court has, to be sure, taken stock of its recent ruling
in Philippine Ports Authority (PPA) Employees Hired After
July 1, 1989 vs. Commission on Audit. Sadly, however, our
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;
8. responsibility for accuracy of records and reports;
9. accountability for funds, properties, and equipment; and
10. hardship, hazard, and personal risk involved in the
job.92
The factors to determine the salary grades corresponding
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.
For instance, some employees in the Bureau of Customs
may require expenses pertaining to security to properly
execute their duties as compared to employees in the
Department of Trade and Industry. Republic Act No. 6758
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
standardized salary allowances to be given to marine
officers and crew on board government vessels and
hospital personnel, and foreign service personnel
stationed abroad.93chanroblesvirtuallawlibrary
Thus, it must be shown that additional non-integrated
allowances are given to government employees of certain
offices due to the unique nature of the office and of the
work performed by the employee.
Further, the non-integrated allowances that may be
granted in addition to those specifically enumerated in
Section 12 of Republic Act No. 6758 should be in the
nature similar to those enumerated in the provision, that is,
they are amounts needed by the employee in the
performance of his or her
94
duties. chanroblesvirtuallawlibrary
[T]he benefits excluded from the standardized salary rates
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
their official functions.
. . . .
In Philippine Ports Authority v. Commission on Audit, we
explained that if these allowances were consolidated with
the standardized salary rates, then government officials or
employees would be compelled to spend their personal
funds in attending to their duties.95
In National Tobacco Administration v. Commission on
Audit,96 this court held that educational assistance is not
an allowance that may be granted in addition to the
standardized salary.
Analyzing No. 7, which is the last clause of the first
sentence of Section 12, in relation to the other benefits
therein enumerated, it can be gleaned unerringly that it is
a catch-all proviso. Further reflection on the nature of
subject fringe benefits indicates that all of them have one
thing in common - they belong to one category of privilege
called allowances which are usually granted to officials
and employees of the government to defray or reimburse
the expenses incurred in the performance of their official
functions. In Philippine Ports Authority vs.
Commission on Audit, this Court rationalized that if
these allowances are consolidated with the standardized
rate, then the government official or employee will be
compelled to spend his personal funds in attending to his
duties.
The conclusion - that the enumerated fringe benefits are
in the nature of allowance - finds support in sub-
paragraphs 5.4 and 5.5 of CCC No. 10.
Sub-paragraph 5.4 enumerates the allowance/fringe
benefits which are not integrated into the basic salary and
which may be continued after June 30, 1989 subject to the
condition that the grant of such benefit is covered by
statutory authority, to wit:chanRoblesvirtualLawlibrary
(9) Quarters Allowance of officials and employees who are
presently entitled to the same;
(10) Overseas, Living Quarters and other allowances
presently authorized for personnel stationed abroad;
(11) Night differential of personnel on night duty;
(12) Per Diems of members of the governing Boards of
GOCCs/GFIs at the rate as prescribed in their respective
Charters;
(13) Flying pay of personnel undertaking aerial flights;
(14) Per Diems/Allowances of Chairman and Members or
Staff of collegial bodies and Committees; and
(15) Per Diems/Allowances of officials and employees on
official foreign and local travel outside of their official
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.

On the other hand, the challenged financial incentive is
awarded by the government in order to encourage the
beneficiaries to pursue further studies and to help them
underwrite the expenses for the education of their children
and dependents. In other words, subject benefit is in the
nature of financial assistance and not of an allowance. For
the former, reimbursement is not necessary while for the
latter, reimbursement is required. Not only that, the former
is basically an incentive wage which is defined as
a bonus or other payment made to employees in addition
to guaranteed hourly wages while the latter cannot be
reckoned with as a bonus or additional income, strictly
speaking.
It is indeed decisively clear that the benefits mentioned in
the first sentence of Section 12 and sub-paragraphs 5.4
and 5.5 of CCC No. 10 are entirely different from the
benefit in dispute, denominated as Educational
Assistance. The distinction elucidated upon is material in
arriving at the correct interpretation of the two seemingly
contradictory provisions of Section 12.
Cardinal is the rule in statutory construction that the
particular words, clauses and phrases should not be
studied as detached and isolated expressions, but
the whole and every part of the statute must be
considered in fixing the meaning of any of its parts and in
order to produce a harmonious whole. A statute must so
construed as to harmonize and give effect to all its
provisions whenever possible. And the rule - that statute
must be construed as a whole - requires that apparently
conflicting provisions should be reconciled and
harmonized, if at all possible. It is likewise a basic precept
in statutory construction that the intent of the legislature is
the controlling factor in the interpretation of the subject
statute. With these rules and the foregoing distinction
elaborated upon, it is evident that the two seemingly
irreconcilable propositions are susceptible to perfect
harmony. Accordingly, the Court concludes that under the
aforesaid catch-all proviso, the legislative intent is just to
include the fringe benefits which are in the nature
of allowances and since the benefit under controversy is
not in the same category, it is safe to hold that subject
educational assistance is not one of the fringe benefits
within the contemplation of the first sentence of Section 12
but rather, of the second sentence of Section 12, in relation
to Section 17 of R.A. No. 6758, considering that (1) the
recipients were incumbents when R.A. No. 6758 took
effect on July 1, 1989, (2) were, in fact, receiving the
same, at the time, and (3) such additional compensation is
distinct and separate from the specific allowances above-
listed, as the former is not integrated into the standardized
salary rate. Simply stated, the challenged benefit is
covered by the second sentence of Section 12 of R.A. No.
6758, the application of sub-paragraphs 5.4 and 5.5 of
CCC No. 10 being only confined to the first sentence of
Section 12, particularly the last clause thereof which
amplifies the catch-all proviso.97 (Citations omitted)
In Bureau of Fisheries and Aquatic Resources Employees
Union v. Commission on Audit,98 this court affirmed the
disallowance of the grant of the food basket allowance in
the amount of P10,000.00 to employees of the Bureau of
Fisheries and Aquatic Resources. This court
held:chanRoblesvirtualLawlibrary
In the instant case, the Food Basket Allowance is definitely
not in the nature of an allowance to reimburse expenses
incurred by officials and employees of the government in
the performance of their official functions. It is not payment
in consideration of the fulfilment of official duty. It is a form
of financial assistance to all officials and employees of
BFAR. Petitioner itself stated that the Food Basket
Allowance has the purpose of alleviating the economic
condition of BFAR employees.99
VI
Who identifies and grants
Respondent Commission on Audit argues that the alleged
approval by the President is not a law that would allow the
grant of allowances and benefits to the employees of
petitioner Maritime Industry Authority.
Section 12 of Republic Act No. 6758 does not require the
enactment of a law to exclude benefits or allowances from
the standardized salary. What is required is a
determination by the Department of Budget and
Management of the non-integrated benefits or allowances.
In Abakada Guro Party List v.
100
Purisima: chanroblesvirtuallawlibrary
Congress has two options when enacting legislation to
define national policy within the broad horizons of its
legislative competence. It can itself formulate the details or
it can assign to the executive branch the responsibility for
making necessary marginal decisions in conformity with
those standards. In the latter case, the law must be
complete in all its essential terms and conditions when it
leaves the hands of the legislature. Thus, what is left for
the executive branch or the concerned administrative
agency when it formulates rules and regulations
implementing the law is to fill up details (supplementary
rule-making) or ascertain facts necessary to bring the law
into actual operation (contingent rule-
making).101 (Citations omitted)
The law delegated to the executive branch the filling in of
other allowances and benefits that should be excluded
from the standardized salary. It specifically identifies the
Department of Budget and Management to carry out the
task. However, this does not exclude the President from
identifying the excluded allowances or benefits himself,
the Secretary of the Department of Budget and
Management being an alter ego of the President. Of
course, the performance of this task must still be in
accordance with the parameters laid down in Republic Act
No. 6758.102 As this court held in Chavez v.
Romulo:103chanroblesvirtuallawlibrary
at the apex of the entire executive officialdom is the
President. Section 17, Article VII of the Constitution
specifies his power as Chief Executive, thus: The
President shall have control of all the executive
departments, bureaus and offices. He shall ensure
that the laws be faithfully executed. As Chief
Executive, President Arroyo holds the steering wheel that
controls the course of her government. She lays down
policies in the execution of her plans and programs.
Whatever policy she chooses, she has her subordinates to
implement them. In short, she has the power of
control. Whenever a specific function is entrusted by
law or regulation to her subordinate, she may act
directly or merely direct the performance of a
duty. Thus, when President Arroyo directed respondent
Ebdane to suspend the issuance of PTCFOR, she was just
directing a subordinate to perform an assigned duty. Such
act is well within the prerogative of her office.104 (Emphasis
in the original)
VII
Constitutional and Fiscal
Autonomy Group
We must, however, differentiate the guidelines for the
grant of allowances and benefits to officials and
employees of members of the Constitutional and Fiscal
Autonomy Group. The judiciary, Civil Service Commission,
Commission on Audit, Commission on Elections, and the
Office of the Ombudsman are granted fiscal autonomy by
the Constitution.105 The fiscal autonomy enjoyed by the
Constitutional and Fiscal Autonomy Group is an aspect of
the members independence guaranteed by the
Constitution.106 Their independence is a necessary
component for their existence and survival in our form of
government.
In Bengzon v. Drilon,107 this court
said:chanRoblesvirtualLawlibrary
As envisioned in the Constitution, the fiscal autonomy
enjoyed by the Judiciary, the Civil Service Commission,
the Commission on Audit, the Commission on Elections,
and the Office of the Ombudsman contemplates a
guarantee of full flexibility to allocate and utilize their
resources with the wisdom and dispatch that their needs
require. It recognizes the power and authority to levy,
assess and collect fees, fix rates of compensation not
exceeding the highest rates authorized by law for
compensation and pay loans of the government and
allocate and disburse such sums as may be provided by
law or prescribed by them in the course of the discharge
of their functions.108
As this court held in Re: COA Opinion on the Computation
of the Appraised Value of the Properties Purchased by the
Retired Chief/Associate Justices of the Supreme
Court,109 real fiscal autonomy covers the grant to the
Judiciary of the authority to use and dispose of its funds
and properties at will, free from any outside control or
interference.110 This includes the judgment to use its
funds to provide additional allowances and benefits to its
officials and employees deemed to be necessary and
relevant in the performance of their functions in the office.
Due to the nature of the functions of the Constitutional and
Fiscal Autonomy Group and the constitutional grant of
fiscal autonomy, an issuance by the Department of Budget
and Management or any other agency of the government
is not necessary to exclude an allowance or benefit from
the standardized salary.
The entity entrusted by Republic Act No. 6758 to
determine the benefits and allowances that are not
deemed integrated is the Department of Budget and
Management. It studies the necessity and reasonableness
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
agency concerned. To hold otherwise would render COA's
vital constitutional power unduly limited and thereby
useless and ineffective.127
The disallowance of the grant of benefits and allowances
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.
XII
Refund of the amounts received
and liability of approving officers
Presidential Decree No. 1445 provides for a general
liability for unlawful
expenditures:chanRoblesvirtualLawlibrary
Section 103. General liability for unlawful expenditures.
Expenditures of government funds or uses of government
property in violation of law or regulations shall be a
personal liability of the official or employee found to be
directly responsible therefor.128
Section 19 of the Manual of Certificate of Settlement and
Balances, Commission on Audit Circular No. 94-001
provides:chanRoblesvirtualLawlibrary
19.1. The liability of public officers and other persons for
audit disallowances shall be determined on the basis of:
(a) the nature of the disallowance; (b) the duties,
responsibilities or obligations of the officers/persons
concerned; (c) the extent of their participation or
involvement in the disallowed transaction; and (d) the
amount of losses or damages suffered by the government
thereby. The following are illustrative
examples:chanRoblesvirtualLawlibrary
. . . .
19.1.3. Public officers who approve or authorize
transactions involving the expenditure of government
funds and uses of government properties shall be liable for
all losses arising out of their negligence or failure to
exercise the diligence of a good father of a family.
Generally, the public officers good faith does not excuse
his or her personal liability over the unauthorized
disbursement. This court
said:chanRoblesvirtualLawlibrary
Section 103 of P.D. 1445 declares that expenditures of
government funds or uses of government property in
violation of law or regulations shall be a personal liability
of the official or employee found to be directly responsible
therefor. The public officials personal liability arises only if
the expenditure of government funds was made in
violation of law. In this case, petitioners act of entering into
a contract on behalf of the local government unit without
the requisite authority therefor was in violation of the Local
Government Code. While petitioner may have relied on the
opinion of the City Legal Officer, such reliance only serves
to buttress his good faith. It does not, however, exculpate
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

The records do not show the reason why Erlinda Baltazar,
petitioner Maritime Industry Authoritys cashier, received
high amounts for the allowances as shown in the notices
of disallowance.
The amount given to Erlinda Baltazar is exorbitant
especially when contrasted with the other officers and
employees of petitioner Maritime Industry Authority
receiving the same allowance. The disparity in the
amounts given to Erlinda Baltazar compared to the other
officers and employees is too substantial to consider her
and the approving officers to be in good faith when Erlinda
Baltazar received the amounts. Thus, Erlinda Baltazar and
the approving officers are solidarily liable to refund all
amounts received by Erlinda Baltazar based on what was
disallowed by respondent Commission on Audit. This
solidary liability is in accordance with Book VI, Chapter V,
Section 43 of the Administrative Code, which
provides:chanRoblesvirtualLawlibrary
Liability for Illegal Expenditures. Every expenditure or
obligation authorized or incurred in violation of the
provisions of this Code or of the general and special
provisions contained in the annual General or other
Appropriations Act shall be void. Every payment made in
violation of said provisions shall be illegal and every official
or employee authorizing or making such payment, or
taking part therein, and every person receiving such
payment shall be jointly and severally liable to the
Government for the full amount so paid or received.
The amount Erlinda Baltazar received as allowance for
one month should have alerted her and the approving
officers on the validity and legality of the grant of the
allowance. Good faith dictates that the approving officers
deny the grant and Erlinda Baltazar refrain from receiving
the amount that is clearly and on its face invalid. Erlinda
Baltazar and the approving officers positions dictate that
they are familiar and knowledgeable of the usual amounts
allowed for allowances and benefits.
As to the directors, officers, and other employees of
petitioner Maritime Industry Authority who received the
disallowed benefits, they are presumed to have acted in
good faith when they allowed and/or received
them.148chanroblesvirtuallawlibrary
Respondent Commission on Audit failed to show bad faith
on the part of the approving officers in disbursing the
disallowed benefits and allowances. Further, the officers
of petitioner Maritime Industry Authority relied on the
alleged approval of the President of the Philippines in
granting the benefits and allowances.
Respondent Commission on Audit said that there were
exchanges of communications between the auditor and
Atty. Oscar M. Sevilla, [Maritime Industry Authority]s
Administrator, pointing out to the latter, in letter of April 4,
2001, that continuous grant of the allowances in question
would not only contradict the provisions of Administrative
Order no. 5 issued by the Office of the President and
Budget Circular No. 2001-1 but would likewise negate the
objective of generating savings.
However, the checks for the disallowed benefits and
allowances were issued prior to April 4, 2001. It does not
appear that petitioner Maritime Industry Authoritys
directors and officers were informed prior to the
disbursement of the amounts disallowed that these
allowances and benefits were in violation of existing law,
and rules and regulations.
WHEREFORE, the decision of respondent Commission
on Audit dated March 3, 2005 and resolution dated
December 9, 2008 are AFFIRMED with MODIFICATION.
The approving officers and Erlinda Baltazar are solidarily
liable to refund the disallowed amounts received by
Erlinda Baltazar. The other payees need not refund the
amounts received.
SO ORDERED.
G.R. No. 211362, February 24, 2015
FIRST CLASS CADET ALDRIN JEFF P. CUDIA OF THE
PHILIPPINE MILITARY ACADEMY, REPRESENTED BY
HIS FATHER RENATO P. CUDIA, WHO ALSO ACTS ON
HIS OWN BEHALF, AND BERTENI CATALUA
CAUSING, Petitioners, v. THE SUPERINTENDENT OF
THE PHILIPPINE MILITARY ACADEMY (PMA), THE
HONOR COMMITTEE (HC) OF 2014 OF THE PMA AND
HC MEMBERS, AND THE CADET REVIEW AND
APPEALS BOARD (CRAB), Respondents.
FILIPINA P. CUDIA, IN BEHALF OF CADET FIRST
CLASS ALDRIN JEFF P. CUDIA, AND ON HER OWN
BEHALF, Petitioner-Intervenor.
DECISION
PERALTA, J.:
The true test of a cadets character as a leader rests on
his personal commitment to uphold what is morally and
ethically righteous at the most critical and trying times, and
at the most challenging circumstances. When a cadet
must face a dilemma between what is true and right as
against his security, well-being, pleasures and comfort, or
dignity, what is at stake is his honor and those that [define]
his values. A man of an honorable character does not think
twice and chooses the fore. This is the essence of and the
Spirit of the Honor Code it is championing truth and
righteousness even if it may mean the surrender of ones
basic rights and privileges.1
The Procedural Antecedents
Six days prior to the March 16, 2014 graduation
ceremonies of the Philippine Military Academy (PMA),
petitioners Renato P. Cudia, acting for himself and in
behalf of his son, Cadet First Class Aldrin Jeff P. Cudia
(Cadet 1CL Cudia), and Berteni Catalua Causing filed
this petition for certiorari, prohibition, and mandamus with
application for extremely urgent temporary restraining
order (TRO).2chanroblesvirtuallawlibrary
In a Resolution dated March 17, 2014, the Court denied
the prayer for TRO and, instead, required respondents to
file their comment on the
petition.3chanroblesvirtuallawlibrary
On March 25, 2014, Filipina P. Cudia, acting for herself
and in behalf of her son Cadet 1CL Cudia, filed a motion
for leave to intervene, attaching thereto the petition-in-
intervention.4 Per Resolution dated March 31, 2014, the
Court granted the motion and resolved to await
respondents comment on the
5
petition. chanroblesvirtuallawlibrary
A manifestation was then filed by petitioners on April 3,
2014, recommending the admission of the petition-in-
intervention and adopting it as an integral part of their
petition.6 On May 20, 2014, petitioner-intervenor filed a
manifestation with motion for leave to admit the Final
Investigation Report of the Commission on Human Rights
(CHR) dated April 25, 2014.7 The Report8 was relative to
CHR-CAR Case No. 2014-0029 filed by the spouses
Renato and Filipina Cudia (Spouses Cudia), for
themselves and in behalf of their son, against the PMA
Honor Committee (HC) members and Major Vladimir P.
Gracilla (Maj. Gracilla)9 for violation of Cadet 1CL Cudias
rights to due process, education, and privacy of
communication. Subsequently, on June 3, 2014,
petitioners filed a motion for leave to adopt the submission
of the CHR Report.10 The manifestation was granted and
the motion was noted by the Court in its Resolution dated
July 7, 2014.
After filing three motions for extension of
time,11 respondents filed their Consolidated Comment12on
June 19, 2014. In a motion, petitioner-intervenor filed a
Reply, which was later adopted by petitioners.13 Submitted
as Annex A of the Reply was a copy of the CHR
Resolution dated May 22, 2014 regarding CHR-CAR Case
No. 2014-0029.14 We noted and granted the same on
August 11, 2014 and October 13, 2014.
Petitioner-intervenor twice filed a manifestation with
motion to submit the case for early resolution,15which the
Court noted in a Resolution dated August 11, 2014 and
October 13, 2014.16chanroblesvirtuallawlibrary
The Facts
Cadet 1CL Cudia was a member of Siklab Diwa Class of
2014 of the PMA, the countrys premiere military academy
located at Fort Gregorio del Pilar in Baguio City. He
belonged to the A Company and was the Deputy Baron
of his class. As claimed by petitioners and petitioner-
intervenor (hereinafter collectively called petitioners,
unless otherwise indicated), he was supposed to graduate
with honors as the class salutatorian, receive the
Philippine Navy Saber as the top Navy cadet graduate,
and be commissioned as an ensign of the Philippine Navy.
On November 14, 2013, the combined classes of the Navy
and Air Force 1CL cadets had a lesson examination (LE)
on Operations Research (OR432) under Dr. Maria Monica
C. Costales (Dr. Costales) at the PMAFI Room. Per
published schedule from the Headquarters Academic
Group, the 4th period class in OR432 was from 1:30-3:00
p.m. (1330H-1500H), while the 5th period class in ENG412
was from 3:05-4:05 p.m. (1505H-1605H).
Five days after, Professor Juanita Berong (Prof. Berong)
of the 5th period class issued a Delinquency Report (DR)
against Cadet 1CL Cudia because he was [l]ate for two
(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
minutes.18chanroblesvirtuallawlibrary
On December 4, 2013, the DRs reached the Department
of Tactical Officers. They were logged and transmitted to
the Company Tactical Officers (CTO) for explanation of
the concerned cadets. Two days later, Cadet 1CL Cudia
received his DR.
In his Explanation of Report dated December 8, 2013,
Cadet 1CL Cudia reasoned out that: I came directly from
OR432 Class. We were dismissed a bit late by our
instructor Sir.19chanroblesvirtuallawlibrary
On December 19, 2013, Major Rommel Dennis Hindang
(Maj. Hindang), the CTO of Cadet 1CL Cudia, meted out
to him the penalty of 11 demerits and 13 touring hours.
Immediately, Cadet 1CL Cudia clarified with Maj. Hindang
his alleged violation. The latter told him that the basis of
the punishment was the result of his conversation with Dr.
Costales, who responded that she never dismissed her
class late, and the protocol to dismiss the class 10-15
minutes earlier than scheduled. When he expressed his
intention to appeal and seek reconsideration of the
punishment, he was advised to put the request in writing.
Hence, that same day, Cadet 1CL Cudia addressed his
Request for Reconsideration of Meted Punishment to Maj.
Benjamin L. Leander, Senior Tactical Officer (STO),
asserting:chanRoblesvirtualLawlibrary
I strongly believe that I am not in control of the
circumstances, our 4th period class ended 1500H and our
5th period class, which is ENG412, started 1500H also.
Immediately after 4th period class, I went to my next class
without any intention of being late Sir.20
A day after, Maj. Leander instructed Maj. Hindang to give
his comments on the request of Cadet 1CL Cudia and to
indicate if there were other cadets belonging to the same
section who were also late.
On December 28, 2013, Maj. Hindang submitted his reply
to Maj. Leander pointing out that, based on his
investigation, the 4th period class was not dismissed late.
As a result, Maj. Leander sustained the penalty imposed.
Petitioners alleged that Cadet 1CL Cudia came to know of
the denial of his request only on January 24, 2014 upon
inquiry with Maj. Leander.
Several days passed, and on January 7, 2014, Cadet 1CL
Cudia was informed that Maj. Hindang reported him to the
HC21 for violation of the Honor Code. The Honor Report
stated:chanRoblesvirtualLawlibrary
Lying that is giving statement that perverts the truth in his
written appeal, stating that his 4th period class ended at
1500H that made him late in the succeeding class.22
Upon asking the HC Chairman, Cadet 1CL Mike Anthony
P. Mogol (Cadet 1CL Mogol), as to what Maj. Hindang
meant in his Report, Cadet 1CL Cudia learned that it was
based on Maj. Hindangs conversations with their
instructors and classmates as well as his statement in the
request for reconsideration to Maj. Leander. He then
verbally applied for and was granted an extension of time
to answer the charge against him because Dr. Costales,
who could shed light on the matter, was on emergency
leave.
On January 13, 2014, Dr. Costales sent text messages to
Cadet 1CL Cudia, conveying:chanRoblesvirtualLawlibrary
Gud pm cdt cudia. Mam belandres gave me bkground na.
She told me its a report dated november. When maj
hindang ask me, no time referens. (04:25:11 P.M.)
All the while I thot he was refering to dismisal during last
day last december. Whc i told, i wud presume they wil
finish early bec its grp work. (04:29:21 P.M.)23
The next day, Cadets 1CL Cudia and Arcangel
approached Dr. Costales, who reaffirmed that she and
Maj. Hindang were not in the same time reference when
the latter asked her.
Later, Cadet 1CL Cudia submitted his letter of explanation
on the Honor Report. He
averred:chanRoblesvirtualLawlibrary
Sir,
We had an LE that day (14 November 2013) in OR432
class. When the first bell rang (1455), I stood up, reviewed
my paper and submitted it to my instructor, Ms. Costales.
After which, I and Cadet 1cl Arcangel asked for some
query with regards (sic) to the deductions of our previous
LE. Our instructor gladly answered our question. She then
told me that she will give the copy of our section grade, so
I waited at the hallway outside the ACAD5 office, and then
she came out of the room and gave me a copy of the
grades. Cadet Arcangel, Cadet Narciso and I immediately
went to our 5th period class which is ENG412.
With these statements, I would like to clarify the
following:chanRoblesvirtualLawlibrary
1. How could this be lying?
2. What is wrong with the side of Maj. Hindang
(why did he come up to that honor report)?
3. What are his assumptions?
I appeal, in the name of clarity, fairness and truth[,] that my
case be reopened and carefully reviewed for I did not
violate the honor code/system, I can answer NO to both
questions (Did I intend to deceive? Did I intend to take
undue advantage?) and for the following
reasons:chanRoblesvirtualLawlibrary
1. The honor report of Maj. Hindang was
already settled and finalized given the fact
that no face-to-face personal conversation
with Ms. Costales was conducted to clarify
what and when exactly was the issue at
hand.
2. Statements of the respondents support my
explanation.
3. My explanation to my appeal to my DR
(Request for reconsideration of meted
punishment) further supports my
explanation in my delinquency report.
4. My understanding of the duration of the
CLASS covers not just a lecture in a typical
classroom instruction but includes every
transaction and communication a teacher
does with her students, especially that in our
 case some cadets asked for queries, and I
am given instruction by which (sic) were
directly related to our CLASS. Her
transaction and communication with our
other classmates may have already ended
but ours extended for a little bit.
I agree and consider that because Cadet
CUDIA is under my instruction to wait, and
the other cadets still have business with me,
it is reasonable enough for him to say that
Our class was dismissed a bit late (dealing
with matter of seconds or a minute
particularly 45 seconds to 1 minute and 30
seconds)
And with concern to (sic) OR432 class, I can
say it ended on time (1500H).
(signed)
M. COSTALES
w/ attached certification
5. I was transparent and honest in explaining
the 2-minute delay and did not attempt to
conceal anything that happened or I did.
6. Furthermore, CPT DULAWAN PA, the
Tactical Officer of Hawk Company[,] and I
had a conversation with regards (sic) to the
same matter for which he can give important
points of my case.
7. Cadet 1cl DIAZ D Co can also stand as a
witness that I waited for Ms. Costales.24
On January 15, 2014, the HC constituted a team to
conduct a preliminary investigation on the reported honor
violation of Cadet 1CL Cudia. The Foxtrot Company was
designated as the investigating team and was composed
of Cadet 1CL Hasigan as Presiding Officer, and Cadets
1CL Mogol, 1CL Raguindin, 2CL Gumilab, 2CL Saldua,
3CL Espejo, and 3CL Poncardas as members.25Soon
after, the team submitted its Preliminary Investigation
Report recommending that the case be formalized.
The formal investigation against Cadet 1CL Cudia then
ensued. The Presiding Officer was Cadet 1CL Rhona K.
Salvacion, while the nine (9) voting members were Cadets
1CL Jairus O. Fantin, 1CL Bryan Sonny S. Arlegui, 1CL
Kim Adrian R. Martal, 1CL Jeanelyn P. Cabrido, 1CL Shu-
Aydan G. Ayada, 1CL Dalton John G. Lagura, 2CL Renato
A. Cario, Jr., 2CL Arwi C. Martinez, and 2CL Niko Angelo
C. Tarayao.26 Acting as recorders tasked to document the
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
Jocson and Saldua, Jr.; and Cadet 3CL
Umaguing.28chanroblesvirtuallawlibrary
The first formal hearing started late evening of January 20,
2014 and lasted until early morning the next day. Cadet
1CL Cudia was informed of the charge against him, as to
which he pleaded Not Guilty. Among those who testified
were Cadet 1CL Cudia, Maj. Hindang, and Cadets 1CL
Arcangel and Narciso. On the second night of the hearing
held on January 21, 2014, Cadet 1CL Cudia again
appeared and was called to the witness stand along with
Cadets Brit and Barrawed. Dr. Costales also testified
under oath via phone on a loudspeaker. Deliberation
among the HC voting members followed. After that, the
ballot sheets were distributed. The members cast their
votes through secret balloting and submitted their
accomplished ballot sheets together with their written
justification. The result was 8-1 in favor of a guilty verdict.
Cadet 1CL Dalton John G. Lagura (Cadet 1CL Lagura)
was the lone dissenter. Allegedly, upon the order of HC
Chairman Cadet 1CL Mogol, the Presiding Officer and
voting members went inside a chamber adjoining the court
room for further deliberation. After several minutes, they
went out and the Presiding Officer announced the 9-0
guilty verdict. Cadet 1CL Cudia, who already served nine
(9) touring hours, was then informed of the unanimous
votes finding him guilty of violating the Honor Code. He
was immediately placed in the PMA Holding Center until
the resolution of his appeal.
On January 24, 2014, Cadet 1CL Cudia filed a written
appeal addressed to the HC Chairman, the full text of
which stated:chanRoblesvirtualLawlibrary
WRITTEN APPEAL
14 NOVEMBER 2013
This is when I was reported for Late for two (2) minutes in
Eng412 class, my explanation on this delinquency report
when I received it, is that Our class was dismissed a (little)
bit late and I came directly from 4th period class... etc.
Knowing the fact that in my delinquency report, it is stated
that ENG412 classes started 1500H and I am late for two
minutes, it is logical enough for I (sic) to interpret it as I
came 1502H during that class. This is the explanation that
came into my mind that time. (I just cannot recall the exact
words I used in explaining that delinquency report, but
what I want to say is that I have no intention to be late). In
my statements, I convey my message as since I was not
the only one left in that class, and the instructor is with us,
I used the term CLASS, I used the word DISMISSED
because I was under instruction (to wait for her to give the
section grade) by the instructor, Ms. Costales. The other
cadets (1CL MIRANDA, 1CL ARCANGEL) still have
queries and business with her that made me decide to use
the word CLASS, while the others who dont have
queries and business with her (ex: 1CL NARCISO and
1CL DIAZ) were also around.
Note:chanRoblesvirtualLawlibrary
The four named cadets were also reported late.
Reference: Para 171.0. (Leaving the Classroom Prior to
Dismissal Time)(Sec XVII, CCAFPR s2008)
It is stated in this reference that Cadets shall not linger in
the place of instruction after the section has been
dismissed. EXCEPT when told or allowed to do so by the
instructor or by any competent authority for official
purposes.
The instruction by Ms. Costales was given to me before
the two bells rang (indicating the end of class hour,
1500H). I waited for her for about 45 seconds to 1 minute
and 30 seconds, that made me to decide to write a little
bit late in my explanation. Truly, the class ENDED 1500H
but due to official purpose (instruction by Ms. Costales to
wait) and the conflict in academic schedule (to which I am
not in control of the circumstances, 4thPD class 1330H-
1500H and 5th PD class 1500H-1600H), and since Ms.
Costales, my other classmates, and I were there, I used
the word CLASS.
19 December 2013
I was informed that my delinquency report was awarded,
11 Demerits and 13 Touring hours. Not because I dont
want to serve punishment, but because I know I did
nothing wrong, I obeyed instruction, and believing that my
reason is justifiable and valid, that is why I approached our
tactical officer, MAJ HINDANG PAF, to clarify and ask why
it was awarded that day.
In our conversation, he said that he had a phone call to my
instructor and he even added that they have a protocol to
dismiss the class, 15 minutes or 10 minutes before 1500H.
I explained:chanRoblesvirtualLawlibrary
Sir, I strongly believe that I am not in control of the
circumstances, our 4th period class ended 1500H and our
5th period class, which is ENG412, started 1500H also.
Immediately after 4th period class, I went to my next class
without any intention of being late Sir.
These statements are supplementary to my explanation in
my delinquency report, in here, I specified the conflict in
the schedule and again, I have no intention to be late. After
explaining it further with these statements, my tactical
officer said that since I was reported in a written form, I
should make an appeal in a written form. Thinking that he
already understood what I want to say, I immediately made
an appeal that day stating the words that I used in having
conversation with him.29
Attached to the written appeal was a Certification dated
January 24, 2014, wherein Dr. Costales
attested:chanRoblesvirtualLawlibrary
1. That Cadet MIRANDA, ARCANGEL, [and]
NARCISO was (sic) with Cadet CUDIA in
making query about their latest grades in
OR432 and/or results of UE1 outside the
ACADS office. The following facts may
explain their queries on 14 November
2013:chanRoblesvirtualLawlibrary
a. That I held my class in the PMAFI
room instead of room 104.
b. That OR432 releases grades every
Wednesday and cadets are informed
during Thursday, either in class or
posted grades in the bulletin board
(grades released was [sic] based on
the previous LEs: latest LE before UE
was Decision Trees).
c. That UE papers were already
checked but not yet recorded due to
(sic) other cadets have not taken the
 UE. Cadets were allowed to verify
scores but not to look at the papers.
d. Last 23 January 2014, Captain
Dulawan clarified if indeed Cadet
NARCISO and ARCANGEL verified
grades. The two cadets said that they
verified something with me after the
OR432 class and they were with
Cadet CUDIA. That the statements of
the three (3) cadets are all the same
and consistent, thus[,] I honor that as
true.
2. As to the aspect of dismissing late, I could
not really account for the specific time that I
dismissed the class. To this date, I [cannot]
really recall an account that is more than two
(2) months earlier. According to my records,
there was a lecture followed by an LE during
(sic) on 14 November 2013. To determine
the time of my dismissal, maybe it can be
verified with the other members of class I
was handling on that said date.30
Respondents contend that the HC denied the appeal the
same day, January 24, as it found no reason to conduct a
re-trial based on the arguments and evidence
presented.31 Petitioners, however, claim that the written
appeal was not acted upon until the filing of the petition-in-
intervention.32chanroblesvirtuallawlibrary
From January 25 to February 7, 2014, respondents allege
that the Headquarters Tactics Group (HTG) conducted an
informal review to check the findings of the HC. During the
course of the investigation, Prof. Berong was said to have
confirmed with the Officer-in-Charge of the HC that
classes started as scheduled (i.e., 3:05 p.m. or 1505H),
and that Cadet 1CL Barrawed, the acting class marcher of
ENG412, verified before the Commandant, Assistant
Commandant, and STO that the class started not earlier
than scheduled.
Meantime, on February 4, 2014, the OIC of the HC
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.
On February 8, 2014, Colonel Rozzano D. Briguez (Col.
Briguez), the Commandant of Cadets, affirmed the HC
findings and recommended to Vice Admiral Edgar
Abogado, then PMA Superintendent, the separation from
the PMA of Cadet 1CL Cudia for violation of the First Tenet
of the Honor Code (Lying, pursuant to Sec. VII.12.b of the
CCAFPR S-2008). On the same date, Special Orders No.
26 was issued by the PMA Headquarters placing Cadet
1CL Cudia on indefinite leave of absence without pay and
allowances effective February 10, 2014 pending approval
of his separation by the AFP-GHQ, barring him from future
appointment and/or admission as cadet, and not
permitting him to qualify for any entrance requirements to
the PMA.33chanroblesvirtuallawlibrary
Two days later, Vice Admiral Abogado approved the
recommendation to dismiss Cadet 1CL Cudia.

On February 13, 2014, Cadet 1CL Cudia submitted a letter
to the Office of the Commandant of Cadets requesting for
reinstatement by the PMA of his status as a
cadet.34chanroblesvirtuallawlibrary
Four days passed, Annavee P. Cudia (Annavee), the
sister of Cadet 1CL Cudia, posted his plight in her
Facebook account. The day after, the Spouses Cudia
gave a letter to Major General Oscar Lopez (Maj. Gen.
Lopez), the new PMA Superintendent, asking to recognize
the 8-1 voting of the HC,35copies of which were furnished
to the AFP Chief of Staff and other concerned military
officials. Subsequently, Maj. Gen. Lopez was directed to
review Cadet 1CL Cudias case. The latter, in turn, referred
the matter to the Cadet Review and Appeals Board
(CRAB).
On February 19, 2014, Cadet 1CL Cudia made his
personal appeal letter to Maj. Gen. Lopez. On even date,
the AFP Chief of Staff ordered a reinvestigation following
the viral Facebook post of Annavee demanding the
intervention of the military leadership.
Petitioners claim that, on February 21, 2014, Special
Order No. 1 was issued directing all PMA cadets to
ostracize Cadet 1CL Cudia by not talking to him and by
separating him from all activities/functions of the cadets. It
is said that any violation shall be a Class 1 offense
entailing 45 demerits, 90 hours touring, and 90 hours
confinement. Cadet 1CL Cudia was not given a copy of the
order and learned about it only from the
media.36 According to an alleged news report, PMA
Spokesperson Major Agnes Lynette Flores (Maj. Flores)
confirmed the HC order to ostracize Cadet 1CL Cudia.
Among his offenses were: breach of confidentiality by
putting documents in the social media, violation of the
PMA Honor Code, lack of initiative to resign, and smearing
the name of the PMA.37chanroblesvirtuallawlibrary
On February 24, 2014, Cadet 1CL Cudia requested the
CRAB for additional time, until March 4, 2014, to file an
appeal on the ground that his intended witnesses were in
on-the-job training (OJT).38 As additional evidence to
support his appeal, he also requested for copies of the
Minutes of the HC proceedings, relevant documents
pertaining to the case, and video footages and recordings
of the HC hearings.
The next day, Cadet 1CL Cudia and his family engaged
the services of the Public Attorneys Office (PAO) in
Baguio City.
The CRAB conducted a review of the case based on the
following: (a) letter of appeal of the Spouses Cudia dated
February 18, 2014; (b) directive from the AFP-GHQ to
reinvestigate the case; and (c) guidance from Maj. Gen.
Lopez.
On February 26, 2014, Brigadier General Andre M.
Costales, Jr. (Brig. Gen. Costales, Jr.), the CRAB
Chairman, informed Cadet 1CL Cudia that, pending
approval of the latters request for extension, the CRAB
would continue to review the case and submit its
recommendations based on whatever evidence and
testimonies received, and that it could not favorably
consider his request for copies of the HC minutes, relevant
documents, and video footages and recordings of the HC
hearings since it was neither the appropriate nor the
authorized body to take action thereon.39 Subsequently,
upon verbal advice, Cadet 1CL Cudia wrote a letter to Maj.
Gen. Lopez reiterating his
request.40chanroblesvirtuallawlibrary
Two days after, the Spouses Cudia filed a letter-complaint
before the CHR-Cordillera Administrative Region (CAR)
Office against the HC members and Maj. Gracilla for
alleged violation of the human rights of Cadet 1CL Cudia,
particularly his rights to due process, education, and
privacy of communication.41chanroblesvirtuallawlibrary
On March 4, 2014, Cadet 1CL Cudia, through the PAO,
moved for additional time, until March 19, 2014, to file his
appeal and submit evidence. PAO also wrote a letter to
AFP Chief of Staff General Emmanuel T. Bautista (Gen.
Bautista) seeking for immediate directive to the PMA to
expeditiously and favorably act on Cadet 1CL Cudias
requests.42chanroblesvirtuallawlibrary
Exactly a week prior to the commencement exercises
of Siklab Diwa Class, the following events
transpired:chanRoblesvirtualLawlibrary
On March 10, 2014, Annavee sought the assistance of
PAO Chief Public Attorney Persida V. Rueda-Acosta.43 On
the other hand, the CRAB submitted a report to the AFP-
GHQ upholding the dismissal of Cadet 1CL
Cudia.44chanroblesvirtuallawlibrary
On March 11, 2014, PAO received a letter from Maj. Gen.
Lopez stating the denial of Cadet 1CL Cudias requests for
extension of time to file an Appeal Memorandum in view
of the ample time already given, and to be furnished with
a copy of relevant documents because of confidentiality
and presumption of regularity of the HC
proceedings.45 Cadet 1CL Cudia, through PAO, then filed
an Appeal Memorandum46 before the CRAB.
On March 12, 2014, Spouses Cudia wrote a letter to
President Benigno Simeon C. Aquino III (Pres. Aquino),
who is the Commander-in-Chief of the AFP, attaching
thereto the Appeal Memorandum.47On the same day,
Special Orders No. 48 was issued by the PMA constituting
a Fact-Finding Board/Investigation Body composed of the
CRAB members and PMA senior officers to conduct a
deliberate investigation pertaining to Cadet 1CL Cudias
Appeal Memorandum.48 The focus of the inquiry was not
just to find out whether the appeal has merit or may be
considered but also to investigate possible involvement of
other cadets and members of the command related to the
incident and to establish specific violation of policy or
regulations that had been violated by other cadets and
members of the HC.49chanroblesvirtuallawlibrary
On March 13, 2014, the Cudia family and the Chief Public
Attorney had a dialogue with Maj. Gen. Lopez.
On March 14, 2014, the CHR-CAR came out with its
preliminary findings, which recommended the
following:chanRoblesvirtualLawlibrary
 a. For the PMA and the Honor Committee to
respect and uphold the 8 Guilty 1 Not guilty
vote;chanrobleslaw
b. For the PMA and the Honor Committee to
officially pronounce Cdt Cudia as Not Guilty
of the charge filed against him before the
Honor Committee;chanrobleslaw
c. For the PMA to restore Cadet Cudias rights
and entitlements as a full-fledge graduating
cadet and allow him to graduate on Sunday,
16 March 2014;chanrobleslaw
d. For the PMA to fully cooperate with the CHR
in the investigation of Cudias Case.50
On March 15, 2014, Cadet 1CL Cudia and his family had
a meeting with Pres. Aquino and Department of National
Defense (DND) Secretary Voltaire T. Gazmin. The
President recommended that they put in writing their
appeal, requests, and other concerns. According to
respondents, the parties agreed that Cadet 1CL Cudia
would not join the graduation but it was without prejudice
to the result of the appeal, which was elevated to the AFP
Chief of Staff. The President then tasked Gen. Bautista to
handle the reinvestigation of the case, with Maj. Gen.
Oscar Lopez supervising the group conducting the review.
Four days after Siklab Diwa Class graduation day,
petitioner Renato S. Cudia received a letter dated March
11, 2014 from the Office of the AFP Adjutant General and
signed by Brig. Gen. Ronald N. Albano for the AFP Chief
of Staff, affirming the CRABs denial of Cadet 1CL Cudias
appeal. It held:chanRoblesvirtualLawlibrary
After review, The Judge Advocate General, AFP finds that
the action of the PMA CRAB in denying the appeal for
reinvestigation is legally in order. There was enough
evidence to sustain the finding of guilt and the proprietary
(sic) of the punishment imposed. Also, your son was
afforded sufficient time to file his appeal from the date he
was informed of the final verdict on January 21, 2014,
when the decision of the Honor Committee was read to
him in person, until the time the PMA CRAB conducted its
review on the case. Moreover, the continued stay of your
son at the Academy was voluntary. As such, he remained
subject to the Academys policy regarding visitation.
Further, there was no violation of his right to due process
considering that the procedure undertaken by the Honor
Committee and PMA CRAB was consistent with existing
policy. Thus, the previous finding and recommendation of
the Honor Committee finding your son, subject Cadet
guilty of Lying and recommending his separation from
the Academy is sustained.
In view of the foregoing, this Headquarters resolved to
deny your appeal for lack of merit.51
Thereafter, the Fact-Finding Board/Investigating Body
issued its Final Investigation Report on March 23, 2014
denying Cadet 1CL Cudias appeal.52 Subsequently, on
April 28, 2014, the special investigation board tasked to
probe the case submitted its final report to the
President.53 Pursuant to the administrative appeals
process, the DND issued a Memorandum dated May 23,
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
President.54chanroblesvirtuallawlibrary
Meanwhile, on May 22, 2014, the CHR-CAR issued its
Resolution with respect to CHR-CAR Case No. 2014-
0029, concluding and recommending as
follows:chanRoblesvirtualLawlibrary
WHEREFORE, PREMISES CONSIDERED, the
Commission on Human Rights-CAR Office
finds PROBABLE CAUSE FOR HUMAN RIGHTS
VIOLATIONS against the officers and members of the
PMA Honor Committee and certain PMA officials,
specifically for violations of the rights of CADET ALDRIN
JEFF P. CUDIA to dignity, due process, education,
privacy/privacy of communication, and good life.
IN VIEW OF THE FOREGOING, the CHR-CAR
Office RESOLVED to indorse to competent authorities for
their immediate appropriate action on the following
recommendations:chanRoblesvirtualLawlibrary
1. The Philippine Military Academy must set
aside the 9-Guilty, 0-Not Guilty verdict
against Cadet Aldrin Jeff P. Cudia, for being
null and void; to uphold and respect the 8-
Guilty, 1-Not Guilty voting result and make
an official pronouncement of NOT GUILTY
in favor of Cadet Cudia;chanrobleslaw
2. The PMA, the AFP Chief of Staff, and the
President in whose hands rest the ends of
justice and fate of Cadet Cudia,
to:chanRoblesvirtualLawlibrary
2.1officially proclaim Cadet Cudia a graduate and alumnus
of the Philippine Military Academy;
2.2issue to Cadet Cudia the corresponding Diploma for the
degree of Bachelors of Science; and
2.3Issue to Cadet Cudia the corresponding official
transcript of his academic records for his BS degree,
without conditions therein as to his status as a PMA
cadet.
3. The Public Attorneys Office to provide legal
services to Cadet Cudia in pursuing
administrative, criminal and civil suits
against the officers and members of the
Honor Committee named hereunder, for
violation of the Honor Code and System and
the Procedure in Formal Investigation,
dishonesty, violation of the secrecy of the
ballot, tampering the true result of the voting,
perjury, intentional omission in the Minutes
of substantive part of the formal trial
proceedings which are prejudicial to the
interest of justice and Cadet Cudias
fundamental rights to dignity, non-
discrimination and due process, which led to
the infringement of his right to education and
even transgressing his right to a good life.
3.1 Cdt 1CL MIKE ANTHONY MOGUL, now 2nd Lt. of the
AFP
3.2 Cdt 1CL RHONA K. SALVACION, now 2nd Lt. of the
AFP
3.3 Cdt 2CL ARWI C. MARTINEZ
3.4 Cdt 2CL RENATO A. CARIO, JR.
3.5 Cdt 2CL NIKO ANGELO C. TARAYAO
3.6 Cdt 1CL JEANELYN P. CABRIDO, now 2nd Lt. of the
AFP
3.7 Cdt 1CL KIM ADRIAN R. MARTAL, now 2nd Lt. of the
AFP
3.8 Cdt 1CL JAIRUS O. FANTIN, now 2nd Lt. of the AFP
3.9 Cdt 1CL BRYAN SONNY S. ARLEGUI, now 2nd Lt. of
the AFP
3.10Cdt 1CL DALTON JOHN G. LAGURA, now 2nd Lt. of
the AFP
3.11Cdt 1CL BIANCHIHEIMER L. EDRA, now 2nd Lt. of
the AFP
3.12Cdt 4CL JENNIFER A. CUARTERON (recorder)
3.13Cdt 3CL LEONCIO NICO A. DE JESUS II (recorder)
4. The Office of the AFP Chief of Staff and the
PMA competent authorities should
investigate and file appropriate charges
against Maj. VLADIMIR P. GRACILLA, for
violation of the right to privacy of Cadet
Cudia and/or failure, as intelligence officer,
to ensure the protection of the right to
privacy of Cudia who was then billeted at the
PMA Holding Center;chanrobleslaw
5. The Office of the AFP Chief of Staff and PMA
competent authorities should investigate
Maj. DENNIS ROMMEL HINDANG for his
failure and ineptness to exercise his
responsibility as a competent Tactical Officer
and a good father of his cadets, in this case,
to Cadet Cudia; for failure to respect
exhaustion of administrative
remedies;chanrobleslaw
6. The Secretary of National Defense, the Chief
of Staff of the Armed Forces of the
Philppines, the PMA Superintendent, to
immediately cause the comprehensive
review of all rules of procedures, regulations,
policies, including the so-called practices in
the implementation of the Honor Code; and,
thereafter, adopt new policies, rules of
procedures and relevant regulations which
are human-rights based and consistent with
the Constitution and other applicable
laws;chanrobleslaw
7. The Congress of the Philippines to consider
the enactment of a law defining and
penalizing ostracism and discrimination,
which is apparently being practiced in the
PMA, as a criminal offense in this
jurisdiction;chanrobleslaw
8. His Excellency The President of the
Philippines to certify as priority, the passage
of an anti-ostracism and/or anti-
discrimination law; and
9. Finally, for the AFP Chief of Staff and the
PMA authorities to ensure respect and
protection of the rights of those who testified
for the cause of justice and truth as well as
human rights of Cadet Cudia.
RESOLVED FURTHER, to monitor the actions by the
competent authorities on the foregoing CHR
recommendations.
Let copy of this resolution be served by personal service
or by substituted service to the complainants (the spouses
Renato and Filipina Cudia; and Aldrin Jeff P. Cudia), and
all the respondents. Also, to the PMA Superintendent, the
AFP Chief of Staff, the Secretary of National Defense, His
Excellency The President of the Philippines, The Public
Attorneys Office.
SO RESOLVED.55
On June 11, 2014, the Office of the President sustained
the findings of the AFP Chief of Staff and the CRAB. The
letter, which was addressed to the Spouses Cudia and
signed by Executive Secretary Paquito N. Ochoa, Jr.,
stated in whole:chanRoblesvirtualLawlibrary
This refers to your letters to the President dated 12 March
2014 and 26 March 2014 appealing for a reconsideration
of the decision of the Philippine Military Academy (PMA)
Honor Committee on the case of your son, Cadet 1CL
Aldrin Jeff Cudia.
After carefully studying the records of the case of Cadet
Cudia, the decision of the Chief of Staff of the Armed
Forces of the Philippines (AFP), and the Honor Code
System of the AFP Cadet Corps, this Office has found no
substantial basis to disturb the findings of the AFP and the
PMA Cadet Review Appeals Board (CRAB). There is no
competent evidence to support the claim that the decision
of the Honor Committee members was initially at 8 Guilty
votes and 1 Not Guilty vote. The lone affidavit of an
officer, based on his purported conversation with one
Honor Committee member, lacks personal knowledge on
the deliberations of the said Committee and is hearsay at
best.
Similarly, the initial recommendations of the Commission
on Human Rights cannot be adopted as basis that Cadet
Cudias due process rights were violated. Apart from being
explicitly preliminary in nature, such recommendations are
anchored on a finding that there was an 8-1 vote which, as
discussed above, is not supported by competent evidence.
In the evaluation of Cadet Cudias case, this Office has
been guided by the precept that military law is regarded to
be in a class of its own, applicable only to military
personnel because the military constitutes an armed
organization requiring a system of discipline separate from
that of civilians (Gonzales v. Abaya, G.R. No. 164007, 10
August 2005 citing Calley v. Callaway, 519 F. 2d 184
[1975] and Orloff v. Willoughby, 345 US 83 [1953]). Thus,
this Office regarded the findings of the AFP Chief,
particularly his conclusion that there was nothing irregular
in the proceedings that ensued, as carrying great weight.
Accordingly, please be informed that the President has
sustained the findings of the AFP Chief and the PMA
CRAB.56
The Issues
To petitioners, the issues for resolution
are:chanRoblesvirtualLawlibrary
I.

WHETHER THE PHILIPPINE MILITARY ACADEMY, THE
HONOR COMMITTEE AND THE CADET REVIEW AND
APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN DISMISSING CADET FIRST CLASS
ALDRIN JEFF P. CUDIA FROM THE ACADEMY IN
UTTER DISREGARD OF HIS RIGHT TO DUE PROCESS
CONSIDERING THAT:
A. Despite repeated requests for relevant
documents regarding his case, Cadet First
Class Aldrin Jeff Cudia was deprived of his
right to have access to evidence which
would have proven his defense, would have
totally belied the charge against him, and
more importantly, would have shown the
irregularity in the Honor Committees hearing
and rendition of decision
B. Cadet First Class Aldrin Jeff Cudia was
vaguely informed of the decisions arrived at
by the Honor Committee, the Cadet Review
and Appeals Board and the Philippine
Military Academy
C. The Honor Committee, the Cadet Review
and Appeals Board and the Philippine
Military Academy have afforded Cadet First
Class Aldrin Jeff Cudia nothing but a sham
trial
D. The Honor Committee, the Cadet Review
and Appeals Board and the Philippine
Military Academy violated their own rules
and principles as embodied in the Honor
Code
E. The Honor Committee, the Cadet Review
and Appeals Board and the Philippine
Military Academy, in deciding Cadet First
Class Aldrin Jeff Cudias case, grossly and
in bad faith, misapplied the Honor Code so
as to defy the 1987 Constitution,
notwithstanding the unquestionable fact that
the former should yield to the latter.
II
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE
HONOR COMMITTEE AND THE CADET REVIEW AND
APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN HOLDING THAT CADET FIRST CLASS
ALDRIN JEFF P. CUDIA LIED, THEREBY VIOLATING
THE HONOR CODE
III
WHETHER THE RESULT OF THE FACT-FINDING
INVESTIGATION INDEPENDENTLY CONDUCTED BY
THE COMMISSION ON HUMAN RIGHTS IS OF SUCH
GREAT WEIGHT AND PERSUASIVE NATURE THAT
THIS HONORABLE COURT MAY HONOR, UPHOLD
AND RESPECT57
On the other hand, in support of their prayer to dismiss the
petition, respondents presented the issues
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,
a petition for mandamus may be filed when any tribunal,
corporation, board, officer, or person unlawfully neglects
the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station.
It may also be filed when any tribunal, corporation, board,
officer, or person unlawfully excludes another from the use
and enjoyment of a right or office to which such other is
entitled.
For mandamus to lie, the act sought to be enjoined must
be a ministerial act or duty. An act is ministerial if the act
should be performed "[under] a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of [the tribunal
or corporation's] own judgment upon the propriety or
impropriety of the act done." The tribunal, corporation,
board, officer, or person must have no choice but to
perform the act specifically enjoined by law. This is
opposed to a discretionary act whereby the officer has the
choice to decide how or when to perform the
duty.61chanroblesvirtuallawlibrary
In this case, petitioners pray for, among
others:chanRoblesvirtualLawlibrary
Also, after due notice and hearing, it is prayed of the Court
to issue a Writ of
Mandamus to:chanRoblesvirtualLawlibrary
1. direct the PMA to include Cadet Cudia in the
list of graduates of Siklab Diwa Class of
2014 of the PMA, including inclusion in the
yearbook;chanrobleslaw
2. direct the PMA to allow Cadet Cudia to take
part in the commencement exercises if he
completed all the requirements for his
baccalaureate degree;chanrobleslaw
3. direct the PMA to award unto Cadet Cudia
the academic honors he deserves, and the
commission as a new Philippine Navy
ensign;chanrobleslaw
4. direct the Honor Committee to submit to the
CRAB of the PMA all its records of the
proceedings taken against Cadet Cudia,
including the video footage and audio
recordings of the deliberations and voting,
for the purpose of allowing the CRAB to
conduct intelligent review of the case of
Cadet Cudia;chanrobleslaw
5. direct the PMAs CRAB to conduct a
review de novo of all the records without
requiring Cadet Cudia to submit new
evidence if it was physically impossible to do
so;chanrobleslaw
6. direct the PMAs CRAB to take into account
the certification signed by Dr. Costales, the
new evidence consisting of the affidavit of a
military officer declaring under oath that the
cadet who voted not guilty revealed to this
officer that this cadet was coerced into
changing his vote, and other new evidence if
there is any;chanrobleslaw
 7. direct the PMAs CRAB to give Cadet Cudia
the right to a counsel who is allowed to
participate actively in the proceedings as
well as in the cross-examinations during the
exercise of the right to confront witnesses
against him; and
8. direct the Honor Committee in case of
remand of the case by the CRAB to allow
Cadet Cudia a representation of a counsel.62
Similarly, petitioner-intervenor seeks for the following
reliefs:chanRoblesvirtualLawlibrary
A. x x x words of Garcia:chanRoblesvirtualLawlibrary
B. a Writ of Mandamus be issued
commanding:chanRoblesvirtualLawlibrary
a.) The PMA, Honor Committee, and CRAB to respect and
uphold the 8 Guilty - 1 Not Guilty vote;
b.) The PMA, Honor Committee, and CRAB to officially
pronounce Cadet Cudia as Not Guilty of the charge filed
against him before the Honor Committee;
c.) The PMA to restore Cadet Cudias rights and
entitlements as a full-fledged graduating cadet,
including his diploma and awards.63
Anent the plea to direct the PMA to include Cadet 1CL
Cudia in the list of graduates of Siklab Diwa Class of 2014
and to allow him to take part in the commencement
exercises, the same was rendered moot and academic
when the graduation ceremonies pushed through on
March 16, 2014 without including Cadet 1CL Cudia in the
roll of graduates.
With respect to the prayer directing the PMA to restore
Cadet 1CL Cudias rights and entitlements as a full-
fledged graduating cadet, including his diploma, awards,
and commission as a new Philippine Navy ensign, the
same cannot be granted in a petition for mandamus on the
basis of academic freedom, which We shall discuss in
more detail below. Suffice it to say at this point that these
matters are within the ambit of or encompassed by the
right of academic freedom; therefore, beyond the province
of the Court to decide.64 The powers to confer degrees at
the PMA, grant awards, and commission officers in the
military service are discretionary acts on the part of the
President as the AFP Commander-in-Chief. Borrowing the
There are standards that must be met. There are policies
to be pursued. Discretion appears to be of the essence. In
terms of Hohfeld's terminology, what a student in the
position of petitioner possesses is a privilege rather than a
right. She [in this case, Cadet 1CL Cudia] cannot therefore
satisfy the prime and indispensable requisite of
a mandamus proceeding.65
Certainly, mandamus is never issued in doubtful cases. It
cannot be availed against an official or government
agency whose duty requires the exercise of discretion or
judgment.66 For a writ to issue, petitioners should have a
clear legal right to the thing demanded, and there should
be an imperative duty on the part of respondents to
perform the act sought to be
mandated.67chanroblesvirtuallawlibrary
The same reasons can be said as regards the other reliefs
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
does not lie to require anyone to a specific course of
conduct or to control or review the exercise of discretion;
it will not issue to compel an official to do anything which
is not his duty to do or which is his duty not to do or give
to the applicant anything to which he is not entitled by
law.68chanroblesvirtuallawlibrary
The foregoing notwithstanding, the resolution of the case
must proceed since, as argued by petitioners, the Court is
empowered to settle via petition for certiorari whether
there is grave abuse of discretion on the part of
respondents in dismissing Cadet 1CL Cudia from the
PMA.
Factual nature of the issues
According to respondents, the petition raises issues that
actually require the Court to make findings of fact because
it sets forth several factual disputes which include, among
others: the tardiness of Cadet 1CL Cudia in his ENG412
class and his explanation thereto, the circumstances that
transpired in the investigation of his Honor Code violation,
the proceedings before the HC, and the allegation that
Cadet 1CL Lagura was forced to change his vote during
the executive session/chambering.
In opposition, petitioners claim that the instant controversy
presents legal issues. Rather than determining which
between the two conflicting versions of the parties is true,
the case allegedly centers on the application, appreciation,
and interpretation of a persons rights to due process, to
education, and to property; the interpretation of the PMA
Honor Code and Honor System; and the conclusion on
whether Cadet 1CL Cudias explanation constitutes lying.
Even if the instant case involves questions of fact,
petitioners still hold that the Court is empowered to settle
mixed questions of fact and law.
Petitioners are correct.
There is a question of law when the issue does not call for
an examination of the probative value of evidence
presented, the truth or falsehood of facts being admitted
and the doubt concerns the correct application of law and
jurisprudence on the matter. On the other hand, there is a
question of fact when the doubt or controversy arises as
to the truth or falsity of the alleged facts. When there is no
dispute as to fact, the question of whether or not the
conclusion drawn therefrom is correct is a question of
law.69
The petition does not exclusively present factual matters
for the Court to decide. As pointed out, the all-
encompassing issue of more importance is the
determination of whether a PMA cadet has rights to due
process, to education, and to property in the context of the
Honor Code and the Honor System, and, if in the
affirmative, the extent or limit thereof. Notably, even
respondents themselves raise substantive grounds that
We have to resolve. In support of their contention that the
Court must exercise careful restraint and should refrain
from unduly or prematurely interfering in legitimate military
matters, they argue that Cadet 1CL Cudia has necessarily
and voluntarily relinquished certain civil liberties by virtue
of his entry into the PMA, and that the Academy enjoys
academic freedom authorizing the imposition of
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
impression; hence, the Court must not hesitate to make a
categorical ruling.
Exhaustion of administrative remedies
Respondents assert that the Court must decline
jurisdiction over the petition pending President Aquinos
resolution of Cadet 1CL Cudia appeal. They say that there
is an obvious non-exhaustion of the full administrative
process. While Cadet 1CL Cudia underwent the review
procedures of his guilty verdict at the Academy level the
determination by the SJA of whether the HC acted
according to the established procedures of the Honor
System, the assessment by the Commandant of Cadets of
the procedural and legal correctness of the guilty verdict,
the evaluation of the PMA Superintendent to warrant the
administrative separation of the guilty cadet, and the
appellate review proceedings before the CRAB he still
appealed to the President, who has the utmost latitude in
making decisions affecting the military. It is contended that
the Presidents power over the persons and actions of the
members of the armed forces is recognized in B/Gen.
(Ret.) Gudani v. Lt./Gen. Senga70 and in Section 3171 of
Commonwealth Act (C.A.) No. 1 (also known as "The
National Defense Act"). As such, the President could still
overturn the decision of the PMA. In respondents view,
the filing of this petition while the case is pending
resolution of the President is an irresponsible defiance, if
not a personal affront. For them, comity dictates that courts
of justice should shy away from a dispute until the system
of administrative redress has been completed.
From the unfolding of events, petitioners, however,
consider that President Aquino effectively denied the
appeal of Cadet 1CL Cudia. They claim that his family
exerted insurmountable efforts to seek reconsideration of
the HC recommendation from the AFP officials and the
President, but was in vain. The circumstances prior to,
during, and after the PMA 2014 graduation rites, which
was attended by President Aquino after he talked to Cadet
1CL Cudias family the night before, foreclose the
possibility that the challenged findings would still be
overturned. In any case, petitioners insist that the rule on
exhaustion of administrative remedies is not absolute
based on the Corsiga v. Defensor72and Verceles v. BLR-
DOLE73 rulings.
We rule for petitioners.
In general, no one is entitled to judicial relief for a
supposed or threatened injury until the prescribed
administrative remedy has been exhausted. The rationale
behind the doctrine of exhaustion of administrative
remedies is that courts, for reasons of law, comity, and
convenience, should not entertain suits unless the
available administrative remedies have first been resorted
to and the proper authorities, who are competent to act
upon the matter complained of, have been given the
appropriate opportunity to act and correct their alleged
errors, if any, committed in the administrative forum.74 In
the U.S. case of Ringgold v. United States,75 which was
cited by respondents, it was specifically held that in a
typical case involving a decision by military authorities, the
plaintiff must exhaust his remedies within the military
before appealing to the court, the doctrine being designed
both to preserve the balance between military and civilian
authorities and to conserve judicial resources.
Nonetheless, there are exceptions to the rule. In this
jurisdiction, a party may directly resort to judicial remedies
if any of the following is
present:chanRoblesvirtualLawlibrary
1. when there is a violation of due process;
2. when the issue involved is purely a legal
question;
3. when the administrative action is patently
illegal amounting to lack or excess of
jurisdiction;
4. when there is estoppel on the part of the
administrative agency concerned;
5. when there is irreparable injury;
6. when the respondent is a department
secretary whose acts as an alter ego of the
President bear the implied and assumed
approval of the latter;
7. when to require exhaustion of administrative
remedies would be unreasonable;
8. when it would amount to a nullification of a
claim;
9. when the subject matter is a private land in
land case proceedings;
10. when the rule does not provide a plain,
speedy and adequate remedy; and
11. when there are circumstances indicating the
urgency of judicial intervention.76
Petitioners essentially raise the lack of due process in the
dismissal of Cadet 1CL Cudia from the PMA. Thus, it may
be a ground to give due course to the petition despite the
non-exhaustion of administrative remedies. Yet more
significant is the fact that during the pendency of this case,
particularly on June 11, 2014, the Office of the President
finally issued its ruling, which sustained the findings of the
AFP Chief and the CRAB. Hence, the occurrence of this
supervening event bars any objection to the petition based
on failure to exhaust administrative remedies.
Courts interference within military affairs
Respondents cite the U.S. cases of Bois v.
Marsh77 and Schlesinger v. Councilman78 to support their
contention that judicial intervention would pose substantial
threat to military discipline and that there should be a
deferential review of military statutes and regulations since
political branches have particular expertise and
competence in assessing military needs. Likewise,
in Orloff v. Willoughby79and Parker v. Levy,80 it was
allegedly opined by the U.S. Supreme Court that the
military constitutes a specialized community governed by
a separate discipline from that of the civilian. According to
respondents, the U.S. courts respect to the military
recognizes that constitutional rights may apply differently
in the military context than in civilian society as a whole.
Such military deference is exercised either by refusing to
apply due process and equal protection doctrines in
military cases or applying them but with leniency.
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
jurisdiction, policy considerations call for the widest
latitude of deference to military affairs. Such respect is
exercised by the court where the issues to be resolved
entail a substantial consideration of legitimate
governmental interest. They suppose that allowing Cadet
1CL Cudias case to prosper will set an institutionally
dangerous precedent, opening a Pandoras box of other
challenges against the specialized system of discipline of
the PMA. They state that with the PMAs mandate to train
cadets for permanent commission in the AFP, its
disciplinary rules and procedure necessarily must impose
a different standard of conduct compared with civilian
institutions.
Petitioners, on the other hand, consider that this Court is
part of the States check-and-balance machinery,
specifically mandated by Article VIII of the 1987
Constitution to ensure that no branch of the government or
any of its officials acts without or in excess of jurisdiction
or with grave abuse of discretion amounting to lack or
excess of jurisdiction. They assert that judicial non-
interference in military affairs is not deemed as absolute
even in the U.S. They cite Schlesinger and Parker, which
were invoked by respondents, as well as Burns v.
Wilson81 and Harmon v. Brucker,82 wherein the U.S.
Supreme Court reviewed the proceedings of military
tribunals on account of issues posed concerning due
process and violations of constitutional rights. Also,
in Magno v. De Villa83 decided by this Court, petitioners
note that We, in fact, exercised the judicial power to
determine whether the AFP and the members of the court
martial acted with grave abuse of discretion in their military
investigation.
Petitioners contentions are tenable.
Admittedly, the Constitution entrusts the political branches
of the government, not the courts, with superintendence
and control over the military because the courts generally
lack the competence and expertise necessary to evaluate
military decisions and they are ill-equipped to determine
the impact upon discipline that any particular intrusion
upon military authority might have.84 Nevertheless, for the
sake of brevity, We rule that the facts as well as the legal
issues in the U.S. cases cited by respondents are not on
all fours with the case of Cadet 1CL Cudia. Instead, what
applies is the 1975 U.S. case of Andrews v.
Knowlton,85 which similarly involved cadets who were
separated from the United States Military Academy due to
Honor Code violations. Following Wasson v.
Trowbridge86 and Hagopian v. Knowlton,87 Andrews re-
affirmed the power of the district courts to review
procedures used at the service academies in the
separation or dismissal of cadets and midshipmen. While
it recognized the constitutional permissibility of the
military to set and enforce uncommonly high standards of
conduct and ethics, it said that the courts have expanded
at an accelerated pace the scope of judicial access for
review of military determinations. Later, in Kolesa v.
Lehman,88 it was opined that it has been well settled that
federal courts have jurisdiction "where there is a
substantial claim that prescribed military procedures
violates one's constitutional rights." By 1983, the U.S.
Congress eventually made major revisions to the Uniform
Code of Military Justice (UCMJ) by expressly providing,
among others, for a direct review by the U.S. Supreme
Court of decisions by the militarys highest appellate
authority.89chanroblesvirtuallawlibrary
Even without referring to U.S. cases, the position of
petitioners is still formidable. In this jurisdiction, Section 1
Article VIII of the 1987 Constitution expanded the scope of
judicial power by mandating that the duty of the courts of
justice includes not only to settle actual controversies
involving rights which are legally demandable and
enforceable but also to determine whether or not there
has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government even if the latter does
not exercise judicial, quasi-judicial or ministerial
functions.90 Grave abuse of discretion implies such
capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction or where the power is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, which must be so patent and
gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all
in contemplation of law.91chanroblesvirtuallawlibrary
The proceedings of the Cadet Honor Committee can, for
purposes of the Due Process Clause, be considered a
governmental activity. As ruled
in Andrews:chanRoblesvirtualLawlibrary
The relationship between the Cadet Honor Committee and
the separation process at the Academy has been
sufficiently formalized, and is sufficiently interdependent,
so as to bring that committee's activities within the
definition of governmental activity for the purposes of our
review. While the Academy has long had the informal
practice of referring all alleged violations to the Cadet
Honor Committee, the relationship between that
committee and the separation process has to a degree
been formalized. x x x
Regardless of whether the relationship be deemed formal
or informal, the Honor Committee under its own
procedures provides that a single "not guilty" vote by a
member ends the matter, while a "guilty" finding confronts
a cadet with the hard choice of either resigning or electing
to go before a Board of Officers. An adverse finding there
results not only in formal separation from the Academy but
also in a damaging record that will follow the cadet through
life. Accordingly, we conclude that the Cadet Honor
Committee, acting not unlike a grand jury, is clearly part of
the process whereby a cadet can ultimately be adjudged
to have violated the Cadet Honor Code and be separated
from the Academy. Therefore, the effect of the committee's
procedures and determinations on the separation process
is sufficiently intertwined with the formal governmental
activity which may follow as to bring it properly under
judicial review.92
No one is above the law, including the military. In fact, the
present Constitution declares it as a matter of principle that
civilian authority is, at all times, supreme over the
military.93 Consistent with the republican system of checks
and balances, the Court has been entrusted, expressly or
by necessary implication, with both the duty and the
obligation of determining, in appropriate cases, the validity
of any assailed legislative or executive
action.94chanroblesvirtuallawlibrary
SUBSTANTIVE GROUNDS
Cadets relinquishment of certain civil liberties
Respondents assert that the standard of rights applicable
to a cadet is not the same as that of a civilian because the
formers rights have already been recalibrated to best
serve the military purpose and necessity. They claim that
both Gudani and Lt. Col. Kapunan, Jr. v. Gen. De
Villa95 recognized that, to a certain degree, individual
rights of persons in the military service may be curtailed by
the rules of military discipline in order to ensure its
effectiveness in fulfilling the duties required to be
discharged under the law. Respondents remind that, as a
military student aspiring to a commissioned post in the
military service, Cadet 1CL Cudia voluntarily gave up
certain civil and political rights which the rest of the civilian
population enjoys. The deliberate surrender of certain
freedoms on his part is embodied in the cadets Honor
Code Handbook. It is noted that at the beginning of their
academic life in the PMA, Cadet 1CL Cudia, along with the
rest of Cadet Corps, took an oath and undertaking to stand
by the Honor Code and the Honor System.
To say that a PMA cadet surrenders his fundamental
human rights, including the right to due process, is, for
petitioners, contrary to the provisions of Section 3, Article
II of the 1987 Constitution,96Executive Order (E.O.) No.
17897 (as amended by E.O. No. 100598), AFP Code of
Ethics, Oath of Cadet Corps to the Honor Code and the
Honor System, military professionalism, and, in general,
Code and the Honor System in deciding Cadet 1CL
Cudias case considering that these should not be
implemented at the expense of human rights, due process,
and fair play. Further, under the doctrine of constitutional
supremacy, they can never overpower or defy the 1987
Constitution since the former should yield to the latter.
Petitioners stress that the statement that a cadet can be
compelled to surrender some civil rights and liberties in
order for the Code and System to be implemented simply
pertains to what cadets have to sacrifice in order to prove
that they are men or women of integrity and honor, such
as the right to entertain vices and the right to freely choose
what they want to say or do. In the context of disciplinary
investigation, it does not contemplate a surrender of the
right to due process but, at most, refers to the cadets
rights to privacy and to remain silent.
We concur with the stand of petitioners.
Of course, a student at a military academy must be
prepared to subordinate his private interests for the proper
functioning of the educational institution he attends to, one
that is with a greater degree than a student at a civilian
public school.99 In fact, the Honor Code and Honor System
Handbook of the PMA expresses that, [as] a training
environment, the Cadet Corps is a society which has its
own norms. Each member binds himself to what is good
for him, his subordinates, and his peers. To be part of the
Cadet Corps requires the surrender of some basic rights
and liberties for the good of the
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
by Andrews, that a cadet facing dismissal from the military
academy for misconduct has constitutionally protected
private interests (life, liberty, or property); hence,
disciplinary proceedings conducted within the bounds of
procedural due process is a must.101 For that reason, the
PMA is not immune from the strictures of due process.
Where a person's good name, reputation, honor, or
integrity is at stake because of what the government is
doing to him, the minimal requirements of the due process
clause must be satisfied.102 Likewise, the cadet faces far
more severe sanctions of being expelled from a course of
college instruction which he or she has pursued with a
view to becoming a career officer and of probably being
forever denied that career.103chanroblesvirtuallawlibrary
The cases of Gudani and Kapunan, Jr. are inapplicable as
they do not specifically pertain to dismissal proceedings of
a cadet in a military academy due to honor violation.
In Gudani, the Court denied the petition that sought to
annul the directive from then President Gloria Macapagal-
Arroyo, which enjoined petitioners from testifying before
the Congress without her consent. We ruled that
petitioners may be subjected to military discipline for their
defiance of a direct order of the AFP Chief of Staff. On the
other hand, in Kapunan, Jr., this Court upheld the
restriction imposed on petitioner since the conditions for
his house arrest (particularly, that he may not issue any
press statements or give any press conference during the
period of his detention) are justified by the requirements of
military discipline. In these two cases, the constitutional
rights to information, transparency in matters of public
concern, and to free speech not to due process clause
were restricted to better serve the greater military purpose.
Academic freedom of the PMA
Petitioners posit that there is no law providing that a guilty
finding by the HC may be used by the PMA to dismiss or
recommend the dismissal of a cadet from the PMA. They
argue that Honor Code violation is not among those listed
as justifications for the attrition of cadets considering that
the Honor Code and the Honor System do not state that a
guilty cadet is automatically terminated or dismissed from
service. To them, the Honor Code and Honor System are
gentlemans agreement that cannot take precedence
over public interest in the defense of the nation and in
view of the taxpayers money spent for each cadet.
Petitioners contend that, based on the Civil Code, all
written or verbal agreements are null and void if they
violate the law, good morals, good customs, public policy,
and public safety.
In opposition, respondents claim that the PMA may
impose disciplinary measures and punishment as it deems
fit and consistent with the peculiar needs of the Academy.
Even without express provision of a law, the PMA has
regulatory authority to administratively dismiss erring
cadets since it is deemed reasonably written into C.A. No.
1. Moreover, although said law grants to the President the
authority of terminating a cadets appointment, such power
may be delegated to the PMA Superintendent, who may
exercise direct supervision and control over the cadets.
Respondents likewise contend that, as an academic
institution, the PMA has the inherent right to promulgate
reasonable norms, rules and regulations that it may deem
necessary for the maintenance of school discipline, which
is specifically mandated by Section 3 (2),104 Article XIV of
the 1987 Constitution. As the premiere military educational
institution of the AFP in accordance with Section
30,105 Article III of C.A. No. 1 and Sections 58 and
59,106 Chapter 9, Subtitle II, Title VIII, Book IV of E.O. No.
292 (Administrative Code of 1987?), the PMA is an
institution that enjoys academic freedom guaranteed by
Section 5 (2),107 Article XIV of the 1987 Constitution.
In Miriam College Foundation, Inc. v. Court of
Appeals,108 it was held that concomitant with such
freedom is the right and duty to instill and impose discipline
upon its students. Also, consistent with Isabelo, Jr. v.
Perpetual Help College of Rizal, Inc.109 and Ateneo de
Manila University v. Capulong,110 the PMA has the
freedom on who to admit (and, conversely, to expel) given
the high degree of discipline and honor expected from its
students who are to form part of the AFP.
For respondents, Cadet 1CL Cudia cannot, therefore,
belatedly assail the Honor Code as basis of the HCs
decision to recommend his dismissal from the PMA. When
he enlisted for enrolment and studied in the PMA for four
years, he knew or should have been fully aware of the
standards of discipline imposed on all cadets and the
corresponding penalty for failing to abide by these
standards.
In their Reply, petitioners counter that, as shown
in Isabelo, Jr. and Ateneo, academic freedom is not
absolute and cannot be exercised in blatant disregard of
the right to due process and the 1987 Constitution.
Although schools have the prerogative to choose what to
teach, how to teach, and who to teach, the same does not
go so far as to deprive a student of the right to graduate
when there is clear evidence that he is entitled to the same
since, in such a case, the right to graduate becomes a
vested right which takes precedence over the limited and
restricted right of the educational institution.
While both parties have valid points to consider, the
arguments of respondents are more in line with the facts
of this case.
We have ruled that the school-student relationship is
contractual in nature. Once admitted, a students
enrolment is not only semestral in duration but for the
entire period he or she is expected to complete it.111 An
institution of learning has an obligation to afford its
students a fair opportunity to complete the course they
seek to pursue.112 Such contract is imbued with public
interest because of the high priority given by the
Constitution to education and the grant to the State of
supervisory and regulatory powers over all educational
institutions.113chanroblesvirtuallawlibrary
The school-student relationship has also been held as
reciprocal. [It] has consequences appurtenant to and
inherent in all contracts of such kind it gives rise to
bilateral or reciprocal rights and obligations. The school
undertakes to provide students with education sufficient to
enable them to pursue higher education or a profession.
On the other hand, the students agree to abide by the
academic requirements of the school and to observe its
rules and regulations.114chanroblesvirtuallawlibrary

Academic freedom or, to be precise, the institutional
autonomy of universities and institutions of higher
learning,115 has been enshrined in our
Constitutions of 1935, 1973, and 1987.116 In Garcia, this
Court espoused the concurring opinion of U.S. Supreme
Court Justice Felix Frankfurter in Sweezy v. New
Hampshire,117 which enumerated the four essential
freedoms of a university: To determine for itself on
academic grounds (1) who may teach, (2) what may be
taught, (3) how it shall be taught, and (4) who may be
admitted to study.118 An educational institution has the
power to adopt and enforce such rules as may be deemed
expedient for its government, this being incident to the
very object of incorporation, and indispensable to the
successful management of the college.119 It can decide for
itself its aims and objectives and how best to attain them,
free from outside coercion or interference except when
there is an overriding public welfare which would call for
some restraint.120 Indeed, academic freedom has never
been meant to be an unabridged license. It is a privilege
that assumes a correlative duty to exercise it responsibly.
An equally telling precept is a long recognized mandate,
so well expressed in Article 19 of the Civil Code, that every
person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone
his due, and observe honesty and good
faith. chanroblesvirtuallawlibrary
121
The schools power to instill discipline in their students is
subsumed in their academic freedom and that the
establishment of rules governing university-student
relations, particularly those pertaining to student discipline,
may be regarded as vital, not merely to the smooth and
efficient operation of the institution, but to its very
survival.122 As a Bohemian proverb puts it: "A school
without discipline is like a mill without water." Insofar as the
water turns the mill, so does the school's disciplinary
power assure its right to survive and continue
operating.123 In this regard, the Court has always
recognized the right of schools to impose disciplinary
sanctions, which includes the power to dismiss or expel,
on students who violate disciplinary rules.124 In Miriam
College Foundation, Inc. v. Court of Appeals,125this Court
elucidated:chanRoblesvirtualLawlibrary
The right of the school to discipline its students is at once
apparent in the third freedom, i.e., "how it shall be taught."
A school certainly cannot function in an atmosphere of
anarchy.
Thus, there can be no doubt that the establishment of an
educational institution requires rules and regulations
necessary for the maintenance of an orderly educational
program and the creation of an educational environment
conducive to learning. Such rules and regulations are
equally necessary for the protection of the students,
faculty, and property.
Moreover, the school has an interest in teaching the
student discipline, a necessary, if not indispensable, value
in any field of learning. By instilling discipline, the school
teaches discipline. Accordingly, the right to discipline the
student likewise finds basis in the freedom "what to teach."
Incidentally, the school not only has the right but
the duty to develop discipline in its students. The
Constitution no less imposes such duty.
[All educational institutions] shall inculcate patriotism and
nationalism, foster love of humanity, respect for human
rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and
duties of citizenship, strengthen ethical and spiritual
values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden scientific
and technological knowledge, and promote vocational
efficiency.
In Angeles vs. Sison, we also said that discipline was a
means for the school to carry out its responsibility to help
its students "grow and develop into mature, responsible,
effective and worthy citizens of the community."
Finally, nowhere in the above formulation is the right to
discipline more evident than in "who may be admitted to
study." If a school has the freedom to determine whom to
admit, logic dictates that it also has the right to determine
whom to exclude or expel, as well as upon whom to
impose lesser sanctions such as suspension and the
withholding of graduation privileges.126
The power of the school to impose disciplinary measures
extends even after graduation for any act done by the
student prior thereto. In University of the Phils. Board of
Regents v. Court of Appeals,127 We upheld the universitys
withdrawal of a doctorate degree already conferred on a
student who was found to have committed intellectual
dishonesty in her dissertation.
Thus:chanRoblesvirtualLawlibrary
Art. XIV, 5 (2) of the Constitution provides that
"[a]cademic freedom shall be enjoyed in all institutions of
higher learning." This is nothing new. The 1935
Constitution and the 1973 Constitution likewise provided
for the academic freedom or, more precisely, for the
institutional autonomy of universities and institutions of
higher learning. As pointed out by this Court in Garcia v.
Faculty Admission Committee, Loyola School of Theology,
it is a freedom granted to "institutions of higher learning"
which is thus given "a wide sphere of authority certainly
extending to the choice of students." If such institution of
higher learning can decide who can and who cannot study
in it, it certainly can also determine on whom it can confer
the honor and distinction of being its graduates.
Where it is shown that the conferment of an honor or
distinction was obtained through fraud, a university has the
right to revoke or withdraw the honor or distinction it has
thus conferred. This freedom of a university does not
terminate upon the "graduation" of a student, as the Court
of Appeals held. For it is precisely the "graduation" of such
a student that is in question. It is noteworthy that the
investigation of private respondent's case began before
her graduation. If she was able to join the graduation
ceremonies on April 24, 1993, it was because of too many
investigations conducted before the Board of Regents
finally decided she should not have been allowed to
graduate.
Wide indeed is the sphere of autonomy granted to
institutions of higher learning, for the constitutional grant of
academic freedom, to quote again from Garcia v. Faculty
Admission Committee, Loyola School of Theology, "is not
to be construed in a niggardly manner or in a grudging
fashion."
Under the U.P. Charter, the Board of Regents is the
highest governing body of the University of the Philippines.
It has the power to confer degrees upon the
recommendation of the University Council. It follows that if
the conferment of a degree is founded on error or fraud,
the Board of Regents is also empowered, subject to the
observance of due process, to withdraw what it has
granted without violating a student's rights. An institution
of higher learning cannot be powerless if it discovers that
an academic degree it has conferred is not rightfully
deserved. Nothing can be more objectionable than
bestowing a university's highest academic degree upon an
individual who has obtained the same through fraud or
deceit. The pursuit of academic excellence is the
university's concern. It should be empowered, as an act of
self-defense, to take measures to protect itself from
serious threats to its integrity.
While it is true that the students are entitled to the right to
pursue their education, the USC as an educational
institution is also entitled to pursue its academic freedom
and in the process has the concomitant right to see to it
that this freedom is not jeopardized.128
It must be borne in mind that schools are established, not
merely to develop the intellect and skills of the studentry,
but to inculcate lofty values, ideals and attitudes; nay, the
development, or flowering if you will, of the total
man.129 Essentially, education must ultimately be
religious, i.e., one which inculcates duty and
reverence.130 Under the rubric of "right to education,"
students have a concomitant duty to learn under the rules
laid down by the school.131 Every citizen has a right to
select a profession or course of study, subject to fair,
reasonable, and equitable admission and academic
requirements.132chanroblesvirtuallawlibrary
The PMA is not different. As the primary training and
educational institution of the AFP, it certainly has the right
to invoke academic freedom in the enforcement of its
internal rules and regulations, which are the Honor Code
and the Honor System in particular.
The Honor Code is a set of basic and fundamental ethical
and moral principle. It is the minimum standard for cadet
behavior and serves as the guiding spirit behind each
cadets action. It is the cadets responsibility to maintain
the highest standard of honor. Throughout a cadets stay
in the PMA, he or she is absolutely bound thereto. It binds
as well the members of the Cadet Corps from its alumni or
the member of the so-called Long Gray Line.
Likewise, the Honor Code constitutes the foundation for
the cadets character development. It defines the desirable
values they must possess to remain part of the Corps; it
develops the atmosphere of trust so essential in a military
organization; and it makes them professional military
soldiers.133 As it is for character building, it should not only
be kept within the society of cadets. It is best adopted by
the Cadet Corps with the end view of applying it outside as
an officer of the AFP and as a product of the
PMA.134chanroblesvirtuallawlibrary
The Honor Code and System could be justified as the
primary means of achieving the cadets character
development and as ways by which the Academy has
chosen to identify those who are deficient in
conduct.135 Upon the Code rests the ethical standards of
the Cadet Corps and it is also an institutional goal,
ensuring that graduates have strong character,
unimpeachable integrity, and moral standards of the
highest order.136 To emphasize, the Academy's
disciplinary system as a whole is characterized as
"correctional and educational in nature rather than being
legalistic and punitive." Its purpose is to teach the cadets
"to be prepared to accept full responsibility for all that they
do or fail to do and to place loyalty to the service above
self-interest or loyalty to friends or
137
associates." chanroblesvirtuallawlibrary
Procedural safeguards in a student disciplinary case
Respondents stress that Guzman v. National
138
University is more appropriate in determining the
minimum standards for the imposition of disciplinary
sanctions in academic institutions. Similarly, with the
guideposts set in Andrews, they believe that Cadet 1CL
Cudia was accorded due process.
On the other hand, petitioners argue that the HC, the
CRAB and the PMA fell short in observing the important
safeguards laid down in Ang Tibay v. CIR139 and Non v.
Judge Dames II,140 which set the minimum standards to
satisfy the demands of procedural due process in the
imposition of disciplinary sanctions. For them, Guzman did
not entirely do away with the due process requirements
outlined in Ang Tibay as the Court merely stated that the
minimum requirements in the Guzman case are
more apropos.
Respondents rightly argued.
Ateneo de Manila University v. Capulong141 already
settled the issue as it held that although both Ang
Tibay and Guzman essentially deal with the requirements
of due process, the latter case is more apropos since it
specifically deals with the minimum standards to be
satisfied in the imposition of disciplinary sanctions in
academic institutions. That Guzman is the authority on the
procedural rights of students in disciplinary cases was
reaffirmed by the Court in the fairly recent case of Go v.
Colegio De San Juan De
Letran.142chanroblesvirtuallawlibrary
In Guzman, the Court held that there are minimum
standards which must be met to satisfy the demands of
procedural due process, to
wit:chanRoblesvirtualLawlibrary
(1) the students must be informed in writing of the nature
and cause of any accusation against them; (2) they shall
have the right to answer the charges against them, with
the assistance of counsel, if desired; (3) they shall be
informed of the evidence against them; (4) they shall have
the right to adduce evidence in their own behalf; and (5)
the evidence must be duly considered by the investigating
committee or official designated by the school authorities
to hear and decide the case.143
We have been consistent in reminding that due process in
disciplinary cases involving students does not entail
proceedings and hearings similar to those prescribed for
actions and proceedings in courts of justice;144 that the
proceedings may be summary;145 that cross-examination
is not an essential part of the investigation or
hearing;146 and that the required proof in a student
disciplinary action, which is an administrative case, is
neither proof beyond reasonable doubt nor preponderance
of evidence but only substantial evidence or such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.147chanroblesvirtuallawlibrary
What is crucial is that official action must meet minimum
standards of fairness to the individual, which generally
encompass the right of adequate notice and a meaningful
opportunity to be heard.148 As held in De La Salle
University, Inc. v. Court of Appeals:149
Notice and hearing is the bulwark of administrative due
process, the right to which is among the primary rights that
must be respected even in administrative proceedings.
The essence of due process is simply an opportunity to be
heard, or as applied to administrative proceedings, an
opportunity to explain ones side or an opportunity to seek
reconsideration of the action or ruling complained of. So
long as the party is given the opportunity to advocate her
cause or defend her interest in due course, it cannot be
said that there was denial of due process.
A formal trial-type hearing is not, at all times and in all
instances, essential to due process it is enough that the
parties are given a fair and reasonable opportunity to
explain their respective sides of the controversy and to
present supporting evidence on which a fair decision can
be based. To be heard does not only mean presentation
of testimonial evidence in court one may also be heard
through pleadings and where the opportunity to be heard
through pleadings is accorded, there is no denial of due
process.150
The PMA Honor Code explicitly recognizes that an
administrative proceeding conducted to investigate a
cadets honor violation need not be clothed with the
attributes of a judicial proceeding. It articulates that
The Spirit of the Honor Code guides the Corps in
identifying and assessing misconduct. While cadets are
interested in legal precedents in cases involving Honor
violations, those who hold the Spirit of the Honor Code
dare not look into these precedents for loopholes to justify
questionable acts and they are not to interpret the system
to their own advantage.
The Spirit of the Honor Code is a way for the cadets to
internalize Honor in a substantive way. Technical and
procedural misgivings of the legal systems may avert the
true essence of imparting the Spirit of the Code for the
reason that it can be used to make unlawful attempt to get
into the truth of matters especially when a cadet can be
compelled to surrender some civil rights and liberties in
order for the Code and System to be implemented. By
virtue of being a cadet, a member of the CCAFP becomes
a subject of the Honor Code and System. Cadets actions
are bound by the existing norms that are logically applied
through the Code and System in order to realize the
Academys mission to produce leaders of character men
of integrity and honor.151
One of the fundamental principles of the Honor System
also states:chanRoblesvirtualLawlibrary
 2. The Honor System correlates with legal
procedures of the states Justice System but
it does not demean its Spirit by reducing the
Code to a systematic list of externally
observed rules. Where misinterpretations
and loopholes arise through legalism and its
technicalities, the objective of building the
character of the cadets becomes futile.
While, generally, Public Law penalizes only
the faulty acts, the Honor System tries to
examine both the action and the intention.152
Like in other institutions of higher learning, there is
aversion towards undue judicialization of an administrative
hearing in the military academy. It has been said that the
mission of the military is unique in the sense that its
primary business is to fight or be ready to fight wars should
the occasion arise, and that over-proceduralizing military
determinations necessarily gives soldiers less time to
accomplish this task.153 Extensive cadet investigations
and complex due process hearing could sacrifice
simplicity, practicality, and timeliness. Investigations that
last for several days or weeks, sessions that become
increasingly involved with legal and procedural points, and
legal motions and evidentiary objections that are irrelevant
and inconsequential tend to disrupt, delay, and confuse
the dismissal proceedings and make them unmanageable.
Excessive delays cannot be tolerated since it is unfair to
the accused, to his or her fellow cadets, to the Academy,
and, generally, to the Armed Forces. A good balance
should, therefore, be struck to achieve fairness,
thoroughness, and
154
efficiency. chanroblesvirtuallawlibrary
Considering that the case of Cadet 1CL Cudia is one of
first impression in the sense that this Court has not
previously dealt with the particular issue of a dismissed
cadets right to due process, it is necessary for Us to refer
to U.S. jurisprudence for some guidance. Notably, our
armed forces have been patterned after the U.S. Army and
the U.S. military code produced a salutary effect in the
military justice system of the Philippines.155 Hence,
pertinent case laws interpreting the U.S. military code and
practices have persuasive, if not the same, effect in this
jurisdiction.
We begin by stating that U.S. courts have uniformly viewed
that due process is a flexible concept, requiring
consideration in each case of a variety of circumstances
and calling for such procedural protections as the
particular situation
demands.156Hagopian opined:chanRoblesvirtualLawlibrar
y
In approaching the question of what process is due before
governmental action adversely affecting private interests
may properly be taken, it must be recognized that due
process is not a rigid formula or simple rule of thumb to be
applied undeviatingly to any given set of facts. On the
contrary, it is a flexible concept which depends upon
the balancing of various factors, including the nature
of the private right or interest that is threatened, the
extent to which the proceeding is adversarial in
character, the severity and consequences of any
action that might be taken, the burden that would be
imposed by requiring use of all or part of the full
panoply of trial-type procedures, and the existence of
other overriding interests, such as the necessity for
prompt action in the conduct of crucial military
operations. The full context must therefore be
considered in each case.157 (Emphasis supplied)
Wasson, which was cited by Hagopian, broadly outlined
the minimum standards of due process required in the
dismissal of a cadet. Thus:chanRoblesvirtualLawlibrary
[W]hen the government affects the private interests of
individuals, it may not proceed arbitrarily but must observe
due process of law. x x x Nevertheless, the flexibility which
is inherent in the concept of due process of law precludes
the dogmatic application of specific rules developed in one
context to entirely distinct forms of government action.
"For, though 'due process of law' generally implies and
includes actor, reus, judex, regular allegations,
opportunity to answer, and a trial according to some
settled course of judicial proceedings, * * * yet, this is not
universally true." x x x Thus, to determine in any given
case what procedures due process requires, the court
must carefully determine and balance the nature of the
private interest affected and of the government interest
involved, taking account of history and the precise
circumstances surrounding the case at hand.
While the government must always have a legitimate
concern with the subject matter before it may validly affect
private interests, in particularly vital and sensitive areas of
government concern such as national security and military
affairs, the private interest must yield to a greater degree
to the governmental. x x x Few decisions properly rest so
exclusively within the discretion of the appropriate
government officials than the selection, training, discipline
and dismissal of the future officers of the military and
Merchant Marine. Instilling and maintaining discipline and
morale in these young men who will be required to bear
weighty responsibility in the face of adversity -- at times
extreme -- is a matter of substantial national importance
scarcely within the competence of the judiciary. And it
cannot be doubted that because of these factors
historically the military has been permitted greater
freedom to fashion its disciplinary procedures than the
civilian authorities.
We conclude, therefore, that due process only requires for
the dismissal of a Cadet from the Merchant Marine
Academy that he be given a fair hearing at which he is
apprised of the charges against him and permitted a
defense. x x x For the guidance of the parties x x x the
rudiments of a fair hearing in broad outline are plain. The
Cadet must be apprised of the specific charges
against him. He must be given an adequate
opportunity to present his defense both from the point
of view of time and the use of witnesses and other
evidence. We do not suggest, however, that the Cadet
must be given this opportunity both when demerits are
awarded and when dismissal is considered. The hearing
may be procedurally informal and need not be
adversarial.158 (Emphasis supplied)
In Andrews, the U.S. Court of Appeals held
that Wasson and Hagopian are equally controlling in
cases where cadets were separated from the military
academy for violation of the Honor Code. Following the
two previous cases, it was ruled that in order to be proper
and immune from constitutional infirmity, a cadet who is
sought to be dismissed or separated from the academy
must be afforded a hearing, be apprised of the specific
charges against him, and be given an adequate
opportunity to present his or her defense both from the
point of view of time and the use of witnesses and other
evidence.159 Conspicuously, these vital conditions are not
too far from what We have already set in Guzman and the
subsequent rulings in Alcuaz v. Philippine School of
Business Administration160 and De La Salle University,
Inc. v. Court of Appeals.161chanroblesvirtuallawlibrary
In this case, the investigation of Cadet 1CL Cudias Honor
Code violation followed the prescribed procedure and
existing practices in the PMA. He was notified of the Honor
Report from Maj. Hindang. He was then given the
opportunity to explain the report against him. He was
informed about his options and the entire process that the
case would undergo. The preliminary investigation
immediately followed after he replied and submitted a
written explanation. Upon its completion, the investigating
team submitted a written report together with its
recommendation to the HC Chairman. The HC thereafter
reviewed the findings and recommendations. When the
honor case was submitted for formal investigation, a new
team was assigned to conduct the hearing. During the
formal investigation/hearing, he was informed of the
charge against him and given the right to enter his plea.
He had the chance to explain his side, confront the
witnesses against him, and present evidence in his behalf.
After a thorough discussion of the HC voting members, he
was found to have violated the Honor Code. Thereafter,
the guilty verdict underwent the review process at the
Academy level from the OIC of the HC, to the SJA, to the
Commandant of Cadets, and to the PMA Superintendent.
A separate investigation was also conducted by the HTG.
Then, upon the directive of the AFP-GHQ to reinvestigate
the case, a review was conducted by the CRAB. Further,
a Fact-Finding Board/Investigation Body composed of the
CRAB members and the PMA senior officers was
constituted to conduct a deliberate investigation of the
case. Finally, he had the opportunity to appeal to the
President. Sadly for him, all had issued unfavorable
rulings.
It is well settled that by reason of their special knowledge
and expertise gained from the handling of specific matters
falling under their respective jurisdictions, the factual
findings of administrative tribunals are ordinarily accorded
respect if not finality by the Court, unless such findings are
not supported by evidence or vitiated by fraud, imposition
or collusion; where the procedure which led to the findings
is irregular; when palpable errors are committed; or when
a grave abuse of discretion, arbitrariness, or
capriciousness is manifest.162 In the case of Cadet 1CL
Cudia, We find no reason to deviate from the general rule.
The grounds therefor are discussed
below seriatim:chanRoblesvirtualLawlibrary
As to the right to be represented by a counsel
For petitioners, respondents must be compelled to give
Cadet 1CL Cudia the right to be represented by a counsel
who could actively participate in the proceedings like in the
cross-examination of the witnesses against him before the
CRAB or HC, if remanded. This is because while the
CRAB allowed him to be represented by a PAO lawyer,
the counsel was only made an observer without any right
to intervene and demand respect of Cadet 1CL Cudias
rights.163 According to them, he was not sufficiently given
the opportunity to seek a counsel and was not even asked
if he would like to have one. He was only properly
represented when it was already nearing graduation day
after his family sought the assistance of the PAO.
Petitioners assert that Guzman is specific in stating that
the erring student has the right to answer the charges
against him or her with the assistance of counsel, if
desired.
On the other hand, respondents cited Lumiqued v.
Exevea164 and Nera v. The Auditor General165 in asserting
that the right to a counsel is not imperative in
administrative investigations or non-criminal proceedings.
Also, based on Cadet 1CL Cudias academic standing, he
is said to be obviously not untutored to fully understand his
rights and express himself. Moreover, the confidentiality of
the HC proceedings worked against his right to be
represented by a counsel. In any event, respondents claim
that Cadet 1CL Cudia was not precluded from seeking a
counsels advice in preparing his defense prior to the HC
hearing.
Essentially, petitioners claim that Cadet 1CL Cudia is
guaranteed the right to have his counsel not just in
assisting him in the preparation for the investigative
hearing before the HC and the CRAB but in participating
fully in said hearings. The Court disagrees.
Consistent with Lumiqued and Nera, there is nothing in
the 1987 Constitution stating that a party in a non-litigation
proceeding is entitled to be represented by counsel. The
assistance of a lawyer, while desirable, is not
indispensable. Further, in Remolona v. Civil Service
Commission,166 the Court held that a party in an
administrative inquiry may or may not be assisted by
counsel, irrespective of the nature of the charges and of
the respondent's capacity to represent himself, and no
duty rests on such body to furnish the person being
investigated with counsel. Hence, the administrative body
is under no duty to provide the person with counsel
because assistance of counsel is not an absolute
requirement.
More in point is the opinion in Wasson, which We adopt.
Thus:chanRoblesvirtualLawlibrary
The requirement of counsel as an ingredient of fairness is
a function of all of the other aspects of the hearing. Where
the proceeding is non-criminal in nature, where the
hearing is investigative and not adversarial and the
government does not proceed through counsel, where the
individual concerned is mature and educated, where his
knowledge of the events x x x should enable him to
develop the facts adequately through available sources,
and where the other aspects of the hearing taken as a
whole are fair, due process does not require
representation by counsel.167
To note, U.S. courts, in general, have declined to
recognize a right to representation by counsel, as a
function of due process, in military academy disciplinary
proceedings.168 This rule is principally motivated by the
policy of "treading lightly on the military domain, with
scrupulous regard for the power and authority of the
military establishment to govern its own affairs within the
broad confines of constitutional due process" and the
courts' views that disciplinary proceedings are not judicial
in nature and should be kept informal, and that literate and
educated cadets should be able to defend
themselves.169 In Hagopian, it was ruled that the
importance of informality in the proceeding militates
against a requirement that the cadet be accorded the right
to representation by counsel before the Academic Board
and that unlike the welfare recipient who lacks the training
and education needed to understand his rights and
express himself, the cadet should be capable of doing
so.170 In the subsequent case of Wimmer v.
171
Lehman, the issue was not access to counsel but the
opportunity to have counsel, instead of oneself, examine
and cross-examine witnesses, make objections, and
argue the case during the hearing. Disposing of the case,
the U.S. Court of Appeals for the Fourth Circuit was not
persuaded by the argument that an individual of a
midshipman's presumed intelligence, selected because he
is expected to be able to care for himself and others, often
under difficult circumstances, and who has full awareness
of what he is facing, with counsel's advice, was deprived
of due process by being required to present his defense in
person at an investigatory hearing.
In the case before Us, while the records are bereft of
evidence that Cadet 1CL Cudia was given the option or
was able to seek legal advice prior to and/or during the HC
hearing, it is indubitable that he was assisted by a counsel,
a PAO lawyer to be exact, when the CRAB reviewed and
reinvestigated the case. The requirement of due process
is already satisfied since, at the very least, the counsel
aided him in the drafting and filing of the Appeal
Memorandum and even acted as an observer who had no
right to actively participate in the proceedings (such as
conducting the cross-examination). Moreover, not to be
missed out are the facts that the offense committed by
Cadet 1CL Cudia is not criminal in nature; that the
hearings before the HC and the CRAB were investigative
and not adversarial; and that Cadet 1CL Cudias excellent
academic standing puts him in the best position to look
after his own vested interest in the Academy.
As to the confidentiality of records of the proceedings
Petitioners allege that when Maj. Gen. Lopez denied in his
March 11, 2014 letter Cadet 1CL Cudias request for
documents, footages, and recordings relevant to the HC
hearings, the vital evidence negating the regularity of the
HC trial and supporting his defense have been surely
overlooked by the CRAB in its case review. Indeed, for
them, the answers on whether Cadet 1CL Cudia was
deprived of due process and whether he lied could easily
be unearthed from the video and other records of the HC
investigation. Respondents did not deny their existence
but they refused to present them for the parties and the
Court to peruse. In particular, they note that the Minutes of
the HC dated January 21, 2014 and the HC Formal
Investigation Report dated January 20, 2014 were
considered by the CRAB but were not furnished to
petitioners and the Court; hence, there is no way to confirm
the truth of the alleged statements therein. In their view,
failure to furnish these documents could only mean that it
would be adverse if produced pursuant to Section 3 (e),
Rule 131 of the Rules of
172
Court. chanroblesvirtuallawlibrary
For lack of legal basis on PMAs claim of confidentiality of
records, petitioners contend that it is the ministerial duty of
the HC to submit to the CRAB, for the conduct of intelligent
review of the case, all its records of the proceedings,
including video footages of the deliberations and voting.
They likewise argue that PMAs refusal to release relevant
documents to Cadet 1CL Cudia under the guise of
confidentiality reveals another misapplication of the Honor
Code, which merely provides: A cadet who becomes part
of any investigation is subject to the existing regulations
pertaining to rules of confidentiality and, therefore, must
abide to the creed of secrecy. Nothing shall be disclosed
without proper guidance from those with authority (IV. The
Honor System, Honor Committee, Cadet Observer). This
provision, they say, does not deprive Cadet 1CL Cudia of
his right to obtain copies and examine relevant documents
pertaining to his case.
Basically, petitioners want Us to assume that the
documents, footages, and recordings relevant to the HC
hearings are favorable to Cadet 1CL Cudias cause, and,
consequently, to rule that respondents refusal to produce
and have them examined is tantamount to the denial of his
right to procedural due process. They are mistaken.
In this case, petitioners have not particularly identified any
documents, witness testimony, or oral or written
presentation of facts submitted at the hearing that would
support Cadet 1CL Cudias defense. The Court may
require that an administrative record be supplemented, but
only "where there is a 'strong showing of bad faith or
improper behavior' on the part of the agency," 173 both of
which are not present here. Petitioners have not
specifically indicated the nature of the concealed
evidence, if any, and the reason for withholding it. What
they did was simply supposing that Cadet 1CL Cudias
guilty verdict would be overturned with the production and
examination of such documents, footages, and recordings.
As will be further shown in the discussions below, the
requested matters, even if denied, would not relieve Cadet
1CL Cudias predicament. If at all, such denial was a
harmless procedural error since he was not seriously
prejudiced thereby.
As to the ostracism in the PMA
To petitioners, the CRAB considered only biased
testimonies and evidence because Special Order No. 1
issued on February 21, 2014, which directed the ostracism
of Cadet 1CL Cudia, left him without any opportunity to
secure statements of his own witnesses. He could not
have access to or approach the cadets who were present
during the trial and who saw the 8-1 voting result. It is
argued that the Order directing Cadet 1CL Cudias
ostracism is of doubtful legal validity because the Honor
Code unequivocally announced: x x x But by
wholeheartedly dismissing the cruel method of ostracizing
Honor Code violators, PMA will not have to resort to other
humiliating means and shall only have the option to make
known among its alumni the names of those who have not
sincerely felt remorse for violating the Honor Code.
On their part, respondents assert that neither the petition
nor the petition-in-intervention attached a full text copy of
the alleged Special Order No. 1. In any case, attributing its
issuance to PMA is improper and misplaced because of
petitioners admission that ostracism has been absolutely
dismissed as an Academy-sanctioned activity consistent
with the trend in International Humanitarian Law that the
PMA has included in its curriculum. Assuming that said
Order was issued, respondents contend that it purely
originated from the cadets themselves, the sole purpose
of which was to give a strong voice to the Cadet Corps by
declaring that they did not tolerate Cadet 1CL Cudias
honor violation and breach of confidentiality of the HC
proceedings.
More importantly, respondents add that it is highly
improbable and unlikely that Cadet 1CL Cudia was
ostracized by his fellow cadets. They manifest that as early
as January 22, 2014, he was already transferred to the
Holding Center. The practice of billeting an accused cadet
at the Holding Center is provided for in the Honor Code
Handbook. Although within the PMA compound, the
Holding Center is off-limits to cadets who do not have any
business to conduct therein. The cadets could not also
ostracize him during mess times since Cadet 1CL Cudia
opted to take his meals at the Holding Center. The
circumstances obtaining when Special Order No. 1 was
issued clearly foreclose the possibility that he was
ostracized in common areas accessible to other cadets.
He remained in the Holding Center until March 16, 2014
when he voluntarily left the PMA. Contrary to his claim,
guests were also free to visit him in the Holding Center.
However, petitioners swear that Cadet 1CL Cudia suffered
from ostracism in the PMA. The practice was somehow
recognized by respondents in their Consolidated
Comment and by PMA Spokesperson Maj. Flores in a
news report. The CHR likewise confirmed the same in its
Resolution dated May 22, 2014. For them, it does not
matter where the ostracism order originated from because
the PMA appeared to sanction it even if it came from the
cadets themselves. There was a tacit approval of an illegal
act. If not, those cadets responsible for ostracism would
have been charged by the PMA officials. Finally, it is
claimed that Cadet 1CL Cudia did not choose to take his
meals at the Holding Center as he was not allowed to
leave the place. Petitioners opine that placing the accused
cadet in the Holding Center is inconsistent with his or her
presumed innocence and certainly gives the implication of
ostracism.
We agree with respondents. Neither the petition nor the
petition-in-intervention attached a full text copy or even a
pertinent portion of the alleged Special Order No. 1, which
authorized the ostracism of Cadet 1CL Cudia. Being
hearsay, its existence and contents are of doubtful
veracity. Hence, a definite ruling on the matter can never
be granted in this case.
The Court cannot close its eyes though on what appears
to be an admission of Cadet 1CL Mogol during the CHR
hearing that, upon consultation with the entire class, the
baron, and the Cadet Conduct Policy Board, they issued
an ostracism order against Cadet 1CL Cudia.174 While not
something new in a military academy,175 ostracisms
continued existence in the modern times should no longer
be countenanced. There are those who argue that the
"silence" is a punishment resulting in the loss of private
interests, primarily that of reputation, and that such penalty
may render illusory the possibility of vindication by the
reviewing body once found guilty by the
HC.176Furthermore, in Our mind, ostracism practically
denies the accused cadets protected rights to present
witnesses or evidence in his or her behalf and to be
presumed innocent until finally proven otherwise in a
proper proceeding.
As to Cadet 1CL Cudias stay in the Holding Center, the
Court upholds the same. The Honor Code and Honor
System Handbook provides that, in case a cadet has been
found guilty by the HC of violating the Honor Code and has
opted not to resign, he or she may stay and wait for the
disposition of the case. In such event, the cadet is not on
full-duty status and shall be billeted at the HTG Holding
Center.177 Similarly, in the U.S., the purpose of Boarders
Ward is to quarter those cadets who are undergoing
separation actions. Permitted to attend classes, the cadet
is sequestered therein until final disposition of the case.
In Andrews, it was opined that the segregation of cadets
in the Ward was a proper exercise of the discretionary
authority of Academy officials. It relied on the traditional
doctrine that "with respect to decisions made by Army
authorities, 'orderly government requires us to tread lightly
on the military domain, with scrupulous regard for the
power and authority of the military establishment to govern
its own affairs within the broad confines of constitutional
due process.'" Also, in Birdwell v. Schlesinger,178 the
administrative segregation was held to be a reasonable
exercise of military discipline and could not be considered
an invasion of the rights to freedom of speech and freedom
of association.
Late and vague decisions
It is claimed that Cadet 1CL Cudia was kept in the dark as
to the charge against him and the decisions arrived at by
the HC, the CRAB, and the PMA. No written decision was
furnished to him, and if any, the information was unjustly
belated and the justifications for the decisions were vague.
He had to constantly seek clarification and queries just to
be apprised of what he was confronted with.
Petitioners relate that upon being informed of the guilty
verdict, Cadet 1CL Cudia immediately inquired as to the
grounds therefor, but Cadet 1CL Mogol answered that it is
confidential since he would still appeal the same. By March
11, 2014, Maj. Gen. Lopez informed Cadet 1CL Cudia that
the CRAB already forwarded their recommendation for his
dismissal to the General Headquarters sometime in
February-March 2014. Even then, he received no
decision/recommendation on his case, verbally or in
writing. The PMA commencement exercises pushed
through with no written decision from the CRAB or the
PMA on his appeal. The letter from the Office of the
Adjutant General of the AFP was suspiciously delayed
when the Cudia family received the same only on March
20, 2014. Moreover, it fell short in laying down with
specificity the factual and legal bases used by the CRAB
and even by the Office of the Adjutant General. There
remains no proof that the CRAB and the PMA considered
the evidence presented by Cadet 1CL Cudia, it being
uncertain as to what evidence was weighed by the CRAB,
whether the same is substantial, and whether the new
evidence submitted by him was ever taken into account.
In refutation, respondents allege the existence of PMAs
practice of orally declaring the HC finding, not putting it in
a written document so as to protect the integrity of the
erring cadet and guard the confidentiality of the HC
proceedings pursuant to the Honor System. Further, they
aver that a copy of the report of the CRAB, dated March
10, 2014, was not furnished to Cadet 1CL Cudia because
it was his parents who filed the appeal, hence, were the
ones who were given a copy thereof.
Petitioners contentions have no leg to stand on. While
there is a constitutional mandate stating that [no] decision
shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is
based,179 such provision does not apply in Cadet 1CL
Cudias case. Neither Guzman nor Andrews require a
specific form and content of a decision issued in
disciplinary proceedings. The Honor Code and Honor
System Handbook also has no written rule on the matter.
Even if the provision applies, nowhere does it demand that
a point-by-point consideration and resolution of the issues
raised by the parties are necessary.180 What counts is that,
albeit furnished to him late, Cadet 1CL Cudia was informed
of how it was decided, with an explanation of the factual
and legal reasons that led to the conclusions of the
reviewing body, assuring that it went through the
processes of legal reasoning. He was not left in the dark
as to how it was reached and he knows exactly the
reasons why he lost, and is able to pinpoint the possible
errors for review.
As to the blind adoption of the HC findings
Petitioners assert that, conformably with Sections 30 and
31 of C.A. No. 1, only President Aquino as the
Commander-in-Chief has the power to appoint and
remove a cadet for a valid/legal cause. The law gives no
authority to the HC as the sole body to determine the guilt
or innocence of a cadet. It also does not empower the PMA
to adopt the guilty findings of the HC as a basis for
recommending the cadets dismissal. In the case of Cadet
1CL Cudia, it is claimed that the PMA blindly followed the
HCs finding of guilt in terminating his military service.
Further, it is the ministerial duty of the CRAB to conduct a
review de novo of all records without requiring Cadet 1CL
Cudia to submit new evidence if it is physically impossible
for him to do so. In their minds, respondents cannot claim
that the CRAB and the PMA thoroughly reviewed the HC
recommendation and heard Cadet 1CL Cudias side. As
clearly stated in the letter from the Office of the AFP
Adjutant General, [in] its report dated March 10, 2014,
PMA CRAB sustained the findings and recommendations
of the Honor Committee x x x It also resolved the appeal
filed by the subject Cadet. However, the Final
Investigation Report of the CRAB was dated March 23,
2014. While such report states that a report was submitted
to the AFP General Headquarters on March 10, 2014 and
that it was only on March 12, 2014 that it was designated
as a Fact-Finding Board/Investigating Body, it is unusual
that the CRAB would do the same things twice. This raised
a valid and well-grounded suspicion that the CRAB never
undertook an in-depth investigation/review the first time it
came out with its report, and the Final Investigation Report
was drafted merely as an afterthought when the lack of
written decision was pointed out by petitioners so as to
remedy the apparent lack of due process during the CRAB
investigation and review.

Despite the arguments, respondents assure that there was
a proper assessment of the procedural and legal
correctness of the guilty verdict against Cadet 1CL Cudia.
They assert that the higher authorities of the PMA did not
merely rely on the findings of the HC, noting that there was
also a separate investigation conducted by the HTG from
January 25 to February 7, 2014. Likewise, contrary to the
contention of petitioners that the CRAB continued with the
review of the case despite the absence of necessary
documents, the CRAB conducted its own review of the
case and even conducted another investigation by
constituting the Fact-Finding Board/Investigating Body.
For respondents, petitioners failed to discharge the burden
of proof in showing bad faith on the part of the PMA. In the
absence of evidence to the contrary and considering
further that petitioners allegations are merely self-serving
and baseless, good faith on the part of the PMAs higher
authorities is presumed and should, therefore, prevail.
We agree with respondents.
The Honor Committee, acting on behalf of the Cadet
Corps, has a limited role of investigating and determining
whether or not the alleged offender has actually violated
the Honor Code.181 It is given the responsibility of
administering the Honor Code and, in case of breach, its
task is entirely investigative, examining in the first instance
a suspected violation. As a means of encouraging self-
discipline, without ceding to it any authority to make final
adjudications, the Academy has assigned it the function of
identifying suspected violators.182 Contrary to petitioners
assertion, the HC does not have the authority to order the
separation of a cadet from the Academy. The results of its
proceedings are purely recommendatory and have no
binding effect. The HC determination is somewhat like an
indictment, an allegation, which, in Cadet 1CL Cudias
case, the PMA-CRAB investigated de novo.183 In the U.S.,
it was even opined that due process safeguards do not
actually apply at the Honor Committee level because it is
only a "charging body whose decisions had no effect other
than to initiate de novo proceedings before a Board of
Officers."184chanroblesvirtuallawlibrary
Granting, for arguments sake, that the HC is covered by
the due process clause and that irregularities in its
proceedings were in fact committed, still, We cannot rule
for petitioners. It is not required that procedural due
process be afforded at every stage of developing
disciplinary action. What is required is that an adequate
hearing be held before the final act of dismissing a cadet
from the military academy.185 In the case of Cadet 1CL
Cudia, the OIC of HC, the SJA, the Commandant of
Cadets, and the PMA Superintendent reviewed the HC
findings. A separate investigation was also conducted by
the HTG. Then, upon the directive of the AFP-GHQ to
reinvestigate the case, a review was conducted by the
CRAB. Finally, a Fact-Finding Board/Investigating Body
composed of the CRAB members and the PMA senior
officers was constituted to conduct a deliberate
investigation of the case. The Board/Body actually held
hearings on March 12, 13, 14 and 20, 2014. Instead of
commendation, petitioners find it unusual that the CRAB
would do the same things twice and suspect that it never
undertook an in-depth investigation/review the first time it
came out with its report. Such assertion is mere conjecture
that deserves scant consideration.
As to the dismissal proceedings as sham trial
According to petitioners, the proceedings before the HC
were a sham. The people behind Cadet 1CL Cudias
charge, investigation, and conviction were actually the
ones who had the intent to deceive and who took
advantage of the situation. Cadet 1CL Raguindin, who was
a senior HC member and was the second in rank to Cadet
1CL Cudia in the Navy cadet 1CL, was part of the team
which conducted the preliminary investigation. Also, Cadet
1CL Mogol, the HC Chairman, previously charged Cadet
1CL Cudia with honor violation allegedly for cheating
(particularly, conniving with and tutoring his fellow cadets
on a difficult topic by giving solutions to a retake exam) but
the charge was dismissed for lack of merit. Even if he was
a non-voting member, he was in a position of influence and
authority. Thus, it would be a futile exercise for Cadet 1CL
Cudia to resort to the procedure for the removal of HC
members.186chanroblesvirtuallawlibrary
Further, no sufficient prior notice of the scheduled CRAB
hearing was given to Cadet 1CL Cudia, his family, or his
PAO counsel. During one of her visits to him in the Holding
Center, petitioner-intervenor was advised to convince his
son to resign and immediately leave the PMA. Brig. Gen.
Costales, who later became the CRAB Head, also
categorically uttered to Annavee: Your brother, he lied!
The CRAB conferences were merely used to formalize his
dismissal and the PMA never really intended to hear his
side. For petitioners, these are manifestations of PMAs
clear resolve to dismiss him no matter what.
For their part, respondents contend that the CHRs
allegation that Maj. Hindang acted in obvious bad faith and
that he failed to discharge his duty to be a good father of
cadets when he paved the road to [Cadet 1CL Cudias]
sham trial by the Honor Committee is an unfounded
accusation. They note that when Maj. Hindang was given
the DR of Cadet 1CL Cudia, he revoked the penalty
awarded because of his explanation. However, all
revocations of awarded penalties are subject to the review
of the STO. Therefore, it was at the instance of Maj.
Leander and the established procedure followed at the
PMA that Maj. Hindang was prompted to investigate the
circumstances surrounding Cadet 1 CL Cudias tardiness.
Respondents add that bad faith cannot likewise be
imputed against Maj. Hindang by referring to the actions
taken by Maj. Jekyll Dulawan, the CTO of Cadets 1CL
Narciso and Arcangel who also arrived late for their next
class. Unlike the other cadets, Cadet 1CL Cudia did not
admit his being late and effectively evaded responsibility
by ascribing his tardiness to Dr. Costales.
As to the CHRs finding that Cadet 1CL Mogol was likewise
in bad faith and determined to destroy [Cadet 1CL] Cudia,
for reasons of his own because the former previously
reported the latter for an honor violation in November
2013, respondents argue that the bias ascribed against
him is groundless as there is failure to note that Cadet 1CL
Mogol was a non-voting member of the HC. Further, he
cannot be faulted for reporting a possible honor violation
since he is the HC Chairman and nothing less is expected
of him. Respondents emphasize that the representatives
of the HC are elected from each company, while the HC
Chairman is elected by secret ballot from the incoming first
class representatives. Thus, if Cadet 1CL Cudia believed
that there was bias against him, he should have resorted
to the procedure for the removal of HC members provided
for in the Honor Code Handbook.
Finally, respondents declare that there is no reason or ill-
motive on the part of the PMA to prevent Cadet 1CL Cudia
from graduating because the Academy does not stand to
gain anything from his dismissal. On the contrary, in view
of his academic standing, the separation militates against
PMAs mission to produce outstanding, honorable, and
exceptional cadets.
The Court differs with petitioners.
Partiality, like fraudulent intent, can never be presumed.
Absent some showing of actual bias, petitioners
allegations do not hold water. The mere imputation of ill-
motive without proof is speculative at
best. Kolesa teaches us that to sustain the challenge,
specific evidence must be presented to overcome
a presumption of honesty and integrity in those serving as
adjudicators; and it must convince that, under a realistic
appraisal of psychological tendencies and human
weaknesses, conferring investigative and adjudicative
powers on the same individual poses such a risk of actual
bias or prejudgment that the practice must be forbidden if
the guarantee of due process is to be implemented.187
Although a CTO like Maj. Hindang must decide whether
demerits are to be awarded, he is not an adversary of the
cadet but an educator who shares an identity of interest
with the cadet, whom he counsels from time to time as a
future leader.188 When the occasion calls for it, cadets may
be questioned as to the accuracy or completeness of a
submitted work. A particular point or issue may be clarified.
In this case, the question asked of Cadet 1CL Cudia
concerning his being late in class is proper, since there is
evidence indicating that a breach of regulation may have
occurred and there is reasonable cause to believe that he
was involved in the breach of
189
regulations. chanroblesvirtuallawlibrary
For lack of actual proof of bad faith or ill-motive, the Court
shall rely on the non-toleration clause of the Honor
Code, i.e., We do not tolerate those who violate the
Code. Cadets are reminded that they are charged with a
tremendous duty far more superior to their personal feeling
or friendship.190They must learn to help others by guiding
them to accept the truth and do what is right, rather than
tolerating actions against truth and justice.191 Likewise,
cadets are presumed to be characteristically honorable;
they cannot overlook or arbitrarily ignore the dishonorable
action of their peers, seniors, or subordinates.192 These
are what Cadet 1CL Mogol exactly did, although he was
later proven to have erred in his accusation. Note that even
the Honor Code and Honor System Handbook recognizes
that interpretation of ones honor is generally
subjective.193chanroblesvirtuallawlibrary
Moreover, assuming, for the sake of argument, that
Cadets 1CL Raguindin and Mogol as well as Brig. Gen.
Costales have an axe to grind against Cadet 1CL Cudia
and were bent on causing, no matter what, the latters
downfall, their nefarious conduct would still be
insignificant. This is so since the HC (both the preliminary
and formal investigation), the CRAB, and the Fact-Finding
Board/Investigating Body are collegial bodies. Hence, the
claim that the proceedings/hearings conducted were
merely a farce because the three personalities participated
therein is tantamount to implying the existence of a
conspiracy, distrusting the competence, independence,
and integrity of the other members who constituted the
majority. Again, in the absence of specifics and substantial
evidence, the Court cannot easily give credence to this
baseless insinuation.
As to the HC executive session/chambering
Petitioners narrate that there was an irregular
administrative hearing in the case of Cadet 1CL Cudia
because two voting rounds took place. After the result of
the secret balloting, Cadet 1CL Mogol ordered the voting
members to go to a room without the cadet recorders.
Therein, the lone dissenter, Cadet 1CL Lagura, was asked
to explain his not guilty vote. Pressured to change his
vote, he was made to cast a new one finding Cadet 1CL
Cudia guilty. The original ballot was discarded and
replaced. There was no record of the change in vote from
8-1 to 9-0 that was mentioned in the HC formal report.
The Affidavit of Commander Junjie B. Tabuada executed
on March 6, 2014 was submitted by petitioners since he
purportedly recalled Cadet 1CL Lagura telling him that he
was pressured to change his not guilty vote after the
voting members were chambered. In the sworn
statement, Commander Tabuada
said:chanRoblesvirtualLawlibrary
1. That after CDT 1CL CUDIA [was] convicted
for honor violation, I [cannot] remember
exactly the date but sometime in the morning
of 23rd or 24th of January 2014, I was in my
office filling up forms for the renewal of my
passport, CDT 1CL LAGURA entered and
had business with my staff;chanrobleslaw
2. When he was about to leave I called
him. Lags, halika muna dito, and he
approached me and I let him sit down on the
chair in front of my table. I told and asked
him, Talagang nadali si Cudia ah... ano
ba ang nangyari? Mag-Tagalog or mag-
Bisaya ka. He replied, Talagang NOT
GUILTY ang vote ko sa kanya sir, and I
asked him, Oh, bakit naging guilty di ba
pag may isang nag NOT GUILTY,
abswelto na? He replied Chinamber ako
sir, bale pinapa-justify kung bakit NOT
GUILTY vote ko, at na-pressure din ako
sir kaya binago ko, sir. So, I told
him, Sayang sya, matalino at mabait pa
naman and he replied oo nga sir. After
that conversation, I let him go.194
It is claimed that the HC gravely abused its discretion when
it committed voting manipulation since, under the rules, it
is required to have a unanimous nine (9) votes finding an
accused cadet guilty. There is nothing in the procedure
that permits the HC Chairman to order the chambering of
a member who voted contrary to the majority and subjects
him or her to reconsider in order to reflect a unanimous
vote. Neither is there an order from the Chief of Staff or the
President sanctioning the HC procedure or approving any
change therein pursuant to Sections 30 and 31 of C.A. No.
1. The HC, the CRAB, and the PMA violated their own
rules and principles as embodied in the Honor Code.
Being a clear deviation from the established procedures,
the second deliberation should be considered null and
void.
Petitioners further contend that the requirement of
unanimous vote involves a substantive right which cannot
be unceremoniously changed without a corresponding
amendment/revision in the Honor Code and Honor System
Handbook. In their view, chambering totally defeats the
purpose of voting by secret ballot as it glaringly destroys
the very essence and philosophy behind the provisions of
the Honor System, which is to ensure that the voting
member is free to vote what is in his or her heart and mind
and that no one can pressure or persuade another to
change his or her vote. They suggest that if one voting
member acquits an accused cadet who is obviously guilty
of the offense, the solution is to remove him or her from
the HC through the vote of non-confidence as provided for
in the Honor Code.195chanroblesvirtuallawlibrary
Anent the above arguments, respondents contend that a
distinction must be made between the concepts of the
Honor Code and the Honor System. According to them,
the former sets the standard for a cadets minimum ethical
and moral behavior and does not change, while the latter
is a set of rules for the conduct of the observance and
implementation of the Honor Code and may undergo
necessary adjustments as may be warranted by the
incumbent members of the HC in order to be more
responsive to the moral training and character
development of the cadets. The HC may provide
guidelines when the Honor System can be used to
supplement regulations. This being so, the voting process
is continuously subject to change.
Respondents note that, historically, a non-unanimous
guilty verdict automatically acquits a cadet from the charge
of Honor violation. The voting members only write either
guilty or not guilty in the voting sheets without stating
their name or their justification. However, this situation
drew criticisms since there were instances where a
reported cadet already admitted his honor violation but
was acquitted due to the lone vote of a sympathetic voting
member.
In the case of Cadet 1CL Cudia, the HC adopted an
existing practice that should the voting result in 7-2 or 8-1
the HC would automatically sanction a jury type of
discussion called executive session or chambering,
which is intended to elicit the explanation and insights of
the voting member/s. This prevents the tyranny of the
minority or lone dissenter from prevailing over the manifest
proof of guilt. The assailed voting practice has been
adopted and widely accepted by the PMA Siklab
Diwa Class of 2014 since their first year in the Academy.
The allegations of conspiracy and sham trial are,
therefore, negated by the fact that such practice was in
place and applied to all cases of honor violations, not
solely to the case of Cadet 1CL Cudia.
It is emphasized by respondents that any decision to
change vote rests solely on the personal conviction of the
dissenter/s, without any compulsion from the other voting
members. There can also be no pressuring to change
ones vote to speak of since a vote may only be considered
as final when the Presiding Officer has affixed his
signature.
To debunk Commander Tabuadas statements,
respondents raise the argument that the Fact-Finding
Board/Investigating Body summoned Cadet 1CL Lagura
for inquiry. Aside from his oral testimony made under oath,
he submitted to the Board/Body an affidavit explaining
that:chanRoblesvirtualLawlibrary
11.Sometime on 23rd or 24th of January 2014, I went to the
Department of Naval Warfare to ask permission if it is
possible not to attend the Navy duty for the reason that
I will be attending our baseball game outside the
Academy.
12.After I was permitted not to attend my Navy Duty and
when I was about to exit out of the Office, CDR JUNJIE
B TABUADA PN, our Head Department Naval Warfare
Officer, called my attention. I approached him and he
said: Talagang nadali si Cudia ah. Ano ba talaga ang
nangyari? At first, I was hesitant to answer because of
the confidentiality of the Honor Committee
proceedings. He again said: Wag kang mag-alala,
atin, atin lang ito, alam ko naman na bawal magsabi.
Then I answered: Ako yung isang not guilty Sir. Kaya
[yung] Presiding Officer nagsabi na pumunta muna
kami sa Chamber. Nung nasa chamber kami, nagsalita
[yung] mga nagvote ng Guilty tapos isa-isa nagsabi
kung bakit ang boto nila Guilty. Nung pakinggan ko, eh
naliwanagan ako. Pinalitan ko yung boto ko from Not
Guilty to Guilty Sir. He replied: Sayang si Cudia ano?
And I said: Oo nga sir, [s]ayang si Cudia, mabait pa
naman at matalino.196
Cadet 1CL Lagura restated the above in the Counter-
Affidavit executed on March 12, 2014, which he submitted
before the CHR wherein he attested to the following:
3. I was chosen to be a voting member of the Honor
Committee for Honor Code violation committed by
Cadet Cudia, for lying. As a voting member, we are
the one who assess or investigate the case whether
the reported Cadet is Guilty for his actions or not.
4. I was the only one who INITIALLY voted NOT
GUILTY among the nine (9) voting members of the
Honor Committee in the case of Cdt Cudia for Lying.
5. I initially voted NOT GUILTY for the reason that after
the proceedings and before the presiding Officer told
the members to vote, I was confused of the case of
Cadet Cudia. I have gathered some facts from the
investigation to make my decision but for me it is not
yet enough to give my verdict of guilty to Cdt Cudia so
I decided to vote NOT GUILTY with a reservation in
my mind that we will still be discussing our verdicts if
we will arrive at 8-1 or 7-2. Thus, I can still change my
vote if I may be enlightened with the others
justifications.
6. After the votes were collected, the Presiding Officer
told us that the vote is 8 for guilty and 1 for not guilty.
By way of practice and as I predicted, we were told to
go inside the anteroom for executive meeting and to
discuss our respective justifications. I have been a
 member for two (2) years and the voting committee will
always go for executive meeting whenever it will meet
8-1 or 7-2 votes.
7. I listened to them and they listened to me, then I saw
things that enlightened my confusions that time. I gave
a thumbs-up sign and asked for another sheet of
voting paper. I then changed my vote from NOT
GUILTY to GUILTY and the voting members of the
Honor Committee came up with the final vote of nine
(9) votes for guilty and zero (0) votes for not guilty.
9. Cdt Cudia was called inside the courtroom and told
that the verdict was GUILTY of LYING. After that, all
persons inside the courtroom went back to barracks.
10. Right after I changed to sleeping uniform, I was
approached by Cdt Jocson and Cdt Cudia, inquiring
and said: Bakit ka naman nagpalit ng boto? I
answered: Nasa process yan, may mali talaga sa
rason mo. They also asked who were inside the
Chamber and I mentioned only Cdt Arlegui and Cdt
Mogol. That was the last time that Cdt Cudia and Cdt
Jocson talked to me.
11. Sometime on 23rd or 24th of January 2014, I went to
the Department of Naval Warfare to asked (sic)
permission if it is possible not to attend the Navy duty
for the reason that I will be attending our baseball
game outside the Academy.
12. After I was permitted not to attend my Navy Duty and
when I was about to exit out of the Office, CDR JUNJIE
B TABUADA PN, our Head Department Naval Warfare
Officer, called my attention. I approached him and he
said: Talagang nadali si Cudia ah. Ano ba talaga ang
nangyari? At first, I was hesitant to answer because
of the confidentiality of the Honor Committee
proceedings. He again said: Wag kang mag-alala,
atin, atin lang ito, alam ko naman na bawal magsabi.
Then I answered: Ako yung isang not guilty Sir. Kaya
[yung] Presiding Officer nagsabi na pumunta muna
kami sa Chamber. Nung nasa chamber kami,
nagsalita [yung] mga nagvote ng Guilty tapos isa-isa
nagsabi kung bakit ang boto nila Guilty. Nung
pakinggan ko, eh naliwanagan ako. Pinalitan ko yung
boto ko from Not Guilty to Guilty Sir. He replied:
Sayang si Cudia ano? And I said: Oo nga sir,
[s]ayang si Cudia, mabait pa naman at matalino.197
Still not to be outdone, petitioners argue that the very fact
that Cadet 1CL Lagura, as the lone dissenter, was made
to explain in the presence of other HC members, who were
in disagreement with him, gives a semblance of
intimidation, force, or pressure. For them, the records of
the HC proceedings, which were not presented assuming
they actually exist, could have been the best way to ensure
that he was free to express his views, reject the opinion of
the majority, and stick to his decision. Also, it was pointed
out that Cadet 1CL Lagura failed to clearly explain in his
affidavit why he initially found Cadet 1CL Cudia not guilty
and what made him change his mind. His use of general
statements like he was confused of the case and saw
things that enlightened my confusions could hardly suffice
to establish why he changed his vote. Finally, petitioners
note the admission of Cadet 1CL Lagura during the CHR
investigation that he was the only one who was given
another ballot sheet while in the chamber and that he
accomplished it in the barracks which he only submitted
the following day. However, as the CHR found, the
announcement of the 9-0 vote was done immediately after
the HC came out from the chamber and before Cadet 1CL
Lagura submitted his accomplished ballot sheet.
We rule for respondents.
As to the manner of voting by the HC members, the Honor
Code tersely provides:chanRoblesvirtualLawlibrary
After a thorough discussion and deliberation, the presiding
member of the Board will call for the members to vote
whether the accused is GUILTY or NOT GUILTY. A
unanimous vote (9 votes) of GUILTY decides that a cadet
is found guilty of violating the Honor Code.198
From the above-quoted provision, it readily appears that
the HC practice of conducting executive session or
chambering is not at all prohibited. The HC is given
leeway on the voting procedures in actual cases taking
into account the exigency of the times. What is important
is that, in the end, there must be a unanimous nine votes
in order to hold a cadet guilty of violating the Honor Code.
Granting, for arguments sake, that the HC violated its
written procedure,199 We still rule that there is nothing
inherently wrong with the practice of chambering
considering that the presence of intimidation or force
cannot automatically be inferred therefrom. The essence
of secret balloting and the freedom to vote based on what
is in the heart and mind of the voting member is not
necessarily diluted by the fact that a second/final voting
was conducted. As explained by Cadet 1CL Mogol before
the CRAB:chanRoblesvirtualLawlibrary
13. x x x [The] dissenting voter would have to
explain his side and insights regarding the
case at hand. The other members, on the
other hand, would be given the chance to
explain their votes as well as their insights to
the dissenting voter. The decision to change
the vote of the dissenting voter rests solely
on his personal conviction. Thus, if he [or
she] opted not to change his/her vote despite
the discussion, his [or her] vote is accorded
respect by the Honor Committee.200
It is elementary that intimidation or force is never
presumed. Mere allegation is definitely not evidence. It
must be substantiated and proved because a person is
presumed to be innocent of a crime or wrong and that
official duty has been regularly
performed.201chanroblesvirtuallawlibrary
The oral and written statements of Cadet 1CL Lagura
should settle the issue. Before the Fact-Finding
Board/Investigating Body and the CHR, he consistently
denied that he was pressured by the other voting members
of the HC. His representation must be accepted as it is
regardless of whether he has satisfactorily elaborated his
decision to change his vote. Being the one who was
chambered, he is more credible to clarify the issue. In
case of doubt, We have to rely on the faith that Cadet 1CL
Lagura observed the Honor Code, which clearly states that
every cadet must be his or her own Final Authority in
honor; that he or she should not let other cadets dictate on
him or her their sense of honor.202 Moreover, the Code
implies that any person can have confidence that a cadet
and any graduate of the PMA will be fair and just in dealing
with him; that his actions, words and ways are sincere and
true.203chanroblesvirtuallawlibrary
As to the other alleged irregularities committed such as
not putting on record the initial/first voting and Cadet 1CL
Laguras bringing of his ballot sheet to and accomplishing
it in the barracks, the Court shall no longer dwell on the
same for being harmless procedural errors that do not
materially affect the validity of the HC proceedings.
Cadet 1CL Cudias alleged untruthful statements
Petitioners insist that Cadet 1CL Cudia did not lie.
According to them, there is no clear time reference as to
when was the actual dismissal or what was the exact time
of dismissal whether it should be the dismissal inside the
room or the dismissal after the section grade was given by
Dr. Costales in the minds of Cadet 1CL Cudia, Maj.
Hindang, and the HC investigators and voting members.
They claim that during long examinations, the time of
dismissal was usually five minutes before the class was
set to end and the protocol of dismissing the class 15
minutes earlier was not observed. When Maj. Hindang
stated in accusatory language that Cadet 1CL Cudia
perverted the truth by stating that OR432 class ended at
1500H, he did not state what was the true time of
dismissal. He did not mention whether the truth he was
relying on was 5 or 15 minutes before the scheduled end
of class.
It is also averred that Cadet 1CL Cudias only business
was to ask Dr. Costales a query such that his business
was already finished as soon as she gave an answer.
However, a new business was initiated by Dr. Costales,
which is, Cadet 1CL Cudia must stay and wait for the
section grade. At that point in time, he was no longer in
control of the circumstances. Petitioners claim that Dr.
Costales never categorically stated that Cadet 1CL Cudia
was lying. She recognized the confusion. Her text
messages to him clarified his alleged violation. Also, the
CHR noted during its investigation that she could not
exactly recall what happened in her class on November
14, 2013.
Furthermore, petitioners reasoned out that when
respondents stated that ENG412 class started at 3:05
p.m., it proves that Cadet 1CL Cudia was obviously not
late. If, as indicated in his Delinquency Report, he was late
two (2) minutes in his 1500-1600H class in ENG 412, he
must have arrived 3:02 p.m. Respondents, however, claim
that the class started at 3:05 p.m. Thus, Cadet 1CL Cudia
was not late.
Relative to his explanation to the delinquency report,
petitioners were of the view that what appears to have
caused confusion in the minds of respondents is just a
matter of semantics; that the entire incident was a product
of inaccuracy, not lying. It is malicious for them to insinuate
that Cadet 1CL Cudia purposely used incorrect language
to hide the truth. Citing Merriam Websters Dictionary,
petitioners argue that dismiss means to permit or cause
to leave, while class refers to a body of students meeting
regularly to study the same subject. According to them,
these two words do not have definite and precise
meanings but are generic terms. Other than the words
class and dismiss used by Cadet 1CL Cudia, which has rung. In cases of lesson examinations (LE), cadets are
may actually be used in their generic sense, there is
nothing deceiving about what he said. Thus, the answer
he chose might be wrong or not correct, but it is not false
or not true.
For petitioners, Cadet 1CL Cudias explanations are
evidently truthful and with no intent to deceive or mislead.
He did not manipulate any fact and was truthful of his
explanation. His statements were clear and unambiguous
but were given a narrow-minded interpretation. Even the
Honor Code acknowledges that [e]xperience
demonstrates that human communication is imperfect at
best, and some actions are often misinterpreted.
Lastly, petitioners contend that Cadet 1CL Cudias
transcript of records reflects not only his outstanding
academic performance but proves his good conduct
during his four-year stay in the Academy. He has above-
average grades in Conduct, with grades ranging from 96
to 100 in Conduct I to XI. His propensity to lie is, therefore,
far from the truth.
On the other hand, respondents were equally adamant to
contend that Cadet 1CL Cudia was obviously quibbling,
which, in the military parlance, is tantamount to lying. He
fell short in telling a simple truth. He lied by making
untruthful statements in his written explanation.
Respondents want Us to consider the
following:chanRoblesvirtualLawlibrary
First, their OR432 class was not dismissed late. During the
formal investigation, Dr. Costales testified that a class is
dismissed as long as the instructor is not there and the bell
dismissed from the time they have answered their
respective LEs. Here, as Cadet Cudia stated in his
Request for Reconsideration of Meted Punishment, We
had an LE that day (14 November 2013) in OR432 class.
When the first bell rang (1455), I stood up, reviewed my
paper and submitted it to my instructor, Ms. Costales. xxx
Clearly, at the time Cadet Cudia submitted his papers, he
was already considered dismissed. Thus, he cannot claim
that his [OR432] class ended at 3:00 in the afternoon
(1500H) or a bit late.
Second, Cadet Cudia was in control of the circumstances
leading to his tardiness. After submitting his paper, Cadet
Cudia is free to leave and attend his next class. However,
he initiated a conversation with Dr. Costales regarding
their grades. He was not under instruction by Dr. Costales
to stay beyond the period of her class.
Furthermore, during the investigation of the Fact-Finding
Board/Investigating Body, Dr. Costales clarified her
statements in her written explanation. She explained that
the instruction to wait is a response to Cadet Cudias
request and that it was not her initiated instruction. Clearly,
there was no directive from Dr. Costales for Cadet Cudia
and the other cadets to stay. On the contrary, it was them
who wanted to meet with the instructor.
Third, contrary to Cadet Cudias explanation, his
subsequent class, ENG412, did not exactly start at 3:00 in
the afternoon (1500H). In the informal review conducted
by the HTG to check the findings of the HC, Professor
Berong confirmed that her English class started as
scheduled (3:05 in the afternoon, or 1505H) and not
earlier. Cadet 1 CL Barrawed, the acting class marcher of
ENG412 also testified that their class started as scheduled
(3:05 in the afternoon, or 1505) and not earlier.204
Respondents were unimpressed with the excuse that
Cadet 1CL Cudia had no intention to mislead or deceive
but merely used wrong and unfitting words in his
explanations. For them, considering his academic
standing, it is highly improbable that he used incorrect
language to justify his mistake.
Respondents arguments are tenable.
The issue of whether Cadet 1CL Cudia committed lying is
an issue of fact. Unfortunately for petitioners, the Court,
not being a trier of facts, cannot pass upon factual matters
as it is not duty-bound to analyze and weigh again the
evidence considered in the proceedings below. Moreover,
We reiterate the long standing rule that factual findings of
administrative tribunals are ordinarily accorded respect if
not finality by the Court. In this case, as shown in the
previous discussions, there is no evidence that the
findings of the investigating and reviewing bodies below
are not supported by evidence or vitiated by fraud,
imposition or collusion; that the procedure which led to the
findings is irregular; that palpable errors were committed;
or that a grave abuse of discretion, arbitrariness, or
capriciousness is manifest. With respect to the core issue
of whether lying is present in this case, all investigating
and reviewing bodies are in consonance in holding that
Cadet 1CL Cudia in truth and in fact lied.
For purposes of emphasis though, We shall supplement
some points.
As succinctly worded, the Honor Code of the Cadet Corps
Armed Forces of the Philippines (CCAFP) states: We, the
Cadets, do not lie, cheat, steal, nor tolerate among us
those who do.
The First Tenet of the Honor Code is We do not lie.
Cadets violate the Honor Code by lying if they make an
oral or written statement which is contrary to what is true
or use doubtful information with the intent to deceive or
mislead.205 It is expected that every cadets word is
accepted without challenge on its truthfulness; that it is
true without qualification; and that the cadets must
answer directly, completely and truthfully even though the
answer may result in punitive action under the CCPB and
CCAFPR.206chanroblesvirtuallawlibrary
To refresh, in his Explanation of Report dated December
8, 2013, Cadet 1CL Cudia justified that: I came directly
from OR432 Class. We were dismissed a bit late by our
instructor Sir. Subsequently, in his Request for
Reconsideration of Meted Punishment to Maj. Leander, he
reasoned out as follows:chanRoblesvirtualLawlibrary
I strongly believe that I am not in control of the
circumstances, our 4th period class ended 1500H and our
5th period class, which is ENG412, started 1500H also.
Immediately after 4th period class, I went to my next class
without any intention of being late Sir.207
In this case, the Court agrees with respondents that Cadet
1CL Cudia committed quibbling; hence, he lied in violation
of the Honor Code.
Following an Honor Reference Handbook, the term
"Quibbling" has been defined in one U.S. case as
follows:chanRoblesvirtualLawlibrary
A person can easily create a false impression in the mind
of his listener by cleverly wording what he says, omitting
relevant facts, or telling a partial truth. When he knowingly
does so with the intent to deceive or mislead, he is
quibbling. Because it is an intentional deception, quibbling
is a form of lying.208
The above definition can be applied in the instant case.
Here, instead of directly and completely telling the cause
of his being late in the ENG412 class of Prof. Berong,
Cadet 1CL Cudia chose to omit relevant facts, thereby,
telling a half-truth.
The two elements that must be presented for a cadet to
have committed an honor violation
are:chanRoblesvirtualLawlibrary
1. The act and/or omission, and
2. The intent pertinent to it.cralawred
Intent does not only refer to the intent to violate the Honor
Code, but intent to commit or omit the act
itself.209chanroblesvirtuallawlibrary
The basic questions a cadet must always seek to answer
unequivocally are:chanRoblesvirtualLawlibrary
1. Do I intend to deceive?
2. Do I intend to take undue advantage?
If a cadet can answer NO to BOTH questions, he or she is
doing the honorable thing.210chanroblesvirtuallawlibrary
Intent, being a state of mind, is rarely susceptible of direct
proof, but must ordinarily be inferred from the facts, and
therefore, can only be proved by unguarded expressions,
conduct and circumstances generally.211 In this case,
Cadet 1CL Cudias intent to deceive is manifested from the
very act of capitalizing on the use of the words dismiss
and class. The truth of the matter is that the ordinary
usage of these two terms, in the context of an educational
institution, does not correspond to what Cadet 1CL Cudia
is trying to make it appear. In that sense, the words are not
generic and have definite and precise meaning.
By no stretch of the imagination can Cadets 1CL Cudia,
Miranda, Arcangel, and Narciso already constitute a
class. The Court cannot agree that such term includes
every transaction and communication a teacher does with
her students. Clearly, it does not take too much
intelligence to conclude that Cadet 1CL Cudia should have
been accurate by pinpointing who were with him when he
was late in the next class. His deceptive explanation is
made more obvious when compared with what Cadets
1CL Archangel and Narciso wrote in their DR explanation,
which was: We approached our instructor after our
class.212chanroblesvirtuallawlibrary
Further, it is unimportant whether the time of dismissal on
November 14, 2013 was five or fifteen minutes ahead of
the scheduled end of class. Worth noting is that even Dr.
Costales, who stood as a witness for Cadet 1CL Cudia,
consistently admitted before the HC, the Fact-Finding
Board/Investigating Body, and the CHR that he was
already dismissed when he passed his LE
paper.213 During the hearing of the Board/Body, she also
declared that she merely responded to his request to see
the results of the UE1 and that she had reservations on
the phrases under my instruction and dismissed a bit
late used in his letter of explanation to the HC. In addition,
Dr. Costales manifested her view before the CHR that the
act of Cadet 1CL Cudia of inquiring about his grade
outside their classroom after he submitted his LE paper is
not part of the class time because the consultation, being
cadet-initiated, is voluntary.214chanroblesvirtuallawlibrary
Assuming, for the sake of argument, that a new business
was initiated by Dr. Costales when Cadet 1CL Cudia was
asked to stay and wait for the section grade, still, this does
not acquit him. Given such situation, a responsible cadet
who is fully aware of the time constraint has the last say,
that is, to politely decline the invitation and immediately go
to the next class. This was not done by Cadet 1CL Cudia.
Thus, it cannot be said that he already lost control over the
circumstances.
It is apparent, therefore, that Cadet 1CL Cudia cunningly
chose words which led to confusion in the minds of
respondents and eventually commenced the HC inquiry.
His case is not just a matter of semantics and a product of
plain and simple inaccuracy. There is manipulation of facts
and presentation of untruthful explanation constitutive of
Honor Code violation.
Evidence of prior good conduct cannot clear Cadet 1CL
Cudia. While his Transcript of Records (TOR) may reflect
not only his outstanding academic performance but his
excellent grade in subjects on Conduct during his four-
year stay in the PMA,215 it does not necessarily follow that
he is innocent of the offense charged. It is enough to say
that evidence that one did or did not do a certain thing at
one time is not admissible to prove that he did or did not
do the same or similar thing at another time.216 While the
TOR may be received to prove his identity or habit as an
exceptional PMA student, it does not show his specific
intent, plan, or scheme as cadet accused of committing a
specific Honor Code violation.
Dismissal from the PMA as unjust and cruel punishment
Respondents insist that violation of the Honor Code
warrants separation of the guilty cadet from the cadet
corps. Under the Cadet Corps Armed Forces of the
Philippines Regulation (CCAFPR), a violation of the Cadet
Honor Code is considered Grave (Class 1) delinquency
which merits a recommendation for a cadets dismissal
from the PMA Superintendent. The same is likewise clear
from the Honor Code and Honor System Handbook. Cadet
1CL Cudia is, therefore, presumed to know that the Honor
Code does not accommodate a gradation or degree of
offenses. There is no difference between a little lie and a
huge falsehood. Respondents emphasize that the Honor
Code has always been considered as an absolute
yardstick against which cadets have measured
themselves ever since the PMA began and that the Honor
Code and System seek to assure that only those who are
able to meet the high standards of integrity and honor are
produced by the PMA. As held in Andrews, it is
constitutionally permissible for the military to set and
enforce uncommonly high standards of conduct and
ethics. Thus, in violating the Honor Code, Cadet 1CL
Cudia forfeits his privilege to graduate from the PMA.
On their part, petitioners concede that if it is proven that a
cadet breached the Honor Code, the offense warrants his
or her dismissal since such a policy may be the only
means to maintain and uphold the spirit of integrity in the
military.217 They maintain though that in Cadet 1CL
Cudias case there is no need to distinguish between a
little lie and a huge falsehood since he did not lie at all.
Absent any intent to deceive and to take undue advantage,
the penalty imposed on him is considered as unjust and
cruel. Under the circumstances obtaining in this case, the
penalty of dismissal is not commensurate to the fact that
he is a graduating cadet with honors and what he allegedly
committed does not amount to an academic deficiency or
an intentional and flagrant violation of the PMA non-
academic rules and regulations. Citing Non, petitioners
argue that the penalty imposed must be proportionate to
the offense. Further, Isabelo, Jr. is squarely applicable to
the facts of the case. Cadet 1CL Cudia was deprived of his
right to education, the only means by which he may have
a secure life and future.
Considering Our finding that Cadet 1CL Cudia in truth and
in fact lied and his acceptance that violation of the Honor
Code warrants the ultimate penalty of dismissal from the
PMA, there is actually no more dispute to resolve. Indeed,
the sanction is clearly set forth and Cadet 1CL Cudia, by
contract, risked this when he entered the Academy.218 We
adopt the ruling in Andrews219 wherein it was held that,
while the penalty is severe, it is nevertheless reasonable
and not arbitrary, and, therefore, not in violation of due
process. It quoted the disposition of the district court,
thus:chanRoblesvirtualLawlibrary
The fact that a cadet will be separated from the Academy
upon a finding that he has violated the Honor Code is
known to all cadets even prior to the beginning of their
careers there. The finding of a Code violation by
hypothesis includes a finding of scienter on the part of the
offender. While separation is admittedly a drastic and
tragic consequence of a cadet's transgression, it is not an
unconstitutionally arbitrary one, but rather a reasonable
albeit severe method of preventing men who have suffered
ethical lapses from becoming career officers. That a policy
of admonitions or lesser penalties for single violations
might be more compassionate -- or even more effective in
achieving the intended result -- is quite immaterial to the
question of whether the harsher penalty violates due
process.220
Nature of the CHR Findings
Petitioners contend that the PMA turned a blind eye on the
CHRs recommendations. The CHR, they note, is a
constitutional body mandated by the 1987 Constitution to
investigate all forms of human rights violations involving
civil and political rights, and to conduct investigative
monitoring of economic, social, and cultural rights,
particularly of vulnerable sectors of society. Further, it was
contended that the results of CHRs investigation and
recommendations are so persuasive that this Court, on
several occasions like in the cases of Cruz v. Sec. of
Environment & Natural Resources221and Ang Ladlad
LGBT Party v. Commission on Elections,222 gave its
findings serious consideration. It is not, therefore, too late
for the Court to hear what an independent and unbiased
fact-finding body has to say on the case.
In opposition, respondents assert that Simon, Jr. v.
Commission on Human Rights223 ruled that the CHR is
merely a recommendatory body that is not empowered to
arrive at a conclusive determination of any controversy.
We are in accord with respondents.
The findings of fact and the conclusions of law of the CHR
are merely recommendatory and, therefore, not binding to
this Court. The reason is that the CHRs constitutional
mandate extends only to the investigation of all forms of
human rights violations involving civil and political
rights.224 As held in Cario v. Commission on Human
Rights225 and a number of subsequent cases,226 the CHR
is only a fact-finding body, not a court of justice or a quasi-
judicial agency. It is not empowered to adjudicate claims
on the merits or settle actual case or controversies. The
power to investigate is not the same as
adjudication:chanRoblesvirtualLawlibrary
The most that may be conceded to the Commission in the
way of adjudicative power is that it may investigate, i.e.,
receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political
rights. But fact-finding is not adjudication, and cannot be
likened to the judicial function of a court of justice, or even
a quasi-judicial agency or official. The function of receiving
evidence and ascertaining therefrom the facts of a
controversy is not a judicial function, properly speaking. To
be considered such, the faculty of receiving evidence and
making factual conclusions in a controversy must be
accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be
decided or determined authoritatively, finally and
definitively, subject to such appeals or modes of review as
may be provided by law. This function, to repeat, the
Commission does not have.
x x x x
[i]t cannot try and decide cases (or hear and determine
causes) as courts of justice, or even quasi-judicial bodies
do. To investigate is not to adjudicate or adjudge. Whether
in the popular or the technical sense, these terms have
well understood and quite distinct meanings.
"Investigate," commonly understood, means to examine,
explore, inquire or delve or probe into, research on, study.
The dictionary definition of investigate is "to observe or
study closely: inquire into systematically: "to search or
inquire into: x x x to subject to an official probe x x x: to
conduct an official inquiry;" The purpose of investigation,
of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of
settling, deciding or resolving a controversy involved in the
facts inquired into by application of the law to the facts
established by the inquiry.
The legal meaning of "investigate" is essentially the same:
"(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine
and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a
legal inquiry;" "to inquire; to make an investigation,"
"investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily
does not require a hearing. 2 Am J2d Adm L Sec. 257; x x
x an inquiry, judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means
to adjudge, arbitrate, judge, decide, determine, resolve,
rule on, settle. The dictionary defines the term as "to settle
finally (the rights and duties of the parties to a court case)
on the merits of issues raised: xx to pass judgment on:
settle judicially: x x x act as judge." And "adjudge" means
"to decide or rule upon as a judge or with judicial or quasi-
judicial powers: xx to award or grant judicially in a case of
controversy x x x."
In the legal sense, "adjudicate" means: "To settle in the
exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and
"adjudge" means: "To pass on judicially, to decide, settle
or decree, or to sentence or condemn. x x x Implies a
judicial determination of a fact, and the entry of a
judgment."227
All told, petitioners are not entitled to moral and exemplary
damages in accordance with Articles 19, 2217, 2219 and
2229 of the Civil Code. The dismissal of Cadet 1CL Cudia
from the PMA did not effectively deprive him of a future.
Clich though it may sound, being a PMA graduate is not
the be-all and end-all of his existence. A cadet separated
from the PMA may still continue to pursue military or
civilian career elsewhere without suffering the stigma
attached to his or her dismissal. For one, as suggested by
respondents, DND-AFP Circular No. 13, dated July 15,
1991, on the enlistment and reenlistment in the AFP
Regular Force, provides under Section 14 (b) thereof that
priority shall be given to, among others, the ex-PMA or
PAFFFS cadets.228 If the positions open does not appeal
to his interest for being way below the rank he could have
achieved as a PMA graduate, Cadet 1CL Cudia could still
practice other equally noble profession or calling that is
best suited to his credentials, competence, and potential.
Definitely, nobody can deprive him of that choice.
WHEREFORE, the Petition is DENIED. The dismissal of
Cadet First Class Aldrin Jeff P. Cudia from the Philippine
Military Academy is hereby AFFIRMED. No costs.
SO ORDERED.
FIRST DIVISION
G.R. No. 171672, February 02, 2015
MARIETA DE CASTRO, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The court should prescribe the correct penalties in
complex crimes in strict observance of Article 48 of
the Revised Penal Code. In estafa through falsification of
commercial documents, the court should impose the
penalty for the graver offense in the maximum period.
Otherwise, the penalty prescribed is invalid, and will not
attain finality.chanroblesvirtuallawlibrary
Antecedents
The petitioner, a bank teller of the BPI Family Savings
Bank (BPI Family) at its branch in Malibay, Pasay City,
appeals the affirmance of her conviction for four counts
of estafa through falsification of a commercial document
committed on separate occasions in October and
November 1993 by forging the signatures of bank
depositors Amparo Matuguina and Milagrosa Cornejo in
withdrawal slips, thereby enabling herself to withdraw a
total of P65,000.00 and P2,000.00 from the respective
savings accounts of Matuguina and Cornejo.
The antecedent facts were summarized in the assailed
decision of the Court of Appeals (CA),1 as
follows:chanRoblesvirtualLawlibrary
As culled from the evidence, Matuguina and Cornejo left
their savings account passbooks with the accused within
the space of a week in October November 1993 when
they went to the banks Malibay branch to transact on their
accounts. Matuguina, in particular, withdrew the sum of
P500 on October 29 and left her passbook with the
accused upon the latters instruction. She had to return
two more times before the branch manager Cynthia
Zialcita sensed that something wrong was going
on. Learning of Matuguinas problem, Zialcita told the
accused to return the passbook to her on November 8. On
this day, the accused came up with the convenient excuse
that she had already returned the passbook. Skeptical,
Zialcita reviewed Matuguinas account and found three
withdrawal slips dated October 19, 29 and November 4,
1993 containing signatures radically different from the
specimen signatures of the depositor and covering a total
of P65,000. It was apparent that the accused had
intervened in the posting and verification of the slips
because her initials were affixed thereto. Zialcita
instructed her assistant manager Benjamin Misa to pay a
visit to Matuguina, a move that led to the immediate
exposure of the accused. Matuguina was aghast to see
the signatures in the slips and denied that the accused
returned the passbook to her. When she went back to the
bank worried about the unauthorized withdrawals from her
account, she met with the accused in the presence of the
bank manager. She insisted that the signatures in the
slips were not her, forcing the accused to admit that the
passbook was still with her and kept in her house.
Zialcita also summoned Juanita Ebora, the teller who
posted and released the November 4 withdrawal. When
she was asked why she processed the transaction, Ebora
readily pointed to the accused as the person who gave to
her the slip. Since she saw the accuseds initials on it
attesting to having verified the signature of the depositor,
she presumed that the withdrawal was genuine. She
posted and released the money to the accused.
On the same day, November 8, Zialcita instructed Misa to
visit another depositor, Milagrosa Cornejo, whom they
feared was also victimized by the accused. Their worst
expectations were confirmed. According to Cornejo, on
November 3, she went to the bank to deposit a check and
because there were many people there at the time, she left
her passbook with the accused. She returned days later
to get it back, but the accused told her that she left it at
home. Misa now showed to her a withdrawal slip dated
November 4, 1993 in which a signature purporting to be
hers appeared. Cornejo denied that it was her
signature. As with the slips affecting Matuguina, the
initials of the accused were unquestionably affixed to the
paper.
Zialcita reported her findings posthaste to her
superiors. The accused initially denied the claims against
her but when she was asked to write her statement down,
she confessed to her guilt. She started crying and locked
herself inside the bathroom. She came out only when
another superior Fed Cortez arrived to ask her some
questions. Since then, she executed three more
statements in response to the investigation conducted by
the banks internal auditors. She also gave a list of the
depositors accounts from which she drew cash and which
were listed methodically in her diary.
The employment of the accused was ultimately
terminated. The bank paid Matuguina P65,000, while
Cornejo got her refund directly from the accused. In the
course of her testimony on the witness stand, the accused
made these further admissions:
(a) She signed the withdrawal slips Exhibits B, C, D and H
which contained the fake signatures of Matuguina and
Cornejo;ChanRoblesVirtualawlibrary
(b) She wrote and signed the confession letter Exhibit
K;ChanRoblesVirtualawlibrary
(c) She wrote the answers to the questions of the branch
cluster head Fred Cortez Exhibit L, and to the auditors
questions in Exhibit M, N and
O;ChanRoblesVirtualawlibrary
(d) Despite demand, she did not pay the
bank.2cralawlawlibrary
Judgment of the RTC
On July 13, 1998, the Regional Trial Court in Pasay City
(RTC) rendered its judgment,3 finding the petitioner guilty
as charged, and sentencing her to suffer as
follows:chanRoblesvirtualLawlibrary
(a) In Criminal Case No. 94-5524, involving the withdrawal
of P20,000.00 from the account of Matuguina, the
indeterminate sentence of two years, 11 months and 10
days of prison correccional, as minimum, to six years,
eight months and 20 days of prision mayor, as
maximum, and to pay BPI Family P20,000.00 and the
costs of suit;
(b) In Criminal Case No. 94-5525, involving the withdrawal
of P2,000.00 from Cornejos account, the indeterminate
sentence of three months of arresto mayor, as
minimum, to one year and eight months of prision
correccional, as maximum, and to pay BPI Family
P2,000.00 and the costs of suit;
(c) In Criminal Case No. 94-5526, involving the withdrawal
of P10,000.00 from the account of Matuguina, the
indeterminate sentence of four months and 20 days
of arresto mayor, as minimum, to two years, 11 months
 and 10 days of prision correccional, as maximum, and
to pay BPI Family P10,000.00 and the costs of suit; and
(d) In Criminal Case No. 94-5527, involving the withdrawal
of P35,000 from Matuguinas account, the
indeterminate sentence of two years, 11 months and 10
days of prision correccional, as minimum, to eight years
of prision mayor, as maximum, and to pay BPI Family
P35,000.00 and the costs of suit.
cralawlawlibrary
Decision of the CA
On appeal, the petitioner contended in the CA that: (1) her
conviction should be set aside because the evidence
presented against her had been obtained in violation of her
constitutional right against self-incrimination; (2) her rights
to due process and to counsel had been infringed; and (3)
the evidence against her should be inadmissible for being
obtained by illegal or unconstitutional means rendering the
evidence as the fruit of the poisonous tree.
On August 18, 2005, the CA promulgated its
decision4 affirming the judgment of the RTC, to
wit:chanRoblesvirtualLawlibrary
In summary, we find no grounds to disturb the findings of
the lower court, except the provision of the dispositive
portion in case 94-5525 requiring the accused to pay BPI
Family P2,000. This must be deleted because the accused
had already paid the amount to the depositor.
IN VIEW OF THE FOREGOING, the decision appealed
from is AFFIRMED, with the modification that the award of
P2,000 to the complainant in case 94-5525 be deleted.
SO ORDERED.
cralawlawlibrary
Issues
In this appeal, the petitioner still insists that her conviction
was invalid because her constitutional rights against self-
incrimination, to due process and to counsel were denied.
In behalf of the State, the Office of the Solicitor General
counters that she could invoke her rights to remain silent
and to counsel only if she had been under custodial
investigation, which she was not; and that the acts of her
counsel whom she had herself engaged to represent her
and whom she had the full authority to replace at any time
were binding against her.chanroblesvirtuallawlibrary
Ruling of the Court
The appeal lacks merit.
We first note that the petitioner has accepted the findings
of fact about the transactions that gave rise to the
accusations in court against her for four counts
of estafa through falsification of a commercial
document. She raised no challenges against such
findings of fact here and in the CA, being content with
limiting herself to the supposed denial of her rights to due
process and to counsel, and to the inadmissibility of the
evidence presented against her. In the CA, her main
objection focused on the denial of her right against self-
incrimination and to counsel, which denial resulted,
according to her, in the invalidation of the evidence of her
guilt.
Debunking the petitioners challenges, the CA stressed
that the rights against self-incrimination and to counsel
guaranteed under the Constitution applied only during the
custodial interrogation of a suspect. In her case, she was
not subjected to any investigation by the police or other
law enforcement agents. Instead, she underwent an
administrative investigation as an employee of the BPI
Family Savings Bank, the investigation being conducted
by her superiors. She was not coerced to give evidence
against herself, or to admit to any crime, but she simply
broke down bank when depositors Matuguina and Cornejo
confronted her about her crimes. We quote with approval
the relevant portions of the decision of the
CA, viz:chanRoblesvirtualLawlibrary
The accused comes to Us on appeal to nullify her
conviction on the ground that the evidence presented
against her was obtained in violation of her constitutional
right against self-incrimination. She also contends that her
rights to due process and counsel were infringed. Without
referring to its name, she enlists one of the most famous
metaphors of constitutional law to demonize and exclude
what she believes were evidence obtained against her by
illegal or unconstitutional means evidence
constituting the fruit of the poisonous tree. We hold,
however, that in the particular setting in which she was
investigated, the revered constitutional rights of an
accused to counsel and against self-incrimination are not
apposite.
The reason is elementary. These cherished rights are
peculiarly rights in the context of an official proceeding for
the investigation and prosecution for crime. The right
against self-incrimination, when applied to a criminal trial,
is contained in this terse injunction no person shall be
compelled to be a witness against himself. In other words,
he may not be required to take the witness stand. He can
sit mute throughout the proceedings. His right to counsel
is expressed in the same laconic style: he shall enjoy the
right to be heard by himself and counsel. This means
inversely that the criminal prosecution cannot proceed
without having a counsel by his side. These are the
traditional rights of the accused in a criminal case. They
exist and may be invoked when he faces a formal
indictment and trial for a criminal offense. But since
Miranda vs Arizona 384 US 436, the law has come to
recognize that an accused needs the same protections
even before he is brought to trial. They arise at the very
inception of the criminal process when a person is taken
into custody to answer to a criminal offense. For what a
person says or does during custodial investigation will
eventually be used as evidence against him at the trial
and, more often than not, will be the lynchpin of his
eventual conviction. His trial becomes a parody if he
cannot enjoy from the start the right against self-
incrimination and to counsel. This is the logic behind what
we now call as the Miranda doctrine.
The US Supreme Court in Miranda spells out in precise
words the occasion for the exercise of the new right and
the protections that it calls for. The occasion is when an
individual is subjected to police interrogation while in
custody at the station or otherwise deprived of his freedom
in a significant way. It is when custodial investigation is
underway that the certain procedural safeguards takes
over the person must be warned prior to any questioning
that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him prior to any
questioning.
We must, therefore, be careful to note what
the Miranda doctrine does not say. It was never intended
to hamper the traditional law-enforcement function to
investigate crime involving persons not under
restraint. The general questioning of citizens in the fact-
finding process, as the US Supreme Court recognizes,
which is not preceded by any restraint on the freedom of
the person investigated, is not affected by the holding,
since the compelling atmosphere inherent in in-custody
interrogation is not present.
The holding in Miranda is explicitly considered the source
of a provision in our 1987 bill of rights that any person
under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent
and to have competent and independent counsel, a
provision identical in language and spirit to the earlier
Section 20, Article IV of the 1973 Constitution. People vs.
Caguioa 95 SCRA 2. As we can see, they speak of the
companion rights of a person under investigation to remain
silent and to counsel, to ensure which the fruit of the
poisonous tree doctrine had also to be institutionalized by
declaring that any confession or admission obtained in
violation of these rights is inadmissible. But to what extent
must the rights to remain silent and to counsel be enforced
in an investigation for the commission of an offense? The
answer has been settled by rulings of our Supreme Court
in Caguoia and in the much later case of Navallo vs
Sandiganbayan 234 SCRA 175 incorporating in toto the
Miranda doctrine into the above-cited provisions of our bill
of rights. Thus, the right to remain silent and to counsel
can be invoked only in the context in which
the Miranda doctrine applies when the official
proceeding is conducted under the coercive atmosphere
of a custodial interrogation. There are no cases extending
them to a non-coercive setting. In Navallo, the Supreme
Court said very clearly that the rights are invocable only
when the accused is under custodial investigation. A
person undergoing a normal audit examination is not
under custodial investigation and, hence, the audit
examiner may not be considered the law enforcement
officer contemplated by the rule.
By a fair analogy, the accused in the case before us may
not be said to be under custodial investigation. She was
not even being investigated by any police or law
enforcement officer. She was under administrative
investigation by her superiors in a private firm and in purely
voluntary manner. She was not restrained of her freedom
in any manner. She was free to stay or go. There was no
evidence that she was forced or pressured to say
anything. It was an act of conscience that compelled her
to speak, a true mental and moral catharsis that religion
and psychology recognize to have salutary effects on the
soul. In this setting, the invocation of the right to remain
silent or to counsel is simply irrelevant.
The accused makes a final argument against her
conviction by contending that she did not get effective
legal representation from her former counsel who was
already old and feeble when the case was being heard. In
fact, the records show, her counsel died during the
pendency of the case, an octogenarian at that. One can
truly make a case from ones lack of a competent and
independent counsel, but we are not prepared to say that
the accused was so poorly represented that it affected her
fundamental right to due process. Except for the several
postponements incurred by her counsel, there is really no
showing that he committed any serious blunder during the
trial. We have read the transcripts of the trial and failed to
get this impression. The evidence against the accused
was simply too overwhelming. We may take note that
once, the trial court admonished the accused to replace
her counsel due to his absences, but she did not. She
must live by that.5cralawlawlibrary
Considering that the foregoing explanation by the CA was
justly supported by the records, and that her investigation
as a bank employee by her employer did not come under
the coverage of the Constitutionally-protected right against
self-incrimination, right to counsel and right to due
process, we find no reversible error committed by the CA
in affirming the conviction of the petitioner by the RTC.
The guilt of the petitioner for four counts of estafa through
falsification of a commercial document was established
beyond reasonable doubt. As a bank teller, she took
advantage of the bank depositors who had trusted in her
enough to leave their passbooks with her upon her
instruction. Without their knowledge, however, she filled
out withdrawal slips that she signed, and misrepresented
to her fellow bank employees that the signatures had been
verified in due course. Her misrepresentation to her co-
employees enabled her to receive the amounts stated in
the withdrawal slips. She thereby committed two crimes,
namely: estafa, by defrauding BPI Family Savings, her
employer, in the various sums withdrawn from the bank
accounts of Matuguina and Cornejo; and falsification of a
commercial document, by forging the signatures of
Matuguina and Cornejo in the withdrawal slips to make it
appear that the depositor concerned had signed the
respective slips in order to enable her to withdraw the
amounts. Such offenses were complex crimes, because
the estafa would not have been consummated without the
falsification of the withdrawal slips.
Nonetheless, there is a need to clarify the penalties
imposable.
According to Article 48 of the Revised Penal Code,6 the
penalty for a complex crime is that corresponding to the
most serious crime, the same to be applied in its maximum
period. Otherwise, the penalty will be void and ineffectual,
and will not attain finality.
In the four criminal cases involved in this appeal, the
falsification of commercial documents is punished
with prision correccional in its medium and maximum
periods (i.e., two years, four months and one day to six
years) and a fine of P5,000.00.7 In contrast, the estafa is
punished according to the value of the defraudation, as
follows: with the penalty of prision correccional in its
maximum period to prision mayor in its minimum period
(i.e., four years, two months and one day to eight years) if
the amount of the fraud is over P12,000.00 but does not
exceed P22,000.00, and if such amount exceeds
P22,000.00, the penalty is imposed in the maximum
period, adding one year for each additional P10,000.00,
but the total shall not exceed 20 years, in which case the
penalty shall be termed prision mayor or reclusion
temporal, as the case may be, in connection with the
accessory penalties that may be imposed and for the
purpose of the other provisions of the Revised Penal
Code; with the penalty of prision correccional in its
minimum and medium periods (i.e., six months and one
day to four years and two months) if the amount of the
fraud is over P6,000.00 but does not exceed P12,000.00;
with the penalty of arresto mayor in its maximum period
to prision correccional in its minimum period (i.e., four
months and one day to two years and four months) if the
amount of the fraud is over P200.00 but does not exceed
P6,000.00; and with the penalty of arresto mayor in its
medium and maximum periods (i.e., two months and one
day to six months) if the amount of the fraud does not
exceed P200.00.8cralawred
In Criminal Case No. 94-5524, estafa was the graver
felony because the amount of the fraud was P20,000.00;
hence, the penalty for estafa is to be imposed in its
maximum period. However, the RTC and the CA fixed
the indeterminate sentence of two years, 11 months and
10 days of prison correccional, as minimum, to six years,
eight months and 20 days of prision mayor, as maximum.
Such maximum of the indeterminate penalty was short by
one day, the maximum period of the penalty being six
years, eight months and 21 days to eight years. Thus,
the indeterminate sentence is corrected to three years
of prison correccional, as minimum, to six years, eight
months and 21 days of prision mayor, as maximum.
In Criminal Case No. 94-5525, involving P2,000.00,
the estafa is punished with four months and one day
of arresto mayor in its maximum period to two years and
four months of prision correccional in its minimum period.
The falsification of commercial document is penalized
with prision correccional in its medium and maximum
periods (i.e., two years, four months and one day to six
years) and a fine of P5,000.00. The latter offense is the
graver felony, and its penalty is to be imposed in the
maximum period, which is from four years, nine months
and 11 days to six years plus fine of P5,000.00. The
penalty next lower in degree is arresto mayor in its
maximum period to prision correccional in its minimum
period (i.e., four months and one day to two years and four
months). Thus, the indeterminate sentence of three
months of arresto mayor, as minimum, to one year and
eight months of prision correccional, as maximum that
both the RTC and the CA fixed was erroneous. We rectify
the error by prescribing in lieu thereof the indeterminate
sentence of two years of prision correccional, as minimum,
to four years, nine months and 11 days of prision
correccional plus fine of P5,000.00, as maximum.
In Criminal Case No. 94-5526, involving P10,000.00, the
RTC and the CA imposed the indeterminate sentence of
four months and 20 days of arresto mayor, as minimum, to
two years, 11 months and 10 days of prision
correccional, as maximum. However, the penalty for the
falsification of commercial documents is higher than that
for the estafa. To accord with Article 48 of the Revised
Penal Code, the penalty for falsification of commercial
documents (i.e., prision correccional in its medium and
maximum periods and a fine of P5,000.00) should be
imposed in the maximum period. Accordingly, we revise
the indeterminate sentence so that its minimum is two
years and four months of prision correccional, and its
maximum is five years of prision correccional plus fine of
P5,000.00.
In Criminal Case No. 94-5527, where the amount of the
fraud was P35,000.00, the penalty for estafa (i.e., prision
correccional in its maximum period to prision mayor in its
minimum period, or four years, two months and one day to
eight years) is higher than that for falsification of
commercial documents. The indeterminate sentence of
two years, 11 months and 10 days of prision correccional,
as minimum, to eight years of prision mayor, as maximum,
was prescribed. Considering that the maximum period
ranged from six years, eight months and 21 days to eight
years, the CA should have clarified whether or not the
maximum of eight years of prision mayor already included
the incremental penalty of one year for every P10,000.00
in excess of P22,000.00. Absent the clarification, we can
presume that the incremental penalty was not yet
included. Thus, in order to make the penalty clear and
specific, the indeterminate sentence is hereby fixed at four
years of prision correccional, as minimum, to six years,
eight months and 21 days of prision mayor, as maximum,
plus one year incremental penalty. In other words, the
maximum of the indeterminate sentence is seven years,
eight months and 21 days of prision mayor.
The CA deleted the order for the restitution of the
P2,000.00 involved in Criminal Case No. 94-5525 on the
ground that such amount had already been paid to the
complainant, Milagrosa Cornejo. There being no issue as
to this, the Court affirms the deletion.
The Court adds that the petitioner is liable to BPI Family
for interest of 6% per annum on the remaining unpaid
sums reckoned from the finality of this judgment. This
liability for interest is only fair and just.
WHEREFORE, the Court AFFIRMS the decision
promulgated by the Court of Appeals on August 18, 2005,
subject to the following MODIFICATIONS, to wit:
(1) In Criminal Case No. 94-5524, the petitioner shall suffer
the indeterminate penalty of three years of <I>prison
correccional</I>, as minimum, to six years, eight
months and 21 days of <I>prision mayor</I>, as
maximum;
(2) In Criminal Case No. 94-5525, the petitioner shall suffer
the indeterminate penalty of two years of <I>prision
correccional</I>, as minimum, to four years, nine
months and 11 days of <I>prision correccional</I> plus
fine of P5,000.00, as maximum;
(3) In Criminal Case No. 94-5526, the petitioner shall suffer
the indeterminate penalty of two years and four months
of <I>prision correccional,</I> as the minimum, to five
years of <I>prision correccional</I> plus fine of
P5,000.00, as the maximum; and
(4) In Criminal Case No. 94-5527, the petitioner shall suffer
the indeterminate penalty of four years of <I>prision
correccional,</I> as minimum, to seven years, eight
months and 21 days of <I>prision mayor,</I> as
maximum.
 for the prosecutions failure to prove their guilt beyond
reasonable doubt.
The Court ORDERS the petitioner to pay to BPI Family
Saving Bank interest of 6% per annum on the aggregate In a Second Amended Information dated June 23, 2004,
amount of P65,000.00 to be reckoned from the finality of private respondents Carampatana, Oporto and Alquizola
this judgment until full payment. were charged, together with Christian John Lim,
Emmanuel dela Cruz, Samuel Rudinas, Jansen Roda,
The petitioner shall pay the costs of suit. Harold Batoctoy, and Joseph Villame, for allegedly raping
AAA,3 to wit:chanRoblesvirtualLawlibrary
SO ORDERED.cralawlawlibrar
That on or about 10:30 oclock in the evening of March 25,
THIRD DIVISION 2004 at Alsons Palace, Maranding, Lala, Lanao del Norte,
Philippines, and within the jurisdiction of this Honorable
G.R. No. 183652, February 25, 2015 Court, the above-named accused conspiring,
confederating and mutually helping one another, did then
PEOPLE OF THE PHILIPPINES AND and there willfully, unlawfully and feloniously, with lewd
AAA, Petitioners, v. COURT OF APPEALS, designs forcefully drunk AAA, a 16-year-old minor, with an
21ST DIVISION, MINDANAO STATION, RAYMUND intoxicating liquor and once intoxicated, brought said AAA
CARAMPATANA, JOEFHEL OPORTO, AND MOISES at about dawn of March 26, 2004 at Alquizola Lodging
ALQUIZOLA, Respondents. house, Maranding, Lala, Lanao del Norte and also within
the jurisdiction of this Honorable Court, and once inside
DECISION said lodging house, accused RAYMUND CARAMPATANA
and JOEPHEL OPORTO took turns in having carnal
PERALTA, J.: knowledge against the will of AAA while accused MOISES
ALQUIZOLA, with lewd designs, kissed her against her will
Before the Court is a Petition for Certiorari questioning the and consent.
Decision1 of the Court of Appeals (CA) dated June 6, 2008
in CA-G.R. CR HC No. 00422-MIN. The CA reversed and CONTRARY TO LAW.4
set aside the Decision2of the Regional Trial Court (RTC)
of Kapatagan, Lanao del Norte, Branch 21, dated Upon arraignment, accused, assisted by their respective
February 28, 2006 in Criminal Case No. 21-1211, and counsels, entered a plea of not guilty to the offense
acquitted private respondents Raymund Carampatana, charged.5cralawlawlibrary
Joefhel Oporto, and Moises Alquizola of the crime of rape
Following pre-trial,6 trial on the merits ensued. Accused
Christian John Lim, however, remains at-large.
The factual antecedents follow:
On March 25, 2004, around 8:00 a.m., AAA attended her
high school graduation ceremony. Afterwards, they had a
luncheon party at their house in Maranding, Lala, Lanao
del Norte. AAA then asked permission from her mother to
go to the Maranding Stage Plaza because she and her
bandmates had to perform for an election campaign. She
went home at around 4:00 p.m. from the plaza. At about
7:00 p.m., AAA told her father that she would be attending
a graduation dinner party with her friends. AAA, together
with Lim, Oporto, and Carampatana, ate dinner at the
house of one Mark Gemeno at Purok, Bulahan,
Maranding. After eating, Lim invited them to go to Alsons
Palace, which was merely a walking distance away from
Gemenos house. Outside the Alsons Palace, they were
greeted by Aldrin Montesco, Junver Alquizola, and Cherry
Mae Fiel. After a while, they went inside and proceeded
to a bedroom on the second floor where they again saw
Montesco with Harold Batoctoy, Jansen Roda, Emmanuel
dela Cruz, Samuel Rudinas, a certain Diego, and one
Angelo. Rudinas suggested that they have a drinking
session to celebrate their graduation, to which the rest
agreed.
They all contributed and it was Joseph Villame who bought
the drinks two (2) bottles of Emperador Brandy. Then
they arranged themselves in a circle for the drinking
spree. Two (2) glasses were being passed around: one
glass containing the sweetener (Pepsi) and the other glass
containing the liquor. At first, AAA refused to drink
because she had never tried hard liquor before. During
the session, they shared their problems with each
other. When it was AAAs turn, she became emotional and
started crying. It was then that she took her first shot. The
glasses were passed around and she consumed more or
less five (5) glasses of Emperador Brandy.
Thereafter, she felt dizzy so she laid her head down on
Oportos lap. Oporto then started kissing her head and
they would remove her baseball cap. This angered her so
she told them to stop, and simply tried to hide her face with
the cap. But they just laughed at her. Then, Roda also
kissed her. At that time, AAA was already sleepy, but they
still forced her to take another shot. They helped her stand
up and make her drink. She even heard Lim say, Hubuga
na, hubuga na, (You make her drunk, you make her
drunk). She likewise heard someone say, You drink it,
you drink it. She leaned on Oportos lap again, then she
fell asleep. They woke her up and Lim gave her the
Emperador Brandy bottle to drink the remaining liquor
inside. She tried to refuse but they insisted, so she drank
directly from the bottle. Again, she fell asleep.
The next thing she knew, Roda and Batoctoy were
carrying her down the stairs, and then she was asleep
again. When she regained consciousness, she saw that
she was already at the Alquizola Lodging House. She
recognized that place because she had been there
before. She would thereafter fall back asleep and wake
up again. And during one of the times that she was
conscious, she saw Oporto on top of her, kissing her on
different parts of her body, and having intercourse with
her. She started crying. She tried to resist when she felt
pain in her genitals. She also saw Carampatana and
Moises Alquizola inside the room, watching as Oporto
abused her. At one point, AAA woke up while
Carampatana was inserting his penis into her private
organ. She cried and told him to stop. Alquizola then
joined and started to kiss her. For the last time, she fell
unconscious.
When she woke up, it was already 7:00 a.m. of the next
day. She was all alone. Her body felt heavy and
exhausted. She found herself with her shirt on but without
her lower garments. The upper half of her body was on
top of the bed but her feet were on the floor. There were
also red stains on her shirt. After dressing up, she hailed
a trisikad and went home. When AAA reached their
house, her father was waiting for her and was already
furious. When she told them that she was raped, her
mother started hitting her. They brought her to the Lala
Police Station to make a report. Thereafter, they
proceeded to the district hospital for her medical
examination.
Dr. Cyrus Acusta of the Kapatagan District Hospital
examined AAA in the morning of March 26, 2004, and
found an old hymenal laceration at 5 oclock position and
hyperemia or redness at the posterior fornices. The
vaginal smear likewise revealed the presence of sperm.
On the other hand, accused denied that they raped
AAA. According to the defense witnesses, in the evening
of March 25, 2004, Oporto, Carampatana, Lim, and AAA
had dinner at Gemenos house. Gemeno then invited
Oporto to attend the graduation party hosted by Montesco
at Alsons Palace, owned by the latters family. When they
reached the place, Oporto told Montesco that they had to
leave for Barangay Tenazas to fetch one Arcie Ariola. At
about 11:30 p.m., Oporto and Carampatana returned to
Alsons Palace but could not find AAA and Lim. The party
subsequently ended, but the group agreed to celebrate
further. AAA, Rudinas, Dela Cruz, Lim, and Oporto
contributed for two (2) bottles of Emperador Brandy and
one (1) liter of Pepsi.
Several persons were in the room at that time: AAA,
Carampatana, Oporto, Dela Cruz, Rudinas, Roda,
Batoctoy, Villame, and Lim. Also present but did not join
the drinking were Gemeno, Montesco, Angelo Ugnabia, Al
Jalil Diego, Mohamad Janisah Manalao, one Caga, and a
certain Bantulan. Gemeno told AAA not to drink but the
latter did not listen and instead told him not to tell her
aunt. During the drinking session, AAA rested on Oportos
lap. She even showed her scorpion tattoo on her
buttocks. And when her legs grazed Batoctoys crotch,
she remarked, What was that, penis? Roda then
approached AAA to kiss her, and the latter kissed him
back. Oporto did the same and AAA also kissed
him. After Oporto, Roda and AAA kissed each other
again.
Meanwhile, earlier that evening, at around 9:00 p.m.,
Moises Alquizola was at the Alquizola Lodging House
drinking beer with his cousin, Junver, and Fiel. They
stopped drinking at around midnight. Fiel then requested
Alquizola to accompany her to Alsons Palace to see her
friends there. They proceeded to the second floor and
there they saw AAA lying on Oportos lap. Fiel told AAA
to go home because her mother might get angry. AAA
could not look her in the eye, just shook her head, and
said, I just stay here. Alquizola and Fiel then went back
to the lodging house. After thirty minutes, they went to
Alsons Palace again, and saw AAA and Oporto kissing
each other. AAA was lying on his lap while holding his
neck. Subsequently, they went back to the lodging house
to resume drinking.
After drinking, Batoctoy offered to bring AAA home. But
she refused and instead instructed them to take her to the
Alquizola Lodging House because she has a big
problem. AAA, Lim, and Carampatana rode a motorcycle
to the lodging house. When they arrived, AAA
approached Alquizola and told him, Kuya, I want to sleep
here for the meantime. Alquizola then opened Room No.
4 where AAA, Oporto, and Carampatana stayed. There
were two beds inside, a single bed and a double-sized
bed. AAA lay down on the single bed and looked at
Carampatana. The latter approached her and they
kissed. He then removed her shirt and AAA voluntarily
raised her hands to give way. Carampatana likewise
removed her brassiere. All the while, Oporto was at the
foot of the bed. Thereafter, Oporto also removed her
pants. AAA even lifted her buttocks to make it easier for
him to pull her underwear down. Oporto then went to AAA
and kissed her on the lips. Carampatana, on the other
hand, placed himself in between AAAs legs and had
intercourse with her. When he finished, he put on his
shorts and went back to Alsons Palace to get some
sleep. When he left, Oporto and AAA were still
kissing. Alquizola then entered the room. When AAA saw
him, she said, Come Kuya, embrace me because I have
a problem. Alquizola thus started kissing AAAs
breasts. Oporto stood up and opened his pants. AAA
held his penis and performed fellatio on him. Then Oporto
and Alquizola changed positions. Oporto proceeded to
have sexual intercourse with AAA. During that time, AAA
was moaning and calling his name. Afterwards, Oporto
went outside and slept with Alquizola on the
carpet. Oporto then had intercourse with AAA two more
times. At 3:00 a.m., he went back to Alsons Palace to
sleep. At around 6:00 a.m., Oporto and Carampatana
went back to the lodging house. They tried to wake AAA
up, but she did not move so they just left and went
home. Alquizola had gone outside but he came back
before 7:00 a.m. However, AAA was no longer there when
he arrived.
On February 28, 2006, the RTC found private respondents
Carampatana, Oporto and Alquizola guilty beyond
reasonable doubt of the crime of rape. It, however,
acquitted Dela Cruz, Rudinas, Roda, Batoctoy, and
Villame for failure of the prosecution to prove their guilt
beyond reasonable doubt. The dispositive portion of the
Decision reads:chanRoblesvirtualLawlibrary
WHEREFORE, in view of the foregoing considerations,
judgment is hereby rendered:
a) Finding accused Raymund Carampatana GUILTY
beyond reasonable doubt of the crime charged, and the
Court hereby sentences him to suffer the indivisible prison
term of reclusion perpetua; to pay AAA the amount of
P50,000.00 for and by way of civil indemnity;
b) Finding accused Joefhel Oporto GUILTY beyond
reasonable doubt of the crime charged, and the court
hereby sentences him to suffer a prison term of six (6)
years and one (1) day of prision mayor as minimum to
twelve (12) years also of prision mayor as maximum; to
pay AAA the sum of P50,000.00 as moral damages and
another amount of P50,000.00 as civil indemnity;
c) Finding accused Moises Alquizola GUILTY beyond
reasonable doubt as ACCOMPLICE in the commission of
the crime charged, and the court hereby sentences him to
suffer an indeterminate prison term of six (6) years and
one (1) day of prision mayor as minimum to twelve (12)
years and one (1) day of reclusion temporal as maximum;
to pay AAA the amount of P30,000.00 as moral damages
and another sum of P30,000.00 for and by way of civil
indemnity;
d) Finding accused Emmanuel dela Cruz, Samuel
Rudinas, Jansen Roda, Harold Batoctoy and Joseph
Villame NOT GUILTY of the crime charged for failure of
the prosecution to prove their guilt therefor beyond
reasonable doubt. Accordingly, the Court acquits them of
said charge; and
e) Ordering accused Carampatana, Oporto and Alquizola
to pay, jointly and severally, the amount of P50,000.00 as
attorneys fees and expenses of litigations; and the costs
of suit.
The full period of the preventive imprisonment of accused
Carampatana, Oporto and Alquizola shall be credited to
them and deducted from their prison terms provided they
comply with the requirements of Article 29 of the Revised
Penal Code.
Accused Raymund Carampatana surrendered voluntarily
on 26 March 2004 and detained since then up to the
present. Accused Alquizola also surrendered voluntarily
on 26 March 2004 and detained since then up to this time,
while accused Joefhel Oporto who likewise surrendered
voluntarily on 26 March 2004 was ordered released to the
custody of the DSWD, Lala, Lanao del Norte on 31 March
2004, and subsequently posted cash bond for his
provisional liberty on 17 September 2004 duly approved
by this court, thus resulted to an order of even date for his
release from the custody of the DSWD.
Let the records of this case be sent to the archive files
without prejudice on the prosecution to prosecute the case
against accused Christian John Lim as soon as he is
apprehended.
SO ORDERED.7
Aggrieved by the RTC Decision, private respondents
brought the case to the CA. On June 6, 2008, the
appellate court rendered the assailed Decision reversing
the trial courts ruling and, consequently, acquitted private
respondents. The decretal portion of said decision
reads:chanRoblesvirtualLawlibrary
WHEREFORE, finding reversible errors therefrom, the
Decision on appeal is hereby REVERSED and SET
ASIDE. For lack of proof beyond reasonable doubt,
accused-appellants RAYMUND CARAMPATANA,
JOEFHEL OPORTO and MOISES ALQUIZOLA are
instead ACQUITTED of the crime charged.
SO ORDERED.8
In sum, the CA found that the prosecution failed to prove
private respondents guilt beyond reasonable doubt. It
gave more credence to the version of the defense and
ruled that AAA consented to the sexual congress. She
was wide awake and aware of what private respondents
were doing before the intercourse. She never showed any
physical resistance, never shouted for help, and never
fought against her alleged ravishers. The appellate court
further relied on the medical report which showed the
presence of an old hymenal laceration on AAAs genitalia,
giving the impression that she has had some carnal
knowledge with a man before. The CA also stressed that
AAAs mothers unusual reaction of hitting her when she
discovered what happened to her daughter was more
consistent with that of a parent who found out that her child
just had premarital sex rather than one who was sexually
assaulted.
On July 29, 2008, AAA, through her private counsel, filed
a Petition for Certiorari9 under Rule 65, questioning the CA
Decision which reversed private respondents conviction
and ardently contending that the same was made with
grave abuse of discretion amounting to lack or excess of
jurisdiction.
Thus, AAA raises this lone issue in her
petition:chanRoblesvirtualLawlibrary
THE RESPONDENT COURT OF APPEALS ACTED
WITH GRAVE ABUSE OF DISCRETION IN ACQUITTING
THE PRIVATE RESPONDENTS.10
ChanRoblesVirtualawlibrary
The private respondents present the following arguments
in their Comment dated November 7, 2008 to assail the
petition:chanRoblesvirtualLawlibrary
I.
A JUDGMENT OF ACQUITTAL IS IMMEDIATELY FINAL
AND EXECUTORY AND THE PROSECUTION CANNOT
APPEAL THE ACQUITTAL BECAUSE OF THE
CONSTITUTIONAL PROHIBITION AGAINST DOUBLE
JEOPARDY.
II.
THE PETITIONER FAILED TO PROVE THAT THERE IS
GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION ON THE PART
OF PUBLIC RESPONDENT.
III.
CERTIORARI WILL NOT LIE UNLESS A MOTION FOR
RECONSIDERATION IS FIRST FILED.
IV.
THE OFFICE OF THE SOLICITOR GENERAL IS THE
APPELLATE COUNSEL OF THE PEOPLE OF THE
PHILIPPINES IN ALL CRIMINAL CASES.11

The Office of the Solicitor General (OSG) filed its own
Comment on April 1, 2009. It assigns the following
errors:chanRoblesvirtualLawlibrary
I.
THE PRIVATE COMPLAINANT MAY VALIDLY APPEAL
AN ORDER OF ACQUITTAL AS TO THE CIVIL ASPECT
OF THE CRIME.
II.
THE APPELLATE DECISION OF ACQUITTAL IS NULL
AND VOID FOR HAVING BEEN RENDERED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION, AN EXCEPTION
TO THE PRINCIPLE OF DOUBLE JEOPARDY.12
ChanRoblesVirtualawlibrary
The Court will first resolve the procedural issues.
At the onset, the Court stresses that rules of procedure are
meant to be tools to facilitate a fair and orderly conduct of
proceedings. Strict adherence thereto must not get in the
way of achieving substantial justice. As long as their
purpose is sufficiently met and no violation of due process
and fair play takes place, the rules should be liberally
construed.13 Liberal construction of the rules is the
controlling principle to effect substantial justice. The
relaxation or suspension of procedural rules, or the
exemption of a case from their operation, is warranted
when compelling reasons exist or when the purpose of
justice requires it. Thus, litigations should, as much as
possible, be decided on their merits and not on sheer
technicalities.14cralawlawlibrary
As a general rule, the prosecution cannot appeal or bring
error proceedings from a judgment rendered in favor of the
defendant in a criminal case. The reason is that a
judgment of acquittal is immediately final and executory,
and the prosecution is barred from appealing lest the
constitutional prohibition against double jeopardy be
violated.15 Section 21, Article III of the Constitution
provides:chanRoblesvirtualLawlibrary
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by
a law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the
same act.
Despite acquittal, however, either the offended party or the
accused may appeal, but only with respect to the civil
aspect of the decision. Or, said judgment of acquittal may
be assailed through a petition for certiorari under Rule 65
of the Rules of Court showing that the lower court, in
acquitting the accused, committed not merely reversible
errors of judgment, but also exercised grave abuse of
discretion amounting to lack or excess of jurisdiction, or a
denial of due process, thereby rendering the assailed
judgment null and void.16 If there is grave abuse of
discretion, granting petitioners prayer is not tantamount to
putting private respondents in double
17
jeopardy. cralawlawlibrary
As to the party with the proper legal standing to bring the
action, the Court said in People v.
18
Santiago: cralawlawlibrary
It is well-settled that in criminal cases where the offended
party is the State, the interest of the private complainant or
the private offended party is limited to the civil liability.
Thus, in the prosecution of the offense, the complainant's
role is limited to that of a witness for the prosecution. If a
criminal case is dismissed by the trial court or if there is an
acquittal, an appeal therefrom on the criminal aspect may
be undertaken only by the State through the Solicitor
General. Only the Solicitor General may represent the
People of the Philippines on appeal. The private offended
party or complainant may not take such appeal. However,
the said offended party or complainant may appeal the civil
aspect despite the acquittal of the accused.
In a special civil action for certiorari filed under Section
1, Rule 65 of the Rules of Court wherein it is alleged that
the trial court committed a grave abuse of
discretion amounting to lack of jurisdiction or on other
jurisdictional grounds, the rules state that the petition
may be filed by the person aggrieved. In such case,
the aggrieved parties are the State and the private
offended party or complainant. The complainant has an
interest in the civil aspect of the case so he may file such
special civil action questioning the decision or action
of the respondent court on jurisdictional grounds. In
so doing, complainant should not bring the action in
the name of the People of the Philippines. The action
may be prosecuted in [the] name of said
complainant.19
ChanRoblesVirtualawlibrary
Private respondents argue that the action should have
been filed by the State through the OSG. True, in criminal
cases, the acquittal of the accused or the dismissal of the
case against him can only be appealed by the Solicitor
General, acting on behalf of the State. This is because the
authority to represent the State in appeals of criminal
cases before the Supreme Court and the CA is solely
vested in the OSG.20cralawlawlibrary
Here, AAA filed a petition for certiorari under Rule 65,
albeit at the instance of her private counsel, primarily
imputing grave abuse of discretion on the part of the CA
when it acquitted private respondents. As the aggrieved
party, AAA clearly has the right to bring the action in her
name and maintain the criminal prosecution. She has an
immense interest in obtaining justice in the case precisely
because she is the subject of the violation. Further, as
held in Dela Rosa v. CA,21 where the Court sustained the
private offended partys right in a criminal case to file a
special civil action for certiorari to question the validity of
the judgment of dismissal and ruled that the Solicitor
Generals intervention was not necessary, the recourse of
the complainant to the Court is proper since it was brought
in her own name and not in that of the People of the
Philippines. In any event, the OSG joins petitioners cause
in its Comment,22 thereby fulfilling the requirement that all
criminal actions shall be prosecuted under the direction
and control of the public prosecutor.23cralawlawlibrary
Private respondents further claim that even assuming,
merely for the sake of argument, that AAA can file the
special civil action for certiorari without violating their right
against double jeopardy, still, it must be dismissed for
petitioners failure to previously file a motion for
reconsideration.
True, a motion for reconsideration is a condicio sine qua
non for the filing of a petition for certiorari. Its purpose is
for the court to have an opportunity to correct any actual
or perceived error attributed to it by re-examination of the
legal and factual circumstances of the case. This rule,
however, is not absolute and admits well-defined
exceptions, such as: (a) where the order is a patent nullity,
as where the court a quo has no jurisdiction; (b) where the
questions raised in the certiorari proceedings have been
duly raised and passed upon by the lower court, or are the
same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of
the question and any further delay would prejudice the
interests of the Government or of the petitioner or the
subject matter of the action is perishable; (d) where, under
the circumstances, a motion for reconsideration would be
useless; (e) where petitioner was deprived of due process
and there is extreme urgency for relief; (f) where, in a
criminal case, relief from an order of arrest is urgent and
the granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity
for lack of due process; (h) where the proceedings were ex
parte or in which the petitioner had no opportunity to
object; and (i) where the issue raised is one purely of law
or where public interest is involved.24cralawlawlibrary
Here, petitioners case amply falls within the
exception. AAA raises the same questions as those
raised and passed upon in the lower court, essentially
revolving on the guilt of the private respondents. There is
also an urgent necessity to resolve the issues, for any
further delay would prejudice the interests, not only of the
petitioner, but likewise that of the Government. And, as
will soon be discussed, the CA decision is a patent nullity
for lack of due process and for having been rendered with
grave abuse of discretion amounting to lack of jurisdiction.
For the writ of certiorari to issue, the respondent court
must be shown to have acted with grave abuse of
discretion amounting to lack or excess of jurisdiction. An
acquittal is considered tainted with grave abuse of
discretion when it is shown that the prosecutions right to
due process was violated or that the trial conducted was a
sham. The burden is on the petitioner to clearly
demonstrate and establish that the respondent court
blatantly abused its authority such as to deprive itself of its
very power to dispense justice.25cralawlawlibrary
AAA claims in her petition that the CA, in evident display
of grave abuse of judicial discretion, totally disregarded
her testimony as well as the trial courts findings of fact,
thereby adopting hook, line, and sinker, the private
respondents narration of facts.
The term "grave abuse of discretion" has a specific
meaning. An act of a court or tribunal can only be
considered as with grave abuse of discretion when such
act is done in a capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. It must be
so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic
manner by reason of passion and hostility.26 There is
grave abuse of discretion when the disputed act of the
lower court goes beyond the limits of discretion thus
effecting an injustice.27cralawlawlibrary
The Court finds that the petitioner has sufficiently
discharged the burden of proving that the respondent
appellate court committed grave abuse of discretion in
acquitting private respondents.
It appears that in reaching its judgment, the CA merely
relied on the evidence presented by the defense and
utterly disregarded that of the prosecution. At first, it may
seem that its narration of the facts28 of the case was
meticulously culled from the evidence of both parties. But
a more careful perusal will reveal that it was simply lifted,
if not altogether parroted, from the testimonies of the
accused, especially that of Oporto,29 Carampatana,30 and
Alquizola,31 the accused-appellants in the case before
it. The appellate court merely echoed the private
respondents testimonies, particularly those as to the
specific events that transpired during the crucial period -
from the dinner at Gemenos house to the following
morning at the Alquizola Lodging House. As a result, it
presented the private respondents account and
allegations as though these were the established facts of
the case, which it later conveniently utilized to support its
ruling of acquittal.
Due process requires that, in reaching a decision, a
tribunal must consider the entire evidence presented,
regardless of the party who offered the same.32 It simply
cannot acknowledge that of one party and turn a blind eye
to that of the other. It cannot appreciate one partys cause
and brush the other aside. This rule becomes particularly
significant in this case because the parties tendered
contradicting versions of the incident. The victim is crying
rape but the accused are saying it was a consensual
sexual rendezvous. Thus, the CAs blatant disregard of
material prosecution evidence and outward bias in favor of
that of the defense constitutes grave abuse of discretion
resulting in violation of petitioners right to due
process.33cralawlawlibrary
Moreover, the CA likewise easily swept under the rug the
observations of the RTC and made its own flimsy findings
to justify its decision of acquittal.
First, the appellate court held that AAA was, in fact,
conscious during the whole ordeal. The fact that she
never showed any physical resistance, never cried out for
help, and never fought against the private respondents,
bolsters the claim of the latter that the sexual acts were
indeed consensual.
But the CA seemed to forget that AAA was heavily
intoxicated at the time of the assault. Article 266-A of the
Revised Penal Code (RPC)
provides:chanRoblesvirtualLawlibrary
Art. 266-A. Rape, When and How Committed. Rape is
committed
1. By a man who shall have carnal knowledge of a woman
under any of the following circumstances:
cralawred
a. Through force, threat or intimidation;
b. When the offended party is deprived of reason or is
otherwise unconscious;
c. By means of fraudulent machination or grave abuse of
authority;
d. When the offended party is under twelve (12) years of
age or is demented, even though none of the
circumstances mentioned above be present;
2. By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of
sexual assault by inserting his penis into another persons
mouth or anal orifice, or any instrument or object, into the
genital or anal orifice of another person.
Under the aforecited provision, the elements of rape are:
(1) the offender had carnal knowledge of the victim; and
(2) such act was accomplished through force or
intimidation; or when the victim is deprived of reason or
otherwise unconscious; or when the victim is under twelve
years of age.34 Here, the accused intentionally made AAA
consume hard liquor more than she could handle. They
still forced her to drink even when she was already
obviously inebriated. They never denied having sexual
intercourse with AAA, but the latter was clearly deprived of
reason or unconscious at the time the private respondents
ravished her. The CA, however, readily concluded that
she agreed to the sexual act simply because she did not
shout or offer any physical resistance, disregarding her
testimony that she was rendered weak and dizzy by
intoxication, thereby facilitating the commission of the
crime.35 The appellate court never provided any reason
why AAAs testimony should deserve scant or no weight
at all, or why it cannot be accorded any credence. In
reviewing rape cases, the lone testimony of the victim is
and should be, by itself, sufficient to warrant a judgment of
conviction if found to be credible. Also, it has been
established that when a woman declares that she has
been raped, she says in effect all that is necessary to
mean that she has been raped, and where her testimony
passes the test of credibility, the accused can be convicted
on that basis alone. This is because from the nature of the
offense, the sole evidence that can usually be offered to
establish the guilt of the accused is the complainants
testimony itself.36 The trial court correctly ruled that if AAA
was not truthful to her accusation, she would not have
opened herself to the rough and tumble of a public
trial. AAA was certainly not enjoying the prying eyes of
those who were listening as she narrated her harrowing
experience.37cralawlawlibrary
AAA positively identified the private respondents as the
ones who violated her. She tried to resist, but because of
the presence of alcohol, her assaulters still prevailed. The
RTC found AAAs testimony simple and candid, indicating
that she was telling the truth. The trial court likewise
observed that her answers to the lengthy and humiliating
questions were simple and straightforward, negating the
possibility of a rehearsed
38
testimony. Thus:chanRoblesvirtualLawlibrary
Atty. Jesus M. Generalao (on direct):
x x x x
Q: Now, you said also when the Court asked you that you
went asleep, when did you regain your consciousness?
A: They woke me up and wanted me to drink the remaining
wine inside the bottle of Emperador Brandy.cralawred A: I placed my hands to their shoulder (sic), sir:

x x x x x x x x

Q: What do you mean that they hide you (sic) to drink the Q: After that, what happened, if any?
remaining contained (sic) of the bottle of Emperador A: I was already asleep, sir, when we went downstairs.
Brandy?
A: They gave me the bottle, sir, and I was trying to refuse Q: You mean to say that you cannot remember anymore?
but they insisted. A: Yes, sir.

Q: Who handed over to you that bottle, if you can Q: Now, when again did you regain your consciousness?
remember? A: When we entered the room and the light was switch
A: It was Christian John Lim, sir. (sic) on, I was awakened by the flash of light.

Q: Did you drink that Emperador directly from the bottle? Q: Do you have any idea, where were you when you were
A: Yes, sir. awakened that (sic) flash of light.
A: Yes, sir.
Q: What happened after that?
A: I fell asleep again, sir. Q: Where?
A: Alquizola Lodging House, sir.cralawred
Q: When did you regain your consciousness?
A: When somebody was carrying me down to the spiral x x x x
stairs.
Q: When you regained your consciousness from the flash
Q: Can you remember the person or persons who was or of light, what happened?
who were carrying you? A: I loss (sic) my consciousness again, sir.
A: Yes, sir.
Q: So, you fell asleep again?
Q: Who? A: Yes, sir.cralawred
A: They were Jansen Roda and Harold Batoctoy.
x x x x
Q: If you can still remember, how did Jansen Roda and
Harold Batoctoy carry you? Q: When did you wake-up (sic) again?
A: When I feel (sic) heavy on top of me, sir. room?
A: Moises Alquizola and Raymund Carampatana, sir.
Q: So you wake-up (sic) again, whom did you see?
A: It was Joefhel Oporto, sir. Q: With respect to Raymund Carampatana, what was he
doing?
Q: He was on top of you? A: He was at my feet while looking at us.
A: Yes, sir. (Witness is crying while answering)
Q: Was it dress (sic) up or undressed?
Q: What was you (sic) reaction when you found that A: Dressed up, sir.
Joefhel Oporto was on top of you?
A: I was starting to cry, sir. Q: What about Moises Alquizola, what was he doing?
A: He was beside us standing and looking at me, sir.
Q: Aside from starting to cry, what else is (sic) your
reaction? Q: Was he dressed up or undressed?
A: I was saying dont because I feel pain my private organ A: I could not remember, sir.cralawred
(sic).
x x x x
Q: What did Joefhel Oporto do, when you (sic) those
words? Q: After that, what happened?
A: He was kissing on the different part (sic) of my body A: I went asleep again, sir.
then he sexually abused me.
Q: Then, when again did you or when again did you wake
ATTY. GENERALAO: We want to make it on record, Your up?
Honor, that the witness is crying.cralawred A: When I feel (sic) pain something inside my private part
(sic), I saw Raymund Carampatana, sir.
x x x x
Q: On top of you?
ATTY. GENERALAO: May I continue, Your Honor. A: No, sir, because he was in between my legs, sir.

COURT: Continue. Q: What was your reaction?

A: I was starting to cry again, sir, and told him dont.
ATTY. GENERALAO: Aside from Joefhel Oporto was
found (sic) on top of you, who else was there inside that Q: At that point, who else was inside that room when you
found Raymund Carampatana? never mentioned about the same at the pre-trial
A: Only the three of them, sir. stage. The trial court only came to know about it when it
was their turn to take the witness stand, catching the court
Q: Including Moises Alquizola? by surprise.41 More importantly, it must be emphasized
A: Yes, sir. that when the accused in a rape case claims that the
sexual intercourse between him and the complainant was
Q: What was he doing? consensual, as in this case, the burden of evidence shifts
A: He was started (sic) to kiss me. to him, such that he is now enjoined to adduce sufficient
evidence to prove the relationship. Being an affirmative
Q: Where in particular? defense that needs convincing proof, it must be
A: In my face, sir. established with sufficient evidence that the intercourse
was indeed consensual.42 Generally, the burden of proof
Q: Then after that, what happened? is upon the prosecution to establish each and every
A: I fell asleep again, sir. element of the crime and that it is the accused who is
responsible for its commission. This is because in criminal
Q: Now, before you went asleep again (sic), what did you cases, conviction must rest on a moral certainty of
feel when you said that you feel (sic) something in your guilt.43 Burden of evidence is that logical necessity which
private part when you saw Raymund Carampatana? rests on a party at any particular time during the trial to
A: He inserted his penis in my private organ, sir. create a prima facie case in his favor or to overthrow one
when created against him. A prima facie case arises
Q: Then after that you fell asleep again? when the party having the burden of proof has produced
A: Yes, sir. evidence sufficient to support a finding and adjudication for
him of the issue in litigation.44 However, when the
Q: When did you wake-up (sic)? accused alleges consensual sexual congress, he needs
A: I woke up at about 7:00 oclock a.m in the next (sic) day, convincing proof such as love notes, mementos, and
sir.39 credible witnesses attesting to the romantic or sexual
ChanRoblesVirtualawlibrary relationship between the offender and his supposed
On the other hand, the RTC was not convinced with the victim. Having admitted to carnal knowledge of the
explanation of the defense. It noted that their account of complainant, the burden now shifts to the accused to
the events was seemingly unusual and prove his defense by substantial
45
evidence. cralawlawlibrary
incredible.40 Besides, the defense of consensual
copulation was belatedly invoked and seemed to have
been a last ditch effort to avoid culpability. The accused Here, the accused themselves admitted to having carnal
knowledge of AAA but unfortunately failed to discharge the
burden required of them. Carampatana narrated that
upon reaching the room at the lodging house, AAA lay
down on the bed and looked at him. He then approached
her and they kissed. He removed her shirt and
brassiere. Thereafter, Oporto also removed AAAs lower
garments and then went to kiss AAA. Carampatana then
placed himself in between AAAs legs and had intercourse
with her.46 On the other hand, Oporto himself testified that
he had sexual intercourse with AAA three times. While
Carampatana was removing AAAs shirt and brassiere,
Oporto was watching at the foot of the bed. Then he
removed her pants and underwear, and AAA even lifted
her buttocks to make it easier for him to pull the clothes
down. When Carampatana left after having sexual
intercourse with AAA, according to Oporto, he then stood
up, opened his pants, and took out his penis so that AAA
could perform fellatio on him. Then he proceeded to have
sexual intercourse with AAA. Afterwards, Oporto went
outside and slept with Alquizola on the carpet. After a few
minutes, he woke up and went back to the room and again
had intercourse with AAA. He went back to sleep and after
some time, he woke up to the sound of AAA
vomitting. Shortly thereafter, he made love with AAA for
the third and last time.47 Despite said shameless
admission, however, the accused failed to sufficiently
prove that the lack of any physical resistance on AAAs
part amounts to approval or permission. They failed to
show that AAA had sexual intercourse with them out of her
own volition, and not simply because she was seriously
intoxicated at that time, and therefore could not have given
a valid and intelligent consent to the sexual act.
The RTC also noticed that Fiel, one of the defense
witnesses, was showy and exaggerated when testifying,
even flashing a thumbs-up to some of the accused after
her testimony, an indication of a rehearsed witness.48 To
be believed, the testimony must not only proceed from the
mouth of a credible witness; it must be credible in itself
such as the common experience and observation of
mankind can approve as probable under the attending
circumstances.49cralawlawlibrary
When it comes to credibility, the trial court's assessment
deserves great weight, and is even conclusive and
binding, if not tainted with arbitrariness or oversight of
some fact or circumstance of weight and influence. The
reason is obvious. Having the full opportunity to observe
directly the witnesses deportment and manner of
testifying, the trial court is in a better position than the
appellate court to properly evaluate testimonial
evidence.50 Matters of credibility are addressed basically
to the trial judge who is in a better position than the
appellate court to appreciate the weight and evidentiary
value of the testimonies of witnesses who have personally
appeared before him.51 The appellate courts are far
detached from the details and drama during trial and have
to rely solely on the records of the case in its review. On
the matter of credence and credibility of witnesses,
therefore, the Court acknowledges said limitations and
recognizes the advantage of the trial court whose findings
must be given due deference.52 Since the CA and the
private respondents failed to show any palpable error,
arbitrariness, or capriciousness on the findings of fact of
the trial court, these findings deserve great weight and are
deemed conclusive and binding.53cralawlawlibrary

The CA continued, belaboring on the fact that the
examining physician found old hymenal laceration on
AAAs private organ. The lack of a fresh hymenal
laceration, which is expected to be present when the
alleged sexual encounter is involuntary, could mean that
AAA actually consented to the fornication. According to
Dr. Acusta, when sex is consensual, the vagina becomes
lubricated and the insertion of the penis will not cause any
laceration. It presumed that complainant, therefore, was
no longer innocent considering the presence of old
hymenal laceration that could have resulted from her
previous sexual encounters. The defense, however, failed
to show that AAA was sexually promiscuous and known
for organizing or even joining sex orgies. It must be noted
that AAA was a minor, barely 17 years old at the time of
the incident, having just graduated from high school on
that same day. In a similar case,54 the Court
held:chanRoblesvirtualLawlibrary
x x x Indeed, no woman would have consented to have
sexual intercourse with two men or three, according
to Antonio Gallardo in the presence of each other,
unless she were a prostitute or as morally debased as
one. Certainly, the record before Us contains no indication
that Farmacita, a 14-year old, first-year high school
student, can be so characterized. On the contrary, her
testimony in court evinced the simplicity and candor
peculiar to her youth. In fact, appellants could not even
suggest any reason why Farmacita would falsely impute to
them the commission of the crime charged.55
ChanRoblesVirtualawlibrary
No woman, especially one of tender age, would concoct a
story of defloration, allow an examination of her private
parts, and be subjected to public trial and humiliation if her
claim were not true.56 And even if she were indeed highly
promiscuous at such a young age, the same could still not
prove that no rape was actually committed. Even a
complainant who was a woman of loose morals could still
be the victim of rape. Even a prostitute may be a victim of
rape. The victims moral character in rape is immaterial
where, as in this case, it is shown that the victim was
deprived of reason or was rendered unconscious through
intoxication to enable the private respondents to have sex
with her. Moreover, the essence of rape is the carnal
knowledge of a woman against her consent.57 A freshly
broken hymen is not one of its essential elements. Even
if the hymen of the victim was still intact, the possibility of
rape cannot be ruled out. Penetration of the penis by entry
into the lips of the vagina, even without rupture or
laceration of the hymen, is enough to justify a conviction
for rape. To repeat, rupture of the hymen or laceration of
any part of the womans genitalia is not indispensable to a
conviction for rape.58cralawlawlibrary
Neither does AAAs mothers act of hitting her after
learning about the rape prove anything. It is a truism that
the workings of the human mind when placed under
emotional stress are unpredictable, and the people react
differently.59 Different people react differently to a given
type of situation, and there is no standard form of
behavioral response when one is confronted with a
strange, startling or frightful experience.60 At most, it
merely indicates the frustration and dismay of a mother
upon learning that her daughter had been defiled after
partying late the night before. It is a settled rule that when
there is no showing that private complainant was impelled
by improper motive in making the accusation against the
accused, her complaint is entitled to full faith and
credence.61 So if AAA in fact consented to the sexual act,
why did she still need to immediately tell her parents about
it when she could have just kept it to herself? Why did she
ever have to shout rape? She was not caught in the act of
making love with any of the private respondents,62 nor was
she shown to have been in a relationship with any of them
of which her family disapproved.63 She never became
pregnant as a result of the deed. And if AAA cried rape to
save her reputation, why would she have to drag the
private respondents into the case and identify them as her
rapists? Absent any circumstance indicating the contrary,
she brought the charge against the private respondents
simply because she was, in fact, violated and she wants
to obtain justice. Her zeal in prosecuting the case, even
after the CA had already acquitted the private
respondents, evinces the truth that she merely seeks
justice for her honor that has been
debased.64 Unfortunately, the CA chose to ignore these
telling pieces of evidence. Its findings are against the logic
and effect of the facts as presented by AAA in support of
her complaint,65 contrary to common human experience,
and in utter disregard of the relevant laws and
jurisprudence on the crime of rape.
Lastly, the trial court pronounced that Alquizola was not
part of the conspiracy because his participation in the
crime was uncertain,66 citing People v. Lobrigo.67 It found
that his participation was not in furtherance of the plan, if
any, to commit the crime of rape.68 The Court, however,
finds that the RTC erred in ruling that Alquizolas liability is
not of a conspirator, but that of a mere accomplice. To
establish conspiracy, it is not essential that there be proof
as to previous agreement to commit a crime, it being
sufficient that the malefactors shall have acted in concert
pursuant to the same objective. Conspiracy is proved if
there is convincing evidence to sustain a finding that the
malefactors committed an offense in furtherance of a
common objective pursued in concert.69 Proof of
conspiracy need not even rest on direct evidence, as the
same may be inferred from the collective conduct of the
parties before, during or after the commission of the crime
indicating a common understanding among them with
respect to the commission of the
offense.70cralawlawlibrary
In Lobrigo, the Court
declared:chanRoblesvirtualLawlibrary
We note that the testimonies of witnesses with respect to
Gregorio's and Dominador's participation in the crime
conflict on material points.
Doubt exists as to whether Gregorio and Dominador
were carrying weapons during the mauling and whether
they participated in the mauling by more than just boxing
the victim. Noel stated that they did not, Domingo
stated that they did.
In conspiracy, evidence as to who administered the fatal
blow is not necessary. In this case, the rule is not
applicable because conspiracy with respect to Gregorio
and Dominador is not proven. Their exact participation in
the crime is uncertain.71 (Emphasis Supplied)
 AAA. He did not do anything to stop the bestial acts of his
In People v. Dela Torre,72
the Court upheld the findings of companions. He even admitted to kissing AAAs lips,
the lower courts that there was breasts, and other parts of her body. Indubitably, there
conspiracy:chanRoblesvirtualLawlibrary was conspiracy among Carampatana, Oporto, and
Alquizola to sexually abuse AAA. Hence, the act of any
The RTC held that: one was the act of all, and each of them, Alquizola
including, is equally guilty of the crime of rape. While it is
While [it] is true that it was only Leo Amoroso who actually true that the RTC found Alquizola guilty as mere
ravished the victim based on the testimony of the private accomplice, when he appealed from the decision of the
complainant that Amoroso succeeded in inserting his trial court,74 he waived the constitutional safeguard
penis to her private parts and that Reynaldo dela Torre and against double jeopardy and threw the whole case open to
Ritchie Bisaya merely kissed her and fondled her the review of the appellate court, which is then called upon
private parts, accused [D]ela Torre can likewise be held to render such judgment as law and justice dictate,
liable for the bestial acts of Amoroso as it is quite apparent whether favorable or unfavorable to the accused-
that the three of them conspired and mutually helped one appellant.75cralawlawlibrary
another in raping the young victim.
Finally, the Court notes that although the prosecution filed
The Court of Appeals held that: only a single Information, it, however, actually charged the
accused of several rapes. As a general rule, a complaint
[W]hile [Dela Torre] did not have carnal knowledge with or information must charge only one offense, otherwise,
[AAA], his tacit and spontaneous participation and the same is defective.76 The rationale behind this rule
cooperation of pulling her towards the parked prohibiting duplicitous complaints or informations is to give
jeep, molesting her and doing nothing to prevent the the accused the necessary knowledge of the charge
commission of the rape, made him a co-conspirator. against him and enable him to sufficiently prepare for his
As such, he was properly adjudged as a principal in the defense. The State should not heap upon the accused
commission of the crime.73 two or more charges which might confuse him in his
ChanRoblesVirtualawlibrary defense.77 Non-compliance with this rule is a ground78 for
Here, unlike in the foregoing case of Lobrigo, Alquizolas quashing the duplicitous complaint or information under
participation in the crime is not at all uncertain. As the Rule 117 of the Rules on Criminal Procedure and the
caretaker of the Alquizola Lodging House, he provided a accused may raise the same in a motion to quash before
room so the rape could be accomplished with ease and he enters his plea,79 otherwise, the defect is deemed
furtiveness. He was likewise inside the room, intently waived.80 The accused herein, however, cannot avail of
watching, while Oporto and Carampatana sexually abused this defense simply because they did not file a motion to
quash questioning the validity of the Information during
their arraignment. Thus, they are deemed to have waived
their right to question the same. Also, where the
allegations of the acts imputed to the accused are merely
different counts specifying the acts of perpetration of the
same crime, as in the instant case, there is no duplicity to
speak of.81 There is likewise no violation of the right of the
accused to be informed of the charges against them
because the Information, in fact, stated that they took
turns in having carnal knowledge against the will of AAA
on March 25, 2004.82 Further, allegations made and the
evidence presented to support the same reveal that AAA
was indeed raped and defiled several times. Here,
according to the accused themselves, after undressing
AAA, Carampatana positioned himself in between her legs
and had intercourse with her. On the other hand, Oporto
admitted that he had sexual intercourse with AAA three
times. When two or more offenses are charged in a single
complaint or information but the accused fails to object to
it before trial, the court may convict him of as many
offenses as are charged and proved, and impose upon
him the proper penalty for each offense.83 Carampatana,
Oporto, and Alquizola can then be held liable for more than
one crime of rape, or a total of four (4) counts in all, with
conspiracy extant among the three of them during the
commission of each of the four violations. Each of the
accused shall thus be held liable for every act of rape
committed by the other. But while Oporto himself testified
that he inserted his sexual organ into AAAs mouth, the
Court cannot convict him of rape through sexual assault
therefor because the same was not included in the
Information. This is, however, without prejudice to the
filing of a case of rape through sexual assault as long as
prescription has not yet set in.
Anent the appropriate penalty to be imposed, rape
committed by two or more persons is punishable
by reclusion perpetua to death under Article 266-B of the
RPC. But in view of the presence of the mitigating
circumstance of voluntary surrender and the absence of
an aggravating circumstance to offset the same, the lighter
penalty of reclusion perpetua shall be imposed upon
them,84 for each count. With regard to Oporto,
appreciating in his favor the privileged mitigating
circumstance of minority, the proper imposable penalty
upon him is reclusion temporal, being the penalty next
lower to reclusion perpetua to death. Being a divisible
penalty, the Indeterminate Sentence Law is
applicable. Applying the Indeterminate Sentence Law,
Oporto can be sentenced to an indeterminate penalty the
minimum of which shall be within the range of prision
mayor (the penalty next lower in degree to reclusion
temporal) and the maximum of which shall be within the
range of reclusion temporal in its minimum period, there
being the ordinary mitigating circumstance of voluntary
surrender, and there being no aggravating
circumstance. 85 With that, the Court shall impose the
indeterminate penalty of imprisonment from six (6) years
and one (1) day of prision mayor as minimum to twelve
(12) years and one (1) day of reclusion temporal as
maximum, for each count of rape committed.86 However,
Oporto shall be entitled to appropriate disposition under
Section 51, R.A. No. 9344,87 which extends even to one
who has exceeded the age limit of twenty-one (21) years,
so long as he committed the crime when he was still a
child,88 and provides for the confinement of convicted
children as follows:89cralawlawlibrary
Sec. 51. Confinement of Convicted Children in
Agricultural Camps and Other Training Facilities. A
child in conflict with the law may, after conviction and upon
order of the court, be made to serve his/her sentence, in
lieu of confinement in a regular penal institution, in an
agricultural camp and other training facilities that may be
established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.
Hence, in the proper execution of judgment by the lower
court, the foregoing provision should be taken into
consideration by the judge in order to accord children in
conflict with the law, who have already gone beyond
twenty-one (21) years of age, the proper treatment
envisioned by law.
a) Finding accused-respondent Raymund
Carampatana GUILTY beyond reasonable doubt of
four (4) counts of rape, and the Court hereby
sentences him to suffer the penalty of reclusion
perpetua in each case;
b) Finding accused-respondent Joefhel
Oporto GUILTY beyond reasonable doubt of four (4)
counts of rape, and the Court hereby sentences him
to suffer the indeterminate penalty of imprisonment
from six (6) years and one (1) day of prision
mayor as minimum to twelve (12) years and one (1)
day of reclusion temporal as maximum, in each
case; and
c) Finding accused-respondent Moises Alquizola
GUILTY beyond reasonable doubt of four (4) counts
of rape, and the Court hereby sentences him to
suffer the penalty of reclusion perpetua in each case.

As to their civil liability, all of them shall pay AAA the The Court hereby ORDERS the accused-respondents to
amount of P50,000.00 as civil indemnity and another pay AAA, jointly and severally, the amounts of P50,000.00
P50,000.00 as moral damages, in each case. Exemplary as civil indemnity, P50,000.00 as moral damages, and
damages of P30,000.00 shall likewise be imposed by way P30,000.00 as exemplary damages, for each of the four
of an example and to deter others from committing the (4) counts of rape. The case is REMANDED to the court
same bestial acts. of origin for its appropriate action in accordance with
Section 51 of Republic Act No. 9344.
WHEREFORE, PREMISES CONSIDERED, the petition
is GRANTED. The assailed Decision dated June 6, 2008 Let the records of this case be forwarded to the court of
of the Court of Appeals in CA-G.R. CR HC No. 00422-MIN origin for the execution of judgment.
is REVERSED AND SET ASIDE. The Court hereby
renders judgment: SO ORDERED.chanrobl

SECOND DIVISION
G.R. No. 200983, March 18, 2015
REPUBLIC OF THE PHILIPPINES, Petitioner, v. HUANG
TE FU, A.K.A. ROBERT UY, Respondent.
DECISION
DEL CASTILLO, J.:
This case reiterates the rule in naturalization cases that
when full and complete compliance with the requirements
of the Revised Naturalization Law, or Commonwealth Act
No. 473 (CA 473), is not shown, a petition for naturalization
must be perfunctorily denied.
This Petition for Review on Certiorari1 seeks to set aside
1) the November 29, 2011 Decision2 of the Court of
Appeals (CA) in CA-G.R. CV No. 91213 affirming the
September 24, 2007 Order3 of the Regional Trial Court of
Quezon City, Branch 96 in Nat. Case/Spec. Proc. No. Q-
05-55251, as well as 2) the CAs March 7, 2012
Resolution4 denying petitioners Motion for
Reconsideration.5cralawred
Factual Antecedents
On March 19, 2004, respondent Huang Te Fu, a.k.a.
Robert Uy a citizen of the Republic of China (Taiwan)
filed a sworn Declaration of Intent to Become [a] Citizen
of the Philippines6 with the Office of the Solicitor General
(OSG).
On April 27, 2005, respondent filed with the Regional Trial
Court of Quezon City (trial court) a Petition for
Naturalization,7 which was docketed as Spec. Proc. No.
Q-05-55251 and assigned to Branch 96. The Petition
states:
I apply for naturalization as citizen of the Philippines and
to the Court, respectfully shows
[sic]:chanRoblesvirtualLawlibrary
First: My full name is HUANG TE FU, also known as
ROBERT UY;ChanRoblesVirtualawlibrary
Second:My places of residence were:
1982 1 Santiago Street, Malinta, Valenzuela
City
1982 toBiak na Bato, San Francisco Del Monte,
1984 Quezon City
1984 to235 C 3rd Street, 10th Avenue, Caloocan
1994 City
1994 to64-A Parklane Street, Barangay
presentSangandaan, Project 8, Quezon City;
Third: My trade or profession is a Businessman engaged
in the manufacture of zipper, in which I have been
connected since 1992; and from which I derive an average
monthly income of
P15,000.00;ChanRoblesVirtualawlibrary
Fourth: I was born on the 15th day of August 1976 in
Taiwan. I am at present a Citizen or subject of the
Republic of China, under whose laws Filipinos may
become naturalized citizens or subjects thereof
[sic];ChanRoblesVirtualawlibrary
Fifth: I am married to a Filipino, IRENE D. CHAN, 28 years
of age, having been born on 11 April 1977 at Manila, and
with whom I have two (2) children, namely: ROCHELLE
IVY C. HUANG, 3 years of age, who was born on 26 March
2002 at [sic] Quezon City; and REYNARD IVAN C.
HUANG, 1 year of age, who was born on 25 February
2004 at [sic] Quezon City. My wife and two children are
presently residing with me at 64-A Parklane Street,
Barangay Sangandaan, Project 8, Quezon
City;ChanRoblesVirtualawlibrary
Sixth: I arrived in the Philippines via China Airlines on the
13th of August 1982;ChanRoblesVirtualawlibrary
Seventh: I have filed my Declaration of Intent to Become a
Citizen of the Philippines with the Office of the Solicitor
General on 4 March 2004, pursuant to and in compliance
with Section 5 of Commonwealth Act No. 473, as
amended;8cralawred
Eighth: I have resided continuously, for the last twenty
three (23) years, in the Philippines since my arrival. I have
received my primary education at Philippine Cultural High
School; secondary education at Philippine Cultural High
School; and finished my college education at Ateneo de
Manila University with the degree of Bachelor of Science
in Computer Science, respectively, which are schools
recognized by the Government and not limited to any race
or nationality;ChanRoblesVirtualawlibrary
Ninth: I am able to speak and write English and
Filipino;ChanRoblesVirtualawlibrary
Tenth: I believe in the principle underlying the Philippine
Constitution. I am of good moral character and have
conducted myself in a proper and irreproachable manner
during the entire period of my residence in the Philippines,
in my relations with the constituted Government as well as
with the community in which I am living. I have mingled
socially with the Filipinos, and have evinced a sincere
desire to learn and embrace the customs, traditions, and
ideals of the Filipinos. I have all the qualifications required
under Section 2, a special qualification under Section 3, by
being married to a Filipino woman, and none of the
disqualifications under Section 4 of Commonwealth Act
No. 473;ChanRoblesVirtualawlibrary
I am not opposed to organized government or affiliated
with any association or group of persons who uphold and
teach doctrines opposing all organized governments. I am
not defending or teaching the necessity or propriety of
violence, personal assault, or assassination for the
success and predominance of mens ideas. I am not a
polygamist nor a believer in the practice of polygamy. I
have not been convicted of any crime involving moral
turpitude. I am not suffering from any mental alienation or
incurable diseases. The nation of which I am a citizen or
subject of is not at war with the Philippines. The country
of which I am a citizen or subject of grants Filipinos the
right to become naturalized citizens or subjects
thereof;ChanRoblesVirtualawlibrary
Eleventh: It is my intention in good faith to become a
citizen or subject of the Philippines and to renounce
absolutely and forever all allegiance and fidelity to my
foreign prince, potentate, state, or sovereignty, and
particularly to the Republic of China of which at this time I
am a citizen or subject. I will reside continuously in the
Philippines from the date of the filing of my petition up to
the time of my admission to the Philippine
Citizenship;ChanRoblesVirtualawlibrary
Twelfth: I have not heretofore made any petition for
citizenship to any Court;ChanRoblesVirtualawlibrary
Thirteenth: Mr. BENJAMIN A. MORALEDA, JR., of legal
age, married, residing at 82-A Maginoo Street, Barangay
Central, Quezon City, and Ms. BELLA RAMONA A.
ANTONANO, of legal age, single, residing at 1 Ligaya
Street, Mandaluyong City, who are both Filipinos, will
appear and testify as my witnesses at the hearing of my
herein petition.
Attached hereto and made an integral part of this petition
are: (a) the Original Certification of Arrival from the Bureau
of Immigration (Annex A); (b) Declaration of Intent to
Become a Citizen of the Philippines (Annex B); (c)
Affidavit of the two witnesses (Annexes C and D); and
(d) my two recent photographs (Annexes E and E-1).
WHEREFORE, petitioner prays that he be admitted a
citizen of the Philippines.9cralawlawlibrary
After trial, the trial court issued a September 24, 2007
Order10 granting respondents petition for naturalization,
decreeing thus:chanRoblesvirtualLawlibrary
Petitioner11 thereafter testified that he was born on August
15, 1976 in Taiwan; that his father, Huang Ping-Hsung,
and mother, Huang Wen, Chiu-Yueh are both Chinese
nationals; that he is the holder of Alien Certificate of
Registration No. E062035 and Immigrant Certificate of
Residence No. 259804; that he resided at Lin 4, Chienkuo
Li, Panchiao City, Taipei County, Taiwan Province since
his birth until he came to Manila, Philippines on August 13,
1982; that he first stayed at Santiago Street, Valenzuela
City; that they transferred to Biak-na-Bato Street, San
Francisco Del Monte and they later transferred to 23-C,
3rd Street, 10th Avenue, Caloocan City; that petitioner
presently resides at No. 64-A Parklane Street, Barangay
Sangandaan, Project 8, Quezon City; that he attended
Philippine Cultural High School for his elementary and
secondary education; that he attended Ateneo de Manila
University where he took up Bachelor of Science in
Computer Science.
When petitioner graduated from College in the year 2000,
he worked as General Manager of MIT Zipper, a company
owned by the family of the petitioner; that as a
businessman he conscientiously files Income Tax
Returns; that he is presently married to Irene Chan, a
Filipino citizen on October 01, 2000; that he has two
children namely, Rochelle Ivy C. Huang, 3 years old, and
Reynard Ivan C. Huang, 1 year old and that he and his
family are presently residing at 64-A Parklane Street,
Barangay Sangandaan, Project 8, Quezon City.
Petitioner further alleged that he believes in the principles
underlying the Philippine Constitution. He had conducted
himself in a proper, irreproachable manner during his
entire period of residence in the Philippines in his relations
with the constituted government as well as with the
community in which he is living. These allegations are
evinced by the clearances petitioner was able to secure
from the Philippine National Police, National Bureau of
Investigation, Office of the Clerk of Court Regional Trial
Court, Quezon City, and the Office of the City
Prosecutor. He has mingled socially with the Filipinos,
and have [sic] evinced a sincere desire to learn and
embrace the customs, traditions, and ideals of the
Filipinos.
Petitioner further alleged that he is not a polygamist nor a
believer in the practice of polygamy. He has not been
convicted of any crime involving moral turpitude. He is not
suffering from any mental alienation or any incurable or
contagious disease. The nation of which he is presently a
citizen or subject of, is not at war with the Philippines. He
is not opposed to organized government or affiliated with
any association or group of persons who uphold and teach
doctrines opposing all organized governments. He has all
the qualifications required and none of the disqualifications
under Commonwealth Act No. 473, as amended.
Moreover, petitioners intention to become a citizen of the
Philippines is being done in good faith, and to renounce
absolutely and forever all allegiance and fidelity to any
foreign state, prince, potentate or sovereignty and
particularly to the Chinese Government of which at this
time he is a citizen and subject, and that petitioner shall
reside continuously in the Philippines from the date of filing
of this petition up to the time of [his] admission to the
Philippine Citizenship.
Based on the foregoing, the Court believes that the
petitioner was able to establish by sufficient evidence, both
testimonial and documentary, that he has all the
qualifications and none of the disqualifications provided for
under the law which will warrant the granting of the relief
being prayed for.
ACCORDINGLY, therefore, the petition for admission as
citizen of the Philippines is hereby GRANTED.
This decision shall become executory after two (2) years
from its promulgation and after the Court, after hearing,
with the attendance of the Solicitor General or his
representative, is satisfied, and so finds that during the
intervening time the applicant has (1) not left the
Philippines, (2) dedicated himself continuously to a lawful
calling or profession, (3) not been convicted of any offense
or violation of government[-]promulgated rules, or (4)
committed any act of [sic] prejudicial to the interest of the
nation or contrary to any government renounced [sic]
policies.
SO ORDERED.12cralawlawlibrary
Ruling of the Court of Appeals
Petitioner filed an appeal with the CA, which was docketed
as CA-G.R. CV No. 91213. Petitioner contended in its
Appellants Brief13 that respondent may not become a
naturalized Filipino citizen because: 1) he does not own
real estate in the Philippines; 2) he does not have some
known lucrative trade, profession or lawful occupation; 3)
he is not gainfully employed, as he merely worked in the
business owned by his family and was merely given
allowances by his parents for the daily expenses of his
family; 4) in an August 2001 Deed of Sale14 covering a
parcel of land in Antipolo City he and his wife supposedly
purchased, respondent falsely misrepresented himself as
a Filipino citizen, thus exemplifying his lack of good moral
character; 5) his income tax returns for the years 2002,
2003 and 2004 reveal that his actual monthly income
differs from his monthly income as declared in his petition
for naturalization, leading to the conclusion that either he
is evading taxes or concealing the truth regarding his
income; and 6) on cross-examination by petitioner, he
could not cite any of the principles underlying the
Philippine Constitution which he is supposed to believe in.
In a short Comment/Opposition15 to petitioners brief,
respondent admitted that while he was merely made to
sign the Deed of Sale which falsely represented him as a
Filipino citizen, he had nothing to do with the preparation
thereof and was unaware that his citizenship was even
indicated therein he just signed the document as
requested by the broker so that the property will be
registered in the name of his wife; that the discrepancy
between his income declarations in his tax returns and the
declared income in his petition for naturalization came to
light and resulted from the fact that he does not personally
file his income tax returns and that he merely received
salaries in the range of P15,000.00 per month considering
that he is employed in a family corporation; that most of
his expenses are taken care of by his parents who own the
corporation, and this has been explained during his
cross-examination; that while petitioner claimed that he
could not cite any underlying principles of the Constitution,
he was not confronted by the former about these principles
during the proceedings; and that petitioners opposition is
based merely on conjecture and particular portions of the
evidence which do not represent the whole context of the
proceedings.
On November 29, 2011, the CA issued the assailed
Decision, pronouncing thus:chanRoblesvirtualLawlibrary
First off, an examination of the evidence presented during
the proceedings below shows that the petitioner-
appellee16 has been engaged in some lucrative trade or
lawful occupation. He works as general manager in their
family-owned business, Crown Shipper Manufacturer and
Trading Corporation, a zipper manufacturing company
employing workers mostly coming from the province.
Prior to his appointment as general manager, petitioner-
appellee has also been working in the familys business
before his parents turned over the management of its
affairs. This is evidenced by the increase in the declared
gross income of the petitioner-appellee in his Income Tax
Returns filed for the years 2002, 2003, 2004 and
2005. The extent of the operations of the petitioner-
appellees family business and his involvement in the
management thereof are corroborated by the testimonies
of Atty. Benjamin Moraleda and Atty. Bella Ramona
Antonano, both friends of the Huang family and the
petitioner-appellee since 1987 and 1994,
respectively. Both witnesses also testified that the
petitioner-appellee possessed all the qualifications and
none of the disqualifications to become a naturalized
citizen of the Philippines.
Secondly, the Solicitor General also averred that the
petitioner-appellee failed to conduct himself in a proper
and irreproachable manner during his entire stay or
residence in the Philippines. It noted that the petitioner-
appellee stated in his petition that he earns an average of
P15,000.00 per month but his declared gross income for
2002 and 2003 indicated that he earned P120,000.00
annually while in 2004, his annual gross income was
P210,000.00. The Solicitor General contended that
because of the petitioner-appellees failure to divulge his
true income, his moral character has been tainted.
We hold otherwise.
Absent a clear and unmistakable showing that the
petitioner-appellee knowingly and deliberately filed a
fraudulent return with intent to evade tax or that he has
concealed the truth in his income tax returns, the
presumption that the latter has regularly filed his return
prevails. The petitioner-appellee has, in fact, explained
before the trial court that his salary is not exactly fixed;
sometimes he earns more or sometimes less than his
estimated or average monthly earnings which could well
be between P15,000.00 to P18,000.00. He even testified
that he is not included in the payroll since his parents own
the company and his salaries are handed to him by his
parents.
In the case of Republic of the Philippines v. Court of
Appeals and Loh Khuan Fatt, the Supreme Court did not
agree with the argument of the Solicitor General that there
had been a willful failure on the part of the applicant to
disclose the petitioners true income, thereby tainting his
moral character. The discrepancy between the
petitioners estimate of his income in his application and
that declared by him during his direct testimony should not
be taken against him as an indication of intent to evade
payment of taxes. x x x
x x x x
Lastly, the Solicitor General argued that petitioner-
appellee is disqualified from becoming a citizen of the
Philippines because he could not even cite any of the
principles underlying the Constitution during cross-
examination x x x.chanrobleslaw
x x x x
We agree with the observation of the petitioner-appellee
that the oppositors representative during the cross-
examination was actually asking the petitioner-appellee to
recite what these underlying principles of the Constitution
are in a manner which a law professor would normally ask
his Political Law students. Not being able to enumerate
the principles in verbatim does not necessarily mean that
one does not believe in the Constitution. What is
important is that the petitioner-appellee declared under
oath that he believes in the principles underlying the
Constitution, and that he had no derogatory or criminal
record which would be a clear violation of the law of the
land. Apparently, during cross-examination the oppositor-
appellant did not confront the petitioner-appellee of the
principles which it thought the latter does not believe in.
WHEREFORE, the appeal is DENIED and the Decision
dated September 24, 2007 of the Regional Trial Court of
Quezon City, Branch 96 in Naturalization Case No. Q-05- engaged in a lucrative trade; that respondents declared
55251 is AFFIRMED. monthly income is not even sufficient for his family, much
less could it be considered lucrative; that respondents
SO ORDERED.17cralawlawlibrary admission that he received allowances from his parents
to answer for the daily expenses of his family further
Petitioner moved for reconsideration, but in its March 7, proves the point that he does not have a lucrative trade;
2012 Resolution, the appellate court stood its that the monthly income declared in respondents petition
ground.chanroblesvirtuallawlibrary for naturalization could not be reconciled with the incomes
stated in his annual tax returns; that the inconsistencies in
Issue respondents testimonial and documentary evidence point
to the fact the he could either be evading taxes or
Thus, the instant Petition was filed, raising the following concealing the truth regarding his income, and indicates
issue:chanRoblesvirtualLawlibrary that he does not possess the requisite good moral
character; that respondents act of falsely declaring
WHETHER X X X RESPONDENT X X X HAS DULY himself a Filipino citizen in the August 2001 deed of sale
COMPLIED WITH THE RIGID REQUISITES proves lack of good moral character and defiance of the
PRESCRIBED BY COMMONWEALTH ACT NO. 473, constitutional prohibition regarding foreign ownership of
OTHERWISE KNOWN AS THE REVISED land; and that respondent has exhibited lack of knowledge
NATURALIZATION LAW, AS TO ENTITLE HIM TO BE of the underlying principles of the Philippine Constitution.
ADMITTED AS A CITIZEN OF THE
18
PHILIPPINES. cralawred Respondents Arguments
cralawlawlibrary
In his Comment,20 respondent reiterates that the
inconsistencies in his income tax returns and declarations
Petitioners Arguments
during the naturalization proceedings are explained by the
fact that he does not personally file his income tax returns;
In its Petition and Reply19 seeking the reversal of the
that his monthly salary is not fixed; that most of his
assailed CA dispositions as well as the denial of
expenses are taken cared of by his parents who own the
respondents petition for naturalization, petitioner argues
zipper manufacturing business which employs him; that
that respondent failed to prove that he is engaged in a
the Antipolo property was not titled in his name, but in the
lucrative trade, profession or lawful occupation; that
name of his wife, and the title thereto merely describes and
respondents admission during trial that he is not even in
indicates that the owner his wife is married to him; that
the payroll of his employer belies his claim that he is the
he was merely made to sign the deed of sale, and he had
general manager thereof, as well as his claim that he is
no hand in its preparation nor was he aware that his
citizenship was indicated therein; and that as he was not a
law student, he could not at the trial be expected to
recite verbatim and specifically the underlying legal
principles of the Constitution, which is what petitioner
expected him to do at the time.chanroblesvirtuallawlibrary
Our Ruling
The Court finds for petitioner.
In Republic v. Hong,21 it was held in essence that an
applicant for naturalization must show full and complete
compliance with the requirements of the naturalization
law; otherwise, his petition for naturalization will be
denied. This ponente has likewise held that [t]he courts
must always be mindful that naturalization proceedings
are imbued with the highest public interest. Naturalization
laws should be rigidly enforced and strictly construed in
favor of the government and against the applicant. The
burden of proof rests upon the applicant to show full and
complete compliance with the requirements of
law.22cralawred
Section 2 of the Revised Naturalization Law or CA 473
requires, among others, that an applicant for naturalization
must be of good moral character and must have some
known lucrative trade, profession, or lawful occupation. In
regard to the requirement that the applicant must have a
known lucrative trade,
this ponente declared:chanRoblesvirtualLawlibrary
Based on jurisprudence, the qualification of some known
lucrative trade, profession, or lawful occupation
means not only that the person having the
employment gets enough for his ordinary necessities
in life. It must be shown that the employment gives
one an income such that there is an appreciable
margin of his income over his expenses as to be able
to provide for an adequate support in the event of
unemployment, sickness, or disability to work and
thus avoid ones becoming the object of charity or a
public charge. His income should permit him and
the members of his family to live with reasonable
comfort, in accordance with the prevailing standard of
living, and consistently with the demands of human
dignity, at this stage of our civilization.
Moreover, it has been held that in determining the
existence of a lucrative income, the courts should consider
only the applicants income; his or her spouses income
should not be included in the assessment. The spouses
additional income is immaterial for under the law the
petitioner should be the one to possess some known
lucrative trade, profession or lawful occupation to qualify
him to become a Filipino citizen. Lastly, the Court has
consistently held that the applicants qualifications must be
determined as of the time of the filing of his
petition.23 (Emphasis supplied)cralawlawlibrary
From the above, it may be concluded that there is no basis
for the CA finding that respondent is engaged in a lucrative
trade. Indeed, his supposed income of P15,000.00 to
P18,000.00 per month as found by the CA is not enough
for the support of his family. By his own admission, most
of his familys daily expenses are still shouldered by his
parents who own the zipper manufacturing business which
employs him. This simply means that respondent
continues to be a burden to, and a charge upon, his
parents; he lives on the charity of his parents. He cannot
support his own family on his own.
Indeed, it is even doubtful that respondent is carrying on a
trade at all. He admitted during trial that he was not even
listed or included in the payroll of his familys zipper
business. If this is the case, then he may not be
considered an employee thereof. One of the most
effective pieces of evidence to prove employment aside
from the employment contract itself and other documents
such as daily time records24 is a workers inclusion in the
payroll. With this admitted fact, one may not be faulted for
believing that respondents alleged employment in his
familys zipper business was contrived for the sole
purpose of complying with the legal requirements prior to
obtaining Philippine citizenship.
On the other hand, even assuming that respondent was
indeed employed by his parents, his non-inclusion in the
payroll for all the years he has worked in his parents
business25 suggests as correctly argued by petitioner
an intent to evade taxes or to conceal the true nature of
his employment and the amount of his salary or income. It
is concealment of the truth; an attempt to circumvent with
impunity the tax laws, labor laws relative to the
employment of aliens, and other laws that would otherwise
regulate respondents actions during his stay in this
country. Indeed, without payroll records, it can never be
said that respondent works for his parents zipper
business. If such is the case, then respondent is not
required to state in his income tax return as is the case
his employer and what he actually receives as salary
therefrom; he is free to conveniently declare any amount
of income in his tax returns.
Either way, respondents deliberate non-inclusion in the
payroll of his parents business can have only the most
unpleasant connotations. And his consent to be part of
such scheme reflects negatively on his moral character. It
shows a proclivity for untruthfulness and dishonesty, and
an unreserved willingness and readiness to violate
Philippine laws.
The appellate courts reliance upon the case of Republic
v. Court of Appeals26 is misplaced. In that case, there was
only a discrepancy between the applicants estimate of his
income in his application and that declared by him during
his direct testimony. In the present case, respondent is
not at all listed on the payroll of his parents business,
where he is supposed to be its general manager. As a
result, there is absolutely no basis for the correct
determination of his income; instead, he invites Us to
conveniently rely on his income tax returns and his
unilateral declarations. As We have earlier said, if We are
to believe them, then still, they are insufficient to generate
a conclusion that respondent is carrying on a lucrative
trade; he cannot support his family from his declared
income.
Moreover, respondents admitted false declaration under
oath contained in the August 2001 deed of sale that he is
a Filipino citizen which he did to secure the seamless
registration of the property in the name of his wife is
further proof of respondents lack of good moral
character. It is also a violation of the constitutional
prohibition on ownership of lands by foreign
individuals.27 His defense that he unknowingly signed the
deed is unacceptable. First of all, as a foreigner living in a
foreign land, he should conduct himself accordingly in this
country with care, circumspect, and respect for the laws
of the host. Finally, as an educated and experienced
businessman, it must be presumed that he acted with due
care and signed the deed of sale with full knowledge of its
import.28cralawred
Having decided in the foregoing manner, We must
conclude the instant case and disregard the other issues
and arguments of the parties; they are deemed irrelevant
and will not alter the conclusion arrived at. As far as this
Court is concerned, respondent has failed to satisfy the
law which renders him completely undeserving of Filipino
citizenship.
WHEREFORE, the Petition is GRANTED. The November
29, 2011 Decision and March 7, 2012 Resolution of the
Court of Appeals in CA-G.R. CV No. 91213
are REVERSED AND SET ASIDE. The September 24,
2007 Order of the Regional Trial Court of Quezon City,
Branch 96 in Nat. Case/Spec. Proc. No. Q-05-55251 is
likewise ANNULLED and SET ASIDE, and the
respondents Petition for Naturalization in said case
is DISMISSED.
SO ORDERED.cralawlawlibrary
G.R. No. 199113, March 18, 2015
RENATO M. DAVID, Petitioner, v. EDITHA A. AGBAY
AND PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
VILLARAMA, JR., J.:
This is a petition for review under Rule 45 seeking to
reverse the Order1 dated October 8, 2011 of the Regional
Trial Court (RTC) of Pinamalayan, Oriental Mindoro, which
denied the petition for certiorari filed by Renato M. David
(petitioner). Petitioner assailed the Order2 dated March 22,
2011 of the Municipal Trial Court (MTC) of Socorro,
Oriental Mindoro denying his motion for redetermination of
probable cause.
The factual antecedents:chanRoblesvirtualLawlibrary
In 1974, petitioner migrated to Canada where he became
a Canadian citizen by naturalization. Upon their
retirement, petitioner and his wife returned to the
Philippines. Sometime in 2000, they purchased a 600-
square meter lot along the beach in Tambong, Gloria,
Oriental Mindoro where they constructed a residential
house. However, in the year 2004, they came to know that
the portion where they built their house is public land and
part of the salvage zone.
On April 12, 2007, petitioner filed a Miscellaneous Lease
Application3 (MLA) over the subject land with the
Department of Environment and Natural Resources
(DENR) at the Community Environment and Natural
Resources Office (CENRO) in Socorro. In the said
application, petitioner indicated that he is a Filipino citizen.
Private respondent Editha A. Agbay opposed the
application on the ground that petitioner, a Canadian
citizen, is disqualified to own land. She also filed a criminal
complaint for falsification of public documents under
Article 172 of the Revised Penal Code (RPC) (I.S. No. 08-
6463) against the petitioner.
Meanwhile, petitioner re-acquired his Filipino citizenship
under the provisions of Republic Act No. 9225,4 (R.A.
9225) as evidenced by Identification Certificate No. 266-
10-075 issued by the Consulate General of the Philippines
(Toronto) on October 11, 2007.
In his defense, petitioner averred that at the time he filed
his application, he had intended to re-acquire Philippine
citizenship and that he had been assured by a CENRO
officer that he could declare himself as a Filipino. He
further alleged that he bought the property from the
Agbays who misrepresented to him that the subject
property was titled land and they have the right and
authority to convey the same. The dispute had in fact led
to the institution of civil and criminal suits between him and
private respondents family.
On January 8, 2008,6 the Office of the Provincial
Prosecutor issued its Resolution7 finding probable cause
to indict petitioner for violation of Article 172 of the RPC
and recommending the filing of the corresponding
information in court. Petitioner challenged the said
resolution in a petition for review he filed before the
Department of Justice (DOJ).
On June 3, 2008, the CENRO issued an order rejecting
petitioners MLA. It ruled that petitioners subsequent re-
acquisition of Philippine citizenship did not cure the defect
in his MLA which was void ab
initio.8chanroblesvirtuallawlibrary
In the meantime, on July 26, 2010, the petition for review
filed by petitioner was denied by the DOJ which held that
the presence of the elements of the crime of falsification of
public document suffices to warrant indictment of the
petitioner notwithstanding the absence of any proof that he
gained or intended to injure a third person in committing
the act of falsification.9 Consequently, an information for
Falsification of Public Document was filed before the MTC
(Criminal Case No. 2012) and a warrant of arrest was
issued against the petitioner.
On February 11, 2011, after the filing of the Information
and before his arrest, petitioner filed an Urgent Motion for
Re-Determination of Probable Cause10 in the MTC.
Interpreting the provisions of the law relied upon by
petitioner, the said court denied the motion, holding that
R.A. 9225 makes a distinction between those who became
foreign citizens during its effectivity, and those who lost
their Philippine citizenship before its enactment when the
governing law was Commonwealth Act No. 6311(CA 63).
Since the crime for which petitioner was charged was
alleged and admitted to have been committed on April 12,
2007 before he had re-acquired his Philippine citizenship,
the MTC concluded that petitioner was at that time still a
Canadian citizen. Thus, the MTC
ordered:chanRoblesvirtualLawlibrary
WHEREFORE, for lack of jurisdiction over the person of
the accused, and for lack of merit, the motion is DENIED.
SO ORDERED.12
In his motion for reconsideration,13 petitioner questioned
the foregoing order denying him relief on the ground of lack
of jurisdiction and insisted that the issue raised is purely
legal. He argued that since his application had yet to
receive final evaluation and action by the DENR Region
IV-B office in Manila, it is academic to ask the citizenship
of the applicant (petitioner) who had re-acquired Philippine
citizenship six months after he applied for lease of public
land. The MTC denied the motion for
reconsideration.14chanroblesvirtuallawlibrary
Dissatisfied, petitioner elevated the case to the RTC via a
petition15 for certiorari under Rule 65, alleging grave
abuse of discretion on the part of the MTC. He asserted
that first, jurisdiction over the person of an accused cannot
be a pre-condition for the re-determination of probable
cause by the court that issues a warrant of arrest;
and second, the March 22, 2011 Order disregarded the
legal fiction that once a natural-born Filipino citizen who
had been naturalized in another country re-acquires his
citizenship under R.A. 9225, his Filipino citizenship is thus
deemed not to have been lost on account of said
naturalization.
In his Comment and Opposition,16 the prosecutor
emphasized that the act of falsification was already
consummated as petitioner has not yet re-acquired his
Philippine citizenship, and his subsequent oath to re-
acquire Philippine citizenship will only affect his citizenship
status and not his criminal act which was long
consummated prior to said oath of allegiance.
On October 8, 2011, the RTC issued the assailed Order
denying the petition for certiorari after finding no grave
abuse of discretion committed by the lower court,
thus:chanRoblesvirtualLawlibrary
ACCORDINGLY, the petition is hereby DENIED. At any
rate petitioner is not left without any remedy or recourse
because he can proceed to trial where he can make use
of his claim to be a Filipino citizen as his defense to be
adjudicated in a full blown trial, and in case of conviction,
to appeal such conviction.
SO ORDERED.17
Petitioner is now before us arguing that
A. By supporting the prosecution of the
petitioner for falsification, the lower court has
disregarded the undisputed fact that
petitioner is a natural-born Filipino citizen,
and that by re-acquiring the same status
under R.A. No. 9225 he was by legal fiction
deemed not to have lost it at the time of his
naturalization in Canada and through the
time when he was said to have falsely
claimed Philippine citizenship.
B. By compelling petitioner to first return from
his legal residence in Canada and to
surrender or allow himself to be arrested
under a warrant for his alleged false claim to
Philippine citizenship, the lower court has
 pre-empted the right of petitioner through his
wife and counsel to question the validity of
the said warrant of arrest against him before
the same is implemented, which is
tantamount to a denial of due process.18
In his Comment, the Solicitor General contends that
petitioners argument regarding the retroactivity of R.A.
9225 is without merit. It is contended that this Courts
rulings in Frivaldo v. Commission on
19
Elections and Altarejos v. Commission on Elections on 20
the retroactivity of ones re-acquisition of Philippine
citizenship to the date of filing his application therefor
cannot be applied to the case of herein petitioner. Even
assuming for the sake of argument that such doctrine
applies in the present situation, it will still not work for
petitioners cause for the simple reason that he had not
alleged, much less proved, that he had already applied for
reacquisition of Philippine citizenship before he made the
declaration in the Public Land Application that he is a
Filipino. Moreover, it is stressed that in falsification of
public document, it is not necessary that the idea of gain
or intent to injure a third person be present. As to
petitioners defense of good faith, such remains to be a
defense which may be properly raised and proved in a full-
blown trial.
On the issue of jurisdiction over the person of accused
(petitioner), the Solicitor General opines that in seeking an
affirmative relief from the MTC when he filed his Urgent
Motion for Re-determination of Probable Cause, petitioner
is deemed to have submitted his person to the said courts
jurisdiction by his voluntary appearance. Nonetheless, the
RTC correctly ruled that the lower court committed no
grave abuse of discretion in denying the petitioners
motion after a judicious, thorough and personal evaluation
of the parties arguments contained in their respective
pleadings, and the evidence submitted before the court.
In sum, the Court is asked to resolve whether (1) petitioner
may be indicted for falsification for representing himself as
a Filipino in his Public Land Application despite his
subsequent re-acquisition of Philippine citizenship under
the provisions of R.A. 9225; and (2) the MTC properly
denied petitioners motion for re-determination of probable
cause on the ground of lack of jurisdiction over the person
of the accused (petitioner).
R.A. 9225, otherwise known as the Citizenship Retention
and Re-acquisition Act of 2003, was signed into law by
President Gloria Macapagal-Arroyo on August 29, 2003.
Sections 2 and 3 of said law
read:chanRoblesvirtualLawlibrary
SEC. 2. Declaration of Policy.It is hereby declared the
policy of the State that all Philippine citizens who become
citizens of another country shall be deemed not to have
lost their Philippine citizenship under the conditions
of this Act.
SEC. 3. Retention of Philippine Citizenship.Any provision
of law to the contrary notwithstanding, natural-born
citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a
foreign country are hereby deemed to have reacquired
Philippine citizenship upon taking the following oath
of allegiance to the
Republic:chanRoblesvirtualLawlibrary
I ______________________, solemnly swear (or affirm)
that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal
orders promulgated by the duly constituted authorities of
the Philippines; and I hereby declare that I recognize and
accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I
impose this obligation upon myself voluntarily without
mental reservation or purpose of evasion.
Natural-born citizens of the Philippines who, after the
effectivity of this Act, become citizens of a foreign
country shall retain their Philippine citizenship upon
taking the aforesaid oath. (Emphasis supplied)
While Section 2 declares the general policy that Filipinos
who have become citizens of another country shall be
deemed not to have lost their Philippine citizenship, such
is qualified by the phrase under the conditions of this Act.
Section 3 lays down such conditions for two categories of
natural-born Filipinos referred to in the first and second
paragraphs. Under the first paragraph are those natural-
born Filipinos who have lost their citizenship by
naturalization in a foreign country who shall re-acquire
their Philippine citizenship upon taking the oath of
allegiance to the Republic of the Philippines. The second
paragraph covers those natural-born Filipinos who
became foreign citizens after R.A. 9225 took effect, who
shall retain their Philippine citizenship upon taking the
same oath. The taking of oath of allegiance is required for
both categories of natural-born Filipino citizens who
became citizens of a foreign country, but the terminology
used is different, re-acquired for the first group, and
retain for the second group.
The law thus makes a distinction between those natural-
born Filipinos who became foreign citizens before and
after the effectivity of R.A. 9225. Although the heading of
Section 3 is Retention of Philippine Citizenship, the
authors of the law intentionally employed the terms re-
acquire and retain to describe the legal effect of taking
the oath of allegiance to the Republic of the Philippines.
This is also evident from the title of the law using both re-
acquisition and retention.
In fine, for those who were naturalized in a foreign country,
they shall be deemed to have re-acquired their Philippine
citizenship which was lost pursuant to CA 63, under which
naturalization in a foreign country is one of the ways by
which Philippine citizenship may be lost. As its title
declares, R.A. 9225 amends CA 63 by doing away with the
provision in the old law which takes away Philippine
citizenship from natural-born Filipinos who become
naturalized citizens of other countries and allowing dual
citizenship,21 and also provides for the procedure for re-
acquiring and retaining Philippine citizenship. In the case
of those who became foreign citizens after R.A. 9225 took
effect, they shall retain Philippine citizenship despite
having acquired foreign citizenship provided they took the
oath of allegiance under the new law.
Petitioner insists we should not distinguish between re-
acquisition and retention in R.A. 9225. He asserts that in
criminal cases, that interpretation of the law which favors
the accused is preferred because it is consistent with the
constitutional presumption of innocence, and in this case
it becomes more relevant when a seemingly difficult
question of law is expected to have been understood by
the accused, who is a non-lawyer, at the time of the
commission of the alleged offense. He further cites the
letter-reply dated January 31, 201122 of the Bureau of
Immigration (BI) to his query, stating that his status as a
natural-born Filipino will be governed by Section 2 of R.A.
9225.
These contentions have no merit.
That the law distinguishes between re-acquisition and
retention of Philippine citizenship was made clear in the
discussion of the Bicameral Conference Committee on the
Disagreeing Provisions of House Bill No. 4720 and Senate
Bill No. 2130 held on August 18, 2003, where Senator
Franklin Drilon was responding to the query of
Representative Exequiel
Javier:chanRoblesvirtualLawlibrary
REP. JAVIER. I have some questions in Section 3. Here,
under Section 3 of the Senate version, Any provision of
law on the contrary notwithstanding, natural-born citizens
of the Philippines who, after the effectivity of this Act,
shall and so forth, ano, shall retain their Philippine
citizenship.
Now in the second paragraph, natural-born citizens who
have lost their citizenship by reason of their naturalization
after the effectivity of this Act are deemed to have
reacquired
THE CHAIRMAN (SEN. DRILON). Prior to the effectivity.
REP. JAVIER. Well, you have two kinds of natural-born
citizens here. Natural-born citizens who acquired foreign
citizenship after the effectivity of this act are considered to
have retained their citizenship. But natural-born citizens
who lost their Filipino citizenship before the effectivity of
this act are considered to have reacquired. May I know the
distinction? Do you mean to say that natural-born citizens
who became, lets say, American citizens after the
effectivity of this act are considered natural-born?
Now in the second paragraph are the natural-born citizens
who lost their citizenship before the effectivity of this act
are no longer natural born citizens because they have just
reacquired their citizenship. I just want to know this
distinction, Mr. Chairman.
THE CHAIRMAN (SEN. DRILON). The title of the Senate
version is precisely retention and reacquisition. The
reacquisition will apply to those who lost their
Philippine citizenship by virtue of Commonwealth Act
63. Upon the effectivity -- assuming that we can agree on
this, upon the effectivity of this new measure amending
Commonwealth Act 63, the Filipinos who lost their
citizenship is deemed to have reacquired their Philippine
citizenship upon the effectivity of the act.
The second aspect is the retention of Philippine
citizenship applying to future instances. So thats the
distinction.
REP. JAVIER. Well, Im just asking this question because
we are here making distinctions between natural-born
citizens. Because this is very important for certain
government positions, no, because natural-born citizens
are only qualified for a specific
THE CHAIRMAN (SEN. DRILON). That is correct.
REP. JAVIER. ...positions under the Constitution and
under the law.
THE CHAIRMAN (SEN. DRILON). Yes. We can get to that
later on. Its one of the provisions, yes. But just for
purposes of the explanation, Congressman Javier, that is
our conceptualization. Reacquired for those who
previously lost [Filipino citizenship] by virtue of
Commonwealth Act 63, and retention for those in the
future. (Emphasis supplied)
Considering that petitioner was naturalized as a Canadian
citizen prior to the effectivity of R.A. 9225, he belongs to
the first category of natural-born Filipinos under the first
paragraph of Section 3 who lost Philippine citizenship by
naturalization in a foreign country. As the new law allows
dual citizenship, he was able to re-acquire his Philippine
citizenship by taking the required oath of allegiance.
For the purpose of determining the citizenship of petitioner
at the time of filing his MLA, it is not necessary to discuss
the rulings in Frivaldo and Altarejos on the retroactivity of
such reacquisition because R.A. 9225 itself treats those of
his category as having already lost Philippine citizenship,
in contradistinction to those natural-born Filipinos who
became foreign citizens after R.A. 9225 came into force.
In other words, Section 2 declaring the policy that
considers Filipinos who became foreign citizens as not to
have lost their Philippine citizenship, should be read
together with Section 3, the second paragraph of which
clarifies that such policy governs all cases after the new
laws effectivity.
As to the letter-reply of BI, it simply quoted Section 2 of
R.A. 9225 without any reference to Section 3 on the
particular application of reacquisition and retention to
Filipinos who became foreign citizens before and after the
effectivity of R.A. 9225.
Petitioners plea to adopt the interpretation most favorable
to the accused is likewise misplaced. Courts adopt an
interpretation more favorable to the accused following the
time-honored principle that penal statutes are construed
strictly against the State and liberally in favor of the
accused.23R.A. 9225, however, is not a penal law.
Falsification of documents under paragraph 1, Article
17224 in relation to Article 17125 of the RPC refers to
falsification by a private individual, or a public officer or
employee who did not take advantage of his official
position, of public, private, or commercial documents. The
elements of falsification of documents under paragraph 1,
Article 172 of the RPC are:chanRoblesvirtualLawlibrary
(1) that the offender is a private individual or a public officer
or employee who did not take advantage of his official
position;
(2) that he committed any of the acts of falsification
enumerated in Article 171 of the RPC; and
(3) that the falsification was committed in a public, official
or commercial document.26
Petitioner made the untruthful statement in the MLA, a
public document, that he is a Filipino citizen at the time of
the filing of said application, when in fact he was then still
a Canadian citizen. Under CA 63, the governing law at the
time he was naturalized as Canadian citizen,
naturalization in a foreign country was among those ways
by which a natural-born citizen loses his Philippine
citizenship. While he re-acquired Philippine citizenship
under R.A. 9225 six months later, the falsification was
already a consummated act, the said law having no
retroactive effect insofar as his dual citizenship status is
concerned. The MTC therefore did not err in finding
probable cause for falsification of public document under
Article 172, paragraph 1.
The MTC further cited lack of jurisdiction over the person
of petitioner accused as ground for denying petitioners
motion for re-determination of probable cause, as the
motion was filed prior to his arrest. However, custody of
the law is not required for the adjudication of reliefs other
than an application for bail.27 In Miranda v. Tuliao,28 which
involved a motion to quash warrant of arrest, this Court
discussed the distinction between custody of the law and
jurisdiction over the person, and held that jurisdiction over
the person of the accused is deemed waived when he files
any pleading seeking an affirmative relief, except in cases
when he invokes the special jurisdiction of the court by
impugning such jurisdiction over his person.
Thus:chanRoblesvirtualLawlibrary
In arguing, on the other hand, that jurisdiction over their
person was already acquired by their filing of the above
Urgent Motion, petitioners invoke our pronouncement,
through Justice Florenz D. Regalado, in Santiago v.
Vasquez:chanRoblesvirtualLawlibrary
The voluntary appearance of the accused, whereby the
court acquires jurisdiction over his person, is
accomplished either by his pleading to the merits (such as
by filing a motion to quash or other pleadings requiring the
exercise of the courts jurisdiction thereover, appearing for
arraignment, entering trial) or by filing bail. On the matter
of bail, since the same is intended to obtain the provisional
liberty of the accused, as a rule the same cannot be posted
before custody of the accused has been acquired by the
judicial authorities either by his arrest or voluntary
surrender.cralawred
Our pronouncement in Santiago shows a distinction
between custody of the law and jurisdiction over the
person. Custody of the law is required before the court can
act upon the application for bail, but is not required for the
adjudication of other reliefs sought by the defendant where
the mere application therefor constitutes a waiver of the
defense of lack of jurisdiction over the person of the
accused. Custody of the law is accomplished either by
arrest or voluntary surrender, while jurisdiction over the
person of the accused is acquired upon his arrest or
voluntary appearance. One can be under the custody of
the law but not yet subject to the jurisdiction of the court
over his person, such as when a person arrested by virtue
of a warrant files a motion before arraignment to quash the
warrant. On the other hand, one can be subject to the
jurisdiction of the court over his person, and yet not be in
the custody of the law, such as when an accused escapes
custody after his trial has commenced. Being in the
custody of the law signifies restraint on the person, who is
thereby deprived of his own will and liberty, binding him to
become obedient to the will of the law. Custody of the law
is literally custody over the body of the accused. It
includes, but is not limited to, detention.
x x x x
While we stand by our above pronouncement
in Pico insofar as it concerns bail, we clarify that, as a
general rule, one who seeks an affirmative relief is
deemed to have submitted to the jurisdiction of the
court. As we held in the aforecited case of Santiago,
seeking an affirmative relief in court, whether in civil
or criminal proceedings, constitutes voluntary
appearance.
x x x x
To recapitulate what we have discussed so far, in
criminal cases, jurisdiction over the person of the
accused is deemed waived by the accused when he
files any pleading seeking an affirmative relief, except
in cases when he invokes the special jurisdiction of
the court by impugning such jurisdiction over his
person. Therefore, in narrow cases involving special
appearances, an accused can invoke the processes of the
court even though there is neither jurisdiction over the
person nor custody of the law. However, if a person
invoking the special jurisdiction of the court applies for bail,
he must first submit himself to the custody of the
law.29(Emphasis supplied)
Considering that petitioner sought affirmative relief in filing
his motion for re-determination of probable cause, the
MTC clearly erred in stating that it lacked jurisdiction over
his person. Notwithstanding such erroneous ground stated
in the MTCs order, the RTC correctly ruled that no grave
abuse of discretion was committed by the MTC in denying
the said motion for lack of merit.
WHEREFORE, the petition is DENIED. The Order dated
October 8, 2011 of the Regional Trial Court of
Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-
11 (Criminal Case No. 2012) is hereby AFFIRMED and
UPHELD.
With costs against the petitioner.
SO ORDERED.
G.R. No. 202970, March 25, 2015
NATANYA JOANA D. ARGEL, Petitioner, v. GOV. LUIS
C. SINGSON, IN HIS CAPACITY AS THE GOVERNOR
OF THE PROVINCE OF ILOCOS SUR, Respondent.
DECISION
PEREZ, J.:
Before this Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court assailing
the 31 May 2012 Decision1 of the Court of Appeals (CA) in
CA-G.R. SP No. 123125 and its Resolution2 dated 31 July
2012 denying petitioners Motion for Reconsideration. The
Decision reversed and set aside the Resolution issued by
the Civil Service Commission (Commission) affirming the
Decision of the Civil Service Commission Regional Office
No.1 (CSCRO1) which approved the appointment of
Natanya Joana D. Argel (Argel) as Nurse II at the Gabriela
Silang General Hospital.
Culled from the records are the following antecedent facts:
Argel was appointed by then Ilocos Sur Governor
Deogracias Victor B. Savellano (Governor Savellano) as
Nurse II under permanent status at the Gabriela Silang
General Hospital effective 15 September 2009. In
accordance with procedure, her appointment was
submitted to the Civil Service Commission Field Office
(CSCFO) Ilocos Sur for evaluation.
On 3 December 2009, the CSCFO-Ilocos Sur disapproved
the appointment of Argel on the ground that she failed to
meet the one (1) year experience required for the
position. It was pointed out that she still lacks four (4)
months of relevant experience.
In an undated letter to CSCFO-Ilocos Sur, Carmeliza T.
Singson (Dr. Singson), Provincial Health Officer II, moved
for reconsideration of the disapproval of Argels
appointment. She claimed that Argel rendered services at
the Gabriela Silang General Hospital from 15 July 2008 to
15 January 2009 (six months) as a volunteer and from 8
July 2010 to 8 January 2010 (six months) as contractual
nurse or for a total of twelve months. She concluded that
Argel has completed the experience requirement as of 8
January 2010.
Dr. Singsons motion for reconsideration was, however,
denied by CSCFO-Ilocos Sur on 27 January 2010. The
CSCFO-Ilocos Sur held that they further observed that the
Nurse II position to which Argel was appointed was not an
open position as appearing in the plantilla of positions of
the Gabriela Silang General Hospital. It explained that
Nurse II has lower positions that are considered next-in-
rank, i.e, Nurse I. It explained that those holding next-in-
rank positions should be given preference in consonance
with the provisions of CSC Memorandum Circular No. 3,
s. 2001 or the Revised Policies on Merit Promotion Plan,
which was also adopted by the Provincial Government of
Ilocos Sur for its Merit Promotion Plan.
On 24 March 2010, Argel filed an appeal with the CSCROI
assailing the disapproval of her appointment by CSCFO-
Ilocos Sur.
In a Decision3 dated 4 August 2010, the CSCRO1 granted
the appeal of Argel. Accordingly, her appointment as
Nurse II under permanent status was affirmed. It held that
although at the time the appointment was issued to Argel
on 15 September 2009 she lacked four (4) months of
relevant experience, she, nonetheless, performed the
functions of the position from that time up to the date of
disapproval of her appointment on 3 December 2009 and
even thereafter. Hence, she was considered to have met
the minimum qualification required for the position.
In a letter4 dated 16 August 2010, Director Jose
Lardizabal, CSCFO-Ilocos Sur, forwarded to Hon. Luis
Chavit Singson (Governor Singson), successor of
Governor Savellano as Provincial Governor of Ilocos Sur,
a photocopy of the decision for his information and
appropriate action. The letter was with a directive that
unless appealed within fifteen (15) days from receipt, the herein Appellee not having qualified, her appointment is
decision of the CSCRO1 should be implemented. only temporary. Hence, contrary to her claim, she has no
security of tenure much less vested right over the said
On 15 September 2010, the Provincial Government of position. x x x5
Ilocos Sur, through its Provincial Legal Officer, filed a
Notice of Appeal before the Commission. The appeal was In a Decision6 dated 20 May 2011, the petition was
treated as a Petition for Review. dismissed outright by the Commission on the ground that
it was filed beyond the fifteen (15) day reglementary period
The petition was anchored on the main argument that required under the Uniform Rules on Administrative Cases
Argel is not qualified to the Nurse II position as she lacks in the Civil Service (CSC Memorandum Circular No. 19, s.
four (4) months of relevant experience at the time she was 1999; CSC Resolution No. 99-1936 dated August 31,
appointed on 15 September 2009. The petition expounded 1999).
on the following argument:
The Commission explained that the Provincial
As already mentioned, on September 15, 2009, the herein
Government of Ilocos Sur filed its appeal thirty (30) days
Appellee was appointed by the then Deogracias Victor
from receipt of the CSCRO1 decision. By that time, the
Savellano. At that time, Appellee was not qualified. The
assailed Decision No. 2010-099 had already acquired
then Governor was not aware of any disqualification until
finality and can no longer be modified, annulled or
December 03, 2009. Dir. Lardizabal officially informed the
reversed by the Commission.
Governor thru a written communication on that day that
indeed herein Appellee was not qualified for the
Meanwhile, Zenaida A. Ilagan (Ilagan), a Nurse I at the
position. Thereafter, the then Hon. Governor neither
Gabriela Silang General Hospital, filed a Petition for
appointed her in a temporary capacity, protested/appealed
Review before the Commission likewise assailing Decision
the disapproval of the appointment of the herein
No. 2010-099, the decision affirming Argels apppintment
Appellee. But the herein Appellee was offered the Nurse
as Nurse II. Ilagans petition was dismissed in a
I position but rejected the offer.
Decision7 dated 25 October 2011.
It is well-settled in this jurisdiction that, as dictated by our
In view of the finality of the decision in her favor, Argel filed
laws, rules and jurisprudence, a permanent appointment
a Motion for the Immediate Execution of the Final Decision
can only be issued to a person who meets all the minimum
No. 2010-099.
requirements for the position to which he is being
appointed. If not qualified, the appointment could only be
The Provincial Government of Ilocos Sur, through
regarded as temporary. That being the case, it could be
Governor Singson, filed a Motion for Reconsideration but
withdrawn at will by the appointing authority anytime. The
this was denied by the Commission in a Resolution8 dated
4 January 2012.
In a Resolution9 dated 29 May 2012, the Commission
granted the Motion for Execution filed by Argel. In the
same resolution, Governor Singson was directed to allow
Argel to perform her duties and responsibilities as Nurse II
and pay her salaries and other benefits effective from her
assumption to office.
Undaunted, Governor Singson filed a Petition for Review
with Prayer for Preliminary Injunction and/or Temporary
Restraining Order before the CA.
In a Decision10 dated 31 May 2012, the CA ruled in favor
of Governor Singson. The dispositive portion of the
decision reads:
WHEREFORE, premises considered, this Court
hereby GRANTS the petition. Accordingly, the assailed
Resolution dated January 4, 2012 and Decision dated May
20, 2011 of the CSC affirming the August 4, 2010 Decision
of the CSCRO1 are hereby REVERSED AND SET
ASIDE. The Decision of the CSCISFO disapproving the
appointment of Natanya Joana D. Argel is hereby
[REINSTATED.]
No costs.11
The Motion for Reconsideration12 subsequently filed by
Argel was denied in a Resolution13 dated 31 July 2012.
Hence, the instant petition for review.
The core issue to be resolved is whether the CA erred in
reversing and setting aside the decision of the
Commission which affirmed the CSCRO1 decision
approving the permanent status appointment of Argel as
Nurse II at the Gabriela Silang General Hospital.
We find the petition meritorious.
We have consistently ruled that perfection of an appeal
within the statutory or reglementary period is not only
mandatory, but also jurisdictional.14 This rule is founded
upon the principle that the right to appeal is not part of due
process of law but is a mere statutory privilege to be
exercised only in the manner and in accordance with the
provisions of the law.15 Failure to interpose a timely
appeal renders the appealed decision, order or award final
and executory and this deprives the appellate body of any
jurisdiction to alter the final judgment,16 moreso, to
entertain the appeal.17 The CA, therefore, should not have
entertained the appeal filed by Gov. Singson.
It is evident that Decision No. 2010-099 rendered by the
CSCRO1 had already attained finality. As such, it has
already become immutable and unalterable. The CA
should have thus given it due respect, especially
considering that the Commission had already issued a
resolution granting Argels motion for execution. The
resolution granting the Motion for the Immediate Execution
of Decision No. 2010-099 filed by Argel was with a
directive addressed to Governor Singson to give effect to
the decision by allowing Argel to perform her duties and
responsibilities as Nurse II and pay her salaries and other
benefits effective from her assumption to office.
The settled and firmly established rule is that a decision
that has acquired finality becomes immutable and
unalterable. This quality of immutability precludes the
modification of the judgment, even if the modification is
meant to correct erroneous conclusions of fact and law.
The orderly administration of justice requires that, at the
risk of occasional errors, the judgments/resolutions of a
court must reach a point of finality set by the law. The
noble purpose is to write finis to disputes once and for all.
This is a fundamental principle in our justice system,
without which no end to litigations will take place. Utmost
respect and adherence to this principle must always be
maintained by those who exercise the power of
adjudication. Any act that violates such principle must
immediately be struck down. Indeed, the principle of
conclusiveness of prior adjudications is not confined in its
operation to the judgments of courts, but extends as well
to those of all other tribunals exercising adjudicatory
powers.18
The case of Achacoso v. Macaraig which was relied upon
by the CA in its decision19 is not in all fours with the present
case. In the Achacoso case, the petitioner was not
appointed with a permanent status by the appointing
authority. The Court in that case ruled that petitioner was
not eligible and could be appointed at best only in a
temporary capacity.
Under Section 9(H) of PD 807, as amended, by Section
12, Book V of Executive Order No. 292:
An appointment shall take effect immediately upon issue
by the appointing authority if the appointee assumes his
duties immediately and shall remain effective until it is
disapproved by the Civil Service Commission.
Further, Rule V of the Omnibus Rules Implementing Book
V of EO 292, Section 9 on appointments provides that:
An appointment accepted by the appointee cannot be
withdrawn or revoked by the appointing authority and shall
remain in force and effect until disapproved by the
Commission.
In the instant case, the appointment of Argel under
permanent status was accepted by the latter. She took
her oath, assumed office and immediately performed the
duties and functions pertaining to the position. The
CSCRO1 noted that the records clearly revealed that Argel
did not receive whether personally or by registered mail a
notice that her appointment has been
disapproved. Nonetheless, she filed an appeal on 24
March 2010. By that time, she had long completed the
experience required for the position. Thus, the ruling of
the CSCRO1 that Argel has met the one (1) year
experience requirement because she performed the
functions of the position from the time the appointment
was issued on 15 September 2009 up to the time of the
date of disapproval on 3 December 2009 and even
thereafter.
Even on the merits, we will still rule in favor of
Argel. Contrary to what seems to be implied in the CA
decision, the merits of this case had thoroughly been
discussed. While the appeal of Governor Singson was
indeed dismissed by the Commission plainly on
technicality, the decision was, however, an affirmance of
the CSCRO1 ruling which discussed in detail all the issues
involved in Argels appointment.
Anent the issue that the Nurse II position is not an open
position as appearing in the plantilla of the hospital and
Argel, not being a next in rank, should not have been
appointed, we find that the CA committed a reversible
error. Relevant to the issue is CSC Memorandum Circular
No. 03, series of 2001, which provides that:
The appointing authority may appoint an applicant who is
not next-in-rank but possesses superior qualification and
competence, and has undergone selection process.
We give weight to the letter20 of Dr. Singson who attested
and affirmed that Argel is an asset/highly skilled/qualified
for the subject position and that she only wanted the latter
to have the Nurse II position because she was the only
trained staff to handle technical work of the Provincial
Health Office. Likewise, we give weight to the fact that
Argels appointment underwent scrutiny by the governor,
as appointing authority; the selection board; and the Chief
of Office where she was assigned.
We emphasize that Argels permanent appointment was
approved by the CSCRO1 and affirmed by the
Commission in a decision which eventually attained
finality. It is for this reason that she acquired a vested legal
right to the position and therefore, can no longer be
removed therefrom except for valid causes.
Even assuming in arguendo that Argel failed to strictly
meet the relevant experience required for the position, we
are still inclined to uphold the CSCRO1s approval of her
appointment. We are aware that this is not the first time
that the Commission has allowed the appointment of
employees who were initially lacking in experience but
eventually obtained the same. In CSC Resolution No. 97-
0191 dated 9 January 1997, the applicant for the position
of Chief Inspector was considered to have substantially
satisfied the four (4) years experience required for the
position since he has in his favor three (3) years and eight
(8) months experience as Senior Inspector.21
The rulings that are clearly in all fours with the case before
us are CSC Resolution Nos. 011747 dated 30 October
2001 and 01-1204 dated 16 July 2001 involving the
appointments of Michael C. Abarca and Agnes C. Corpin,
respectively. In CSC Resolution No. 011747, the
Commission found the experience gained by Abarca
sufficient to enable him to successfully perform the duties
and responsibilities of Municipal Engineer, especially
since he continued to perform the same from the time of
the disapproval of his appointment by the Civil Service
Commission Regional Office No. XIII on August 24, 2000,
or for a period of more than one (1) year. Hence, adding
this period to his previous experience of two (2) years will
more than satisfy the required experience. Therefore, his
appointment may now be approved as
permanent. 22 Likewise, in the case of Agnes Corpin, the
Commission found the experience gained by Corpin
sufficient to enable her to successfully perform the duties
and responsibilities of ARPO II, especially since she
continued to perform the same from the time of the
disapproval of her appointment by CSC-NCR on August
31, 2000, until this time or for a period of almost one (1)
year. Hence, adding this period to her previous
experience of eight (8) months will more than satisfy the
required experience. Therefore, her appointment may be
approved as permanent.23 Being similarly situated Argel
should be deemed to have satisfactorily met the relevant
experience required for the position.
Moreover, as a nursing graduate, Argel is presumed to
have previously acquired substantial knowledge and
trainings necessary for the effective performance of her
duties and responsibilities as Nurse II. In CSC Resolution
No. 992296 dated 16 October 1999, the Commission
approved the promotional appointment of a Data Encoder
as Planning Specialist after considering the relevant
experience he gained while actually designated/ordered to
perform the duties and responsibilities of a Planning
Specialist for more than one (1) year.
Having noted the foregoing resolutions of the Commission,
we find no reason why the principles cited therein cannot
be applied in this case.
In conclusion, we note the observation of the CA that
perhaps office politics was moving behind the scenes in
this case.24 Such cannot be allowed by this Court. We
hereby emphasize that politics should never play a role in
the appointment of public servants.
WHEREFORE, in the light of the foregoing premises, the
Decision of the Court of Appeals in CA-G.R. SP. No.
123125 is hereby REVERSED and SET ASIDE. The
Decision of the Civil Service Commission affirming the
Decision of the Civil Service Commission Regional Office
No. 1 which approved the permanent appointment of
Natanya Joana D. Argel as Nurse II is hereby reinstated.
SO ORDERED.
G.R. No. 204757, March 17, 2015
ATTY. JANET D. NACION, Petitioner, v. COMMISSION
ON AUDIT, MA. GRACIA PULIDO-TAN, JUANITO
ESPINO AND HEIDI MENDOZA, Respondents.
RESOLUTION
REYES, J.:
This resolves the Petition for Certiorari1 filed by petitioner
Atty. Janet D. Nacion (Nacion) to assail the
Decision2 dated June 14, 2012 and Resolution3 dated
November 5, 2012 of respondent Commission on Audit
(COA), finding her guilty of grave misconduct and violation
of reasonable office rules and regulations.
From October 16, 2001 to September 15, 2003, Nacion
was assigned by the COA to the Metropolitan Waterworks
Sewerage System (MWSS) as State Auditor V.4 On June
27, 2011, when Nacion was already holding the position of
Director IV of COA, National Government Sector, a formal
charge5against her was issued by COA Chairperson Ma.
Gracia M. Pulido Tan (Chairperson Tan) for acts found to
be committed when she was still with the MWSS. The
pertinent portions of the charge reports based on MWSS journal vouchers, disbursement
read:chanRoblesvirtualLawlibrary vouchers and claims control index. COAs investigation of
The Administrative Case Evaluation Report dated June its personnel assigned to MWSS was prompted by its
21, 2011 of the Fraud Audit and Investigation Office receipt of a letter from then MWSS Administrator Diosdado
(FAIO), Legal Services Sector (LSS) as well as the Jose M. Allado, who complained of unrecorded checks
Investigation Report submitted by the Team from the FAIO and irregularly issued disbursement vouchers that were
disclosed the following reprehensible traced to refer to bonuses and other benefits of the COA
actions:chanRoblesvirtualLawlibrary MWSS personnel.7chanroblesvirtuallawlibrary

1. Receiving benefits and/or bonuses from
MWSS in the total amount of P73,542.00
from 1999-2003[;]
2. Availing of the MWSS Housing
Project;chanrobleslaw
3. Availing of the Multi-Purpose Loan Program
Car Loan.
Based thereon and upon the recommendation of the
Director, FAIO-LSS, this Office finds sufficient basis to
administratively charge you with Grave Misconduct and
Violation of Reasonable Office Rules and Regulations
which are grounds for administrative action under the Civil
Service Law, Rules and Regulations.
WHEREFORE, you are hereby formally charged with the
aforementioned offenses and required to submit to the
Office of the General Counsel, LSS your answer in writing
and under oath, within five (5) days from receipt hereof, x
x x.6
Attached to the formal charge, which was docketed as
Administrative Case No. 2011-002, were investigation
In her Affidavit/Answer to Formal Charge,8 Nacion
admitted that she availed of the MWSS Housing Project
and thus, was awarded a 300-square-meter lot at the
MWSS Employees Corporate Office Housing Project in
Novaliches, Quezon City. This was covered by an
Individual Notice of Award9dated April 8, 2003 issued by
the MWSS Corporate Office Multi-Purpose Cooperative
Housing Project. The cost of the lot was P500.00 per sq m
or a total of P150,000.00, exclusive of development cost
and miscellaneous expenses. Nacion invoked an honest
belief that she could avail of the benefit given the absence
of any prohibition thereon upon COA personnel. COA
Resolution No. 2004-005, which prohibited COA
employees from availing of all forms of loan, monetary
benefits or any form of credit assistance from agencies
under their audit jurisdiction, was issued only on July 27,
2004.10chanroblesvirtuallawlibrary
Nacion admitted that she also availed of the MWSS Multi-
Purpose Loan Program Car Loan, upon an honest belief
that she was not prohibited from doing so. She
emphasized that her car purchase was not subsidized.
She was obligated to pay in full the principal amount of the
loan, plus interest and incidental expenses like registration
fees and insurance
11
premiums. chanroblesvirtuallawlibrary
Nacion, however, denied having received bonuses and
benefits from MWSS. She argued that the MWSS claims
control index and journal vouchers upon which the charge
was based were not conclusive proof of her receipt of the
benefits, absent payrolls showing her signature. In any
case, as a sign of good faith, Nacion offered to, first,
restitute the full amount of P73,542.00 to save government
time and expenses in hearing the case and put to rest the
issues that arose from it, and second, give up her right
over the MWSS lot provided she would get back her
investment on the property.12chanroblesvirtuallawlibrary
Ruling of the COA
On June 14, 2012, the COA rendered its Decision13 finding
Nacion guilty of grave misconduct and violation of
reasonable rules and regulations. It cited Section 18 of
Republic Act (R.A.) No. 6758, otherwise known as the
Compensation and Position Classification Act of 1989,
which specifically prohibits COA personnel from receiving
salaries, honoraria, bonuses, allowances or other
emoluments from any government entity, local
government unit, government-owned and -controlled
corporations and government financial institutions, except
those compensation paid directly by the COA out of its
appropriations and contributions. The COA emphasized
that even the availment of all forms of loan was already
prohibited prior to the issuance of COA Resolution No.
2004-005, being already proscribed by Executive Order
No. 29214 and the Code of Ethics for Government
Auditors.15chanroblesvirtuallawlibrary
Although grave misconduct is a grave offense that is
punishable by the extreme penalty of dismissal from
service, Nacion was only meted out a penalty of one year
suspension without pay, after the COA considered as
mitigating the following
circumstances:chanRoblesvirtualLawlibrary
Director Nacion did not request for a formal investigation,
hence, has saved this Commission from the
inconvenience and cost of such proceeding. She also
admitted availing both the Housing Project and MPLP Car
Loan. Her long years in service [are] also worth
considering as she has spent her productive years in the
public service. x x x.16
In addition to the suspension, Nacion was ordered to
refund the amount of P73,542.0017 and return the lot which
she acquired under the MWSS housing program. The
dispositive portion of the COA decision then
reads:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, this Commission
finds Director Janet D. Nacion GUILTY of Grave
Misconduct and Violation of Reasonable Office Rules and
Regulations proceeding from the same act of receiving
unauthorized allowances and other fringe benefits.
Accordingly, she is meted the penalty of one (1) year
suspension without pay effective upon receipt of this
Decision, immediate refund of the amount of P73,542.00,
and return of the lot she obtained under the MWSS
Employees Housing Project, with a stern warning that
repetition of the same or similar infraction shall be dealt
with more severely.
Let a copy of this Decision form part of the respondents
personal (201) File in this Commission. The Chief
Executive Staff, Office of the Chairperson and the
Assistant Commissioner, Administration Sector, shall
enforce this Decision and report compliance thereof to the
Commission Proper.18
Unyielding, Nacion moved to reconsider, but her plea was
denied by the COA in a Resolution dated November 5,
2012.19 Hence, this petition.
The Present Petition
The core issue for the Courts resolution is: whether or not
the COA committed grave abuse of discretion in finding
Nacion guilty of grave misconduct and violation of
reasonable office rules and regulations.
To support her petition against the COA, Nacion invokes
due process as she argues that the records during her
tenure with the MWSS should not have been included by
the audit team in its investigations, as no office order
covering it was issued by the COA Chairman.
Furthermore, the documentary evidence considered by
the Fraud Audit and Investigation Office (FAIO) did not
constitute substantial evidence to prove the commission of
the offenses with which she was charged.
Ruling of the Court
The petition is bereft of merit. At the outset, the Court
reiterates:chanRoblesvirtualLawlibrary
The concept is well-entrenched: grave abuse of discretion
exists when there is an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law or to act
in contemplation of law as when the judgment rendered is
not based on law and evidence but on caprice, whim, and
despotism. Not every error in the proceedings, or every
erroneous conclusion of law or fact, constitutes grave
abuse of discretion. The abuse of discretion to be qualified
as grave must be so patent or gross as to constitute an
evasion of a positive duty or a virtual refusal to perform the
duty or to act at all in contemplation of law.20 (Citations
omitted)
Thus, the Court emphasized in Dycoco v. Court of
Appeals21 that [a]n act of a court or tribunal can only be
considered as with grave abuse of discretion when such
act is done in a capricious or whimsical exercise of
judgment as is equivalent to lack of
jurisdiction. chanroblesvirtuallawlibrary
22
Upon review, the Court holds that no such grave abuse of
discretion may be attributed to the COA for the procedure
it observed, its factual findings and conclusions in Nacions
case.
Due Process in Administrative Proceedings
In administrative proceedings, the essence of due process
is the opportunity to explain ones side or seek a
reconsideration of the action or ruling complained of, and
to submit any evidence he may have in support of his
defense. The demands of due process are sufficiently met
when the parties are given the opportunity to be heard
before judgment is rendered.23 Given this and the
circumstances under which the rulings of the COA were
issued, the Court finds no violation of Nacions right to due
process. As the Office of the Solicitor General correctly
argued, the constitution of a separate fact-finding team
specifically for Nacions case was not necessary for the
satisfaction of such right.
It bears stressing that Nacion was formally charged by
Chairperson Tan, following evidence that pointed to
irregularities committed while she was with the MWSS.
Being the COA Chairperson who, under the law, could
initiate administrative proceedings motu proprio, no written
complaint against Nacion from another person was
necessary. Section 2 of the COA Memorandum No. 76-
48,24 which Nacion herself invokes,
provides:chanRoblesvirtualLawlibrary
Sec. 2. How commenced.
(1) Administrative proceedings may be commenced
against a subordinate official or employee of the
Commission by the Chairman motu proprio, or upon
sworn, written complaint of any other person. (Sec. 38 [a],
PD 807).
x x x x (Emphasis ours)
The power of the COA to discipline its officials then could
not be limited by the procedure being insisted upon by
Nacion. Neither is the authority of the Chairperson to
commence the action through the issuance of the formal
charge restricted by the requirement of a prior written
complaint. As may be gleaned from the cited provision, a
written complaint under oath is demanded only when the
administrative case is commenced by a person other than
the COA Chairperson.
Contrary to Nacions claim, the COA also did not act
beyond its jurisdiction when her case was considered by
the FAIO investigating team, notwithstanding the fact that
the office order which commanded an inquiry upon MWSS
personnel merely referred to alleged unauthorized receipt
of bonuses and benefits from the agency by Atty. Norberto
Cabibihan (Atty. Cabibihan) and his staff. Since Nacions
stint in MWSS was before Atty. Cabibihans, she argued
that the team should not have looked into the records and
circumstances during her term. In including benefits
received during her term, Nacion claimed that the
investigating team acted beyond its jurisdiction and
deprived her of the right to due process.
The contention fails to persuade; a separate office order
was not necessary for the audit teams investigation of
Nacions case. It should be emphasized that prior to the
issuance of the formal charge, the investigations
conducted by the team were merely fact-finding. The
crucial point was the COAs observance of the demands
of due process prior to its finding or decision that Nacion
was administratively liable. The formation of a separate
fact-finding team that should look specifically into Nacions
acts was not necessary to satisfy the requirement. The
formal charge was as yet to be issued by the COA
Chairperson, and Nacions formal investigation
commenced only after she had filed her answer to the
charge. It was undisputed that Nacion, despite a chance,
did not request for such formal investigation, a
circumstance which the COA later considered as
mitigating. In any case, she was still accorded before the
COA a reasonable opportunity to present her defenses,
through her answer to the formal charge and eventually,
motion for reconsideration of the COAs decision.

Substantial Evidence in Administrative Case
The Court also finds no grave abuse of discretion on the
part of the COA in holding Nacion administratively liable
for the offenses with which she was charged.
In administrative cases, the quantum of evidence that is
necessary to declare a person administratively liable is
mere substantial evidence.25 This is defined under Section
5, Rule 133 of the Rules of Court, to
wit:chanRoblesvirtualLawlibrary
Sec. 5. Substantial evidence. In cases filed before
administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion. (Emphasis ours)
It is settled that the factual findings of administrative
bodies are controlling when supported by such substantial
evidence.26 In resolving the present petition, the Court
finds no compelling reason to deviate from this general
rule. Three separate acts were found to have been
committed by Nacion, all sufficient to support the COAs
finding of grave misconduct and violation of reasonable
office rules and regulations.
Nacions receipt of the prohibited benefits and allowances
were duly proved by documentary evidence. The
presentation of documents bearing Nacions signature to
prove her receipt of the money was not indispensable.
Recipients of unauthorized sums would, after all, ordinarily
evade traces of their receipt of such amounts. Resort to
other documents from which such fact could be deduced
was then appropriate. In this case, the claims control
indices considered by the COA were supported by journal
vouchers and entries, which constitute public records. No
evidence that could sufficiently challenge the correctness
of the contents thereof and the COAs conclusions
therefrom was presented by Nacion. On the contrary, the
COA correctly elucidated
that:chanRoblesvirtualLawlibrary
For the receipt of allowances and bonuses amounting to
P73,542.00, which she denied receiving for lack of
conclusive proof, it must be emphasized that
administrative offenses only require substantial, not
conclusive, evidence. The MWSS Claims Control Index is
used to record payments made to each employee, supplier
and other agency internal and external creditors. Its
preparation and maintenance are not discretionary upon
the agency as COA itself has established the use of it to
serve as an effective tool for internal control. The various
other recordings that were gathered to support the entries
in the index of payment established that allowances and
benefits have indeed been extended to Atty. Nacion. It was
not a stroke of accident that her name appeared on these
documents. Auditors can certainly explain the appearance
of specific names in the indices of payment and other
documents presented herein. x x x.27
Nacions availment of the housing and car programs was
undisputed. She claimed though to have availed of these
benefits upon an honest belief that she was not prohibited
from doing so. Her alleged good faith, nonetheless, could
not support exoneration. Even her claim that officials from
other agencies availed of the same benefits from MWSS
could neither qualify as a valid defense nor be treated as
a confirmation of good faith. A prohibited act could not be
justified by the mere fact that other government officers
were doing it, especially since given Nacions office and
distinctive functions, the other officers might not be
similarly situated and covered by similar
28
prohibitions. chanroblesvirtuallawlibrary
Clearly, the acts of Nacion were prohibited under the law.
Among those covering the matter is R.A. No. 6758,
specifically Section 18 thereof which
provides:chanRoblesvirtualLawlibrary
Section 18. Additional Compensation of Commission
on Audit Personnel and of Other Agencies. In order
to preserve the independence and integrity of the
Commission on Audit (COA), its officials and employees
are prohibited from receiving salaries, honoraria, bonuses,
allowances or other emoluments from any government
entity, local government unit, and government-owned and
controlled corporations, and government financial
institution, except those compensation paid directly by the
COA out of its appropriations and contributions.
xxxx
An observance of the prohibition is mandatory given its
purpose vis--vis the roles which COA personnel are
required to perform. Given their mandate to look after
compliance with laws and standards in the handling of
funds by the government agencies where they are
assigned to, COA personnel must prevent any act that
may influence them in the discharge of their duties. In the
present case, the receipt of the subject benefits and
allowances was evidently in violation of the prohibition
under the aforequoted Section 18. Nacion should have
been wary of her actions and the prohibitions pertinent to
her functions, especially as they affected the expenditure
of MWSS funds which she was duty-bound to eventually
examine.
The availment of the loans likewise merited administrative
sanctions. Nacion herself cited in her pleadings before the
COA some past cases that involved COA officials, who
were disciplined for availing of car plans in other offices.
Nacion was also covered by COA Resolution No. 86-50,
also known as the Code of Ethics for Government
Auditors, which demanded from her a high degree of
integrity and professionalism, the avoidance of conflict of
interest, and resistance to temptations that might be
prejudicial to the discharge of her duties and to public
interest. Otherwise, she would be placed in an odd
situation requiring her review of transactions and
expenditures from which she had directly benefited from.
While she vehemently denied it, Nacion benefited from the
subject car and housing programs. Her acquisition of the
car might not be subsidized by MWSS, but the low three-
tier interest rates ranging from 0-6%29 extended to her by
the agency was clearly to her advantage. She was also
able to avail of MWSS housing program even when she
was not an employee of the agency. Nacions availment of
the benefits of the car and housing programs led to the
same results that the prohibition on additional
compensation sought to avoid, and defied the rationale for
the laws that sought to fortify COA independence.
In Villarea v. The Commission on Audit,30 the Court
emphasized:chanRoblesvirtualLawlibrary
The primary function of an auditor is to prevent irregular,
unnecessary, excessive or extravagant expenditures of
government funds. To be able properly to perform their
constitutional mandate, COA officials need to be insulated
from unwarranted influences, so that they can act with
independence and integrity. x x x The removal of the
temptation and enticement the extra emoluments may
provide is designed to be an effective way of vigorously
and aggressively enforcing the Constitutional provision
mandating the COA to prevent or disallow irregular,
unnecessary, excessive, extravagant, or unconscionable
expenditures or uses of government funds and properties.
Stated otherwise, the COA personnel who have nothing to
look forward to or expect from their assigned offices in
terms of extra benefits, would have no reason to accord
special treatment to the latter by closing their eyes to
irregular or unlawful expenditures or use of funds or
property, or conducting a perfunctory audit. The law
realizes that such extra benefits could diminish the
personnels seriousness and dedication in the pursuit of
their assigned tasks, affect their impartiality and provide a
continuing temptation to ingratiate themselves to the
government entity, local government unit, government-
owned and controlled corporations and government
financial institutions, as the case may be. In the end, they
would become ineffective auditors.31 (Citations omitted)
Anent her availment of the MWSS housing project, Nacion
insists, as an additional defense, that the lot was awarded
to her by a private entity that was separate and distinct
from MWSS, i.e., the MWSS Corporate Office Multi-
Purpose Cooperative Housing Project.32 It is clear,
however, that taking into account the rationale for the
prohibition upon government auditors against receipt of
additional benefits and personal gains, the MWSS
Employees Housing Project could not be wholly separated
from the MWSS and its officers. If Nacions participation in
the housing project were to be allowed, then the influence
and conflict of interest which the law aims to thwart would
hardly be prevented. When it denied Nacions motion to
reconsider, the COA then correctly explained the
following, taking into account the existing structure of the
cooperative vis--vis the
MWSS:chanRoblesvirtualLawlibrary
It must be emphasized that the conceptualization of the
MWSS Employees Housing Project, the utilization of the
MWSS real property as the site of the MWSS housing
project, and the guidelines in the implementation of the
housing project were all approved by the MWSS Board of
Trustees, as evidenced by the minutes of meetings and
resolutions issued by the same Board. It is therefore hard
to escape the fact that MWSS officials govern the conduct
of official affairs of the cooperative. More so, officials of the
cooperative are likewise officials of MWSS. Thus, the
cooperatives affairs being controlled by the MWSS, such
arrangement makes the cooperative conduit or adjunct of
the MWSS. x x x.33
WHEREFORE, the petition is DISMISSED for lack of
merit.
SO ORDERED.
G.R. No. 205433, January 21, 2015
OFFICE OF THE OMBUDSMAN, Petitioner, v. AVELINO
DE ZOSA AND BARTOLOME DELA
CRUZ, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision2 dated September 25, 2012 and the
Resolution3 dated January 22, 2013 of the Court of
Appeals (CA) in CA-G.R. SP No. 117355, which reversed
and set aside the Decision4 dated October 26, 2009 and
the Order5 dated October 27, 2010 of the Office of the
Deputy Ombudsman for Luzon (OMB-Luzon) in OMB-L-A-
07-0113-A finding respondents Avelino De Zosa and
Bartolome Dela Cruz (respondents), then incumbent
Municipal Assessor and Municipal Engineer, respectively,
of the Municipality of Kawit, Cavite, administratively liable
for Grave Misconduct.cralawred
The Facts
On January 17, 1997, the Sangguniang Bayan of Kawit,
Cavite issued Resolution No. 3-97, series of
1997,6 authorizing the mayor to sell the municipal
properties, particularly those under Tax Declaration (TD)
Nos. 9761-A, 9762-A, and 9763-A (subject lands), and to
perform such other acts necessary and related to such
sales. Pursuant thereto, the Municipal Appraisal Board
(MAB) of Kawit, Cavite issued MAB-Resolution No. 3-
97,7 whereby it decreased the assessed fair market value
of the subject lands from P700.00 per square meter (sq.
m.) to P500.00 per sq. m. Thereafter, the Municipality of
Kawit, Cavite auctioned Lot No. 4431, a 243,562-sq. m.
parcel of land covered by TD No. 9763-A, at a minimum
bid price set at P121,781,000.00, pegged at P500.00 per
sq. m. Consequently, Lot No. 4431 was awarded to FJI
Property Developers, Inc. (FJI), which gave the highest bid
of P123,123,123.00,8or approximately P505.51 per sq.
m.9chanRoblesvirtualLawlibrary
However, in the Appraisal Review/Evaluation
Report10 dated June 23, 2000 of the Commission on Audit
(COA Report), it was found that the proper fair market
value for Lot No. 4431 should have been P878.26 per sq.
m. Hence, the COA Report concluded that the
Municipality of Kawit, Cavite suffered undue injury when it
was deprived of income in the amount of P378.26 per sq.
m., or a total of P92,129,762.12, from the sale of Lot No.
4431, resulting in unwarranted benefits in favor of
FJI.11chanRoblesvirtualLawlibrary
Resultantly, the Field Investigation Office of the Office of
the Ombudsman (FIO) filed a Complaint12dated January
16, 2007 against the members of the MAB of Kawit,
Cavite, including respondents, criminally charging them of
violating Section 3 (e)13 of Republic Act No. (RA)
301914 and administratively charging them of Grave
Misconduct, for passing and approving MAB-Resolution
No. 3-97. The criminal aspect was docketed before the
Office of the Ombudsman as Criminal Case No. OMB-1-
01-0304-C, while the administrative aspect subject of the
instant case was docketed before OMB-Luzon as OMB-L-
A-07-0113-A. The complaint alleged that respondents
reappraisal was done sans any basis or
15
computation. chanRoblesvirtualLawlibrary

In their defense, respondents maintained that the re-
appraisal and revaluation of Lot No. 4431 was based on
the MABs aim of maintaining a uniform assessment of lots
with similar attributes in the Municipality of Kawit, i.e.,
lands which are around 30 meters away from [the
national] road and classified as agricultural being fishpond
or marsh land with similar desirability, neighborhood and
important need for the acquisition of a real
property.16 They likewise added that none of the
members of the MAB benefited from such revaluation and
that they were unaware of any losses incurred by the
municipality in view of the sale of Lot No. 4431 to FJI as
the MAB was not the entity that executed such
sale.17chanRoblesvirtualLawlibrary
The OMB-Luzon Ruling
In a Decision18 dated October 26, 2009, the OMB-Luzon
found respondents guilty of Grave Misconduct and
accordingly, meted out the penalty of dismissal from
service with cancellation of eligibility, forfeiture of
retirement benefits, and perpetual disqualification for re-
employment in the government service. The case,
however, was dismissed as to the other members of the
MAB either for being moot and academic due to the
expiration of their term of office or on account of their
death.19chanRoblesvirtualLawlibrary
In ruling against respondents, the OMB-Luzon cited the
Office of the Ombudsmans ruling20 in OMB-1-01-0304-C,
whereby it was found that respondents acts had caused
undue injury to the government [in terms of monetary loss]
because lowering [Lot No. 4431s] value to P500.00 [per]
sq. m. was not fitting and suitable for a property that
commanded a value of P1,100.00 [per] sq. m. as per BIR
records x x x and a fair market value of P878.27 [per] sq.
m. as per COA valuation.21 In view of such findings, the
OMB-Luzon concluded that respondents are liable for
Grave Misconduct for their flagrant disregard of
established rules in arriving at the questioned valuation of
the subject lands, including Lot No.
22
4431. chanRoblesvirtualLawlibrary
Respondents moved for reconsideration which was,
however, denied in an Order23 dated October 27, 2010.
Aggrieved, they appealed to the CA.cralawred
The CA Ruling
In a Decision24 dated September 25, 2012, the CA
reversed and set aside the OMB-Luzon Ruling, and
thereby exonerated respondents from administrative
liability for Grave Misconduct and restored their
entitlement to their earned benefits.25 Contrary to the
findings of the OMB-Luzon, the CA held that there is no
substantial evidence to support the finding that corruption,
willful intent to violate the law, or disregard of established
procedures may be ascribed to respondents. It
ratiocinated that aside from respondents and the other
members avowed intention to maintain a standard and
uniform valuation and appraisal of properties, MAB-
Resolution No. 3-97 merely reflected the valuation
previously approved by the Cavite Provincial Assessment
Board in its Resolution No. 10-96. Finally, the CA noted
that while the OMB-Luzon mentioned that respondents
flagrantly violated established rules, it did not mention
what exactly was the rule violated and how respondents
committed such violation.26 Hence, the CA concluded that
in approving MAB-Resolution No. 3-97, respondents did
not willfully violate nor disregard existing rules in the
appraisal and revaluation of the subject
lands.27chanRoblesvirtualLawlibrary
Dissatisfied, the FIO moved for reconsideration, which
was, however, denied in a Resolution28 dated January 22,
2013, hence, this petition.cralawred
The Issue Before the Court
The primordial issue for the Courts resolution is whether
or not the CA correctly absolved respondents from
administrative liability for Grave Misconduct.cralawred
The Courts Ruling
The petition has no merit.
At the outset, it must be stressed that in administrative
cases, substantial evidence is required to support any
findings. Substantial evidence is such relevant evidence
as a reasonable mind may accept as adequate to support
a conclusion. The requirement is satisfied where there is
reasonable ground to believe that one is guilty of the act
or omission complained of, even if the evidence might not
be overwhelming.29 In cases before the Office of the
Ombudsman, jurisprudence instructs that the
fundamental rule in administrative proceedings is that the
complainant has the burden of proving, by substantial
evidence, the allegations in his complaint. Section 27 of
the Ombudsman Act is unequivocal: Findings of fact by the
Office of the Ombudsman when supported by substantial
evidence are conclusive. Conversely, therefore, when the
findings of fact by the Ombudsman are not adequately
supported by substantial evidence, they shall not be
binding upon the courts.30 Thus, the Court must make its
own factual review of the case when the Ombudsmans
findings are contradictory to that of the CA,31 as in this
case.
After a judicial review of the records, the Court agrees with
the CA that there is no substantial evidence to hold
respondents administratively liable for Grave Misconduct.
Misconduct is a transgression of some established and
definite rule of action, more particularly, unlawful behavior
or gross negligence by the public officer. To warrant
dismissal from service, the misconduct must be grave,
serious, important, weighty, momentous, and not trifling.
The misconduct must imply wrongful intention and not a
mere error of judgment and must also have a direct
relation to and be connected with the performance of the
public officers official duties amounting either to
maladministration or willful, intentional neglect, or failure to
discharge the duties of the office. In order to differentiate
gross misconduct from simple misconduct, the elements
of corruption, clear intent to violate the law, or flagrant
disregard of established rule, must be manifest in the
former.32chanRoblesvirtualLawlibrary
In this case, records are bereft of any showing that
respondents wrongfully intended to transgress some
established and definite rule of action which is attended by
corruption, clear intent to violate the law, or flagrant
disregard of the rules when they, along with the other
members of the MAB of the Municipality of Kawit, Cavite,
approved MAB-Resolution No. 3-97 causing the re-
appraisal and revaluation of the subject lands. On the
contrary and as correctly pointed out by the CA, the
passage of MAB-Resolution No. 3-97 was merely done so
that lands within the municipality which have the same
attributes those which are around 30 meters away from
[the national] road, and classified as agricultural being
fishpond or marsh land with similar desirability,
neighborhood and important need for the acquisition of a
real property will be assessed uniformly, pursuant to
Resolution No. 10-96 of the Cavite Provincial Assessment
Board.33 As there are ample bases for the passage of
MAB-Resolution No. 3-97, the Court finds that the
evidence on record supports the conclusion that
respondents did not commit Grave Misconduct, much less
Simple Misconduct. Perforce, the CA correctly exonerated
them from administrative liability.chanrobleslaw
WHEREFORE, the petition is DENIED. Accordingly, the
Decision dated September 25, 2012 and the Resolution
dated January 22, 2013 of the Court of Appeals in CA-G.R.
SP No. 117355 are hereby AFFIRMED.
SO ORDERED.cralawlawlibrary
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. P-15-3296 February 17, 2015
[Formerly OCA IPI No. 14-4364-P]
ANONYMOUS LETTER-COMPLAINT AGAINST
REYNALDO C. ALCANTARA, UTILITY WORKER I, BR.
70, AND JOSEPH C. JACINTO, ELECTRICIAN, HALL
OF JUSTICE, BOTH OF THE REGIONAL TRIAL
COURT, BURGOS, PANGASINAN
RESOLUTION
PER CURIAM:
This case stemmed from an undated Letter-Complaint,
addressed to Executive Judge Elpidio N. Abella (Executive
Judge Abella), Regional Trial Court, Alaminos City,
Pangasinan,charging respondents Reynaldo C. Alcantara
(Alcantara) and Joseph C. Jacinto (Jacinto) with the
commission of several illegal activities in violation of Civil
Service Rules.1 Alcantara worked as Utility Worker I,
Branch70, Regional Trial Court, Burgos, Pangasinan,
whereas Jacinto was an electrician at the Hall of Justice in
the same city.2
The Letter-Complaint was indorsed to the Office of the
Court Administrator.3 The Office of the Court Administrator
then directed Executive Judge Abella to conduct a discreet
investigation and submit a report.4
In the Report dated July 17, 2013, Executive Judge Abella
recommended that Alcantara and Jacinto be immediately
dismissed from service.5 He found that as early as 2009,
Alcantara and Jacinto received and encashed checks of
their co-workers without consent.6 The investigating judge
made the following factual findings:
(1) Roger Ginez (Ginez), Junior Process Server,
Municipal Circuit Trial Court, Burgos, Pangasinan,
executed an affidavit pointing to Alcantara as the
one who stole his two (2) salary checks amounting
to P8,792.38, which covered the month of June
2009.7 According to Ginez, Alcantara later
confessed that he was the one who stole the
checks. The incident was recorded in the blotter of
the Philippine National Police, Burgos,
Pangasinan; 8
(2) In May 2012, Annie Lyn R. Tugade (Tugade),
then Officer-in-Charge, Regional Trial Court,
Branch 70, Burgos, Pangasinan, lost her
representation and transportation allowance check
in the amount of 8,000.00 for May 2012.9 She
initially instructed Jacinto to verify the status of the
check with the Checks Releasing Division of the
Supreme Court.10 Jacinto allegedly informed
Tugade that the check was not ready. However,
she discovered that her check for May was already
released and sent through mail by the Supreme
Court.11Bank records revealed that Tugades
signature was forged on July 30, 2012.12 Alcantara
and Jacinto admitted to receiving and encashing
Tugades check without her permission;13
(3) Imelda Bruto Espaol (Espaol),Construction
and Maintenance General Foreman, Hall of
Justice,Burgos, Pangasinan averred that Alcantara
and Jacinto stole and illegally encashed several
checks.14 A check for P790.00, which was due to
one of the contractors of the Hall of Justice but was
issued under Espaols name, was illegally
encashed by Alcantara.15 Another check, in the
amount of P4,724.00 and in Espaols name, was
taken and encashed by Alcantara and Jacinto
without her consent.16 Espaols signature
appeared to have been forged on June 21,
2012;17 and
(4) Edwin Naval (Naval), Utility Worker, Hall of
Justice, Burgos, Pangasinan, also alleged that
Alcantara and Jacinto stole his salary check and
encashed it at the bank through forgery. Naval,
however, claimed that Alcantara and Jacinto had
refunded him the amount taken.18
Executive Judge Abella found that Alcantaras and
Jacintos actions constituted grave misconduct and
recommended their dismissal from service:
It could not be denied that they were the ones who
committed these serious misconduct [sic] having admitted
in the presence of their victims and. . . in the presence of
Judge Aguilar, that they either stole or received their co-
employees checks without proper authorization and
encashed them without the owner[s] consent and us[ed]
the cash proceeds for their own personal use and benefit
to the detriment of their co-workers who are the owners of
the checks. It is likewise very clear that the checks were
encashed in another bank. . . forging the signatures of the
payees.19
The Office of the Court Administrator directed Alcantara
and Jacinto to comment.20
In his Comment dated September 3,2013, Alcantara
admitted to the taking and encashing of Tugadesand
Espaols checks without permission.21 He claimed,
however, that he was not a thief.22 He was only tempted to
take and encash the checks because of his financial
circumstances then to support his family.23 He already
asked for Tugades and Espaols forgiveness. 24 He
denied all the other allegations, including Ginezs claims.25
Jacinto, in his Comment dated September 23, 2013,
denied taking the checks.26 He admitted that he
accompanied Alcantara in encashing a check. However,
he did not know that the check did not belong to
Alcantara.27 He received a portion of the proceeds from
the check but when he found out that the check belonged
to Tugade, he returned the amount and asked for her
forgiveness.28 He denied Espaols claims.29
In its report dated October 14,2014, the Office of the Court
Administrator found that Alcantara and Jacinto are guilty
of grave misconduct and dishonesty.30 According to the
Office of the Court Administrator:
In the case at bar, the acts of respondents Alcantara and
Jacinto clearly amounted to dishonesty and grave
misconduct. Respondent Alcantara admitted to stealing
and encashing the checks of Tugade and Espaol and put
up the lame excuse that he was forced to do it because of
his dire financial situation at the time. The explanation of
respondent Jacinto is even more absurd. He claimed that
he had no idea that the checks were stolen but he admitted
receiving proceeds from the scheme and allotting them to
his personal needs.
....
Under Rule 9, Section 46 of the Revised Rules on
Administrative Cases in Civil Service, promulgated on 18
November 2011, Serious Dishonesty and Grave
Misconduct are grave offenses punishable by dismissal
from service even on the first offense. As correctly pointed
by Executive Judge Abella, respondents Alcantara and
Jacinto committed grave offenses and "do not deserve to
stay with the judiciary even for a minute longer."31
We adopt the findings and recommendations of the Office
of the Court Administrator.
Dishonesty is defined as the "[d]isposition to lie, cheat,
deceive, or defraud; untrustworthiness; lack of integrity;
lack of honesty, probity or integrity in principle; lack of
fairness and straightforwardness; disposition to defraud,
deceive or betray."32
Grave misconduct is committed when there has been "a
transgression of some established and definite rule of
action, more particularly, unlawful behavior or gross
negligence by a public officer. The misconduct is grave if
it involves any of the additional elements of corruption,
willful intent to violate the law, or to disregard established
rules, all of which must be established by substantial
evidence, and must necessarily be manifest in a charge of
grave misconduct."33
In Rojas, Jr. v. Mina,34 respondent was found guilty of
gross misconduct and dishonesty for stealing and
encashing Special Allowance for Judges and Justices
checks payable to several trial court judges without their
consent. Similarly, in Re: Loss of Extraordinary Allowance
Check No. 11-6739 of Judge Eduardo
Jovellanos,35 respondent Rosario Santos was held
responsible for stealing, encashing, and converting for her
personal use the amount covered by the check issued to
Judge Eduardo U. Jovellanos.
In this case, Alcantara and Jacinto admitted to taking and
encashing checks of their co-workers without
permission.1wphi1 There is no doubt that their acts of
repeatedly stealing the checks and forging the signatures
of their coworkers constitute grave misconduct and
dishonesty. Their alleged remorse for what they have done
does not erase the transgression they committed. "This
Court will not hesitate to rid its ranks of undesirables who
undermine its efforts toward an effective and efficient
administration of justice, thus tainting its image in the eyes
of the public."36
Under the Revised Rules on Administrative Cases in the
Civil Service, Rule 10, Section 46, serious dishonesty and
grave misconduct are punishable by dismissal from
service even if for the first offense.37 This court held that:
we have not hesitated to impose the ultimate penalty. This
Court had never and will never tolerate nor condone any
conduct which would violate the norms of public
accountability, and diminish, or even tend to diminish, the
faith of the people in the justice system.38 WHEREFORE,
respondents Reynaldo C. Alcantara and Joseph C. Jacinto
are GUILTY of Grave Misconduct and Dishonesty.
Respondents are DISMISSED FROM THE SERVICE, with
forfeiture of all retirement benefits due them, except
accrued leave credits, and WITH PREJUDICE to re-
employment in any branch, agency or instrumentality of
the government, including government-owned or
controlled corporations.
SO ORDERED.
G.R. No. 173277, February 25, 2015
OFFICE OF THE
OMBUDSMAN, Petitioner, v. PRUDENCIO C. QUIMBO,
COURT OF APPEALS, 20THDIVISION, CEBU
CITY, Respondents.
DECISION
MENDOZA, J.:
This petition for certiorari under Rule 65 of the Rules of
Court assails the May 2, 2006 Resolution1 of the Court of
Appeals (CA), in CA-G.R. SP No. 54737, which denied the
motion for intervention and reconsideration of its January
21, 2005 Decision,2 filed by petitioner Office of the
Ombudsman (Ombudsman).
The Antecedents
The present controversy stemmed from the administrative
complaint lodged by Gilda D. Daradal (Daradal), a clerk in
the Provincial Engineering Office of Catbalogan, Samar,
against private respondent Engr. Prudencio C. Quimbo
(Quimbo), Provincial Engineer of Samar, with the Office of
the Ombudsman-Visayas (Ombudsman-Visayas) for
Sexual Harassment and Oppression, docketed as OMB-
VIS-ADM-96-04846.
In her complaint, Daradal alleged that on July 19, 1996, at
about 10:00 oclock in the morning at the Motor Pool
Division of the Provincial Engineering Department,
Catbalogan, Samar, Quimbo asked her to massage his
forehead and nape. In the course thereof, he said, You
had been lying to me you have already seen my manhood.
When shall I have to see yours? She was appalled as the
utterance was made in the presence of her co-employees.
She added that by virtue of a Memorandum,3 dated August
6, 1996, Quimbo ordered her detail to the Civil Service
Commission in Catbalogan, Samar, to perform the tasks
of a male utility personnel. Her name was removed from
the payroll of the personnel of the Provincial Engineering
Office from August 16-31, 1996 because of her refusal to
submit to his sexual advances.
In his defense, Quimbo retorted that the charge instituted
against him was fictitious. He claimed that Daradal
enjoyed a very important person (VIP) treatment for a
long period of time and, when required to work, rebelled
against him. He asserted that the charge of sexual
harassment and oppression was intended to embarrass
and ridicule him and that the discretion to order her detail
was validly exercised.
On March 26, 1996, Daradal filed a motion for withdrawal
of the complaint. The motion, however, was denied by the
Ombudsman-Visayas in its Order, dated August 11, 1998.
The Ombudsman-Visayas Ruling
On December 9, 1998, after due proceedings, the
Ombudsman-Visayas issued a resolution4dismissing the
case of sexual harassment against Quimbo but finding him
guilty of oppression. The Ombudsman-Visayas imposed
the penalty of suspension for six (6) months without pay.
The dispositive portion of the said resolution
reads:chanRoblesvirtualLawlibrary
WHEREFORE, in the light of all the foregoing, this Office
finds Prudencio C. Quimbo, guilty of Oppression, thus
mete upon him, the penalty of SUSPENSION for SIX (6)
MONTHS without pay, in accordance with Memorandum
Circular No. 30, Series of 1989 of the Civil Service
Commission.
SO RESOLVED.5
Engr. Quimbo moved for reconsideration but his motion
was denied by the Ombudsman-Visayas in its
Order,6 dated April 15, 1999.
The CA Ruling
Aggrieved, Quimbo elevated the case before the CA by
way of a petition for review under Rule 43 of the Rules of
Court. The case, entitled Prudencio C. Quimbo vs. Gilda
D. Daradal, was docketed as CA-G.R. SP No. 54737.
On January 21, 2005, the CA reversed the December 9,
1998 Resolution and the April 15, 1999 Order of the
Ombudsman-Visayas. In reversing the said ruling, the CA
ratiocinated:chanRoblesvirtualLawlibrary
The Office of the Ombudsman has no power to directly
impose sanctions against government officials and
employees who are subject of its investigation as its power
is only limited to recommend the appropriate sanctions but
not directly to impose the same.
In Tapiador vs. Office of the Ombudsman, the Supreme
Court pronounced:
cralawred
x x x
Besides, assuming arguendo, that petitioner were (sic)
administratively liable, the Ombudsman has no authority
to directly dismiss the petitioner from the government
service, more particularly from his position in the BID.
Under Section 13, subparagraph (3) of Article XI of the
1987 Constitution, the Ombudsman can only
recommend the removal of the public official or employee
found to be at fault, to the public official concerned.
x x x
There is no gainsaying the fact that the Office of the
Ombudsman is vested with the jurisdiction to take
cognizance of cases for the purpose of ascertaining
whether or not public servants have committed
administrative offenses. However, their power is only to
recommend to the disciplining authority the appropriate
penalty to be meted out and it is best left to the proper
disciplining authority to impose such penalty, which in this
case is the Office of the Governor of the Province of
Samar.7
ChanRoblesVirtualawlibrary
Accordingly, the fallo of the January 21, 2005 Decision
reads:chanRoblesvirtualLawlibrary
WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered by us GRANTING the
petition filed in this case and SETTING ASIDE the
Resolution dated December 9, 1998 and the Order dated
April 15, 1999 issued by the Office of the Ombudsman in
OMB-VIS-ADM-96-0486 in so far as it directly imposes
upon the petitioner the penalty of suspension from the
service.
IT IS SO ORDERED.8
On February 14, 2005, the Ombudsman filed an omnibus
motion for intervention and reconsideration of the CA
decision, dated January 21, 2005.
In its Resolution,9 dated May 2, 2006, the CA denied the
said motion. In so doing, the CA
explained:chanRoblesvirtualLawlibrary
For one, we have noted that the person adversely affected
by our ruling in SP No. 54737 is respondent Gilda D.
Daradal who opted not to file a motion for reconsideration
thereof. Basic is the rule that every action must be
prosecuted or defended in the name of the real party in
interest.
x x x x.
For another, as a quasi-judicial body, the office of the
Ombudsman can be likened to a judge who should detach
himself from cases where his decision is appealed to a
higher court for review.
In filing a motion for intervention and reconsideration, the
Ombudsman dangerously departed from its role as
adjudicator and became an advocate. Its mandated
function is to hear, investigate and decide administrative
and appropriate criminal cases against public official[s] or
employee[s] instituted by or brought before it directly, and
not to litigate. Therefore, we rule that the Office of the
Ombudsman has no legal standing to intervene in the case
at bench.cralawred
xxxx
Not in conformity with the pronouncement of the CA, the
Ombudsman instituted a petition for certiorari under Rule
65 of the Rules of Court alleging grave abuse of discretion
amounting to lack of or in excess of jurisdiction on the part
of the CA. It posited that there was no appeal or any plain,
speedy and adequate remedy in the ordinary course of law
to challenge the validity of the assailed CA Resolution,
dated May 2, 2005. Thus, it was constrained to resort to
the filing of the said petition.
The Ombudsmans Position
In its Memorandum,10 the Ombudsman stressed that, as
the champion of the people, it had the right and legal
interest to seek redress on the apparent erroneous
reversal by the CA of its decision in an administrative
disciplinary case. It insisted that, as the disciplining
authority, it has the power and prerogative to directly
impose any administrative penalty. It asserted that the
obiter dictum in the case of Tapiador v. Office of the
Ombudsma (Tapiador)11 heavily relied upon by the CA, to
declare its disciplinary powers as merely recommendatory
had been rejected by the Court in numerous cases.
Respondent Quimbos Position
In his Memorandum,12 Quimbo contended that the
Ombudsman had no legal standing to intervene or to seek
reconsideration of the assailed CA decision because the
real party in interest was Daradal. He further stated that
the assailed CA decision was based on prevailing
jurisprudence at the time the said decision was rendered.
ISSUES
Based on the parties respective contentions, the issues
for this Courts resolution are as
follows:chanRoblesvirtualLawlibrary
i. Whether the CA gravely abused its
discretion in declaring that the Ombudsman
lacks the power to directly impose
administrative penalties against erring public
officials or employees.
ii. Whether the CA gravely abused its
discretion in denying the Ombudsmans plea
 to validly intervene in its proceedings for lack feature of the 1987 Constitution. The Ombudsman and his
of legal interest. deputies, as protectors of the people, are mandated to act
promptly on complaints filed in any form or manner against
officers or employees of the Government, or of any
The Courts Ruling subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations. Foremost
The Court grants the Ombudsmans petition. among its powers is the authority to investigate and
prosecute cases involving public officers and employees,
Preliminary matters thus:
cralawred
The Ombudsman has the power to directly impose Section 13. The Office of the Ombudsman shall have the
administrative penalties against public officials or following powers, functions, and duties:
employees. cralawred
(1) Investigate on its own, or on complaint by any person,
In the case of Ombudsman v. Apolonio,13 the Court any act or omission of any public official, employee, office
categorically delineated the Ombudsmans power or agency, when such act or omission appears to be
to directly impose, not merely recommend, administrative illegal, unjust, improper, or inefficient.
sanctions against erring public officials or Republic Act No. 6770, otherwise known as The
employees, viz:chanRoblesvirtualLawlibrary Ombudsman Act of 1989, was passed into law on
November 17, 1989 and provided for the structural and
The Ombudsman has the power to impose the penalty of
functional organization of the Office of the
removal, suspension, demotion, fine, censure, or
Ombudsman. RA 6770 mandated the Ombudsman and
prosecution of a public officer or employee, in the exercise
his deputies not only to act promptly on complaints but also
of its administrative disciplinary authority. The challenge
to enforce the administrative, civil and criminal liability of
to the Ombudsmans power to impose these penalties, on
government officers and employees in every case where
the allegation that the Constitution only grants it
the evidence warrants to promote efficient service by the
recommendatory powers, had already been rejected by
Government to the people.
this Court.
The authority of the Ombudsman to conduct
The Court first rejected this interpretation in Ledesma v.
administrative investigations as in the present case is
Court of Appeals, where the Court, speaking through
settled. Section 19 of RA 6770
Mme. Justice Ynares-Santiago, held:
provides:chanRoblesvirtualLawlibrary
The creation of the Office of the Ombudsman is a unique
SEC. 19. Administrative Complaints. The Ombudsman censure, or prosecution, and ensure compliance
shall act on all complaints relating, but not limited to acts therewith. (Emphasis, underscoring and italization in the
or omissions which: original.)

(1) Are contrary to law or regulation; In Ledesma v. Court of Appeals (Ledesma),14 the Court
definitively stated that the statement in Tapiador regarding
(2) Are unreasonable, unfair, oppressive or discriminatory; the Ombudsmans power was merely an obiter dictum
and, as such, could not be cited as a doctrinal
(3) Are inconsistent with the general course of an agencys pronouncement. Thus:chanRoblesvirtualLawlibrary
functions, though in accordance with law;
x x x [A] cursory reading of Tapiador reveals that the main
(4) Proceed from a mistake of law or an arbitrary point of the case was the failure of the complainant therein
ascertainment of facts; to present substantial evidence to prove the charges of the
administrative case. The statement that made reference
(5) Are in the exercise of discretionary powers but for an to the power of the Ombudsman is, at best, merely
improper purpose; or an obiter dictum and, as it is unsupported by sufficient
explanation, is susceptible to varying interpretations, as
(6) Are otherwise irregular, immoral or devoid of what precisely is before us in this case. Hence, it cannot
justification. be cited as a doctrinal declaration of this Court nor is it safe
from judicial examination.
The point of contention is the binding power of any
decision or order that emanates from the Office of the
Ombudsman after it has conducted its The import of the Ledesma ruling is crystal clear. Although
investigation. Under Section 13(3) of Article XI of the 1987 the tenor of the text in Section 13(3), Article XI15 of the
Constitution, it is provided: Constitution merely indicates a recommendatory
function, this does not divest Congress of its plenary
Section 13. The Office of the Ombudsman shall have the legislative power to vest the Ombudsman powers beyond
following powers, functions, and duties: those stated in the Constitutional provision. Pursuant to
Republic Act (R.A.) No. 6770, otherwise known as The
xxxx Ombudsman Act of 1989, the Ombudsman is legally
authorized to directly impose administrative penalties
(3) Direct the officer concerned to take appropriate action against errant public servants. Further, the manifest intent
against a public official or employee at fault, of the lawmakers was to bestow on the Ombudsman full
and recommend his removal, suspension, demotion, fine, administrative disciplinary authority in accord with the
constitutional deliberations. Unlike the Ombudsman-like
agencies of the past, the powers of which extend to no
more than making findings of fact and recommendations,
and the Ombudsman or Tanodbayan under the 1973
Constitution who might file and prosecute criminal, civil or
administrative cases against public officials and
employees only in cases of failure of justice, the current
Ombudsman, under the 1987 Constitution and R.A.
No. 6770, is intended to play a more active role in the
enforcement of laws on anti-graft and corrupt practices
and other offenses committed by public officers and
employees. The Ombudsman is to be an activist
watchman, not merely a passive one. He is vested with
broad powers to enable him to implement his own
actions.16cralawlawlibrary
The Ombudsman has the legal interest to intervene in the
proceedings before the CA.
The issue of whether or not the Ombudsman possesses
the requisite legal interest to intervene in the proceedings
where its decision is at risk of being inappropriately
impaired has been laid to rest in Ombudsman v. De
Chavez.17 In the said case, the Court conclusively ruled
that even if the Ombudsman was not impleaded as a party
in the proceedings, part of its broad powers include
defending its decisions before the CA. And pursuant to
Section 1 of Rule 19 of the Rules of Court, 18the
Ombudsman may validly intervene in the said proceedings
as its legal interest on the matter is beyond cavil. The
Court elucidated, thus:chanRoblesvirtualLawlibrary
x x x the Ombudsman is in a league of its own. It is different
from other investigatory and prosecutory agencies of the
government because the people under its jurisdiction are
public officials who, through pressure and influence, can
quash, delay or dismiss investigations directed against
them. Its function is critical because public interest (in the
accountability of public officers and employees) is at
stake.cralawred
x x x
The Office of the Ombudsman sufficiently alleged its legal
interest in the subject matter of litigation. Paragraph 2 of
its motion for intervention and to admit the attached motion
to recall writ of preliminary injunction
averred:chanRoblesvirtualLawlibrary
2. As a competent disciplining body, the Ombudsman has
the right to seek redress on the apparently erroneous
issuance by this Honorable Court of the Writ of Preliminary
Injunction enjoining the implementation of the
Ombudsman's Joint Decision x x x x.
In asserting that it was a "competent disciplining body," the
Office of the Ombudsman correctly summed up its legal
interest in the matter in controversy. In support of its claim,
it invoked its role as a constitutionally mandated "protector
of the people," a disciplinary authority vested with quasi-
judicial function to resolve administrative disciplinary
cases against public officials. To hold otherwise would
have been tantamount to abdicating its salutary functions
as the guardian of public trust and accountability.
Moreover, the Office of the Ombudsman had a clear legal
interest in the inquiry into whether respondent committed
acts constituting grave misconduct, an offense punishable
under the Uniform Rules in Administrative Cases in the
Civil Service. It was in keeping with its duty to act as a
champion of the people and preserve the integrity of public
service that petitioner had to be given the opportunity to
act fully within the parameters of its authority.
It is true that under our rule on intervention, the allowance
or disallowance of a motion to intervene is left to the sound
discretion of the court after a consideration of the
appropriate circumstances. However, such discretion is
not without limitations. One of the limits in the exercise of
such discretion is that it must not be exercised in disregard
of law and the Constitution. The CA should have
considered the nature of the Ombudsman's powers as
provided in the Constitution and RA 6770.cralawred
x x x x
Both the CA and respondent likened the Office of the
Ombudsman to a judge whose decision was in question.
This was a tad too simplistic (or perhaps even rather
disdainful) of the power, duties and functions of the Office
of the Ombudsman. The Office of the Ombudsman cannot
be detached, disinterested and neutral specially when
defending its decisions. Moreover, in administrative cases
against government personnel, the offense is committed
against the government and public interest. What further
proof of a direct constitutional and legal interest in the
accountability of public officers is necessary? (Italics
supplied. Citations omitted.)
As can be gleaned from the foregoing disquisition, the CA,
in the present case, gravely erred in disallowing the
Ombudsmans motion to intervene. It failed to consider the
essence of the Ombudsmans constitutionally and
statutorily conferred powers establishing its clear legal
interest in ensuring that its directive be implemented.
Substantive Aspect
Significantly, Section A, Subsection 13 of Civil Service
Commission Memorandum Circular No. 30, series of 1989
(CSC MC No. 30), the applicable rule then, expressly
provides:chanRoblesvirtualLawlibrary
A. Grave Offenses
x x x x
13. Oppression
1st Offense Suspension for six (6) months and one (1)
day to one (1) year;
2nd Offense Dismissal.
In the present case, the Ombudsman found Quimbo
administratively liable for the grave offense of Oppression
and correspondingly meted out a penalty of suspension for
six (6) months without pay. While his administrative liability
for Oppression is undisputed, it behooves the Court to
adjust the penalty imposed upon him to conform to CSC
MC No. 30. Accordingly, the Court finds it necessary to
modify the penalty to suspension for six (6) months and
one (1) day without pay to accurately reflect the
classification of the offense for which he was found liable.

WHEREFORE, the petition is GRANTED. The January
21, 2005 Decision and the May 2, 2006 Resolution of the
Court of Appeals, Cebu City in CA-G.R. SP No. 54737 are
hereby NULLIFIED and SET ASIDE. The December 9,
1998 Resolution and the April 15, 1999 Order of the Office
of the Ombudsman, in OMB-VIS-ADM-96-0486, are
hereby REINSTATED with MODIFICATION that the
penalty of SUSPENSION to be imposed upon Prudencio
C. Quimbo be for SIX (6) MONTHS and ONE (1) DAY
without pay.
SO ORDERED.chanroblesvirtuallawlibrary
JOSEPH B. TIMBOL, Petitioner, v. COMMISSION ON
ELECTIONS, Respondent.
RESOLUTION
LEONEN, J.:
The power of the Commission on Elections (COMELEC)
to restrict a citizen's right of suffrage should not be
arbitrarily exercised. The COMELEC cannot motu
proprio deny due course to or cancel an alleged nuisance
candidate's certificate of candidacy without providing the
candidate his opportunity to be heard.
This is a Petition1 for Certiorari with prayer for issuance of
preliminary mandatory injunction against the following
issuances of the COMELEC: first, Resolution No.
96102 dated January 11, 2013, declaring petitioner Joseph
B. Timbol (Timbol) a nuisance candidate and ordering the
removal of his name from the certified list of
candidates;3 and second, Minute Resolution4 dated
February 5, 2013, denying his Petition to have his name
listed in the certified list of candidates and printed on the
ballots for the May 13, 2013 elections.5cralawred
On October 5, 2012, Timbol filed a Certificate of
Candidacy6 for the position of Member of the Sangguniang
Panlungsod of the Second District of Caloocan City. On
January 15, 2013, he received a Subpoena7 from
COMELEC Election Officer Dinah A. Valencia (Election
Officer Valencia), ordering him to appear before her office
on January 17, 2013 for a clarificatory hearing in
connection with his Certificate of Candidacy.8cralawred
Timbol, together with his counsel, appeared before
Election Officer Valencia. During the clarificatory hearing,
Timbol argued that he was not a nuisance candidate. He
contended that in the 2010 elections, he ranked eighth
among all the candidates who ran for Member of the
Sangguniang Panlungsod of the Second District of
Caloocan City. He allegedly had sufficient resources to
sustain his campaign.9cralawred
He pointed out before the clarificatory hearing panel that
his name already appeared in the list of nuisance
candidates posted in the COMELEC website pursuant to
Resolution No. 9610 dated January 11, 2013. The
clarificatory hearing panel allegedly assured him that his
name would be deleted from the list and that his Certificate
of Candidacy would be given due course.10cralawred
In the Memorandum11 dated January 17, 2013, Election
Officer Valencia recommended that Timbol's Certificate of was already moot and academic, considering that the May
Candidacy be given due course.12cralawred 13, 2013 elections had already been
conducted.22cralawred
Despite Election Officer Valencia's favorable
recommendation, Timbol's name was not removed from Even assuming that the Petition was not moot and
the list of nuisance candidates posted in the COMELEC's academic, the COMELEC maintained that it did not
website. With the printing of ballots for the automated gravely abuse its discretion. Contrary to Timbol's
elections set on February 4, 2013, Timbol filed on argument, he was given an opportunity to be heard when
February 2, 2013 a Petition13 praying that his name be Election Officer Valencia heard him during the clarificatory
included in the certified list of candidates for the May 13, hearing. He even admitted that he attended the
2013 elections.14cralawred clarificatory hearing with his counsel.23cralawred

In the Minute Resolution dated February 5, 2013, the Moreover, the COMELEC did not gravely abuse its
COMELEC denied the Petition for being moot, considering discretion in denying Timbol's Petition to be included in the
that the printing of ballots had already begun. 15cralawred certified list of candidates, considering that the printing of
ballots had already started.24cralawred
On March 15, 2013,16 Timbol filed his Petition for Certiorari
with this court, arguing that the COMELEC gravely abused With these arguments, the COMELEC prayed that this
its discretion in declaring him a nuisance court deny the Petition for lack of merit.25cralawred
17
candidate. According to Timbol, the COMELEC deprived
him of due process of law when he was declared a In the Resolution26 dated August 6, 2013, this court
nuisance candidate even before Election Officer Valencia ordered Timbol to file a reply. When Timbol failed to file his
conducted the clarificatory hearing.18 He prayed for a reply despite receipt of the order,27 we required Atty. Jose
preliminary mandatory injunction ordering the COMELEC Ventura Aspiras (Atty. Aspiras), counsel for Timbol, to
to include his name in the certified list of candidates for the show cause why he should not be disciplinarily dealt with
position of Member of Sangguniang Panlungsod of the for failing to file a reply on behalf of his client in the
Second District of Caloocan City.19cralawred Resolution28 dated September 2, 2014. We likewise
reiterated our order for Atty. Aspiras to file a reply for
In the Resolution20 dated April 16, 2013, this court ordered Timbol.29 Still, Atty. Aspiras failed to comply with our show
the Office of the Solicitor General to comment on behalf of cause resolution.
the COMELEC.
We dispense with the filing of the reply and resolve to
In its Comment,21 the COMELEC argued that the Petition decide this case based on the Petition and the Comment.
The issues for this court's resolution are the following:
First, whether this case is moot and academic; and
Second, whether respondent COMELEC gravely abused
its discretion in denying petitioner Timbol's Petition for
inclusion in the certified list of candidates.
We deny the Petition.chanroblesvirtuallawlibrary
I preclude us from setting forth "controlling and authoritative
This case is moot and academic.
A case is moot and academic if it "ceases to present a
justiciable controversy because of supervening events so
that a declaration thereon would be of no practical use or
value."30 When a case is moot and academic, this court
generally declines jurisdiction over it.31cralawred
We may no longer act on petitioner's prayer that his name
be included in the certified list of candidates and be printed
on the ballots as a candidate for Member of the
Sangguniang Panlungsod. Petitioner filed with this court
his Petition for Certiorari on March 15, 2013, 39 days after
respondent began printing the ballots on February 4, 2013.
Also, the May 13, 2013 elections had been concluded, with
the winners already proclaimed.
That this case is moot and academic, however, does not
doctrines"33 to be observed by respondent in motu
proprio denying due course to or cancelling certificates of
candidacy of alleged nuisance candidates. This motu
proprio authority is always subject to the alleged nuisance
candidate's opportunity to be heard34 an essential
element of procedural due process.35cralawred
II

There are recognized exceptions to this rule. This court Respondent's power to motu proprio deny
has taken cognizance of moot and academic cases due course to a certificate of candidacy is
when:chanRoblesvirtualLawlibrary subject to the candidate's opportunity to
be heard.
(1) there was a grave violation of the Constitution; (2) the
case involved a situation of exceptional character and was Under Article II, Section 26 of the Constitution, "[t]he State
of paramount public interest; (3) the issues raised required shall guarantee equal access to opportunities for public
the formulation of controlling principles to guide the Bench, service[.]" This, however, does not guarantee "a
the Bar and the public; and (4) the case was capable of constitutional right to run for or hold public office[.]" 36 To
repetition yet evading review.32 (Citation run for public office is a mere "privilege subject to
omitted)cralawlawlibrary limitations imposed by law."37 Among these limitations is
the prohibition on nuisance candidates.
Nuisance candidates are persons who file their certificates
of candidacy "to put the election process in mockery or
disrepute or to cause confusion among the voters by the
similarity of the names of the registered candidates or by
other circumstances or acts which clearly demonstrate
that the candidate has no bona fide intention to run for the
office for which the certificate of candidacy has been filed
and thus prevent a faithful determination of the true will of
the electorate."38 In Pamatong v. Commission on
Elections,39 this court explained why nuisance candidates
are prohibited from running for public
office:chanRoblesvirtualLawlibrary
. . . The State has a compelling interest to ensure that its
electoral exercises are rational, objective, and orderly.
Towards this end, the State takes into account the
practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the
greater the opportunities for logistical confusion, not to
mention the increased allocation of time and resources in
preparation for the election. These practical difficulties
should, of course, never exempt the State from the
conduct of a mandated electoral exercise. At the same
time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and
proper. Ultimately, a disorderly election is not merely a
textbook example of inefficiency, but a rot that erodes faith
in our democratic institutions. . . . support of their contentions. Because the resolution of
. . . The organization of an election with bona
fide candidates standing is onerous enough. To add into
the mix candidates with no serious intentions or
capabilities to run a viable campaign would actually impair
the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to
constitute a one-note joke. The poll body would be bogged
by irrelevant minutiae covering every step of the electoral
process, most probably posed at the instance of these
nuisance candidates. It would be a senseless sacrifice on
the part of the State.40cralawlawlibrary
To minimize the logistical confusion caused by nuisance
candidates, their certificates of candidacy may be denied
due course or cancelled by respondent. This denial or
cancellation may be "motu proprio or upon a verified
petition of an interested party,"41 "subject to an opportunity
to be heard."42cralawred
The opportunity to be heard is a chance "to explain one's
side or an opportunity to seek a reconsideration of the
action or ruling complained of."43 In election cases, due
process requirements are satisfied "when the parties are
afforded fair and reasonable opportunity to explain their
side of the controversy at hand."44cralawred
In Cipriano v. Commission on Elections,45 this court
explained:chanRoblesvirtualLawlibrary
[T]he determination whether a candidate is eligible for the
position he is seeking involves a determination of fact
where both parties must be allowed to adduce evidence in
such fact may result to a deprivation of one's right to run
for public office, or, as in this case, one's right to hold
public office, it is only proper and fair that the candidate
concerned be notified of the proceedings against him and
that he be given the opportunity to refute the allegations
against him. It should be stressed that it is not sufficient, ballots already printed would have to be recalled, leading
as the COMELEC claims, that the candidate be notified of to the waste of the ballots previously printed. It should be
the Commission's inquiry into the veracity of the contents noted that these ballots are special as the have the
of his certificate of candidacy, but he must also be allowed capability of being optically scanned by Precinct Count
to present his own evidence to prove that he possesses Optical Scan machines. Reprinting another batch of
the qualifications for the office he seeks.46cralawlawlibrary ballots would, indeed, be costly.

Respondent commits grave abuse of discretion if it denies Still, "automation is not the end-all and be-all of an
due course to or cancels a certificate of candidacy without electoral process."49 Respondent should also balance its
affording the candidate an opportunity to be duty "to ensure that the electoral process is clean, honest,
heard.47cralawred orderly, and peaceful"50 with the right of a candidate to
explain his or her bona fide intention to run for public office
Respondent declared petitioner a nuisance candidate before he or she is declared a nuisance
without giving him a chance to explain his bona candidate.chanroblesvirtuallawlibrary
fide intention to run for office. Respondent had already
III
issued Resolution No. 9610 on January 11, 2013 when
petitioner appeared before Election Officer Valencia in a
Counsel for petitioner must be fined for
clarificatory hearing on January 17, 2013. This was an
failure to comply with the Show Cause
ineffective opportunity to be heard.
Resolution dated September 2, 2014.
That petitioner was able to file a Petition for inclusion in the
Atty. Aspiras, counsel for petitioner, failed to obtain the
certified list of candidates did not cure the defect in the
injunctive reliefs prayed for in time for the May 13, 2013
issuance of Resolution No. 9610. First, he would not have
elections. However, this was no reason for him to defy our
to file the Petition had been given an opportunity to be
orders to file a reply on behalf of his client. for such
heard in the first place. Second, in the Minute Resolution
contumacious acts, he should be ordered to show cause
dated February 5, 2013, respondent denied petitioner's
why he should not be proceeded with administratively.
Petition on the sole ground that the printing of ballots had
already begun on February 4, 2013.
WHEREFORE, this Petition for Certiorari is DENIED for
being moot and academic.
We understand the "insurmountable and tremendous
operational constraints and costs implications"48 of
Moreover, Atty. Jose Ventura Aspiras is ORDERED to
reprinting ballots had respondent ordered the inclusion of
show cause within a non-extendible period of ten (10) days
petitioner's name in the certified list if candidates. The
from receipt of this Resolution why he should not be the
subject of administrative actions for his contumacious The antecedent facts are as follows:
attitude towards repeated orders of this court, specifically,
for his failure to comply with the Resolutions dated August On October 20, 2010, petitioner Republic of the Philippines,
6, 2013 and September 2, 2013. The action against Atty. represented by the Department of Public Works and Highways
(DPWH), filed a Complaint3 for expropriation against respondent
Jose Ventura Aspiras will be docketed as a new and Arlene R. Soriano, the registered owner of a parcel of land
separate administrative case. consisting of an area of 200 square meters, situated at Gen. T De
Leon, Valenzuela City, and covered by Transfer Certificate of
Let a copy of this decision be given to the Office of the Bar Title (TCT) No. V-13790.4 In its Complaint, petitioner averred that
Confidant for the initiation of the proper disciplinary action pursuant to Republic Act (RA) No. 8974, otherwise known as "An
against Atty. Jose Ventura Aspiras. Act to Facilitate the Acquisition of Right-Of-Way, Site or Location
for National Government Infrastructure Projects and for other
Purposes," the property sought to be expropriated shall be used
SO ORDERED.cralawlawlibrary in implementing the construction of the North Luzon Expressway
(NLEX)- Harbor Link Project (Segment 9) from NLEX to
Republic of the Philippines MacArthur Highway, Valenzuela City.5
SUPREME COURT
Manila
Petitioner duly deposited to the Acting Branch Clerk of Court the
amount of P420,000.00 representing 100% of the zonal value of
THIRD DIVISION the subject property. Consequently, in an Order6 dated May 27,
2011, the RTC ordered the issuance of a Writ of Possession and
G.R. No. 211666 February 25, 2015 a Writ of Expropriation for failure of respondent, or any of her
representatives, to appear despite notice during the hearing
REPUBLIC OF THE PHILIPPINES, represented by the called for the purpose.
DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS,Petitioners, In another Order7 dated June 21, 2011, the RTC appointed the
vs. following members of the Board of Commissioners for the
ARLENE R. SORIANO, Respondent. determination of just compensation: (1) Ms. Eunice O. Josue,
Officer-in-Charge, RTC, Branch 270, Valenzuela City; (2) Atty.
DECISION Cecilynne R. Andrade, Acting Valenzuela City Assessor,City
Assessors Office, Valenzuela City; and (3) Engr. Restituto
PERALTA, J.: Bautista, of Brgy. Bisig,Valenzuela City. However, the trial court
subsequently revoked the appointment of the Board for their
Before the Court is a petition for review under Rule 45 of the failure to submit a report as to the fair market value of the
Rules of Court assailing the Decision1 dated November 15, 2013 property to assist the court in the determination of just
and Order2 dated March 10, 2014 of the Regional Trial Court compensation and directed the parties to submit their respective
(RTC), Valenzuela City, Branch 270, in Civil Case No. 140-V-10. position papers.8 Thereafter, the case was set for hearing giving
the parties the opportunity to present and identify all evidence in
support of their arguments therein. According to the RTC, the
records of the case reveal that petitioner adduced evidence to
show that the total amount deposited is just, fair, and equitable.
Specifically, in its Position Paper, petitioner alleged that pursuant
to a Certification issued by the Bureau of Internal Revenue (BIR),
Revenue Region No. 5, the zonal value of the subject property in
the amount of P2,100.00 per square meter is reasonable, fair,
and just to compensate the defendant for the taking of her
property in the total area of 200 square meters.9 In fact, Tax
Declaration No. C-018-07994, dated November 13, 2009
submitted by petitioner, shows that the value of the subject
property is at a lower rate of P400.00per square meter. Moreover,
as testified to by Associate Solicitor III Julie P. Mercurio, and as
affirmed by the photographs submitted, the subject property is
poorly maintained, covered by shrubs and weeds, and not
concretely-paved. It is located far from commercial or industrial
developments in an area without a proper drainage system, can
only be accessed through a narrow dirt road, and is surrounded
by adjacent dwellings of sub-standard materials.
Accordingly, the RTC considered respondent to have waived her
right to adduce evidence and to object to the evidence submitted
by petitioner for her continued absence despite being given
several notices to do so.
On November 15, 2013, the RTC rendered its Decision, the
dispositive portion of which reads: WHEREFORE, with the
foregoing determination of just compensation, judgment is hereby
rendered:
1) Declaring plaintiff to have lawful right to acquire
possession of and title to 200 square meters of defendant
Arlene R. Sorianos parcel of land covered by TCT V-
13790 necessary for the construction of the NLEX
Harbor Link Project(Segment 9) from NLEX to MacArthur
Highway Valenzuela City;
2) Condemning portion to the extent of 200 square meters
of the above-described parcel of land including
improvements thereon, if there be any, free from all liens
and encumbrances;
3) Ordering the plaintiff to pay defendant Arlene R.
Soriano Php2,100.00 per square meter or the sum of
Four Hundred Twenty Thousand Pesos (Php420,000.00)
for the 200 square meters as fair, equitable, and just
compensation with legal interest at 12% per annum from
the taking of the possession of the property, subject to the
payment of all unpaid real property taxes and other
relevant taxes, if there be any;
4) Plaintiff is likewise ordered to pay the defendant
consequential damages which shall include the value of
the transfer tax necessary for the transfer of the subject
property from the name of the defendant to that of the
plaintiff;
5) The Office of the Register of Deeds of Valenzuela City,
Metro Manila is directed to annotate this Decision in
Transfer Certificate of Title No. V-13790 registered under
the name of Arlene R. Soriano.
Let a certified true copy of this decision be recorded in the
Registry of Deeds of Valenzuela City.
Records of this case show that the Land Bank Managers Check
Nos. 0000016913 dated January 21, 2011 in the amount of
Php400,000.00 and 0000017263 dated April 28, 2011 in the
amount of Php20,000.00 issued by the Department of Public
Works and Highways (DPWH) are already stale. Thus, the said
Office is hereby directed to issue another Managers Check in the
total amount Php420,000.00 under the name of the Office of the
Clerk of Court, Regional Trial Court, Valenzuela City earmarked
for the instant case.10
Petitioner filed a Motion for Reconsideration maintaining that
pursuant to Bangko Sentral ng Pilipinas (BSP) Circular No. 799,
Series of 2013, which took effect on July 1, 2013, the interest rate
imposed by the RTC on just compensation should be lowered to
6% for the instant case falls under a loan or forbearance of
money.11 In its Order12 dated March 10, 2014, the RTC reduced
the interest rate to 6% per annum not on the basis of the
aforementioned Circular, but on Article 2209 of the Civil Code,
viz.:
However, the case of National Power Corporation v. Honorable
Zain B. Angas is instructive.
In the aforementioned case law, which is similar to the instant
case, the Supreme Court had the occasion to rule that it is well-
settled that the aforequoted provision of Bangko Sentral ng
Pilipinas Circular applies only to a loan or forbearance of money,
goods or credits. However, the term "judgments" as used in
Section 1 of the Usury Law and the previous Central Bank
Circular No. 416, should be interpreted to mean only judgments
involving loan or forbearance of money, goods or credits,
following the principle of ejusdem generis. And applying said rule
on statutory construction, the general term "judgments" can refer
only to judgments in cases involving loans or forbearance of any
money, goods, or credits. Thus, the High Court held that, Art.
2209 of the Civil Code, and not the Central Bank Circular, is the
law applicable.
Art. 2009 of the Civil Code reads:
"If the obligation consists in the payment of a sum of money, and
the debtor incurs in delay, the indemnity for damages, there being
no stipulation to the contrary, shall be the payment of the interest
agreed upon, and in the absence of stipulation, the legal interest,
which is six per cent per annum."
Further in that case, the Supreme Court explained that the
transaction involved is clearly not a loan or forbearance of money,
goods or credits but expropriation of certain parcels of land for a
public purpose, the payment of which is without stipulation
regarding interest, and the interest adjudged by the trial court is in
the nature of indemnity for damages. The legal interest required
to be paid on the amount of just compensation for the properties
expropriated is manifestly in the form of indemnity for damages
for the delay in the payment thereof. It ultimately held that Art.
2209 of the Civil Code shall apply.13
On May 12, 2014, petitioner filed the instant petition invoking the
following arguments:
I.
RESPONDENT IS NOT ENTITLED TO THE LEGAL
INTEREST OF 6% PER ANNUM ON THE AMOUNT OF
JUST COMPENSATION OF THE SUBJECT PROPERTY
AS THERE WAS NO DELAY ON THE PART OF
PETITIONER.
II.
BASED ON THE NATIONAL INTERNAL REVENUE
CODE OF 1997 AND THE LOCAL GOVERNMENT
CODE, IT IS RESPONDENTS OBLIGATION TO PAY
THE TRANSFER TAXES.
Petitioner maintains that if property is taken for public use before
compensation is deposited with the court having jurisdiction over
the case, the final compensation must include interests on its just
value computed from the time the property is taken up to the time
when compensation is actually paid or deposited with the
court.14 Thus, legal interest applies only when the property was
taken prior to the deposit of payment with the court and only to
the extent that there is delay in payment. In the instant case,
petitioner posits that since it was able to deposit with the court the
amount representing the zonal value of the property before its
taking, it cannot be said to be in delay, and thus, there can be no
interest due on the payment of just compensation.15 Moreover,
petitioner alleges that since the entire subject property was
expropriated and not merely a portion thereof, it did not suffer an
impairment or decrease in value, rendering the award of
consequential damages nugatory. Furthermore, petitioner claims
that contrary to the RTCs instruction, transfer taxes, in the nature
of Capital Gains Tax and Documentary Stamp Tax, necessary for
the transfer of the subject property from the name of the
respondent to that of the petitioner are liabilities of respondent
and not petitioner.
The petition is partly meritorious.
At the outset, it must be noted that the RTCs reliance on National
Power Corporation v. Angasis misplaced for the same has
already been overturned by our more recent ruling in Republic v.
Court of Appeals,16 wherein we held that the payment of just
compensation for the expropriated property amounts to an
effective forbearance on the part of the State, to wit:
Aside from this ruling, Republic notably overturned the Courts
previous ruling in National Power Corporation v. Angas which
held that just compensation due for expropriated properties is not
a loan or forbearance of money but indemnity for damages for the
delay in payment; since the interest involved is in the nature of
damages rather than earnings from loans, then Art. 2209 of the
Civil Code, which fixes legal interest at 6%, shall apply.
In Republic, the Court recognized that the just compensation due
to the landowners for their expropriated property amounted to an
effective forbearance on the part of the State. Applying the
Eastern Shipping Lines ruling, the Court fixed the applicable
interest rate at 12% per annum, computed from the time the
property was taken until the full amount of just compensation was
paid, in order to eliminate the issue of the constant fluctuation and
inflation of the value of the currency over time. In the Courts own
words:
The Bulacan trial court, in its 1979 decision, was correct in
imposing interest[s] on the zonal value of the property to be
computed from the time petitioner instituted condemnation
proceedings and "took" the property in September 1969. This
allowance of interest on the amount found to be the value of the
property as of the time of the taking computed, being an effective
forbearance, at 12% per annum should help eliminate the issue of
the constant fluctuation and inflation of the value of the currency
over time.
We subsequently upheld Republics 12% per annum interest rate
on the unpaid expropriation compensation in the following cases:
Reyes v. National Housing Authority, Land Bank of the
Philippines v. Wycoco, Republic v. Court of Appeals, Land Bank
of the Philippines v. Imperial, Philippine Ports Authority v.
Rosales-Bondoc, and Curata v. Philippine Ports
Authority.17 Effectively, therefore, the debt incurred by the
government on account of the taking of the property subject of an
expropriation constitutes a forbearance18 which runs contrary to
the trial courts opinion that the same is in the nature of indemnity
for damages calling for the application of Article 2209 of the Civil
Code. Nevertheless, in line with the recent circular of the
Monetary Board of the Bangko Sentral ng Pilipinas (BSP-MB) No.
799, Series of 2013, effective July 1, 2013, the prevailing rate of
interest for loans or forbearance of money is six percent (6%) per
annum, in the absence of an express contract as to such rate of
interest.
Notwithstanding the foregoing, We find that the imposition of
interest in this case is unwarranted in view of the fact that as
evidenced by the acknowledgment receipt19 signed by the Branch
Clerk of Court, petitioner was able to deposit with the trial court
the amount representing the zonal value of the property before its
taking. As often ruled by this Court, the award of interest is
imposed in the nature of damages for delay in payment which, in
effect, makes the obligation on the part of the government one of
forbearance to ensure prompt payment of the value of the land
and limit the opportunity loss of the owner.20 However, when there
is no delay in the payment of just compensation, We have not
hesitated in deleting the imposition of interest thereon for the
same is justified only in cases where delay has been sufficiently
established.21
The records of this case reveal that petitioner did not delay in its
payment of just compensation as it had deposited the pertinent
amount in full due to respondent on January 24, 2011, or four (4)
months before the taking thereof, which was when the RTC
ordered the issuance of a Writ of Possession and a Writ of
Expropriation on May 27, 2011. The amount deposited was
deemed by the trial court to be just, fair, and equitable, taking into
account the well-established factors in assessing the value of
land, such as its size, condition, location, tax declaration, and
zonal valuation as determined by the BIR. Considering, therefore,
the prompt payment by the petitioner of the full amount of just
compensation as determined by the RTC, We find that the
imposition of interest thereon is unjustified and should be deleted.
Similarly, the award of consequential damages should likewise be
deleted in view of the fact that the entire area of the subject
property is being expropriated, and not merely a portion thereof,
wherein such remaining portion suffers an impairment or
decrease in value, as enunciated in Republic of the Philippines v.
Bank of the Philippine Islands,22thus:
x x x The general rule is that the just compensation to which the
owner of the condemned property is entitled to is the market
value. Market value is that sum of money which a person
desirous but not compelled to buy, and an owner willing but not
compelled to sell, would agree on as a price to be paid by the
buyer and received by the seller. The general rule, however, is
modified where only a part of a certain property is expropriated. In
such a case, the owner is not restricted to compensation for the
portion actually taken, he is also entitled to recover the
consequential damage, if any, to the remaining part of the
property.
xxxx
No actual taking of the building is necessary to grant
consequential damages. Consequential damages are awarded if
as a result of the expropriation, the remaining property of the
owner suffers from an impairment or decrease in value. The rules
on expropriation clearly provide a legal basis for the award of
consequential damages. Section 6 of Rule 67 of the Rules of
Court provides:
x x x The commissioners shall assess the consequential
damages to the property not taken and deduct from such
consequential damages the consequential benefits to be derived
by the owner from the public use or public purpose of the property
taken, the operation of its franchise by the corporation or the
carrying on of the business of the corporation or person taking the
property. But in no case shall the consequential benefits
assessed exceed the consequential damages assessed, or the
owner be deprived of the actual value of his property so taken.
In B.H. Berkenkotter & Co. v. Court of Appeals, we held that:
To determine just compensation, the trial court should first
ascertain the market value of the property, to which should be
added the consequential damages after deducting therefrom the
consequential benefits which may arise from the expropriation. If
the consequential benefits exceed the consequential damages,
these items should be disregarded altogether as the basic value
of the property should be paid in every case.23
Considering that the subject property is being expropriated in its
entirety, there is no remaining portion which may suffer an
impairment or decrease in value as a result of the expropriation.
Hence, the award of consequential damages is improper.
Anent petitioners contention that it cannot be made to pay the
value of the transfer taxes in the nature of capital gains tax and
documentary stamp tax, which are necessary for the transfer of
the subject property from the name of the respondent to that of
the petitioner, the same is partly meritorious.
With respect to the capital gains tax, We find merit in petitioners
posture that pursuant to Sections 24(D) and 56(A)(3) of the 1997
National Internal Revenue Code (NIRC), capital gains tax due on
the sale of real property is a liability for the account of the seller,
to wit:
Section 24. Income Tax Rates
xxxx
(D) Capital Gains from Sale of Real Property.
(1) In General. The provisions of Section 39(B) notwithstanding,
a final tax of six percent (6%) based on the gross selling price or
current fair market value as determined in accordance with
Section 6(E) of this Code, whichever is higher, is hereby imposed
upon capital gains presumed to have been realized from the sale,
exchange, or other disposition of real property located in the
Philippines, classified as capital assets, including pacto de retro
sales and other forms of conditional sales, by individuals,
including estates and trusts: Provided, That the tax liability, if any,
on gains from sales or other disposition of real property to the
government or any of its political subdivisions or agencies or to
government-owned or controlled corporations shall be determined
either under Section 24(A)or under this Subsection, at the option
of the taxpayer.
xxxx
Section 56. Payment and Assessment of Income Tax for
Individuals and Corporations. (A) Payment of Tax
xxxx
(3) Payment of Capital Gains Tax. - The total amount of tax
imposed and prescribed under Section 24 (c), 24(D), 27(E)(2),
28(A)(8)(c) and 28(B)(5)(c) shall be paid on the date the return
prescribed therefor is filed by the person liable thereto: Provided,
That if the seller submits proof of his intention to avail himself of
the benefit of exemption of capital gains under existing special
laws, no such payments shall be required : Provided, further, That
in case of failure to qualify for exemption under such special laws
and implementing rules and regulations, the tax due on the gains
realized from the original transaction shall immediately become
due and payable, subject to the penalties prescribed under
applicable provisions of this Code: Provided, finally, That if the
seller, having paid the tax, submits such proof of intent within six
(6) months from the registration of the document transferring the
real property, he shall be entitled to a refund of such tax upon
verification of his compliance with the requirements for such
exemption.
Thus, it has been held that since capital gains is a tax on passive
income, it is the seller, not the buyer, who generally would
shoulder the tax.24 Accordingly, the BIR, in its BIR Ruling No. 476-
2013, dated December 18, 2013, constituted the DPWH as a
withholding agent to withhold the six percent (6%) final
withholding tax in the expropriation of real property for
infrastructure projects. As far as the government is concerned,
therefore, the capital gains tax remains a liability of the seller
since it is a tax on the seller's gain from the sale of the real
estate.25
As to the documentary stamp tax, however, this Court finds
inconsistent petitioners denial of liability to the same. Petitioner
cites Section 196 of the 1997 NIRC as its basis in saying that the
documentary stamp tax is the liability of the seller, viz.:
SECTION 196. Stamp Tax on Deeds of Sale and Conveyances of
Real Property. - On all conveyances, deeds, instruments, or
writings, other than grants, patents or original certificates of
adjudication issued by the Government, whereby any land,
tenement or other realty sold shall be granted, assigned,
transferred or otherwise conveyed to the purchaser, or
purchasers, or to any other person or persons designated by
such purchaser or purchasers, there shall be collected a
documentary stamp tax, at the rates herein below prescribed,
based on the consideration contracted to be paid for such realty
or on its fair market value determined in accordance with Section
6(E) of this Code, whichever is higher: Provided, That when one
of the contracting parties is the Government, the tax herein
imposed shall be based on the actual consideration: (a) When the
consideration, or value received or contracted to be paid for such
realty, after making proper allowance of any encumbrance, does
not exceed One thousand pesos (P1,000), Fifteen pesos
(P15.00).
(b) For each additional One thousand pesos (P1,000), or
fractional part thereof in excess of One thousand pesos (P1,000)
of such consideration or value, Fifteen pesos (P15.00).
When it appears that the amount of the documentary stamp tax
payable hereunder has been reduced by an incorrect statement
of the consideration in any conveyance, deed, instrument or
writing subject to such tax the Commissioner, provincial or city
Treasurer, or other revenue officer shall, from the assessment
rolls or other reliable source of information, assess the property of
its true market value and collect the proper tax thereon.
Yet, a perusal of the provision cited above does not explicitly
impute the obligation to pay the documentary stamp tax on the
seller. In fact, according to the BIR, all the parties to a transaction
are primarily liable for the documentary stamp tax, as provided by
Section 2 of BIR Revenue Regulations No. 9-2000, which reads:26
SEC. 2. Nature of the Documentary Stamp Tax and Persons
Liable for the Tax.
(a) In General. - The documentary stamp taxes under
Title VII of the Code is a tax on certain transactions. It is
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imposed against "the person making, signing, issuing,
accepting, or transferring" the document or facility
evidencing the aforesaid transactions. Thus, in general, it
may be imposed on the transaction itself or upon the
document underlying such act. Any of the parties thereto
shall be liable for the full amount of the tax due: Provided,
however, that as between themselves, the said parties
may agree on who shall be liable or how they may share
on the cost of the tax.
(b) Exception. - Whenever one of the parties to the
taxable transaction is exempt from the tax imposed under
Title VII of the Code, the other party thereto who is not
exempt shall be the one directly liable for the tax.27
As a general rule, therefore, any of the parties to a transaction
shall be liable for the full amount of the documentary stamp tax
due, unless they agree among themselves on who shall be liable
for the same.
In this case, there is no agreement as to the party liable for the
documentary stamp tax due on the sale of the land to be
expropriated. But while petitioner rejects any liability for the same,
this Court must take note of petitioners Citizens Charter,28 which
functions as a guide for the procedure to be taken by the DPWH
in acquiring real property through expropriation under RA 8974.
The Citizens Charter, issued by petitioner DPWH itself on
December 4,2013, explicitly provides that the documentary stamp
tax, transfer tax, and registration fee due on the transfer of the
title of land in the name of the Republic shall be shouldered by
the implementing agency of the DPWH, while the capital gains
tax shall be paid by the affected property owner.29 Thus, while
there is no specific agreement between petitioner and
respondent, petitioner's issuance of the Citizen's Charter serves
as its notice to the public as to the procedure it shall generally
take in cases of expropriation under RA 8974. Accordingly, it will
be rather unjust for this Court to blindly accede to petitioner's
vague rejection of liability in the face of its issuance of the
Citizen's Charter, which contains a clear and unequivocal
assumption of accountability for the documentary stamp tax. Had
petitioner provided this Court with more convincing basis, apart
from a mere citation of an indefinite provision of the 1997 NIRC,
showing that it should be respondent-seller who shall be liable for
the documentary stamp tax due on the sale of the subject
property, its rejection of the payment of the same could have
been sustained. WHEREFORE, premises considered, the instant
pet1t10n 1s PARTIALLY GRANTED. The Decision and Order,
dated November 15, 2013 and March 10, 2014, respectively, of
the Regional Trial Court, Valenzuela City, Branch 270, in Civil
Case No. 140-V-10 are hereby MODIFIED, in that the imposition
of interest on the payment of just compensation as well as the
award of consequential damages are deleted. In addition,
respondent Arlene R. Soriano is ORDERED to pay for the capital
gains tax due on the transfer of the expropriated property, while
the documentary stamp tax, transfer tax, and registration fee shall
be for the account of petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 206004 February 24, 2015
JOSEPH B. TIMBOL, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
RESOLUTION
LEONEN, J.:
The power of the Commission on Elections (COMELEC) to
restrict a citizen's right of suffrage should not be arbitrarily
exercised. The COMELEC cannot motu proprio deny due course
to or cancel an alleged nuisance candidates certificate of
candidacy without providing the candidate his opportunity to be
heard.
This is a Petition1 for Certiorari with prayer for issuance of
preliminary mandatory injunction against the following issuances
of the COMELEC: first, Resolution No. 96102 dated January 11,
2013, declaring petitioner Joseph B. Timbol (Timbol) a nuisance
candidate and ordering the removal of his name from the certified
list of candidates;3 and second, Minute Resolution4 dated
February 5, 2013, denying his Petition to have his name listed in
the certified list of candidates and printed on the ballots for the
May 13, 2013 elections.5
On October 5, 2012, Timbol filed a Certificate of Candidacy6 for
the position of Member of the Sangguniang Panlungsod of the
Second District of Caloocan City. On January 15, 2013, he
received a Subpoena7 from COMELEC Election Officer Dinah A.
Valencia (Election Officer Valencia), ordering him to appear
before her office on January 17, 2013 for a clarificatory hearing in
connection with his Certificate of Candidacy.8
Timbol, together with his counsel, appeared before Election
Officer Valencia. During the clarificatory hearing, Timbol argued
that he was not a nuisance candidate. He contended that in the
2010 elections, he ranked eighth among all the candidates who
ran for Member of the Sangguniang Panlungsod of the Second
District of Caloocan City. He allegedly had sufficient resources to
sustain his campaign.9
He pointed out before the clarificatory hearing panel that his
name already appeared in the list of nuisance candidates posted
in the COMELEC website pursuant to Resolution No. 9610 dated
January 11, 2013. The clarificatory hearing panel allegedly
assured him that his name would be deleted from the list and that
his Certificate of Candidacy would be given due course.10
In the Memorandum11 dated January 17, 2013, Election Officer
Valencia recommended that Timbols Certificate of Candidacy be
given due course.12
Despite Election Officer Valencias favorable recommendation,
Timbols name was not removed from the list of nuisance
candidates posted in the COMELECs website. With the printing
of ballots for the automated elections set on February 4, 2013,
Timbol filed on February 2, 2013 a Petition13 praying that his
name be included in the certified list of candidates for the May 13,
2013 elections.14
In the Minute Resolution dated February 5, 2013, the COMELEC
denied the Petition for being moot, considering that the printing of
ballots had already begun.15
On March 15, 2013,16 Timbol filed his Petition for Certiorari with
this court, arguing that the COMELEC gravely abused its
discretion in declaring him a nuisance candidate.17 According to
Timbol, the COMELEC deprived him of due process of law when
he was declared a nuisance candidate even before Election
Officer Valencia conducted the clarificatory hearing.18 He prayed
for a preliminary mandatory injunction ordering the COMELEC to
include his name in the certified list of candidates for the position
of Member of Sangguniang Panlungsod of the Second District of
Caloocan City.19
In the Resolution20 dated April 16, 2013, this court ordered the
Office of the Solicitor General to comment on behalf of the
COMELEC.
In its Comment,21 the COMELEC argued that the Petition was
already moot and academic, considering that the May 13, 2013
elections had already been conducted.22
Even assuming that the Petition was not moot and academic, the
COMELEC maintained that it did not gravely abuse its discretion.
Contrary to Timbols argument, he was given an opportunity to be
heard when Election Officer Valencia heard him during the
clarificatory hearing. He even admitted that he attended the
clarificatory hearing with his counsel.23
Moreover, the COMELEC did not gravely abuse its discretion in
denying Timbols Petition to be included in the certified list of
candidates, considering that the printing of ballots had already
started.24
With these arguments, the COMELEC prayed that this court deny
the Petition for lack of merit.25
In the Resolution26 dated August 6, 2013, this court ordered
Timbol to file a reply. When Timbol failed to file his reply despite
receipt of the order,27 we required Atty. Jose Ventura Aspiras
(Atty. Aspiras), counsel for Timbol, to show cause why he should
not be disciplinarily dealt with for failing to file a reply on behalf of
his client in the Resolution28dated September 2, 2014. We
likewise reiterated our order for Atty. Aspiras to file a reply for
Timbol.29 Still, Atty. Aspiras failed to comply with our show cause
resolution.
We dispense with the filing of the reply and resolve to decide this
case based on the Petition and the Comment.
The issues for this courts resolution are the following:
First, whether this case is moot and academic; and
Second, whether respondent COMELEC gravely abused its
discretion in denying petitioner Timbols Petition for inclusion in
the certified list of candidates.
We deny the Petition.
I II
This case is moot and academic.
A case is moot and academic if it "ceases to present a justiciable
controversy because of supervening events so that a declaration
thereon would be of no practical use or value."30 When a case is
moot and academic, this court generally declines jurisdiction over
it.31
There are recognized exceptions to this rule. This court has taken
cognizance of moot and academic cases when:
(1) there was a grave violation of the Constitution; (2) the case
involved a situation of exceptional character and was of
paramount public interest; (3) the issues raised required the
formulation of controlling principles to guide the Bench, the Bar
and the public; and (4) the case was capable of repetition yet
evading review.32 (Citation omitted)
We may no longer act on petitioners prayer that his name be
included in the certified list of candidates and be printed on the
ballots as a candidate for Member of the Sangguniang
Panlungsod. Petitioner filed with this court his Petition for
Certiorari on March 15,2013, 39 days after respondent began
printing the ballots on February 4, 2013. Also, the May 13, 2013
elections had been concluded, with the winners already
proclaimed.
That this case is moot and academic, however, does not preclude
us from setting forth "controlling and authoritative doctrines"33 to
be observed by respondent in motu proprio denying due course
to or cancelling certificates of candidacy of alleged nuisance
candidates. This motu proprio authority is always subject to the
alleged nuisance candidates opportunity to be heard34 an
essential element of procedural due process.35
Respondents power to motu proprio deny due course to a
certificate of candidacy is subject to the candidates opportunity to
be heard.
Under Article II, Section 26 of the Constitution, "[t]he State shall
guarantee equal access to opportunities for public service[.]"
This, however, does not guarantee "a constitutional right to run
for or hold public office[.]"36 To run for public office is a mere
"privilege subject to limitations imposed by law."37 Among these
limitations is the prohibition on nuisance candidates. Nuisance
candidates are persons who file their certificates of candidacy "to
put the election process in mockery or disrepute or to cause
confusion among the voters by the similarity of the names of the
registered candidates or by other circumstances or acts which
clearly demonstrate that the candidate has no bona fide intention
to run for the office for which the certificate of candidacy has been
filed and thus prevent a faithful determination of the true will of
the electorate."38 In Pamatong v. Commission on Elections,39 this
court explained why nuisance candidates are prohibited from
running for public office:
. . . The State has a compelling interest to ensure that its electoral
exercises are rational, objective, and orderly. Towards this end,
the State takes into account the practical considerations in
conducting elections. Inevitably, the greater the number of
candidates, the greater the opportunities for logistical confusion,
not to mention the increased allocation of time and resources in
preparation for the election. These practical difficulties should, of
course, never exempt the State from the conduct of a mandated
electoral exercise. At the same time, remedial actions should be
available to alleviate these logistical hardships, whenever
necessary and proper. Ultimately, a disorderly election is not
merely a textbook example of inefficiency, but a rot that erodes
faith in our democratic institutions. . . .
....
. . . The organization of an election with bona fide candidates
standing is onerous enough. To add into the mix candidates with
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no serious intentions or capabilities to run a viable campaign
would actually impair the electoral process. This is not to mention
the candidacies which are palpably ridiculous so as to constitute
a one-note joke. The poll body would be bogged by irrelevant
minutiae covering every step of the electoral process, most
probably posed at the instance of these nuisance candidates. It
would be a senseless sacrifice on the part of the State.40
To minimize the logistical confusion caused by nuisance
candidates, their certificates of candidacy may be denied due
course or cancelled by respondent. This denial or cancellation
may be "motu proprio or upon a verified petition of an interested
party,"41 "subject to an opportunity to be heard."42
The opportunity to be heard is a chance "to explain ones side or
an opportunity to seek a reconsideration of the action or ruling
complained of."43 In election cases, due process requirements are
satisfied "when the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand."44
In Cipriano v. Commission on Elections,45 this court explained:
[T]he determination whether a candidate is eligible for the position
he is seeking involves a determination of fact where both parties
must be allowed to adduce evidence in support of their
contentions. Because the resolution of such fact may result to a
deprivation of ones right to run for public office, or, as in this
case, ones right to hold public office, it is only proper and fair that
the candidate concerned be notified of the proceedings against
him and that he be given the opportunity to refute the allegations
against him. It should be stressed that it is not sufficient, as the
COMELEC claims, that the candidate be notified of the
Commissions inquiry into the veracity of the contents of his
certificate of candidacy, but he must also be allowed to present
his own evidence to prove that he possesses the qualifications for
the office he seeks.46 Respondent commits grave abuse of
discretion if it denies due course to or cancels a certificate of
candidacy without affording the candidate an opportunity to be
heard.47
Respondent declared petitioner a nuisance candidate without
giving him a chance to explain his bona fide intention to run for
office. Respondent had already issued Resolution No. 9610on
January 11, 2013 when petitioner appeared before Election
Officer Valencia in a clarificatory hearing on January 17, 2013.
This was an ineffective opportunity to be heard.
That petitioner was able to file a Petition for inclusion in the
certified list of candidates did not cure the defect in the issuance
of Resolution No. 9610. First, he would not have to file the
Petition had he been given an opportunity to be heard in the first
place. Second, in the Minute Resolution dated February 5, 2013,
respondent denied petitioners Petition on the sole ground that
the printing of ballots had already begun on February 4, 2013.
We understand the "insurmountable and tremendous operational
constraints and costs implications"48 of reprinting ballots had
respondent ordered the inclusion of petitioners name in the
certified list of candidates. The ballots already printed would have
to be recalled, leading to the waste of the ballots previously
printed. It should be noted that these ballots are special as they
have the capability of being optically scanned by Precinct Count
Optical Scan machines. Reprinting another batch of ballots
would, indeed, be costly.
Still, "automation is not the end-all and be-all of an electoral
process."49 Respondent should also balance its duty "to ensure
that the electoral process is clean, honest, orderly, and
peaceful"50 with the right of a candidate to explain his or her bona
fide intention to run for public office before he or she is declared a
nuisance candidate.
III
Counsel for petitioner must be fined for failure to comply with the
Show Cause Resolution dated September 2, 2014.
Atty. Aspiras, counsel for petitioner, failed to obtain the injunctive
reliefs prayed for in time for the May 13, 2013 elections. However,
this was no reason for him to defy our orders to file a reply on
behalf of his client. For such contumacious acts, he should be
ordered to show cause why he should not be proceeded with
administratively.
WHEREFORE, this Petition for Certiorari is DENIED for being
moot and academic.
Moreover, Atty. Jose Ventura Aspiras is ORDERED to show
cause within a non-extendible period of ten (10) days from receipt
of this Resolution why he should not be the subject of
administrative actions for his contumacious attitude towards
repeated orders of this court, specifically, for his failure to comply
with the Resolutions dated August 6, 2013 and September 2,
2014. The action against Atty. Jose Ventura Aspiras will be
docketed as a new and separate administrative case.
Let a copy of this decision be given to the Office of the Bar
Confidant for the initiation of the proper disciplinary action against
Atty. Jose Ventura Aspiras.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 211362 February 24, 2015
FIRST CLASS CADET ALDRIN JEFF P. CUDIA of the
Philippine Military Academy, represented by his father
RENATO P. CUDIA, who also acts on his own behalf, and
BERTENI CATALUNA CAUSING, Petitioners,
vs.
THE SUPERINTENDENT OF THE PHILIPPINE MILITARY
ACADEMY (PMA), THE HONOR COMMITTEE (HC) OF 2014
OF THE PMA and HC MEMBERS, and the CADET REVIEW
AND APPEALS BOARD (CRAB), Respondents.
x-----------------------x
FILIPINA P. CUDIA, in behalf of CADET FIRST CLASS
ALDRIN JEFF P. CUDIA, and on her own behalf, Petitioner-
Intervenor.
DECISION
PERALTA, J.:
The true test of a cadet's character as a leader rests on his
personal commitment to uphold what is morally and ethically
righteous at the most critical and trying times, and at the most
challenging circumstances. When a cadet must face a dilemma
between what is true and right as against his security, well-being,
pleasures and comfort, or dignity, what is at stake is his honor
and those that [define] his values. A man of an honorable
character does not think twice and chooses the fore. This is the
essence of and. the Spirit of the Honor Code - it is championing
truth and righteousness even if it may mean the surrender of
one's basic rights and privileges.1
The Procedural Antecedents
Six days prior to the March 16, 2014 graduation ceremonies of
the Philippine Military Academy (PMA), petitioners Renato P.
Cudia, acting for himself and in behalf of his son, Cadet First
Class Aldrin Jeff P. Cudia (Cadet JCL Cudia), and Berteni
Catalufta Causing filed this petition for certiorari, prohibition, and
mandamus with application for extremely urgent temporary
restraining order (TRO).2
In a Resolution dated March 1 7, 2014, the Court denied the
prayer for TRO and instead, required respondents to file their
comment on the petition.3
On March 25, 2014, Filipina P. Cudia, acting for herself and in
behalf of her son Cadet 1 CL Cudia, filed a motion for leave to
intervene, attaching thereto the petition-in-intervention.4 Per
Resolution dated March 31, 2014, the Court granted the motion
and resolved to await respondents' comment on the petition.5
A manifestation was then filed by petitioners on April 3, 2014,
recommending the admission of the petition-in-intervention and
adopting it as an integral part of their petition.6 On May 20, 2014,
petitioner-intervenor filed a manifestation with motion for leave to
admit the Final Investigation Report of the Commission on
Human Rights (CHR) dated April 25, 2014.7 The Report8 was
relative to CHR-CAR Case No. 2014-0029 filed by the spouses
Renato and Filipina Cudia (Spouses Cudia), for themselves and
in behalf of their son, against the PMA Honor Committee (HC)
members and Major Vladimir P. Gracilla (Maj. Gracilla)9 for
violation of Cadet lCL Cudia's rights to due process, education,
and privacy of communication. Subsequently, on June 3, 2014,
petitioners filed a motion for leave to adopt the submission of the
CHR Report.10 The manifestation was granted and the motion was
noted by the Court in its Resolution dated July 7, 2014.
After filing three motions for extension of time,11 respondents filed
their Consolidated Comment12 on June 19, 2014. In a motion,
petitioner-intervenor filed a Reply, which was later adopted by
petitioners.13 Submitted as Annex "A" of the Reply was a copy of
the CHR Resolution dated May 22, 2014 regarding CHR-CAR
Case No. 2014-0029.14 We noted and granted the same on
August 11, 2014 and October 13, 2014.
Petitioner-intervenor twice filed a manifestation with motion to
submit the case for early resolution,15 which the Court noted in a
Resolution dated August 11, 2014 and October 3, 2014.16
The Facts
Cadet 1 CL Cudia was a member of Siklab Diwa Class of 2014 of
the PMA, the country's premiere military academy located at Fort
Gregorio del Pilar in Baguio City. He belonged to the "A"
Company and was the Deputy Baron of his class. As claimed by
petitioners and petitioner-intervenor (hereinafter collectively called
"petitioners," unless otherwise indicated), he was supposed to
graduate with honors as the class salutatorian, receive the
Philippine Navy Saber as the top Navy cadet graduate, and be
commissioned as an ensign of the Philippine Navy.
On November 14, 2013, the combined classes of the Navy and
Air Force 1 CL cadets had a lesson examination (LE) on
Operations Research (OR432) under Dr. Maria Monica C.
Costales (Dr. Costales) at the PMAFI Room. Per published
schedule from the Headquarters Academic Group, the 4th period
class in OR432 was from 1 :30-3:00 p.m. (1330H-1500H), while
the 5th period class in ENG412 was from 3:05-4:05 p.m. (1505H-
1605H).
Five days after, Professor Juanita Berong (Prof. Berong) of the
5th period class issued a Delinquency Report (DR) against Cadet
1 CL Cudia because he was "[/]ate for two (2) minutes in his Eng
412 class x x x. "17 Cadets 1 CL Narciso, Arcangel, Miranda,
Pontillas, Diaz, Otila, and Dela Cruz were also reported late for
five minutes.18
On December 4, 2013, the DRs reached the Department of
Tactical Officers. They were logged and transmitted to the
Company Tactical Officers ( CTO) for explanation of the
concerned cadets. Two days later, Cadet lCL Cudia received his
DR.
In his Explanation of Report dated December 8, 2013, Cadet lCL
Cudia reasoned out that: "I came directly from OR432 Class. We
were dismissed a bit late by our instructor Sir."19
On December 19, 2013, Major Rommel Dennis Hindang (Maj.
Hindang), the CTO of Cadet 1 CL Cudia, meted out to him the
penalty of 11 demerits and 13 touring hours. Immediately, Cadet
lCL Cudia clarified with Maj. Hindang his alleged violation. The
latter told him that the basis of the punishment was the result of
his conversation with Dr. Costales, who responded that she never
dismissed her class late, and the protocol to dismiss the class 10-
15 minutes earlier than scheduled. When he expressed his
intention to appeal and seek reconsideration of the punishment,
he was advised to put the request in writing. Hence, that same
day, Cadet 1 CL Cudia addressed his Request for
Reconsideration of Meted Punishment to Maj. Benjamin L.
Leander, Senior Tactical Officer (STO), asserting:
I strongly believe that I am not in control of the circumstances, our
4th period class ended 1500H and our 5th period class, which is
ENG412, started 1500H also. Immediately after 4t period class, I
went to my next class without any intention of being late Sir.20
A day after, Maj. Leander instructed Maj. Hindang to give his
comments on the request of Cadet 1 CL Cudia and to indicate if
there were other cadets belonging to the same section who were
also late.
On December 28, 2013, Maj. Hindang submitted his reply to Maj.
Leander pointing out that, based on his investigation, the 4th
period class was not dismissed late. As a result, Maj. Leander
sustained the penalty imposed. Petitioners alleged that Cadet 1
CL Cudia came to know of the denial of his request only on
January 24, 2014 upon inquiry with Maj. Leander.
Several days passed, and on January 7, 2014, Cadet lCL Cudia
was informed that Maj. Hindang reported him to the HC21 for
violation of the Honor Code. The Honor Report stated:
Lying that is giving statement that perverts the truth in his written
appeal, stating that his 4th period class ended at l 500H that
made him late in the succeeding class.22
Upon asking the HC Chairman, Cadet 1 CL Mike Anthony P.
Mogol (Cadet 1 CL Mogol), as to what Maj. Hindang meant in his
Report, Cadet lCL Cudia learned that it was based on Maj.
Hindang's conversations with their instructors and classmates as
well as his statement in the request for reconsideration to Maj.
Leander. He then verbally applied for and was granted an
extension of time to answer the charge against him because Dr.
Costales, who could shed light on the matter, was on emergency
leave.
On January 13, 2014, Dr. Costales sent text messages to Cadet
lCL Cudia, conveying:
Gud pm cdt cudia. Mam belandres gave me bkground na. She
told me its a report dated november. When maj hindang ask me,
no time referens. (04:25:11 P.M.)
All the while I thot he was refering to dismisal during last day last
december. Whc i told, i wud presume they wil finish early bee its
grp work. (04:29:21 P.M.)23
The next day, Cadets lCL Cudia and Arcangel approached Dr.
Costales, who reaffirmed that she and Maj. Hindang were not in
the same time reference when the latter asked her.
Later, Cadet 1 CL Cudia submitted his letter of explanation on the
Honor Report. He averred:
Sir, We had an LE that day (14 November 2013) in OR432 class.
When the first bell rang (1455), I stood up, reviewed my paper
and submitted it to my instructor, Ms. Costales. After which, I and
Cadet lcl Arcangel asked for some query with regards (sic) to the
deductions of our previous LE. Our instructor gladly answered our
question. She then told me that she will give the copy of our
section grade, so I waited at the hallway outside the ACAD5
office, and then she came out of the room and gave me a copy of
the grades. Cadet Arcangel, Cadet Narciso and I immediately
went to our 5ti period class which is ENG412.
With these statements, I would like to clarify the following:
1. How could this be lying?
2. What is wrong with the side of Maj. Hindang
(why did he come up to that honor report)?
3. What are his assumptions?
I appeal, in the name of clarity, fairness and truth[,] that my case
be reopened and carefully reviewed for I did not violate the honor
code/system, I can answer NO to both questions (Did I intend to
deceive? Did I intend to take undue advantage?) and for the
following reasons:
1. The honor report of Maj. Hindang was already
settled and finalized given the fact that no face-to-
face personal conversation with Ms. Costales was
conducted to clarify what and when exactly was
the issue at hand.
2. Statements of the respondents support my
explanation.
3. My explanation to my appeal to my DR
(Request for reconsideration of meted
punishment) further supports my explanation in
my delinquency report.
4. My understanding of the duration of the
"CLASS" covers not just a lecture in a typical
classroom instruction but includes every
transaction and communication a teacher does
with her students, especially that in our case
some cadets asked for queries, and I am given
instruction by which (sic) were directly related to
our CLASS. Her transaction and communication
with our other classmates may have already
ended but ours extended for a little bit.
I agree and consider that because Cadet
CUDIA is under my instruction to wait, and
the other cadets still have business with
me, it is reasonable enough for him to say
that "Our class was dismissed a bit late"
(dealing with matter of seconds or a
minute particularly 45 seconds to 1 minute
and 30 seconds)
And with concern to (sic) OR432 class, I
can say it ended on time (1500H).
 (signed)
M COSTALES
w/ attached certification
5. I was transparent and honest in explaining the
2-minute delay and did not attempt to conceal
anything that happened or I did.
6. Furthermore, CPT DULA WAN PA, the Tactical
Officer of Hawk Company[,] and I had a
conversation with regards (sic) to the same matter
for which he can give important points of my case.
7. Cadet lcl DIAZ "D" Co can also stand as a
witness that I waited for Ms. Costales. 24
On January 15, 2014, the HC constituted a team to conduct a
preliminary investigation on the reported honor violation of Cadet
1 CL Cudia. The Foxtrot Company was designated as the
investigating team and was composed of Cadet 1 CL Hasigan as
Presiding Officer, and Cadets 1 CL Mogol, lCL Raguindin, 2CL
Gumilab, 2CL Saldua, 3CL Espejo, and 3CL Poncardas as
members.25 Soon after, the team submitted its Preliminary
Investigation Report recommending that the case be formalized.
The formal investigation against Cadet 1 CL Cu di a then ensued.
The Presiding Officer was Cadet 1 CL Rhona K. Salvacion, while
the nine (9) voting members were Cadets lCL Jairus 0. Fantin,
lCL Bryan Sonny S. Arlegui, 1 CL Kim Adrian R. Martal, 1 CL J
eanelyn P. Cabrido, 1 CL ShuAydan G. Ayada, 1 CL Dalton John
G. Lagura, 2CL Renato A. Carifio, Jr., 2CL Arwi C. Martinez, and
2CL Niko Angelo C. Tarayao.26 Acting as recorders tasked to
document the entire proceedings were 4CL Jennifer A. Cuarteron
and 3CL Leoncio Nico A. de Jesus 11.27 Those who observed the
trial were Cadets 1 CL Balmeo, Dag-uman, Hasigan, Raguindin,
Paulino, Arcangel, and Narciso; Cadets 2CL Jocson and Saldua,
Jr.; and Cadet 3CL Umaguing.28
The first formal hearing started late evening of January 20, 2014
and lasted until early morning the next day. Cadet lCL Cudia was
informed of the charge against him, as to which he pleaded "Not
Guilty." Among those who testified were Cadet 1 CL Cudia, Maj.
Hindang, and Cadets 1 CL Arcangel and Narciso. On the second
night of the hearing held on January 21, 2014, Cadet 1 CL Cudia
again appeared and was called to the witness stand along with
Cadets Brit and Barrawed. Dr. Costales also testified under oath
via phone on a loudspeaker. Deliberation among the HC voting
members followed. After that, the ballot sheets were distributed.
The members cast their votes through secret balloting and
submitted their accomplished ballot sheets together with their
written justification. The result was 8-1 in favor of a guilty verdict.
Cadet lCL Dalton John G. Lagura (Cadet lCL Lagura) was the
lone dissenter. Allegedly, upon the order ofHC Chairman Cadet 1
CL Mogol, the Presiding Officer and voting members went inside
a chamber adjoining the court room for further deliberation. After
several minutes, they went out and the Presiding Officer
announced the 9-0 guilty verdict. Cadet 1 CL Cudia, who already
served nine (9) touring hours, was then informed of the
unanimous votes finding him guilty of violating the Honor Code.
He was immediately placed in the PMA Holding Center until the
resolution of his appeal.
On January 24, 2014, Cadet ICL Cudia filed a written appeal
addressed to the HC Chairman, the full text of which stated:
WRITTEN APPEAL
14 NOVEMBER 2013
This is when I was reported for "Late for two (2) minutes in
Eng412 class", my explanation on this delinquency report when I
received it, is that "Our class was dismissed a (little) bit late and I
came directly from 4th period class ... etc". Knowing the fact that
in my delinquency report, it is stated that ENG412 classes started
1500H and I am late for two minutes, it is logical enough for I (sic)
to interpret it as "I came 1502H during that class". This is the
explanation that came into my mind that time. (I just cannot recall
the exact words I used in explaining that delinquency report, but
what I want to say is that I have no intention to be late). In my
statements, I convey my message as "since I was not the only
one left in that class, and the instructor is with us, I used the term
"CLASS", I used the word "DISMISSED" because I was under
instruction (to wait for her to give the section grade) by the
instructor, Ms. Costales. The other cadets (lCL MIRANDA, lCL
ARCANGEL) still have queries and business with her that made
me decide to use the word "CLASS", while the others who don't
have queries and business with her (ex: lCL NARCISO and 1 CL
DIAZ) were also around.
Note:
The four named cadets were also reported late.
Reference: Para 171. 0. (Leaving the Classroom Prior to
Dismissal Time)(Sec XVII, CCAFPR s2008)
It is stated in this reference that "Cadets shall not linger in the
place of instruction after the section has been dismissed.
EXCEPT when told or allowed to do so by the instructor or by any
competent authority for official purposes. "
The instruction by Ms. Costales was given to me before the two
bells rang (indicating the end of class hour, 1500H). I waited for
her for about 45 seconds to 1 minute and 30 seconds, that made
me to decide to write "a little bit late" in my explanation. Truly, the
class ENDED 1500H but due to official purpose (instruction by
Ms. Costales to wait) and the conflict in academic schedule (to
which I am not in control of the circumstances, 4th PD class
1330H-1500H and 5th PD class 1500H-1 600H), and since Ms.
Costales, my other classmates, and I were there, I used the word
"CLASS".
19 December 2013
I was informed that my delinquency report was awarded, 11
Demerits and 13 Touring hours. Not because I don't want to
serve punishment, but because I know I did nothing wrong, I
obeyed instruction, and believing that my reason is justifiable and
valid, that is why I approached our tactical officer, MAJ HINDANG
PAF, to clarify and ask why it was awarded that day.
In our conversation, he said that he had a phone call to my
instructor and he even added that they have a protocol to dismiss
the class, 15 minutes or 10 minutes before 1500H. I explained:
Sir, I strongly believe that I am not in control of the
circumstances, our 4th period class ended 1500H and our 5th
period class, which is ENG412, started 1500H also. Immediately
after 4th period class, I went to my next class without any
intention of being late Sir.
These statements are supplementary to my explanation in my
delinquency report, in here, I specified the conflict in the schedule
and again, I have no intention to be late. After explaining it further
with these statements, my tactical officer said that since I was
reported in a written form, I should make an appeal in a written
form. Thinking that he already understood what I want to say, I
immediately made an appeal that day stating the words that I
used in having conversation with him.29
Attached to the written appeal was a Certification dated January
24, 2014, wherein Dr. Costales attested:
1. That Cadet MIRANDA, ARCANGEL, [and] NARCISO
was (sic) with Cadet CUDIA in making query about their
latest grades in OR432 and/or results of UEl outside the
 ACADS office. The following facts may explain their
queries on 14 November 2013:
a. That I held my class in the PMAFI room instead
of room 104.
b. That OR432 releases grades every Wednesday
and cadets are informed during Thursday, either
in class or posted grades in the bulletin board
(grades released was [sic J based on the previous
LEs: latest LE before UE was Decision Trees).
c. That UE papers were already checked but not
yet recorded due to (sic) other cadets have not
taken the UE. Cadets were allowed to verify
scores but not to look at the papers.
d. Last 23 January 2014, Captain Dulawan
clarified if indeed Cadet NARCISO and
ARCANGEL verified grades. The two cadets said
that they verified something with me after the
OR432 class and they were with Cadet CUD IA.
That the statements of the three (3) cadets are all
the same and consistent, thus[,] I honor that as
true.
2. As to the aspect of dismissing late, I could not really
account for the specific time that I dismissed the class. To
this date, I [cannot] really recall an account that is more
than two (2) months earlier. According to my records,
there was a lecture followed by an LE during (sic) on 14
November 2013. To determine the time of my dismissal,
maybe it can be verified with the other members of class I
was handling on that said date.30
Respondents contend that the HC denied the appeal the same
day, January 24, as it found no reason to conduct a re-trial
based on the arguments and evidence presented.31 Petitioners,
however, claim that the written appeal was not acted upon until
the filing of the petition-in-intervention.32
From January 25 to February 7, 2014, respondents allege that
the Headquarters Tactics Group (HTG) conducted an informal
review to check the findings of the HC. During the course of the
investigation, Prof. Berong was said to have confirmed with the
Officer-in-Charge of the HC that classes started as scheduled
(i.e., 3:05 p.m. or 1505H), and that Cadet lCL Barrawed, the
acting class marcher of ENG412, verified before the
Commandant, Assistant Commandant, and STO that the class
started not earlier than scheduled.
Meantime, on February 4, 2014, the OIC of the HC 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.
On February 8, 2014, Colonel Rozzano D. Briguez (Col. Briguez),
the Commandant of Cadets, affirmed the HC findings and
recommended to Vice Admiral Edgar Abogado, then PMA
Superintendent, the separation from the PMA of Cadet lCL Cudia
for violation of the First Tenet of the Honor Code (Lying, pursuant
to Sec. VII.12.b of the CCAFPR S-2008). On the same date,
Special Orders No. 26 was issued by the PMA Headquarters
placing Cadet 1 CL Cudia on indefinite leave of absence without
pay and allowances effective February 10, 2014 pending
approval of his separation by the AFPGHQ, barring him from
future appointment and/or admission as cadet, and not permitting
him to qualify for any entrance requirements to the PMA. 33
Two days later, Vice Admiral Abogado approved the
recommendation to dismiss Cadet 1 CL Cudia.
On February 13, 2014, Cadet lCL Cudia submitted a letter to the
Office of the Commandant of Cadets requesting for reinstatement
by the PMA of his status as a cadet.34
Four days passed, Annavee P. Cudia (Annavee ), the sister of
Cadet 1 CL Cudia, posted his plight in her Face book account.
The day after, the Spouses Cudia gave a letter to Major General
Oscar Lopez (Maj. Gen. Lopez), the new PMA Superintendent,
asking to recognize the 8-1 voting of the HC.35 Copies of which
were furnished to the AFP Chief of Staff and other concerned
military officials. Subsequently, Maj. Gen. Lopez was directed to
review Cadet lCL Cudia's case. The latter, in turn, referred the
matter to the Cadet Review and Appeals Board (CRAB).
On February 19, 2014, Cadet lCL Cudia made his personal
appeal letter to Maj. Gen. Lopez. On even date, the AFP Chief of
Staff ordered a reinvestigation following the viral Facebook post
of Annavee demanding the intervention of the military leadership.
Petitioners claim that, on February 21, 2014, Special Order No. 1
was issued directing all PMA cadets to ostracize Cadet 1 CL
Cudia by not talking to him and by separating him from all
activities/functions of the cadets. It is said that any violation shall
be a "Class 1" offense entailing 45 demerits, 90 hours touring,
and 90 hours confinement. Cadet 1 CL Cudia was not given a
copy of the order and learned about it only from the
media.36 According to an alleged news report, PMA Spokesperson
Major Agnes Lynette Flores (Maj. Flores) confirmed the HC order
to ostracize Cadet 1 CL Cudia. Among his offenses were: breach
of confidentiality by putting documents in the social media,
violation of the PMA Honor Code, lack of initiative to resign, and
smearing the name of the PMA.37
On February 24, 2014, Cadet 1CL Cudia requested the CRAB for
additional time, until March 4, 2014, to file an appeal on the
ground that his intended witnesses are in on-the-job training (
OJT).38 As additional evidence to support his appeal, he also
requested for copies of the Minutes of the HC proceedings,
relevant documents pertaining to the case, and video footages
and recordings of the HC hearings.
The next day, Cadet 1 CL Cudia and his family engaged the
services of the Public Attorney's Office (PAO) in Baguio City.
The CRAB conducted a review of the case based on the
following: (a) letter of appeal of the Spouses Cudia dated
February 18, 2014; (b) directive from the AFP-GHQ to
reinvestigate the case; and ( c) guidance from Maj. Gen. Lopez.
On February 26, 2014, Brigadier General Andre M. Costales, Jr.
(Brig. Gen. Costales, Jr.), the CRAB Chairman, informed Cadet
lCL Cudia that, pending approval of the latter's request for
extension, the CRAB would continue to review the case and
submit its recommendations based on whatever evidence and
testimonies received, and that it could not favorably consider his
request for copies of the HC minutes, relevant documents, and
video footages and recordings of the HC hearings since it was
neither the appropriate nor the authorized body to take action
thereon.39Subsequently, upon verbal advice, Cadet 1 CL Cudia
wrote a letter to Maj. Gen. Lopez reiterating his request.40
Two days after, the Spouses Cudia filed a letter-complaint before
the CHR-Cordillera Administrative Region (CAR) Office against
the HC members and Maj. Gracilla for alleged violation of the
human rights of Cadet lCL Cudia, particularly his rights to due
process, education, and privacy of communication.41
On March 4, 2014, Cadet 1 CL Cudia, through the PAO, moved
for additional time, until March 19, 2014, to file his appeal and
submit evidence. PAO also wrote a letter to AFP Chief of Staff
General Emmanuel T. Bautista (Gen. Bautista) seeking for
immediate directive to the PMA to expeditiously and favorably act
on Cadet 1CL Cudia's requests.42
Exactly a week prior to the commencement exercises of Siklab
Diwa Class, the following events transpired:
On March 10, 2014, Annavee sought the assistance of PAO Chief
Public Attorney Persida V. Rueda-Acosta.43 On the other hand,
the CRAB submitted a report to the AFP-GHQ upholding the
dismissal of Cadet 1 CL Cudia.44
On March 11, 2014, PAO received a letter from Maj. Gen. Lopez
stating the denial of Cadet 1CL Cudia's requests for extension of
time to file an Appeal Memorandum in view of the ample time
already given, and to be furnished with a copy of relevant
documents because of confidentiality and presumption of
regularity of the HC proceedings.45Cadet 1CL Cudia, through
PAO, then filed an Appeal Memorandum46 before the CRAB.
On March 12, 2014, Spouses Cudia wrote a letter to President
Benigno Simeon C. Aquino III (Pres. Aquino), who is the
Commander-in-Chief of the AFP, attaching thereto the Appeal
Memorandum.47 On the same day, Special Orders No. 48 was
issued by the PMA constituting a Fact-Finding
Board/Investigation Body composed of the CRAB members and
PMA senior officers to conduct a deliberate investigation
pertaining to Cadet 1CL Cudia's Appeal Memorandum.48 The
focus of the inquiry was not just to find out whether the appeal
has merit or may be considered but also to investigate possible
involvement of other cadets and members of the command
related to the incident and to establish specific violation of policy
or regulations that had been violated by other cadets and
members of the HC.49
On March 13, 2014, the Cudia family and the Chief Public
Attorney had a dialogue with Maj. Gen. Lopez. On March 14,
2014, the CHR-CAR came out with its preliminary findings, which
recommended the following:
a. For the PMA and the Honor Committee to respect and
uphold the 8 Guilty - 1 Not guilty vote;
b. For the PMA and the Honor Committee to officially
pronounce Cdt Cudia as Not Guilty of the charge filed
against him before the Honor Committee;
c. For the PMA to restore Cadet Cudia's rights and
entitlements as a full-fledge graduating cadet and allow
him to graduate on Sunday, 16 March 2014;
d. For the PMA to fully cooperate with the CHR in the
investigation of Cudia's Case.50
On March 15, 2014, Cadet 1CL Cudia and his family had a
meeting with Pres. Aquino and Department of National Defense
(DND) Secretary Voltaire T. Gazmin. The President
recommended that they put in writing their appeal, requests, and
other concerns. According to respondents, the parties agreed that
Cadet 1 CL Cudia would not join the graduation but it was without
prejudice to the result of the appeal, which was elevated to the
AFP Chief of Staff. The President then tasked Gen. Bautista to
handle the reinvestigation of the case, with Maj. Gen. Oscar
Lopez supervising the group conducting the review.
Four days after Siklab Diwa Class' graduation day, petitioner
Renato S. Cudia received a letter dated March 11, 2014 from the
Office of the AFP Adjutant General and signed by Brig. Gen.
Ronald N. Albano for the AFP Chief of Staff, affirming the CRAB'
s denial of Cadet 1 CL Cudia' s appeal. It held:
After review, The Judge Advocate General, APP finds that the
action of the PMA CRAB in denying the appeal for reinvestigation
is legally in order. There was enough evidence to sustain the
finding of guilt and the proprietary (sic) of the punishment
imposed. Also, your son was afforded sufficient time to file his
appeal from the date he was informed of the final verdict on
January 21, 2014, when the decision of the Honor Committee
was read to him in person, until the time the PMA CRAB
conducted its review on the case. Moreover, the continued stay of
your son at the Academy was voluntary. As such, he remained
subject to the Academy's policy regarding visitation. Further,
there was no violation of his right to due process considering that
the procedure undertaken by the Honor Committee and PMA
CRAB was consistent with existing policy. Thus, the previous
finding and recommendation of the Honor Committee finding your
son, subject Cadet guilty of "Lying" and recommending his
separation from the Academy is sustained.
In view of the foregoing, this Headquarters resolved to deny your
appeal for lack of merit.51 Thereafter, the Fact-Finding
Board/Investigating Body issued its Final Investigation Report on
March 23, 2014 denying Cadet 1 CL Cudia's
appeal.52 Subsequently, on April 28, 2014, the special
investigation board tasked to probe the case submitted its final
report to the President.53 Pursuant to the administrative appeals
process, the DND issued a Memorandum dated May 23, 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 President.54
Meanwhile, on May 22, 2014, the CHR-CAR issued its Resolution
with respect to CHR-CAR Case No. 2014-0029, concluding and
recommending as follows:
WHEREFORE, PREMISES CONSIDERED, the Commission on
Human Rights-CAR Office finds PROBABLE CAUSE FOR
HUMAN RIGHTS VIOLATIONS against the officers and members
of the PMA Honor Committee and .. certain PMA officials,
specifically for violations of the rights of CADET ALDRIN JEFF P.
CUDIA to dignity, due process, education, privacy/privacy of
communication, and good life.
IN VIEW OF THE FOREGOING, the CHR-CAR Office
RESOLVED to indorse to competent authorities for their
immediate appropriate action on the following recommendations:
1. The Philippine Military Academy must set aside
the "9-Guilty, 0-Not Guilty" verdict against Cadet
Aldrin Jeff P. Cudia, for being null and void; to
uphold and respect the "8-Guilty, 1-Not Guilty"
voting result and make an official pronouncement
of NOT GUILTY in favor of Cadet Cudia;
2. The PMA, the AFP Chief of Staff, and the
President in whose hands rest the ends of justice
and fate of Cadet Cudia, to:
2.1 officially proclaim Cadet Cudia a
graduate and alumnus of the Philippine
Military Academy;
2.2 issue to Cadet Cudia the
corresponding Diploma for the degree of
Bachelors of Science; and
2.3 Issue to Cadet Cudia the
corresponding official transcript 'of his
academic records for his BS degree,
without conditions therein as to his status
as a PMA cadet.
3. The Public Attorneys' Office to provide legal
services to Cadet Cudia in pursuing
administrative, criminal and civil suits against the
officers and members of the Honor Committee
named hereunder, for violation of the Honor Code
and System and the Procedure in Formal
Investigation, dishonesty, violation of the secrecy
of the ballot, tampering the true result of the
voting, perjury, intentional omission in the Minutes
of substantive part of the formal trial proceedings
which are prejudicial to the interest of justice and
Cadet Cudia's fundamental rights to dignity, non-
discrimination and due process, which led to the
infringement of his right to education and even
transgressing his right to a good life.
3.1 Cdt lCL MIKE ANTHONY MOGUL,
now 2nd Lt. of the AFP
3.2 Cdt lCL RHONA K. SALVACION, now
2nd Lt. of the AFP
3.3 Cdt 2CL ARWI C. MARTINEZ
3.4 Cdt 2CL RENATO A. CARINO, JR.
3.5 Cdt 2CL NIKOANGELOC. TARAYAO
3.6 Cdt lCL JEANEL YN P. CABRIDO,
now 2nd Lt. of the AFP
3.7 Cdt lCL KIM ADRIAN R. MARTAL,
now 2nd Lt. of the AFP
3.8 Cdt lCL JAIRUS 0. FANTIN, now 2nd
Lt. of the AFP
3.9 Cdt lCL BRYAN SONNY S. ARLEGUI,
now 2nd Lt. of the AFP
3.10 Cdt lCL DALTON JOHN G.
LAGURA, now 2nd Lt. of the AFP
3.11 Cdt 1 CL BIANCHIHEIMER L. EDRA,
now 2nd Lt. of the AFP
3.12 Cdt 4CL JENNIFER A.
CUARTERON (recorder)
3.13 Cdt 3CL LEONCIO NICO A. DE
JESUS II (record)
4. The Office of the AFP Chief of Staff and the
PMA competent authorities should investigate and
file appropriate charges against Maj. VLADIMIR
P. GRACILLA, for violation of the right to privacy
of Cadet Cudia and/or failure, as intelligence
officer, to ensure the protection of the right to
privacy of Cudia who was then billeted at the PMA
Holding Center;
5. The Office of the AFP Chief of Staff and PMA
competent authorities should investigate Maj.
DENNIS ROMMEL HINDANG for his failure and
ineptness to exercise his responsibility as a
competent Tactical Officer and a good father of
his cadets, in this case, to Cadet Cudia; for failure
to respect exhaustion of administrative remedies;
6. The Secretary of National Defense, the Chief of
Staff of the Armed Forces of the Philppines, the
PMA Superintendent, to immediately cause the
comprehensive review of all rules of procedures,
regulations, policies, including the so-called
practices in the implementation of the Honor
Code; and, thereafter, adopt new policies, rules of
procedures and relevant regulations which are
human-rights based and consistent with the
Constitution and other applicable laws;
7. The Congress of the Philippines to consider the
enactment of a law defining and penalizing
ostracism and discrimination, which is apparently
 being practiced in the PMA, as a criminal offense
in this jurisdiction;
8. His Excellency The President of the Philippines
to certify as priority, the passage of an anti-
ostracism and/or anti-discrimination law; and
9. Finally, for the AFP Chief of Staff and the PMA
authorities to ensure respect and protection of the
rights of those who testified for the cause of
justice and truth as well as human rights of Cadet
Cudia.
RESOLVED FURTHER, to monitor the actions by the competent
authorities on the foregoing CHR recommendations.
Let copy of this resolution be served by personal service or by
substituted service to the complainants (the spouses Renato and
Filipina Cudia; and Aldrin Jeff P. Cudia), and all the respondents.
Also, to the PMA Superintendent, the AFP Chief of Staff, the
Secretary of National Defense, His Excellency The President of
the Philippines, The Public Attorneys' Office.
SO RESOLVED.55
On June 11, 2014, the Office of the President sustained the
findings of the AFP Chief of Staff and the CRAB. The letter, which
was addressed to the Spouses Cudia and signed by Executive
Secretary Paquito N. Ochoa, Jr., stated in whole:
This refers to your letters to the President dated 12 March 2014
and 26 March 2014 appealing for a reconsideration of the
decision of the Philippine Military Academy (PMA) Honor
Committee on the case of your son, Cadet 1 CL Aldrin Jeff Cudia.
After carefully studying the records of the case of Cadet Cudia,
the decision of the Chief of Staff of the Armed Forces of the
Philippines (AFP), and the Honor Code System of the AFP Cadet
Corps, this Office has found no substantial basis to disturb the
findings of the AFP and the PMA Cadet Review Appeals Board
(CRAB). There is no competent evidence to support the claim
that the decision of the Honor Committee members was initially at
8 "Guilty" votes and 1 "Not Guilty" vote. The lone affidavit of an
officer, based on his purported conversation with one Honor
Committee member, lacks personal knowledge on the
deliberations of the said Committee and is hearsay at best.
Similarly, the initial recommendations of the Commission on
Human Rights cannot be adopted as basis that Cadet Cudia's
due process rights were violated. Apart from being explicitly
preliminary in nature, such recommendations are anchored on a
finding that there was an 8-1 vote which, as discussed above, is
not supported by competent evidence.
In the evaluation of Cadet Cudia's case, this Office has been
guided by the precept that military law is regarded to be in a class
of its own, "applicable only to military personnel because the
military constitutes an armed organization requiring a system of
discipline separate from that of civilians" (Gonzales v. Abaya,
G.R. No. 164007, 10 August 2005 citing Calley v. Callaway, 519
F. 2d 184 [1975] and Orloff v. Willoughby, 345 US 83 [1953]).
Thus, this Office regarded the findings of the AFP Chief,
particularly his conclusion that there was nothing irregular in the
proceedings that ensued, as carrying great weight.
Accordingly, please be informed that the President has sustained
the findings of the AFP Chief and the PMA CRAB.56
The Issues
To petitioners, the issues for resolution are:
I.
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE
HONOR COMMITTEE AND THE CADET REVIEW AND
APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN DISMISSING CADET FIRST CLASS ALDRIN
JEFF P. CUDIA FROM THE ACADEMY IN UTTER DISREGARD
OF HIS RIGHT TO DUE PROCESS CONSIDERING THAT:
A. Despite repeated requests for relevant documents
regarding his case, Cadet First Class Aldrin Jeff Cudia
was deprived of his right to have access to evidence
which would have proven his defense, would have totally
belied the charge against him, and more importantly,
would have shown the irregularity in the Honor
Committee's hearing and rendition of decision
B. Cadet First Class Aldrin Jeff Cudia was vaguely
informed of the decisions arrived at by the Honor
Committee, the Cadet Review and Appeals Board and the
Philippine Military Academy
C. The Honor Committee, the Cadet Review and Appeals
Board and the Philippine Military Academy have afforded
Cadet First Class Aldrin Jeff Cudia nothing but a sham
trial
D. The Honor Committee, the Cadet Review and Appeals
Board and the Philippine Military Academy violated their
own rules and principles as embodied in the Honor Code
E. The Honor Committee, the Cadet Review and Appeals
Board and the Philippine Military Academy, in deciding
Cadet First Class Aldrin Jeff Cudia's case, grossly and in
bad faith, misapplied the Honor Code so as to defy the
1987 Constitution, notwithstanding the unquestionable
fact that the former should yield to the latter.
II
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE
HONOR COMMITTEE AND THE CADET REVIEW AND
APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN HOLDING THAT CADET FIRST CLASS
ALDRIN JEFF P. CUDIA LIED, THEREBY VIOLATING THE
HONOR CODE
III
WHETHER THE RESULT OF THE FACT-FINDING
INVESTIGATION INDEPENDENTLY CONDUCTED BY THE
COMMISSION ON HUMAN RIGHTS IS OF SUCH GREAT
WEIGHT AND PERSUASIVE NATURE THAT THIS
HONORABLE COURT MAY HONOR, UPHOLD AND
RESPECT57
On the other hand, in support of their prayer to dismiss the
petition, respondents presented the issues below:
PROCEDURAL GROUNDS
I.
THE MANDAMUS PETITION PRAYING THAT CADET CUDIA
BE INCLUDED IN THE LIST OF GRADUATES OF SIKLAB
DIWA CLASS OF 2014 AND BE ALLOWED TO TAKE PART IN
THE COMMENCEMENT EXERCISES HAS ALREADY BEEN
RENDERED MOOT.
II.
THE ISSUES RAISED IN THE PETITIONS ARE ACTUALLY
FACTUAL WHICH ARE BEYOND THE SCOPE OF A PETITION
FOR CERTIORARI, PROHIBITION AND MANDAMUS.
III.
MANDAMUS DOES NOT LIE TO COMPEL RESPONDENTS TO
GRANT THE RELIEFS PRAYED FOR. IV. IT IS PREMATURE
TO INVOKE JUDICIAL REDRESS PENDING THE DECISION
OF THE PRESIDENT ON CADET CUDIA'S APPEAL.
V.
WITH UTMOST DUE RESPECT, THE HONORABLE COURT
MUST EXERCISE CAREFUL RESTRAINT AND REFRAIN
FROM UNDULY OR PREMATURELY INTERFERING WITH
LEGITIMATE MILITARY MATTERS.
SUBSTANTIVE GROUNDS
VI.
CADET CUDIA HAS NECESSARILY AND VOLUNTARILY
RELINQUISHED CERTAIN CIVIL LIBERTIES BY VIRTUE OF
HIS ENTRY INTO THE PMA.
VII.
THE PMA ENJOYS THE ACADEMIC FREEDOM WHICH
AUTHORIZES IT TO IMPOSE DISCIPLINARY MEASURES AND
PUNISHMENT AS IT DEEMS FIT AND CONSISTENT WITH
THE PECULIAR NEEDS OF THE ACADEMY.
VIII.
CADET CUDIA WAS PROPERLY AFFORDED PROCEDURAL
DUE PROCESS.
The PMA has regulatory authority to administratively terminate
cadets despite the absence of statutory authority.
Violation of the Honor Code warrants the administrative dismissal
of a guilty cadet.
Cadet Cudia violated the first tenet of the Honor Code by
providing untruthful statements in the explanation for his
tardiness.
The higher authorities of the PMA did not blindly adopt the
findings of the Honor Committee.
The procedural safeguards in a student disciplinary case were
properly accorded to Cadet Cudia.
The subtle evolution in the voting process of the Honor
Committee, by incorporating executive session/chambering, was
adopted to further strengthen the voting procedure of the Honor
Committee. Cadet Lagura voluntarily changed his vote without
any pressure from the other voting members of the Honor
Committee.
Ostracism is not a sanctioned practice of the PMA.
The findings of the Commission on Human Rights are not binding
on the Honorable Court, and are, at best, recommendatory.
Cadet Cudia was not effectively deprived of his future when he
was dismissed from the PMA.58
The Ruling of the Court
PROCEDURAL GROUNDS
Propriety of a petition for mandamus
Respondents argue that the mandamus aspect of the petition
praying that Cadet 1 CL Cudia be included in the list of
graduating cadets and for him to take part in the commencement
exercises was already rendered moot and academic when the
graduation ceremonies of the PMA Siklab Diwa Class took place
on March 16, 2014. Also, a petition for mandamus is improper
since it does not lie to compel the performance of a discretionary
duty. Invoking Garcia v. The Faculty Admission Committee,
Loyola School of Theology,59 respondents assert that a
mandamus petition could not be availed of to compel an
academic institution to allow a student to continue studying
therein because it is merely a privilege and not a right. In this
case, there is a clear failure on petitioners' part to establish that
the PMA has the, ministerial duty to include Cadet 1 CL Cudia in
the list, much less award him with academic honors and
commission him to the Philippine Navy. Similar to the case of
University of San Agustin, Inc. v. Court of Appeals,60 it is
submitted that the PMA may rightfully exercise its discretionary
power on who may be admitted to study pursuant to its academic
freedom.
In response, petitioners contend that while the plea to allow
Cadet 1 CL Cudia to participate in the PMA 2014 commencement
exercises could no longer be had, the Court may still grant the
other reliefs prayed for. They add that Garcia enunciated that a
respondent can be ordered to act in a particular manner when
there is a violation of a constitutional right, and that the certiorari
aspect of the petition must still be considered because it is within
the province of the Court to determine whether a branch of the
government or any of its officials has acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or
excess thereof.
We agree that a petition for mandamus is improper.
Under Section 3, Rule 65 of the Rules of Civil Procedure, a
petition for mandamus may be filed when any tribunal,
corporation, board, officer, or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station. It may also be filed when
any tribunal, corporation, board, officer, or person unlawfully
excludes another from the use and enjoyment of a right or office
to which such other is entitled.
For mandamus to lie, the act sought to be enjoined must be a
ministerial act or duty. An act is ministerial if the act should be
performed "[under] a given state of facts, in a prescribed manner,
in obedience to the mandate of a legal authority, without regard to
or the exercise of [the tribunal or corporation's] own judgment
upon the propriety or impropriety of the act done." The tribunal,
corporation, board, officer, or person must have no choice but to
perform the act specifically enjoined by law. This is opposed to a
discretionary act whereby the officer has the choice to decide
how or when to perform the duty.61
In this case, petitioners pray for, among others: Also, after due
notice and hearing, it is prayed of the Court to issue a Writ of
Mandamus to:
1. direct the PMA to include Cadet Cudia in the list of
graduates of Siklab Diwa Class of 2014 of the PMA,
including inclusion in the yearbook;
2. direct the PMA to allow Cadet Cudia to take part in the
commencement exercises if he completed all the
requirements for his baccalaureate degree;
3. direct the PMA to award unto Cadet Cudia the
academic honors he deserves, and the commission as a
new Philippine Navy ensign;
4. direct the Honor Committee to submit to the CRAB of
the PMA all its records of the proceedings taken against
Cadet Cudia, including the video footage and audio
recordings of the deliberations and voting, for the purpose
of allowing the CRAB to conduct intelligent review of the
case of Cadet Cudia;
5. direct the PMA's CRAB to conduct a review de nova of
all the records without requiring Cadet Cudia to submit
new evidence if it was physically impossible to do so;
 6. direct the PMA's CRAB to take into account the
certification signed by Dr. Costales, the new evidence
consisting of the affidavit of a military officer declaring
under oath that the cadet who voted "not guilty" revealed
to this officer that this cadet was coerced into changing
his vote, and other new evidence if there is any;
7. direct the PMA's CRAB to give Cadet Cudia the right to
a counsel who is allowed to participate actively in the
proceedings as well as in the cross-examinations during
the exercise of the right to confront witnesses against
him; and
8. direct the Honor Committee in case of remand of the
case by the CRAB to allow Cadet Cudia a representation
of a counsel.62
Similarly, petitioner-intervenor seeks for the following reliefs:
A. xxx
B. a Writ of Mandamus be issued commanding:
a.) The PMA, Honor Committee, and CRAB to
respect and uphold the 8 Guilty -1 Not Guilty vote;
b.) The PMA, Honor Committee, and CRAB to
officially pronounce Cadet Cudia as Not Guilty of
the charge filed against him before the Honor
Committee;
c.) The PMA to restore Cadet Cudia's rights and
entitlements as a full-fledged graduating cadet,
including his diploma and awards.63
Anent the plea to direct the PMA to include Cadet 1 CL Cudia in
the list of graduates of Siklab Diwa Class of 2014 and to allow
him to take part in the commencement exercises, the same was
rendered moot and academic when the graduation ceremonies
pushed through on March 16, 2014 without including Cadet 1 CL
Cudia in the roll of graduates.
With respect to the prayer directing the PMA to restore Cadet 1
CL Cudia's rights and entitlements as a full-fledged graduating
cadet, including his diploma, awards, and commission as a new
Philippine Navy ensign, the same cannot be granted in a petition
for mandamus on the basis of academic freedom, which We shall
discuss in more detail below. Suffice it to say at this point that
these matters are within the ambit of or encompassed by the right
of academic freedom; therefore, beyond the province of the Court
to decide.64 The powers to confer degrees at the PMA, grant
awards, and commission officers in the military service are
discretionary acts on the part of the President as the AFP
Commander-in-Chief. Borrowing the words of Garcia:
There are standards that must be met. There are policies to be
pursued. Discretion appears to be of the essence. In terms of
Hohfeld's terminology, what a student in the position of petitioner
possesses is a privilege rather than a right. She [in this case,
Cadet 1 CL Cudia] cannot therefore satisfy the prime and
indispensable requisite of a mandamus proceeding.65
Certainly, mandamus is never issued in doubtful cases. It cannot
be availed against an official or government agency whose duty
requires the exercise of discretion or judgment.66 For a writ to
issue, petitioners should have a clear legal right to the thing
demanded, and there should be an imperative duty on the part of
respondents to perform the act sought to be mandated.67
The same reasons can be said as regards the other reliefs 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 does not lie to require
anyone to a specific course of conduct or to control or review the
exercise of discretion; it will not issue to compel an official to do
anything which is not his duty to do or which is his duty not to do
or give to the applicant anything to which he is not entitled by
law.68
The foregoing notwithstanding, the resolution of the case must
proceed since, as argued by petitioners, the Court is empowered
to settle via petition for certiorari whether there is grave abuse of
discretion on the part of respondents in dismissing Cadet 1 CL
Cudia from the PMA.
Factual nature of the issues
According to respondents, the petition raises issues that actually
require the Court to make findings of fact because it sets forth
several factual disputes which include, among others: the
tardiness of Cadet 1 CL Cudia in , his ENG412 class and his
explanation thereto, the circumstances that transpired in the
investigation of his Honor Code violation, the proceedings before
the HC, and the allegation that Cadet 1 CL Lagura was forced to
change his vote during the executive session/"chambering."
In opposition, petitioners claim that the instant controversy
presents legal issues. Rather than determining which between
the two conflicting versions of the parties is true, the case
allegedly centers on the application, appreciation, and
interpretation of a person's rights to due process, to education,
and to property; the interpretation of the PMA Honor Code and
Honor System; and the conclusion on whether Cadet 1 CL
Cudia's explanation constitutes lying. Even if the instant case
involves questions of fact, petitioners still hold that the Court is
empowered to settle mixed questions of fact and law. Petitioners
are correct.
There is a question of law when the issue does not call for an
examination of the probative value of evidence presented, the
truth or falsehood of facts being admitted and the doubt concerns
the correct application of law and jurisprudence on the matter. On
the other hand, there is a question of fact when the doubt or
controversy arises as to the truth or falsity of the alleged facts.
When there is no dispute as to fact, the question of whether or
not the conclusion drawn therefrom is correct is a question of
law.69 The petition does not exclusively present factual matters for
the Court to decide. As pointed out, the all-encompassing issue of
more importance is the determination of whether a PMA cadet
has rights to due process, to education, and to property in the
context of the Honor Code and the Honor System, and, if in the
affirmative, the extent or limit thereof. Notably, even respondents
themselves raise substantive grounds that We have to resolve. In
support of their contention that the Court must exercise careful
restraint and should refrain from unduly or prematurely interfering
in legitimate military matters, they argue that Cadet 1 CL Cudia
has necessarily and voluntarily relinquished certain civil liberties
by virtue of his entry into the PMA, and that the Academy enjoys
academic freedom authorizing the imposition of disciplinary
measures and punishment as it deems fit and consistent with the
peculiar needs of the PMA. These issues, aside from being purely
legal being purely legal questions, are of first impression; hence,
the Court must not hesitate to make a categorical ruling.
Exhaustion of administrative remedies
Respondents assert that the Court must decline jurisdiction over
the petition pending President Aquinos resolution of Cadet 1 CL
Cudia' appeal. They say that there is an obvious non-exhaustion
of the full administrative process. While Cadet 1 CL Cudia
underwent the review procedures of his guilty verdict at the
Academy level - the determination by the SJA of whether the HC
acted according to the established procedures of the Honor
System, the assessment by the Commandant of Cadets of the
procedural and legal correctness of the guilty verdict, the
evaluation of the PMA Superintendent to warrant the
administrative separation of the guilty cadet, and the appellate
review proceedings before the CRAB - he still appealed to the
President, who has the utmost latitude in making decisions
affecting the military. It is contended that the President's power
over the persons and actions of the members of the armed forces
is recognized in B/Gen. (Ret.) Gudani v. Lt./Gen. Senga70 and in
Section 3171 of Commonwealth Act (CA.) No. 1 (also known as
"The National Defense Act''). As such, the President could still
overturn the decision of the PMA. In respondents' view, the filing
of this petition while the case is pending resolution of the
President is an irresponsible defiance, if not a personal affront.
For them, comity dictates that courts of justice should shy away
from a dispute until the system of administrative redress has been
completed.
From the unfolding of events, petitioners, however, consider that
President Aquino effectively denied the appeal of Cadet 1 CL
Cudia. They claim that his family exerted insurmountable efforts
to seek reconsideration of the HC recommendation from the APP
officials and the President, but was in vain. The circumstances
prior to, during, and after the PMA 2014 graduation rites, which
was attended by President Aquino after he talked to Cadet lCL
Cudia's family the night before, foreclose the possibility that the
challenged findings would still be overturned. In any case,
petitioners insist that the rule on exhaustion of administrative
remedies is not absolute based on the Corsiga v. Defensor72 and
Verceles v. BLR-DOLE73 rulings.
We rule for petitioners.
In general, no one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy has
been exhausted. The rationale behind the doctrine of exhaustion
of administrative remedies is that "courts, for reasons of law,
comity, and convenience, should not entertain suits unless the
available administrative remedies have first been resorted to and
the proper authorities, who are competent to act upon the matter
complained of, have been given the appropriate opportunity to act
and correct their alleged errors, if any, committed in the
administrative forum."74 In the U.S. case of Ringgold v. United
States,75 which was cited by respondents, it was specifically held
that in a typical case involving a decision by military authorities,
the plaintiff must exhaust his remedies within the military before
appealing to the court, the doctrine being designed both to
preserve the balance between military and civilian authorities and
to conserve judicial resources.
Nonetheless, there are exceptions to the rule. In this jurisdiction,
a party may directly resort to judicial remedies if any of the
following is present:
1. when there is a violation of due process;
2. when the issue involved is purely a legal question;
3. when the administrative action is patently illegal
amounting to lack or excess of jurisdiction;
4. when there is estoppel on the part of the administrative
agency concerned;
5. when there is irreparable injury;
6. when the respondent is a department secretary whose
acts as an alter ego of the President bear the implied and
assumed approval of the latter;
7. when to require exhaustion of administrative remedies
would be unreasonable;
8. when it would amount to a nullification of a claim;
9. when the subject matter is a private land in land case
proceedings;
10. when the rule does not provide a plain, speedy and
adequate remedy; and
 11. when there are circumstances indicating the urgency
of judicial intervention.76
Petitioners essentially raise the lack of due process in the
dismissal of Cadet 1 CL Cudia from the PMA. Thus, it may be a
ground to give due course to the petition despite the non-
exhaustion of administrative remedies. Yet more significant is the
fact that during the pendency of this case, particularly on June 11,
2014, the Office of the President finally issued its ruling, which
sustained the findings of the AFP Chief and the CRAB. Hence,
the occurrence of this supervening event bars any objection to
the petition based on failure to exhaust administrative remedies.
Court's interference within military affairs
Respondents cite the U.S. cases of Bois v. Marsh77 and
Schlesinger v. Councilman78 to support their contention that
judicial intervention would pose substantial threat to military
discipline and that there should be a deferential review of military
statutes and regulations since political branches have particular
expertise and competence in assessing military needs. Likewise,
in Orloff v. Willoughby79 and Parker v. Levy,80 it was allegedly
opined by the U.S. Supreme Court that the military constitutes a
specialized community governed by a separate discipline from
that of the civilian. According to respondents, the U.S. courts'
respect to the military recognizes that constitutional rights may
apply differently in the military context than in civilian society as a
whole. Such military deference is exercised either by refusing to
apply due process and equal protection doctrines in military
cases or applying them but with leniency.
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 jurisdiction, policy considerations
call for the widest latitude of deference to military affairs. Such
respect is exercised by the court where the issues to be resolved
entail a substantial consideration of legitimate governmental
interest. They suppose that allowing Cadet 1 CL Cudia's case to
prosper will set an institutionally dangerous precedent, opening a
Pandora's box of other challenges against the specialized system
of discipline of the PMA. They state that with the PMA's mandate
to train cadets for permanent commission in the AFP, its
disciplinary rules and procedure necessarily must impose h
different standard of conduct compared with civilian institutions.
Petitioners, on the other hand, consider that this Court is part of
the State's check-and-balance machinery, specifically mandated
by Article VIII of the 1987 Constitution to ensure that no branch of
the government or any of its officials acts without or in excess of
jurisdiction or with grave abuse of, discretion amounting to lack or
excess of jurisdiction. They assert that judicial non-interference in
military affairs is not deemed as absolute even in the U.S. They
cite Schlesinger and Parker, which were invoked by respondents,
as well as Burns v. Wilson81 and Harmon v. Brucker,82 wherein the
U.S. Supreme Court reviewed the proceedings of military
tribunals on account of issues posed concerning due process and
violations of constitutional rights. Also, in Magno v. De
Villa83 decided by this Court, petitioners note that We, in fact,
exercised the judicial power to determine whether the APP and
the members of the court martial acted with grave abuse o.f
discretion in their military investigation.
Petitioners' contentions are tenable.
Admittedly, the Constitution entrusts the political branches of the
government, not the courts, with superintendence and control
over the military because the courts generally lack the
competence and expertise necessary to evaluate military
decisions and they are ill-equipped to determine the impact upon
discipline that any particular intrusion upon military authority
might have.84 Nevertheless, for the sake of brevity, We rule that
the facts as well as the legal issues in the U.S. cases cited by
respondents are not on all fours with the case of Cadet 1 CL
Cudia. Instead, what applies is the 1975 U.S. case of Andrews v.
Knowlton,85 which similarly involved cadets who were separated
from the United States Military Academy due to Honor Code
violations. Following Wasson v. Trowbridge86 and Hagopian v.
Knowlton,87 Andrews re-affirmed the power of the district courts to
review procedures used at the service academies in the
separation or dismissal of cadets and midshipmen. While it
recognized the "constitutional permissibility of the military to set
and enforce uncommonly high standards of conduct and ethics,"
it said that the courts "have expanded at an accelerated pace the
scope of judicial access for review of military determinations."
Later, in Kolesa v. Lehman,88 it was opined that it has been well
settled that federal courts have jurisdiction "where there is a
substantial claim that prescribed military procedures violates
one's constitutional rights." By 1983, the U.S. Congress
eventually made major revisions to the Uniform Code of Military
Justice (UCMJ) by expressly providing, among others; for a direct
review by the U.S. Supreme Court of decisions by the military's
highest appellate authority.89
Even without referring to U.S. cases, the position of petitioners is
still formidable. In this jurisdiction, Section 1 Article VIII of the
1987 Constitution expanded the scope of judicial power by
mandating that the duty of the courts of justice includes not only
"to settle actual controversies involving rights which are legally
demandable and enforceable" but also "to determine whether or
not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government" even if the latter does not
exercise judicial, quasi-judicial or ministerial functions.90 Grave
abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction or
where the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, which must be so
patent and gross as to amount to an evasion of positive duty or to
a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.91
The proceedings of the Cadet Honor Committee can, for
purposes of the Due Process Clause, be considered a
governmental activity. As ruled in Andrews:
The relationship between the Cadet Honor Committee and the
separation process at the Academy has been sufficiently
formalized, and is sufficiently interdependent, so as to bring that
committee's activities within the definition of governmental activity
for the purposes of our review. While the Academy has long had
the informal practice of referring all alleged violations to the Cadet
Honor Committee, the relationship between that committee and
the separation process has to a degree been formalized. x x x
Regardless of whether the relationship be deemed formal or
informal, the Honor Committee under its own procedures
provides that a single "not guilty" vote by a member ends the
matter, while a "guilty" finding confronts a cadet with the hard
choice of either resigning or electing to go before a Board of
Officers. An adverse finding there results not only in formal
separation from the Academy but also in a damaging record that
will follow the cadet through life. Accordingly, we conclude that
the Cadet Honor Committee, acting not unlike a grand jury, is
clearly part of the process whereby a cadet can ultimately be
adjudged to have violated the Cadet Honor Code and be
separated from the Academy. Therefore, the effect of the
committee's procedures and determinations on the separation
process is sufficiently intertwined with the formal governmental
activity which may follow as to bring it properly under judicial
review92
No one is above the law, including the military. In fact, the present
Constitution declares it as a matter of principle that civilian
authority is, at all times, supreme over the military.93 Consistent
with the republican system of checks and balances, the Court has
been entrusted, expressly or by necessary implication, with both
the duty and the obligation of determining, in appropriate cases,
the validity of any assailed legislative or executive action.94
SUBSTANTIVE GROUNDS
Cadet's relinquishment of certain civil liberties
Respondents assert that the standard of rights applicable to a
cadet is not the same as that of a civilian because the former' s
rights have already been recalibrated to best serve the military
purpose and necessity. They claim that both Gudani and Lt. Col.
Kapunan, Jr. v. Gen. De Villa95 recognized that, to a certain
degree, individual rights of persons in the military service may be
curtailed by the rules of military discipline in order to ensure its
effectiveness in fulfilling the duties required to be discharged
under the law. Respondents remind that, as a military student
aspiring to a commissioned post in the military service, Cadet 1
CL Cudia voluntarily gave up certain civil and political rights which
the rest of the civilian population enjoys. The deliberate surrender
of certain freedoms on his part is embodied in the cadets' Honor
Code Handbook. It is noted that at the beginning of their
academic life in the PMA, Cadet 1 CL Cudia, along with the rest
of Cadet Corps, took an oath and undertaking to stand by the
Honor Code and the Honor System.
To say that a PMA cadet surrenders his fundamental human
rights, including the right to due process, is, for petitioners,
contrary to the provisions of Section 3, Article II of the 1987
Constitution,96 Executive Order (E.O.) No. 17897 (as amended by
E.O. No. 100598), AFP Code of Ethics, Oath of Cadet Corps to the
Honor Code and the Honor System, military professionalism, and,
in general, military culture. They maintain that the HC, the CRAB,
and the PMA, grossly and in bad faith misapplied the Honor Code
and the Honor System in deciding Cadet lCL Cudia's case
considering that these should not be implemented at the expense
of human rights, due process, and fair play. Further, under the
doctrine of constitutional supremacy, they can never overpower
or defy the 1987 Constitution since the former should yield to the
latter. Petitioners stress that the statement that "a cadet can be
compelled to surrender some civil rights and liberties in order for
the Code and System to be implemented" simply pertains to what
cadets have to sacrifice in order to prove that they are men or
women of integrity and honor, such as the right to entertain vices
and the right to freely choose what they want to say or do. In the
context of disciplinary investigation, it does not contemplate a
surrender of the right to due process but, at most, refers to the
cadets' rights to privacy and to remain silent.
We concur with the stand of petitioners.
Of course, a student at a military academy must be prepared to
subordinate his private interests for the proper functioning of the
educational institution he attends to, one that is with a greater
degree than a student at a civilian public school.99 In fact, the
Honor Code and Honor System Handbook of the PMA expresses
that, "[as] a training environment, the Cadet Corps is a society
which has its own norms. Each member binds himself to what is
good for him, his subordinates, and his peers. To be part of the
Cadet Corps requires the surrender of some basic rights and
liberties for the good of the group."100
It is clear, however, from the teachings of Wasson and Hagopian,
which were adopted by Andrews, that a cadet facing dismissal
from the military academy for misconduct has constitutionally
protected private interests (life, liberty, or property); hence,
disciplinary proceedings conducted within the bounds of
procedural due process is a must.101 For that reason, the PMA is
not immune from the strictures of due process. Where a person's
good name, reputation, honor, or integrity is at stake because of
what the government is doing to him, the minimal requirements of
the due process clause must be satisfied.102 Likewise, the cadet
faces far more severe sanctions of being expelled from a course
of college instruction which he or she has pursued with a view to
becoming a career officer and of probably
being forever denied that career.103
The cases of Gudani and Kapunan, Jr. are inapplicable as they
do not specifically pertain to dismissal proceedings of a cadet in a
military academy due to honor violation. In Gudani, the Court
denied the petition that sought to annul the directive from then
President Gloria Macapagal-Arroyo, which' enjoined petitioners
from testifying before the Congress without her consent. We ruled
that petitioners may be subjected to military discipline for their
defiance of a direct order of the AFP Chief of Staff. On the other
hand, in Kapunan, Jr., this Court upheld the restriction imposed
on petitioner since the conditions for his "house arrest"
(particularly, that he may not issue any press statements or give
any press conference during the period of his detention) are
justified by the requirements of military discipline. In these two
cases, the constitutional rights to information, transparency in
matters of public concern, and to free speech - not to due process
clause - were restricted to better serve the greater military
purpose. Academic freedom of the PMA
Petitioners posit that there is no law providing that a guilty finding
by the HC may be used by the PMA to dismiss or recommend the
dismissal of a cadet from the PMA. They argue that Honor Code
violation is not among those listed as justifications for the attrition
of cadets considering that the Honor Code and the Honor System
do not state that a guilty cadet is automatically terminated or
dismissed from service. To them, the Honor Code and Honor
System are "gentleman's agreement" that cannot take
precedence over public interest - in the defense of the nation and
in view of the taxpayer's money spent for each cadet. Petitioners
contend that, based on the Civil Code, all written or verbal
agreements are null and void if they violate the law, good morals,
good customs, public policy, and public safety.
In opposition, respondents claim that the PMA may impose
disciplinary measures and punishment as it deems fit and
consistent with the peculiar needs of the Academy. Even without
express provision of a law, the PMA has regulatory authority to
administratively dismiss erring cadets since it is deemed
reasonably written into C.A. No. 1. Moreover, although said law
grants to the President the authority of terminating a cadet's
appointment, such power may be delegated to the PMA
Superintendent, who may exercise direct supervision and control
over the cadets.
Respondents likewise contend that, as an academic institution,
the PMA has the inherent right to promulgate reasonable norms,
rules and regulations that it may deem necessary for the
maintenance of school discipline, which is specifically mandated
by Section 3 (2),104 Article XIV of the 1987 Constitution. As the
premiere military educational institution of the AFP in accordance
with Section 30,105 Article III of C.A. No. 1 and Sections 58 and
59,106 Chapter 9, Subtitle II, Title VIII, Book IV of E.O. No. 292
("Administrative Code of 1987"), the PMA is an institution that
enjoys academic freedom guaranteed by Section 5 (2),107 Article
XIV of the 1987 Constitution. In Miriam College Foundation, Inc.
v. Court of Appeals,108 it was held that concomitant with such
freedom is the right and duty to instill and impose discipline upon
its students. Also, consistent with lsabelo, Jr. v. Perpetual Help
College of Rizal, Inc.109 and Ateneo de Manila University v.
Capulong,110 the PMA has the freedom on who to admit (and,
conversely, to expel) given the high degree of discipline and
honor expected from its students who are to form part of the AFP.
For respondents, Cadet 1 CL Cudia cannot, therefore, belatedly
assail the Honor Code as basis of the HC' s decision to
recommend his dismissal from the PMA. When he enlisted for
enrolment and studied in the PMA for four years, he knew or
should have been fully aware of the standards of discipline
imposed on all cadets and the corresponding penalty for failing to
abide by these standards.
In their Reply, petitioners counter that, as shown in lsabelo, Jr.
and Ateneo, academic freedom is not absolute and cannot be
exercised in blatant disregard of the right to due process and the
1987 Constitution. Although schools have the prerogative to
choose what to teach, how to teach, and who to teach, the same
does not go so far as to deprive a student of the right to graduate
when there is clear evidence that he is entitled to the same since,
in such a case, the right to graduate becomes a vested right
which takes precedence over the limited and restricted right of the
educational institution.
While both parties have valid points to consider, the arguments of
respondents are more in line with the facts of this case. We have
ruled that the school-student relationship is contractual in nature.
Once admitted, a student's enrolment is not only semestral in
duration but for the entire period he or she is expected to
complete it.111 An institution of learning has an obligation to afford
its students a fair opportunity to complete the course they seek to
pursue.112 Such contract is imbued with public interest because of
the high priority given by the Constitution to education and the
grant to the State of supervisory and regulatory powers over a
educational institutions.113
The school-student relationship has also been held as reciprocal.
"[It] has consequences appurtenant to and inherent in all
contracts of such kind -it gives rise to bilateral or reciprocal rights
and obligations. The school undertakes to provide students with
education sufficient to enable them to pursue higher education or
a profession. On the other hand, the students agree to abide by
the academic requirements of the school and to observe its rules
and regulations."114
Academic freedom or, to be precise, the institutional autonomy of
universities and institutions of higher learning,115has been
enshrined in our Constitutions of 1935, 1973, and 1987.116 In
Garcia, this Court espoused the concurring opinion of U.S.
Supreme Court Justice Felix Frankfurter in Sweezy v. New
Hampshire,117 which enumerated "the four essential freedoms" of
a university: To determine for itself on academic grounds (1) who
may teach, (2) what may be taught, (3) how it shall be taught, and
(4) who may be admitted to study.118 An educational institution has
the power to adopt and enforce such rules as may be deemed
expedient for its government, this being incident to the very object
of incorporation, and indispensable to the successful
management of the college.119 It can decide for itself its aims and
objectives and how best to attain them, free from outside coercion
or interference except when there is an overriding public welfare
which would call for some restraint.120 Indeed, "academic freedom
has never been meant to be an unabridged license. It is a
privilege that assumes a correlative duty to exercise it
responsibly. An equally telling precept is a long recognized
mandate, so well expressed in Article 19 of the Civil Code, that
every 'person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith."'121
The schools' power to instill discipline in their students is
subsumed in their academic freedom and that "the establishment
of rules governing university-student relations, particularly those
pertaining to student discipline, may be regarded as vital, not
merely to the smooth and efficient operation of the institution, but
to its very survival."122 As a Bohemian proverb puts it: "A school
without discipline is like a mill without water." Insofar as the water
turns the mill, so does the school's disciplinary power assure its
right to survive and continue operating.123 In this regard, the Court
has always recognized the right of schools to impose disciplinary
sanctions, which includes the power to dismiss or expel, on
students who violate disciplinary rules.124 In Miriam College
Foundation, Inc. v. Court of Appeals,125 this Court elucidated:
The right of the school to discipline its students is at once
apparent in the third freedom, i.e., "how it shall be taught." A
school certainly cannot function in an atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an
educational institution requires rules and regulations necessary
for the maintenance of an orderly educational program and the
creation of an educational environment conducive to learning.
Such rules and regulations are equally necessary for the
protection of the students, faculty, and property.
Moreover, the school has an interest in teaching the student
discipline, a necessary, if not indispensable, value in any field of
learning. By instilling discipline, the school teaches discipline.
Accordingly, the right to discipline the student likewise finds basis
in the freedom "what to teach." Incidentally, the school not only
has the right but the duty to develop discipline in its students. The
Constitution no less imposes such duty.
[All educational institutions] shall inculcate patriotism and
nationalism, foster love of humanity, respect for human rights,
appreciation of the role of national heroes in the historical
development of the country, teach the rights and duties of
citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative
thinking, broaden scientific and technological knowledge, and
promote vocational efficiency.
In Angeles vs. Sison, we also said that discipline was a means for
the school to carry out its responsibility to help its students "grow
and develop into mature, responsible, effective and worthy
citizens of the community."
Finally, nowhere in the above formulation is the right to discipline
more evident than in "who may be admitted to study." If a school
has the freedom to determine whom to admit, logic dictates that it
also has the right to determine whom to exclude or expel, as well
as upon whom to impose lesser sanctions such as suspension
and the withholding of graduation privileges.126
The power of the school to impose disciplinary measures extends
even after graduation for any act done by the student prior
thereto. In University of the Phils. Board of Regents v. Court of
Appeals,127 We upheld the university's withdrawal of a doctorate
degree already conferred on a student who was found to have
committed intellectual dishonesty in her dissertation. Thus:
Art. XIV, 5 (2) of the Constitution provides that "[a]cademic
freedom shall be enjoyed in all institutions of higher learning."
This is nothing new. The 1935 Constitution and the 1973
Constitution likewise provided for the academic freedom or, more
precisely, for the institutional autonomy of universities and
institutions of higher learning. As pointed out by this Court in
Garcia v. Faculty Admission Committee, Loyola School of
Theology, it is a freedom granted to "institutions of higher
learning" which is thus given "a wide sphere of authority certainly
extending to the choice of students." If such institution of higher
learning can decide who can and who cannot study in it, it
certainly can also determine on whom it can confer the honor and
distinction of being its graduates.
Where it is shown that the conferment of an honor or distinction
was obtained through fraud, a university has the right to revoke or
withdraw the honor or distinction it has thus conferred. This
freedom of a university does not terminate upon the "graduation"
of a student, .as the Court of Appeals held. For it is precisely the
"graduation" of such a student that is in question. It is noteworthy
that the investigation of private respondent's case began before
her graduation. If she was able to join the graduation ceremonies
on April 24, 1993, it was because of too many investigations
conducted before the Board of Regents finally decided she
should not have been allowed to graduate.
Wide indeed is the sphere of autonomy granted to institutions of
higher learning, for the constitutional grant of academic freedom,
to quote again from Garcia v. Faculty Admission Committee,
Loyola School of Theology, "is not to be construed in a niggardly
manner or in a grudging fashion."
Under the U.P. Charter, the Board of Regents is the highest
governing body of the University of the Philippines. It has the
power to confer degrees upon the recommendation of the
University Council. It follows that if the conferment of a degree is
founded on error or fraud, the Board of Regents is also
empowered, subject to the observance of due process, to
withdraw what it has granted without violating a student's rights.
An institution of higher learning cannot be powerless if it
discovers that an academic degree it has conferred is not
rightfully deserved. Nothing can be more objectionable than
bestowing a university's highest academic degree upon an
individual who has obtained the same through fraud or deceit.
The pursuit of academic excellence is the university's concern. It
should be empowered, as an act of self-defense, to take
measures to protect itself from serious threats to its integrity.
While it is true that the students are entitled to the right to pursue
their education, the USC as an educational institution is also
entitled to pursue its academic freedom and in the process has
the concomitant right to see to it that this freedom is not
jeopardized.128
It must be borne in mind that schools are established, not merely
to develop the intellect and skills of the studentry, but to inculcate
lofty values, ideals and attitudes; nay, the development, or
flowering if you will, of the total man.129Essentially, education must
ultimately be religious, i.e., one which inculcates duty and
reverence.130 Under the rubric of "right to education," students
have a concomitant duty to learn under the rules laid down by the
school.131 Every citizen has a right to select a profession or,
course of study, subject to fair, reasonable, and equitable
admission and academic requirements.132 The PMA is not
different. As the primary training and educational institution of the
AFP, it certainly has the right to invoke academic freedom in the
enforcement of its internal rules and regulations, which are the
Honor Code and the Honor System in particular.
The Honor Code is a set of basic and fundamental ethical and
moral principle. It is the minimum standard for cadet behavior and
serves as the guiding spirit behind each cadet's action. It is the
cadet's responsibility to maintain the highest standard of honor.
Throughout a cadet's stay in the PMA, he or she is absolutely
bound thereto. It binds as well the members of the Cadet Corps
from its alumni or the member of the so-called "Long Gray Line."
Likewise, the Honor Code constitutes the foundation for the
cadets' character development. It defines the desirable values
they must possess to remain part of the Corps; it develops the
atmosphere of trust so essential in a military organization; and it
makes them professional military soldiers.133 As it is for character
building, it should not only be kept within the society of cadets. It
is best adopted by the Cadet Corps with the end view of applying
it outside as an officer of the AFP and as a product of the PMA.134
The Honor Code and System could be justified as the primary
means of achieving the cadets' character development and as
ways by which the Academy has chosen to identify those who are
deficient in conduct.135 Upon the Code rests the ethical standards
of the Cadet Corps and it is also an institutional goal, ensuring
that graduates have strong character, unimpeachable integrity,
and moral standards of the highest order.136 To emphasize, the
Academy's disciplinary system as a whole is characterized as
"correctional and educational in nature rather than being legalistic
and punitive." Its purpose is to teach the cadets "to be prepared
to accept full responsibility for all that they do or fail to do and to
place loyalty to the service above self-interest or loyalty to friends
or associates. "137 Procedural safeguards in a student disciplinary
case
Respondents stress that Guzman v. National University138 is more
appropriate in determining the minimum standards for the
imposition of disciplinary sanctions in academic institutions.
Similarly, with the guideposts set in Andrews, they believe that
Cadet 1 CL Cudia was accorded due process.
On the other hand, petitioners argue that the HC, the CRAB and
the PMA fell short in observing the important safeguards laid
down in Ang Tibay v. CIR139 and Non v. Judge Dames II,140 which
set the minimum standards to satisfy the demands of procedural
due process in the imposition of disciplinary sanctions. For them,
Guzman did not entirely do away with the due process
requirements outlined in Ang Tibay as the Court merely stated
that the minimum requirements in the Guzman case are more
apropos.
Respondents rightly argued.
Ateneo de Manila University v. Capulong141 already settled the
issue as it held that although both Ang Tibay and Guzman
essentially deal with the requirements of due process, the latter
case is more apropos since it specifically deals with the minimum
standards to be satisfied in the imposition of disciplinary
sanctions in academic institutions. That Guzman is the authority
on the procedural rights of students in disciplinary cases was
reaffirmed by the Court in the fairly recent case of Go v. Colegio
De San Juan De Letran.142
In Guzman, the Court held that there are minimum standards
which must be met to satisfy the demands of procedural due
process, to wit:
(1) the students must be informed in writing of the nature and
cause of any accusation against them; (2) they shall have the
right to answer the charges against them, with the assistance of
counsel, if desired; (3) they shall be informed of the evidence
against them; ( 4) they shall have the right to adduce evidence in
their own behalf; and (5) the evidence must be duly considered
by the investigating committee or official designated by the school
authorities to hear and decide the case.143
We have been consistent in reminding that due process in
disciplinary cases involving students does not entail proceedings
and hearings similar to those prescribed for actions and
proceedings in courts of justice;144 that the proceedings may be
summary;145 that cross-examination is not an essential part of the
investigation or hearing;146and that the required proof in a student
disciplinary action, which is an administrative case, is neither
proof beyond reasonable doubt nor preponderance of evidence
but only substantial evidence or "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."147
What is crucial is that official action must meet minimum
standards of fairness to the individual, which generally
encompass the right of adequate notice and a meaningful
opportunity to be heard.148 As held in De La Salle University, Inc.
v. Court of Appeals:149
Notice and hearing is the bulwark of administrative due process,
the right to which is among the primary rights that must be
respected even in administrative proceedings. The essence of
due process is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain one's side
or an opportunity to seek reconsideration of the action or ruling
complained of. So long as the party is given the opportunity to
advocate her cause or defend her interest in due course, it cannot
be said that there was denial of due process.
A formal trial-type hearing is not, at all times and in all instances,
essential to due process - it is enough that the parties are given a
fair and reasonable opportunity to explain their respective sides of
the controversy and to present supporting evidence on which a
fair decision can be based. "To be heard" does not only mean
presentation of testimonial evidence in court - one may also be
heard through pleadings and where the opportunity to be heard
through pleadings is accorded, there is no denial of due
process.150
The PMA Honor Code explicitly recognizes that an administrative
proceeding conducted to investigate a cadet's honor violation
need not be clothed with the attributes of a judicial proceeding. It
articulates that The Spirit of the Honor Code guides the Corps
in identifying and assessing misconduct. While cadets are
interested in legal precedents in cases involving Honor violations,
those who hold the Spirit of the Honor Code dare not look into
these precedents for loopholes to justify questionable acts and
they are not to interpret the system to their own advantage.
The Spirit of the Honor Code is a way for the cadets to internalize
Honor in a substantive way. Technical and procedural misgivings
of the legal systems may avert the true essence of imparting the
Spirit of the Code for the reason that it can be used to make
unlawful attempt to get into the truth of matters especially when a
cadet can be compelled to surrender some civil rights and
liberties in order for the Code and System to be implemented. By
virtue of being a cadet, a member of the CCAFP becomes a
subject of the Honor Code and System. Cadet's actions are
bound by the existing norms that are logically applied through the
Code and System in order to realize the Academy's mission to
produce leaders of character - men of integrity and honor.151
One of the fundamental principles of the Honor System also
states:
2. The Honor System correlates with legal procedures of the
state's Justice System but it does not demean its Spirit by
reducing the Code to a systematic list of externally observed
rules. Where misinterpretations and loopholes arise through
legalism and its technicalities, the objective of building the
character of the cadets becomes futile. While, generally, Public
Law penalizes only the faulty acts, the Honor System tries to
examine both the action and the intention.152
Like in other institutions of higher learning, there is aversion
towards undue judicialization of an administrative hearing in the
military academy. It has been said that the mission of the military
is unique in the sense that its primary business is to fight or be
ready to fight wars should the occasion arise, and that over-
proceduralizing military determinations necessarily gives soldiers
less time to accomplish this task.153 Extensive cadet investigations
and complex due process hearing could sacrifice simplicity,
practicality, and timeliness. Investigations that last for several
days or weeks, sessions that become increasingly involved with
legal and procedural' points, and legal motions and evidentiary
objections that are irrelevant and inconsequential tend to disrupt,
delay, and confuse the dismissal proceedings and make them
unmanageable. Excessive delays cannot be tolerated since it is
unfair to the accused, to his or her fellow cadets, to the Academy,
and, generally, to the Armed Forces. A good balance should,
therefore, be struck to achieve fairness, thoroughness, and
efficiency.154 Considering that the case of Cadet 1 CL Cudia is one
of first impression in the sense that this Court has not previously
dealt with the particular issue of a dismissed cadet's right to due
process, it is necessary for Us to refer to U.S. jurisprudence for
some guidance. Notably, our armed forces have been patterned
after the U.S. Army and the U.S. military code produced a
salutary effect in the military justice system of the
Philippines.155 Hence, pertinent case laws interpreting the U.S.
military code and practices have persuasive, if not the same,
effect in this jurisdiction.
We begin by stating that U.S. courts have uniformly viewed that
"due process" is a flexible concept, requiring consideration in
each case of a variety of circumstances and calling for such
procedural protections as the particular situation
demands.156 Hagopian opined:
In approaching the question of what process is due before
governmental action adversely affecting private interests may
properly be taken, it must be recognized that due process is not a
rigid formula or simple rule of thumb to be applied undeviatingly
to any given set of facts. On the contrary, it is a flexible concept
which depends upon the balancing of various factors, including
the nature of the private right or interest that is threatened, the
extent to which the proceeding is adversarial in character, the
severity and consequences of any action that might be taken, the
burden that would be imposed by requiring use of all or part of the
full panoply of trial-type procedures, and the existence of other
overriding interests, such as the necessity for prompt action in the
conduct of crucial military operations. The full context must
therefore be considered in each case.157 (Emphasis supplied)
Wasson, which was cited by Hagopian, broadly outlined the
minimum standards of due process required in the dismissal of a
cadet. Thus:
[W]hen the government affects the private interests of individuals,
it may not proceed arbitrarily but must observe due process of
law. x x x Nevertheless, the flexibility which is inherent in the
concept of due process of law precludes the dogmatic application
of specific rules developed in one context to entirely distinct forms
of government action. "For, though 'due process of law' generally
implies and includes actor, reus, judex, regular allegations,
opportunity to answer, and a trial according to some settled
course of judicial proceedings, * * * yet, this is not universally
true." x x x Thus, to determine in any given case what procedures
due process requires, the court must carefully determine and
balance the nature of the private interest affected and of the
government interest involved, taking account of history and the
precise circumstances surrounding the case at hand.
While the government must always have a legitimate concern
with the subject matter before it may validly affect private
interests, in particularly vital and sensitive areas of government
concern such as national security and military affairs, the private
interest must yield to a greater degree to the governmental. x x x
Few decisions properly rest so exclusively within the discretion of
the appropriate government officials than the selection, training,
discipline and dismissal of the future officers of the military and
Merchant Marine. Instilling and maintaining discipline and morale
in these young men who will be required to bear weighty
responsibility in the face of adversity -- at times extreme -- is a
matter of substantial national importance scarcely within the
competence of the judiciary. And it cannot be doubted that
because of these factors historically the military has been
permitted greater freedom to fashion its disciplinary procedures
than the civilian authorities.
We conclude, therefore, that due process only requires for the
dismissal of a Cadet from the Merchant Marine Academy that he
be given a fair hearing at which he is apprised of the charges
against him and permitted a defense. x x x For the guidance of
the parties x x x the rudiments of a fair hearing in broad outline
are plain. The Cadet must be apprised of the specific charges
against him. He must be given an adequate opportunity to
present his defense both from the point of view of time and the
use of witnesses and other evidence. We do not suggest,
however, that the Cadet must be given this opportunity both when
demerits are awarded and when dismissal is considered. The
hearing may be procedurally informal and need not be
adversarial.158 (Emphasis supplied)
In Andrews, the U.S. Court of Appeals held that Wasson and
Hagopian are equally controlling in cases where cadets were
separated from the military academy for violation of the Honor
Code. Following the two previous cases, it was ruled that in order
to be proper and immune from constitutional infirmity, a cadet
who is sought to be dismissed or separated from the academy
must be afforded a hearing, be apprised of the specific charges
against him, and be given an adequate opportunity to present his
or her defense both from the point of view of time and the use of
witnesses and other evidence.159 Conspicuously, these vital
conditions are not too far from what We have already set in
Guzman and the subsequent rulings in Alcuaz v. Philippine
School of Business Administration160 and De La Salle University,
Inc. v. Court of Appeals.161
In this case, the investigation of Cadet 1 CL Cudia' s Honor Code
violation followed the prescribed procedure and existing practices
in the PMA. He was notified of the Honor Report from Maj.
Hindang. He was then given the opportunity to explain the report
against him. He was informed about his options and the entire
process that the case would undergo. The preliminary
investigation immediately followed after he replied and submitted
a written explanation. Upon its completion, the investigating team
submitted a written report together with its recommendation to the
HC Chairman. The HC thereafter reviewed the findings and
recommendations. When the honor case was submitted for
formal investigation, a new team was assigned to conduct the
hearing. During the formal investigation/hearing, he was informed
of the charge against him and given the right to enter his plea. He
had the chance to explain his side, confront the witnesses against
him, and present evidence in his behalf. After a thorough
discussion of the HC voting members, he was found to have
violated the ' Honor Code. Thereafter, the guilty verdict
underwent the review process at the Academy level - from the
OIC of the HC, to the SJA, to the Commandant of Cadets, and to
the PMA Superintendent. A separate investigation was also
conducted by the HTG. Then, upon the directive of the AFP-GHQ
to reinvestigate the case, a review was conducted by the CRAB.
Further, a Fact-Finding Board/Investigation Body composed of
the CRAB members and the PMA senior officers was constituted
to conduct a deliberate investigation of the case. Finally, he had
the opportunity to appeal to the President. Sadly for him, all had
issued unfavorable rulings.
It is well settled that by reason of their special knowledge and
expertise gained from the handling of specific matters falling
under their respective jurisdictions, the factual findings of
administrative tribunals are ordinarily accorded respect if not
finality by the Court, unless such findings are not supported by
evidence or vitiated by fraud, imposition or collusion; where the
procedure which led to the findings is irregular; when palpable
errors are committed; or when a grave abuse of discretion,
arbitrariness, or capriciousness is manifest.162 In the case of Cadet
1 CL Cudia, We find no reason to deviate from the general rule.
The grounds therefor are discussed below seriatim:
As to the right to be represented by a counsel
For petitioners, respondents must be compelled to give Cadet 1
CL Cudia the right to be represented by a counsel who could
actively participate in the proceedings like in the cross-
examination of the witnesses against him before the CRAB or
HC, if remanded. This is because while the CRAB allowed him to
be represented by a PAO lawyer, the counsel was only made an
observer without any right to intervene and demand respect of
Cadet 1 CL Cudia's rights.163 According to them, he was not
sufficiently given the opportunity to seek a counsel and was not
even asked if he would like to have one. He was only properly
represented when it was already nearing graduation day after his
family sought the assistance of the PAO. Petitioners assert that
Guzman is specific in stating that the erring student has the right
to answer the charges against him or her with the assistance of
counsel, if desired.
On the other hand, respondents cited Lumiqued v. Exevea164 and
Nera v. The Auditor General165 in asserting that the right to a
counsel is not imperative in administrative investigations or non-
criminal proceedings. Also, based on Cadet lCL Cudia's
academic standing, he is said to be obviously not untutored to
fully understand his rights and express himself. Moreover, the
confidentiality of the HC proceedings worked against his right to
be represented by a counsel. In any event, respondents claim
that Cadet 1 CL Cudia was not precluded from seeking a
counsel's advice in preparing his defense prior to the HC hearing.
Essentially, petitioners claim .. that Cadet lCL Cudia is
guaranteed the right to have his counsel not just in assisting him
in the preparation for the investigative hearing before the HC and
the CRAB but in participating fully in said hearings. The Court
disagrees.
Consistent with Lumiqued and Nera, there is nothing in the 1987
Constitution stating that a party in a non-litigation proceeding is
entitled to be represented by counsel. The assistance of a lawyer,
while desirable, is not indispensable. Further, in Remolona v. Civil
Service Commission,166 the Court held that "a party in an
administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of the respondent's
capacity to represent himself, and no duty rests on such body to
furnish the person being investigated with counsel." Hence, the
administrative body is under no duty to provide the person with
counsel because assistance of counsel is not an absolute
requirement.
More in point is the opinion in Wasson, which We adopt. Thus:
The requirement of counsel as an ingredient of fairness is a
function of all of the other aspects of the hearing. Where the
proceeding is non-criminal in nature, where the hearing is
investigative and not adversarial and the government does not
proceed through counsel, where the individual concerned is
mature and educated, where his knowledge of the events x x x
should enable him to develop the facts adequately through
available sources, and where the other aspects of the hearing
taken as a whole are fair, due process does not require
representation by counsel.167
To note, U.S. courts, in general, have declined to recognize a
right to representation by counsel, as a function of due process,
in military academy disciplinary proceedings.168 This rule is
principally motivated by the policy of "treading lightly on the
military domain, with scrupulous regard for the power and
authority of the military establishment to govern its own affairs
within the broad confines of constitutional due process" and the
courts' views that disciplinary proceedings are not judicial in
nature and should be kept informal, and that literate and
educated cadets should be able to defend themselves.169 In
Hagopian, it was ruled that the importance of informality in the
proceeding militates against a requirement that the cadet be
accorded the right to representation by counsel before the
Academic Board and that unlike the welfare recipient who lacks
the training and education needed to understand his rights and
express himself, the cadet should be capable of doing so.170 In the
subsequent case of Wimmer v. Lehman,171 the issue was not
access to counsel but the opportunity to have counsel, instead of
oneself, examine and cross-examine witnesses, make objections,
and argue the case during the hearing. Disposing of the case, the
U.S. Court of Appeals for the Fourth Circuit was not persuaded by
the argument that an individual of a midshipman's presumed
intelligence, selected because he is expected to be able to care
for himself and others, often under difficult circumstances, and
who has full awareness of what he is facing, with counsel's
advice, was deprived of due process by being required to present
his defense in person at an investigatory hearing.
In the case before Us, while the records are bereft of evidence
that Cadet 1 CL Cudia was given the option or was able to seek
legal advice prior to and/or during the HC hearing, it is indubitable
that he was assisted by a counsel, a PAO lawyer to be exact,
when the CRAB reviewed and reinvestigated the case. The
requirement of due process is already satisfied since, at the very
least, the counsel aided him in the drafting and filing of the
Appeal Memorandum and even acted as an observer who had no
right to actively participate in the proceedings (such as
conducting the cross-examination). Moreover, not to be missed
out are the facts that the offense committed by Cadet 1 CL Cudia
is not criminal in nature; that the hearings before the HC and the
CRAB were investigative and not adversarial; and that Cadet lCL
Cudia's excellent-academic standing puts him in the best position
to look after his own vested interest in the Academy.
As to the confidentiality of records of the proceedings
Petitioners allege that when Maj. Gen. Lopez denied in his March
11, 2014 letter Cadet lCL Cudia's request for documents,
footages, and recordings relevant to the HC hearings, the vital
evidence negating the regularity of the HC trial and supporting his
defense have been surely overlooked by the CRAB in its case
review. Indeed, for them, the answers on whether Cadet 1 CL
Cudia was deprived of due process and whether he lied could
easily be unearthed from the video and other records of the HC
investigation. Respondents did not deny their existence but they
refused to present them for the parties and the Court to peruse. In
particular, they note that the Minutes of the HC dated January 21,
2014 and the HC Formal Investigation Report dated January 20,
2014 were considered by the CRAB but were not furnished to
petitioners and the Court; hence, there is no way to confirm the
truth of the alleged statements therein. In their view, failure to
furnish these documents could only mean that it would be
adverse if produced pursuant to Section 3 (e), Rule 131 of the
Rules of Court.172
For lack of legal basis on PMA' s claim of confidentiality of
records, petitioners contend that it is the ministerial duty of the
HC to submit to the CRAB, for the conduct of intelligent review of
the case, all its records of the proceedings, including video
footages of the deliberations and voting. They likewise argue that
PMA' s refusal to release relevant documents to Cadet 1 CL
Cudia under the guise of confidentiality reveals another
misapplication of the Honor Code, which merely provides: "A
cadet who becomes part of any investigation is subject to the
existing regulations pertaining to rules of confidentiality and,
therefore, must abide to the creed of secrecy. Nothing shall be
disclosed without proper guidance from those with authority" (IV.
The Honor System, Honor Committee, Cadet Observer). This
provision, they say, does not deprive Cadet 1 CL Cudia of his
right to obtain copies and examine relevant documents pertaining
to his case.
Basically, petitioners want Us to assume that the documents,
footages, and recordings relevant to the HC hearings are
favorable to Cadet 1 CL Cudia's cause, and, consequently, to rule
that respondents' refusal to produce and have them examined is
tantamount to the denial of his right to procedural due process.
They are mistaken.
In this case, petitioners have not particularly identified any
documents, witness testimony, or oral or written presentation of
facts submitted at the hearing that would support Cadet 1 CL
Cudia's defense. The Court may require that an administrative
record be supplemented, but only "where there is a 'strong
showing or bad faith or improper behavior' on the part of the
agency,"173 both of which are not present here. Petitioners have
not specifically indicated the nature of the concealed evidence, if
any, and the reason for withholding it. What they did was simply
supposing that Cadet 1 CL Cudia's guilty verdict would be
overturned with the production and examination of such
documents, footages, and recordings. As will be further shown in
the discussions below, the requested matters, even if denied,
would not relieve Cadet 1 CL Cudia's predicament. If at all, such
denial was a harmless procedural error since he was not
seriously prejudiced thereby.
As to the ostracism in the PMA
To petitioners, the CRAB considered only biased testimonies and
evidence because Special Order No. 1 issued on February 21,
2014, which directed the ostracism of Cadet 1 CL Cudia, left him
without any opportunity, to secure statements of his own
witnesses. He could not have access to or approach the cadets
who were present during the trial and who saw the 8-1 voting
result. It is argued that the Order directing Cadet 1 CL Cudia's
ostracism is of doubtful legal validity because the Honor Code
unequivocally announced: "x x x But by wholeheartedly
dismissing the cruel method of ostracizing Honor Code violators,
PMA will not have to resort to other humiliating means and shall
only have the option to make known among its alumni the names
of those who have not sincerely felt remorse for violating the
Honor Code."
On their part, respondents assert that neither the petition nor the
petition-in-intervention attached a full text copy of the alleged
Special Order No. 1. In any case, attributing its issuance to PMA
is improper and misplaced because of petitioners' admission that
ostracism has been absolutely dismissed as an Academy-
sanctioned activity consistent with the trend in International
Humanitarian Law that the PMA has included in its curriculum.
Assuming that said Order was issued, respondents contend that it
purely originated from the cadets themselves, the sole purpose of
which was to give a strong voice to the Cadet Corps by declaring
that they did not tolerate Cadet 1 CL Cudia's honor violation and
breach of confindentiality of the HC proceedings.
More importantly, respondents add that it is highly improbable
and unlikely that Cadet 1 CL Cudia was ostracized by his fellow
cadets. They manifest that as early as January 22, 2014, he was
already transferred to the Holding Center. The practice of billeting
an accused cadet at the Holding Center is provided for in the
Honor Code Handbook. Although within the PMA compound, the
Holding Center is off-limits to cadets who do not have any
business to conduct therein. The cadets could not also ostracize
him during mess times since Cadet 1 CL Cudia opted to take his
meals at the Holding Center. The circumstances obtaining when
Special Order No. 1 was issued clearly foreclose the possibility
that he was ostracized in common areas accessible to other
cadets. He remained in the Holding Center until March 16, 2014
when he voluntarily left the PMA. Contrary to his claim, guests
were also free to visit him in the Holding Center.
However, petitioners swear that Cadet 1 CL Cudia suffered from
ostracism in the PMA. The practice was somehow recognized by
respondents in their Consolidated Comment and by PMA
Spokesperson Maj. Flores in a news report. The CHR likewise
confirmed the same in its Resolution dated May 22, 2014. For
them, it does not matter where the ostracism order originated
from because the PMA appeared to sanction it even if it came
from the cadets themselves. There was a tacit approval of an
illegal act. If not, those cadets responsible for ostracism would
have been charged by the PMA officials. Finally, it is claimed that
Cadet 1 CL Cudia did not choose to take his meals at the Holding
Center as he was not allowed to leave the place. Petitioners
opine that placing the accused cadet in the Holding Center is
inconsistent with his or her presumed innocence and certainly
gives the implication of ostracism.
We agree with respondents. Neither the petition nor the petition-
inintervention attached a full text copy or even a pertinent portion
of the alleged Special Order No. 1, which authorized the
ostracism of Cadet 1 CL Cudia. Being hearsay, its existence and
contents are of doubtful veracity. Hence, a definite ruling on the
matter can never be granted in this case.
The Court cannot close its eyes though on what appears to be an
admission of Cadet 1 CL Mogol during the CHR hearing that,
upon consultation with the entire class, the baron, and the Cadet
Conduct Policy Board, they issued an ostracism order against
Cadet 1 CL Cudia.174 While not something new in a military
academy,175 ostracism's continued existence in the modem times
should no longer be countenanced. There are those who argue
that the "silence" is a punishment resulting in the loss of private
interests, primarily that of reputation, and that such penalty may
render illusory the possibility of vindication by the reviewing body
once found guilty by the HC.176 Furthermore, in Our mind,
ostracism practically denies the accused cadet's protected rights
to present witnesses or evidence in his or her behalf and to be
presumed innocent until finally proven otherwise in a proper
proceeding.
As to Cadet 1 CL Cudia's stay in the Holding Center, the Court
upholds the same. The Honor Code and Honor System
Handbook provides that, in case a cadet has been found guilty by
the HC of violating the Honor Code and has opted not to resign,
he or she may stay and wait for the disposition of the case. In
such event, the cadet is not on full-duty status and shall be
billeted at the HTG Holding Center.177 Similarly, in the U.S., the
purpose of "Boarders Ward" is to quarter those cadets who are
undergoing separation actions. Permitted to attend classes, the
cadet is sequestered , therein until final disposition of the case. In
Andrews, it was opined that the segregation of cadets in the Ward
was a proper exercise of the discretionary authority of Academy
officials. It relied on the traditional doctrine that "with respect to
decisions made by Army authorities, 'orderly government requires
us to tread lightly on the military domain, with scrupulous regard
for the power and authority of the military establishment to govern
its own affairs within the broad confines of constitutional due
process.'" Also, in Birdwell v. Schlesinger,178 the "administrative
segregation" was held to be a reasonable exercise of military
discipline and could not be considered an invasion of the rights to
freedom of speech and freedom of association.
Late and vague decisions
It is claimed that Cadet 1 CL Cudia was kept in the dark as to the
charge against him and the decisions arrived at by the HC, the
CRAB, and the PMA. No written decision was furnished to him,
and if any, the information was unjustly belated and the
justifications for the decisions were vague. He had to constantly
seek clarification and queries just to be apprised of what he was
confronted with.
Petitioners relate that upon being informed of the "guilty" verdict,
Cadet 1 CL Cudia immediately inquired as to the grounds
therefor, but Cadet 1 CL Mogol answered that it is confidential
since he would still appeal the same. By March 11, 2014, Maj.
Gen. Lopez informed Cadet 1 CL Cudia that the CRAB already
forwarded their recommendation for his dismissal to the General
Headquarters sometime in February-March 2014. Even then, he
received no decision/recommendation on his case, verbally or in
writing. The PMA commencement exercises pushed through with
no written decision from the CRAB or the PMA on his appeal. The
letter from the Office of the Adjutant General of the AFP was
suspiciously delayed when the Cudia family received the same
only on March 20, 2014. Moreover, it fell short in laying down with
specificity the factual and legal bases used by the CRAB and
even by the Office of the Adjutant General. There remains no
proof that the CRAB and the PMA considered the evidence
presented by Cadet 1 CL Cudia, it being uncertain as to what
evidence was weighed by the CRAB, whether the same is
substantial, and whether the new evidence submitted by him was
ever taken into account.
In refutation, respondents allege the existence of PMA's practice
of orally declaring the HC finding, not putting it in a written
document so as to protect the integrity of the erring cadet and
guard the confidentiality of the HC proceedings pursuant to the
Honor System. Further, they aver that a copy of the report of the
CRAB, dated March 10, 2014, was not furnished to Cadet 1 CL
Cudia because it was his parents who filed the appeal, hence,
were the ones who were given a copy thereof.
Petitioners' contentions have no leg to stand on. While there is a
constitutional mandate stating that "[no] decision shall be
rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based,"179 such
provision does not apply in Cadet 1 CL Cudia's case. Neither
Guzman nor Andrews require a specific form and content of a
decision issued in disciplinary proceedings. The Honor Code and
Honor System Handbook also has no written rule on the matter.
Even if the provision applies, nowhere does it demand that a
point-by-point consideration and resolution of the issues raised by
the parties are necessary.180 What counts is that, albeit furnished
to him late, Cadet 1 CL Cudia was informed of how it was
decided, with an explanation of the factual and legal reasons that
led to the conclusions of the reviewing body, assuring that it went
through the processes of legal reasoning. He was not left in the
dark as to how it was reached and he knows exactly the reasons
why he lost, and is able to pinpoint the possible errors for review.
As to the blind adoption of the HC findings
Petitioners assert that, conformably with Sections 30 and 31 of
C.A. No. 1, only President Aquino as the Commander-in-Chief
has the power to appoint and remove a cadet for a valid/legal
cause. The law gives no authority to the HC as the sole body to
determine the guilt or innocence of a cadet. It also does not
empower the PMA to adopt the guilty findings of the HC as a
basis for recommending the cadet's dismissal. In the case of
Cadet 1 CL Cudia, it is claimed that the PMA blindly followed the
HC's finding of guilt in terminating his military service.
Further, it is the ministerial duty of the CRAB to conduct a review
de nova of all records without requiring Cadet 1 CL Cudia to
submit new evidence if it is physically impossible for him to do so.
In their minds, respondents cannot claim that the CRAB and the
PMA thoroughly reviewed the HC recommendation and heard
Cadet lCL Cudia's side. As clearly stated in the letter from the
Office of the AFP Adjutant General, "[in] its report dated March
10, 2014, PMA CRAB sustained the findings and
recommendations of the Honor Committee x x x It also resolved
the appeal filed by the subject Cadet." However, the Final
Investigation Report of the CRAB was dated March 23, 2014.
While such report states that a report was submitted to the AFP
General Headquarters on March 10, 2014 and that it was only on
March 12, 2014 that it was designated as a Fact-Finding
Board/Investigating Body, it is unusual that the CRAB would do
the same things twice. This raised a valid and well-grounded
suspicion that the CRAB never undertook an in-depth
investigation/review the first time it came out with its report, and
the Final Investigation Report was drafted merely as an
afterthought when the lack of written decision was pointed out by
petitioners so as to remedy the apparent lack of due process
during the CRAB investigation and review.
Despite the arguments, respondents assure that there was a
proper assessment of the procedural and legal correctness of the
guilty verdict against Cadet 1 CL Cudia. They assert that the
higher authorities of the PMA did not merely rely on the findings
of the HC, noting that there was also a separate investigation
conducted by the HTG from January 25 to February 7, 2014.
Likewise, contrary to the contention of petitioners that the CRAB
continued with the review of the case despite the absence of
necessary documents, the CRAB conducted its own review of the
case and even conducted another investigation by constituting
the Fact-Finding Board/Investigating Body. For respondents,
petitioners failed to discharge the burden of proof in showing bad
faith on the part of the PMA. In the absence of evidence to the
contrary and considering further that petitioners' allegations are
merely self-serving and baseless, good faith on the part of the
PMA' s higher authorities is presumed and should, therefore,
prevail.
We agree with respondents.
The Honor Committee, acting on behalf of the Cadet Corps, has a
limited role of investigating and determining whether or not the
alleged offender has actually violated the Honor Code.181 It is
given the responsibility of administering the Honor Code and, in
case of breach, its task is entirely investigative, examining in the
first instance a suspected violation. As a means of encouraging
self-discipline, without ceding to it any authority to make final
adjudications, the Academy has assigned it the function of
identifying suspected violators.182 Contrary to petitioners'
assertion, the HC does not have the authority to order the
separation of a cadet from the Academy. The results of its
proceedings are purely recommendatory and have no binding
effect. The HC determination is somewhat like an indictment, an
allegation, which, in Cadet 1 CL Cudia's case, the PMA-CRAB
investigated de novo.183 In the U.S., it was even opined that due
process safeguards do not actually apply at the Honor Committee
level because it is only a "charging body whose decisions had no
effect other than to initiate de nova proceedings before a Board of
Officers."184
Granting, for argument's sake, that the HC is covered by the due
process clause and that irregularities in its proceedings were in
fact committed, still, We cannot rule for petitioners. It is not
required that procedural due process be afforded at every stage
of developing disciplinary action. What is required is that an
adequate hearing be held before the final act of dismissing a
cadet from the military academy.185 In the case of Cadet 1 CL
Cudia, the OIC of HC, the SJA, the Commandant of Cadets, and
the PMA Superintendent reviewed the HC findings. A separate
investigation was also conducted by the HTG. Then, upon the
directive of the AFP-GHQ to reinvestigate the case, a review was
conducted by the CRAB. Finally, a Fact-Finding
Board/Investigating Body composed of the CRAB members and
the PMA senior officers was constituted to conduct a deliberate
investigation of the case. The Board/Body actually held hearings
on March 12, 13, 14 and 20, 2014. Instead of commendation,
petitioners find it "unusual" that the CRAB would do the same
things twice and suspect that it never undertook an in-depth
investigation/review the first time it came out with its report. Such
assertion is mere conjecture that deserves scant consideration.
As to the dismissal proceedings as sham trial
According to petitioners, the proceedings before the HC were a
sham. The people behind Cadet ICL Cudia's charge,
investigation, and conviction were actually the ones who had the
intent to deceive and who took advantage of the situation. Cadet
1 CL Raguindin, who was a senior HC member and was the
second in rank to Cadet 1 CL Cudia in the Navy cadet 1 CL, was
part of the team which conducted the preliminary investigation.
Also, Cadet I CL Mogol, the HC Chairman, previously charged
Cadet 1 CL Cudia with honor violation allegedly for cheating
(particularly, conniving with and tutoring his fellow cadets on a
difficult topic by giving solutions to a retake exam) but the charge
was dismissed for lack of merit. Even if he was a non-voting
member, he was in a position of influence and authority. Thus, it
would be a futile exercise for Cadet 1 CL Cudia to resort to the
procedure for the removal of HC members.186
Further, no sufficient prior notice of the scheduled CRAB hearing
was given to Cadet I CL Cudia, his family, or his PAO counsel.
During one of her visits to him in the Holding Center, petitioner-
intervenor was advised to convince his son to resign and
immediately leave the PMA. Brig. Gen. Costales, who later
became the CRAB Head, also categorically uttered to Annavee:
"Your brother, he lied!" The CRAB conferences were merely used
to formalize his dismissal and the PMA never really intended to
hear his side. For petitioners, these are manifestations of PMA's
clear resolve to dismiss him no matter what.
For their part, respondents contend that the CllR's allegation that
Maj. Hindang acted in obvious bad faith and that he failed to
discharge his duty to be a good father of cadets when he "paved
the road to [Cadet 1 CL Cudia's] sham trial by the Honor
Committee" is an unfounded accusation. They note that when
Maj. Hindang was given the DR of Cadet 1 CL Cudia, he revoked
the penalty awarded because of his explanation. However, all
revocations of awarded penalties are subject to the review of the
STO. Therefore, it was at the instance of Maj. Leander and the
established procedure followed at the PMA that Maj. Hindang
was prompted to investigate the circumstances surrounding
Cadet 1 CL Cudia's tardiness. Respondents add that bad faith
cannot likewise be imputed against Maj. Hindang by referring to
the actions taken by Maj. Jekyll Dulawan, the CTO of Cadets 1
CL Narciso and Arcangel who also arrived late for their next
class. Unlike the other cadets, Cadet 1 CL Cudia did not admit his
being late and effectively evaded responsibility by ascribing his
tardiness to Dr. Costales.
As to the CHR' s finding that Cadet 1 CL Mogol was likewise "in
bad faith and determined to destroy [Cadet 1 CL] Cudia, for
reasons of his own" because the former previously reported the
latter for an honor violation in November 2013, respondents
argue that the bias ascribed against him is groundless as there is
failure to note that Cadet 1 CL Mogol was a non-voting member
of the HC. Further, he cannot be faulted for reporting a possible
honor violation since he is the HC Chairman and nothing less is
expected of him. Respondents emphasize that the
representatives of the HC are elected from each company, while
the HC Chairman is elected by secret ballot from the incoming
first class representatives. Thus, if Cadet 1 CL Cu'dia believed
that there was bias against him, he should have resorted to the
procedure for the removal of HC members provided for in the
Honor Code Handbook.
Finally, respondents declare that there is no reason or ill-motive
on the part of the PMA to prevent Cadet 1 CL Cudia from
graduating because the Academy does not stand to gain anything
from his dismissal. On the contrary, in view of his academic
standing, the separation militates against PMA' s mission to
produce outstanding, honorable, and exceptional cadets.
The Court differs with petitioners.
Partiality, like fraudulent intent, can never be presumed. Absent
some showing of actual bias, petitioners' allegations do not hold
water. The mere imputation of ill-motive without proof is
speculative at best. Kolesa teaches us that to sustain the
challenge, specific evidence must be presented to overcome
a presumption of honesty and integrity in those serving as
adjudicators; and it must convince that, under a realistic appraisal
of psychological tendencies and human weaknesses, conferring
investigative and adjudicative powers on the same individual
poses such a risk of actual bias or prejudgment that the practice
must be forbidden if the guarantee of due process is to be
implemented.187
Although a CTO like Maj. Hindang must decide whether demerits
are to be awarded, he is not an adversary of the cadet but an
educator who shares an identity of interest with the cadet, whom
he counsels from time to time as a future leader.188 When the
occasion calls for it, cadets may be questioned as to the accuracy
or completeness of a submitted work. A particular point or issue
may be clarified. In this case, the question asked of Cadet 1 CL
Cudia concerning his being late in class is proper, since there is
evidence indicating that a breach of regulation may have
occurred and there is reasonable cause to believe that he was
involved in the breach of regulations.189
For lack of actual proof of bad faith or ill-motive, the Court shall
rely on the non-toleration clause of the Honor Code, i.e., "We do
not tolerate those who violate the Code." Cadets are reminded
that they are charged with a tremendous duty far more superior to
their personal feeling or friendship.190 They must learn to help
others by guiding them to accept the truth and do what is right,
rather than tolerating actions against truth and justice.191 Likewise,
cadets are presumed to be characteristically honorable; they
cannot overlook or arbitrarily ignore the dishonorable action of
their peers, seniors, or subordinates.192 These are what Cadet 1
CL Mogol exactly did, although he was later proven to have erred
in his accusation. Note that even the Honor Code and Honor
System Handbook recognizes that interpretation of one's honor is
generally subjective.193
Moreover, assuming, for the sake of argument, that Cadets 1 CL'
Raguindin and Mogol as well as Brig. Gen. Costales have an axe
to grind against Cadet 1 CL Cudia and were bent on causing, no
matter what, the latter's downfall, their nefarious conduct would
still be insignificant. This is so since the HC (both the preliminary
and formal investigation), the CRAB, and the Fact-Finding
Board/Investigating Body are collegial bodies. Hence, the claim
that the proceedings/hearings conducted were merely a farce
because the three personalities participated therein is tantamount
to implying the existence of a conspiracy, distrusting the
competence, independence, and integrity of the other members
who constituted the majority. Again, in the absence of specifics
and substantial evidence, the Court cannot easily give credence
to this baseless insinuation.
As to the HC executive session/chambering
Petitioners narrate that there was an irregular administrative
hearing in the case of Cadet 1 CL Cudia because two voting
rounds took place. After the result of the secret balloting, Cadet 1
CL Mogol ordered the voting members to go to a room without
the cadet recorders. Therein, the lone dissenter, Cadet lCL
Lagura, was asked to explain his "not guilty" vote. Pressured to
change his vote, he was made to cast a new one finding Cadet 1
CL Cudia guilty. The original ballot was discarded and replaced.
There was no record of the change in vote from 8-1 to 9-0 that
was mentioned in the HC formal report.
The Affidavit of Commander Junjie B. Tabuada executed on
March 6, 2014 was submitted by petitioners since he purportedly
recalled Cadet 1 CL Lagura telling him that he was pressured to
change his "not guilty" vote after the voting members were
"chambered." In the sworn statement, Commander Tabuada said:
1. That after CDT lCL CUDIA [was] convicted for honor
violation, I [cannot] remember exactly the date but
sometime in the morning of 23rd or 24th of January 2014,
I was in my office filling up forms for the renewal of my
passport, CDT 1CL LAGURA entered and had business
with my staff;
 2. When he was about to leave I called him. "Lags, halika
muna dito," and he approached me and I let him sit down
on the chair in front of my table. I told and asked him,
"Talagang nadali si Cudia ah ... ano ha ang nangyari?
Mag-Tagalog or mag-Bisaya ka." He replied, "Talagang
NOT GUILTY ang vote ko sa kanya sir", and I asked him,
"Oh, bakit naging guilty di ha pag may isang nag NOT
GUILTY, abswelto na? He replied "Chinamber ako sir,
bale pinapa-justify kung bakit NOT GUILTY vote ko, at
na-pressure din ako sir kaya binago ko, sir." So, I told
him, "Sayang sya, matalino at mabait pa naman" and he
replied "oo nga sir". After that conversation, I let him go.194
It is claimed that the HC gravely abused its discretion when it
committed voting manipulation since, under the rules, it is
required to have a unanimous nine (9) votes finding an accused
cadet guilty. There is nothing in the procedure that permits the
HC Chairman to order the "chambering" of a member who voted
contrary to the majority and subjects him or her to reconsider in
order to reflect a unanimous vote. Neither is there an order from
the Chief of Staff or the President sanctioning the HC procedure
or approving any change therein pursuant to Sections 30 and 31
of C.A. No. 1. The HC, the CRAB, and the PMA violated their own
rules and principles as embodied in the Honor Code. Being a
clear deviation from the established procedures, the second
deliberation should be considered null and void.
Petitioners further contend that the requirement of unanimous
vote involves a substantive right which cannot be
unceremoniously changed without a corresponding
amendment/revision in the Honor Code and Honor System
Handbook. In their view, "chambering" totally defeats the purpose
of voting by secret ballot as it glaringly destroys the very essence
and philosophy behind the provisions of the Honor System, which
is to ensure that the voting member is free to vote what is in his or
her heart and mind and that no one can pressure or persuade
another to change his or her vote. They suggest that if one voting
member acquits an accused cadet who is obviously guilty of the
offense, the solution is to remove him or her from the HC through
the vote of non-confidence as provided for in the Honor
Code.195 Anent the above arguments, respondents contend that a
distinction must be made between the concepts of the Honor
Code and the Honor System. According to them, the former sets
the standard for a cadet's, minimum ethical and moral behavior
and does not change, while the latter is a set of rules for the
conduct of the observance and implementation of the Honor
Code and may undergo necessary adjustments as may be
warranted by the incumbent members of the HC in order to be
more responsive to the moral training and character development
of the cadets. The HC may provide guidelines when the Honor
System can be used to supplement regulations. This being so,
the voting process is continuously subject to change.
Respondents note that, historically, a non-unanimous guilty
verdict automatically acquits a cadet from the charge of Honor
violation. The voting members only write either "guilty" or "not
guilty" in the voting sheets without stating their name or their
justification. However, this situation drew criticisms since there
were instances where a reported cadet already admitted his
honor violation but was acquitted due to the lone vote of a
sympathetic voting member.
In the case of Cadet 1 CL Cudia, the HC adopted an existing
practice that should the voting result in 7-2 or 8-1 the HC would
automatically sanction a jury type of discussion called "executive
session" or "chambering," which is intended to elicit the
explanation and insights of the voting member/s. This prevents
the tyranny of the minority or lone dissenter from prevailing over
the manifest proof of guilt. The assailed voting practice has been
adopted and widely accepted by the PMA Siklab Diwa Class of
2014 since their first year in the Academy. The allegations of
conspiracy and sham trial are, therefore, negated by the fact that
such practice was in place and applied to all cases of honor
violations, not solely to the case of Cadet 1CL Cudia.
It is emphasized by respondents that any decision to change vote
rests solely on the personal conviction of the dissenter/s, without
any compulsion from the other voting members. There can also
be no pressuring to change one's vote to speak of since a vote
may only be considered as final when the Presiding Officer has
affixed his signature.
To debunk Commander Tabuada's statements, respondents raise
the argument that the Fact-Finding Board/Investigating Body
summoned Cadet 1 CL Lagura for inquiry. Aside from his oral
testimony made under oath, he submitted to the Board/Body an
affidavit explaining that:
11. Sometime on 23rd or 24th of January 2014, I went to the
Department of Naval Warfare to ask permission if it is possible
not to attend the Navy duty for the reason that I will be attending
our baseball game outside the Academy.
12. After I was permitted not to attend my Navy Duty and when I
was about to exit out of the Office, CDR JUNJIE B T ABU ADA
PN, our Head Department Naval Warfare Officer, called my
attention. I approached him and he said: "Talagang nadali si
Cudia ah. Ano ba talaga ang nangyari?" At first, I was hesitant to
answer because of the confidentiality of the Honor Committee
proceedings. He again said: "Wag kang mag-alala, atin, atin lang
ito, alam ko naman na bawal magsabi." Then I answered: "Ako
yung isang not guilty Sir. Kaya [yung] Presiding Officer nagsabi
na pumunta muna kami sa Chamber. Nung nasa chamber kami,
nagsalita [yung] mga nagvote ng Guilty tapos isa-isa nagsabi
kung bakit ang boto nila Guilty. Nung pakinggan ko, eh
naliwanagan ako. Pinalitan ko yung boto ko from Not Guilty to
Guilty Sir." He replied: "Sayang si Cudia ano?" And I said: "Oo
nga sir, [s]ayang si Cudia, mabait pa naman at matalino."196
Cadet 1 CL Lagura restated the above in the Counter-Affidavit
executed on March 12, 2014, which he submitted before the CHR
wherein he attested to the following:
3. I was chosen to be a voting member of the Honor
Committee for Honor Code violation committed by Cadet
Cudia, for "lying". As a voting member, we are the one
who assess or investigate the case whether the reported
Cadet is Guilty for his actions or not.
4. I was the only one who INITIALLY voted "NOT
GUILTY" among the nine (9) voting members of the
Honor Committee in the case of Cdt Cudia for Lying.
5. I initially voted "NOT GUILTY" for the reason that after
the proceedings and before the presiding Officer told the
members to vote, I was confused of the case of Cadet
Cudia. I have gathered some facts from the investigation
to make my decision but for me it is not yet enough to
give my verdict of guilty to Cdt Cudia so I decided to vote
"NOT GUILTY" with a reservation in my mind that we will
still be discussing our verdicts if we will arrive at 8-1 or 7-
2. Thus, I can still change my vote if I may be enlightened
with the other's justifications.
6. After the votes were collected, the Presiding Officer
told us that the vote is 8 for guilty and 1 for not guilty. By
way of practice and as I predicted, we were told to go
inside the anteroom for executive meeting and to discuss
our respective justifications. I have been a member for
two (2) years and the voting committee will always go for
executive meeting whenever it will meet 8-1 or 7-2 votes.
7. I listened to them and they listened to me, then I saw
things that enlightened my confusions that time. I gave a
thumbs-up sign and asked for another sheet of voting
paper. I then changed my vote from "NOT GUILTY" to
"GUILTY" and the voting members of the Honor
Committee came up with the final vote of nine (9) votes
for guilty and zero (0) votes for not guilty.
 9. Cdt Cudia was called inside the courtroom and told that
the verdict was GUILTY of LYING. After that, all persons
inside the courtroom went back to barracks.
10. Right after I changed to sleeping uniform, I was
approached by Cdt Jocson and Cdt Cudia, inquiring and
said: "Bakit ka naman nagpalit ng boto? ., I answered:
"Nasa process yan, may mali talaga sa rason mo." They
also asked who were inside the Chamber and I
mentioned only Cdt Arlegui and Cdt Mogol. That was the
last time that Cdt Cudia and Cdt Jocson talked to me.
11. Sometime on 23rd or 24th of January 2014, I went to
the Department of Naval Warfare to asked (sic)
permission if it is possible not to attend the Navy duty for
the reason that I will be attending our baseball game
outside the Academy.
12. After I was permitted not to attend my Navy Duty and
when I was about to exit out of the Office, CDR JUNJIE B
TABUADA PN, our Head Department Naval Warfare
Officer, called my attention. I approached him and he
said: "Talagang nadali si Cudia ah. Ano ba talaga ang
nangyari?" At first, I was hesitant to answer because of
the confidentiality of the Honor Committee proceedings.
He again said: "Wag kang mag-alala, atin, atin lang ito,
alam ko naman na bawal magsabi. " Then I answered:
"Ako yung isang not guilty Sir. Kaya [yung} Presiding
Officer nagsabi na pumunta muna kami sa Chamher.
Nung nasa chamber kami, nagsalita [yung] mga nagvote
ng Guilty tapos isa-isa nagsabi kung bakit ang boto nila
Guilty. Nung pakinggan ko, eh naliwanagan aka. Pinalitan
ko yung boto ko from Not Guilty to Guilty Sir. " He replied:
"Sayang si Cudia ano?" And I said: "Oo nga sir, [s]ayang
si Cudia, mabait pa naman at matalino. "197
Still not to be outdone, petitioners argue that the very fact that
Cadet 1 CL Lagura, as the lone dissenter, was made to explain in
the presence of other HC members, who were in disagreement
with him, gives a semblance of intimidation, force, or pressure.
For them, the records of the HC proceedings, which were not
presented assuming they actually exist, could have been the best
way to ensure that he was free to express his views, reject the
opinion of the majority, and stick to his decision. Also, it was
pointed out that Cadet 1 CL Lagura failed to clearly explain in his
affidavit why he initially found Cadet 1 CL Cudia "not guilty" and
what made him change his mind. His use of general statements
like he "was confused of the case " and "saw things that
enlightened my confusions " could hardly suffice to establish why
he changed his vote. Finally, petitioners note the admission of
Cadet 1 CL Lagura during the CHR investigation that he was the
only one who was given another ballot sheet while in the chamber
and that he accomplished it in the barracks which he only
submitted the following day. However, as the CHR found, the
announcement of the 9-0 vote was done immediately after the HC
came out from the chamber and before Cadet 1 CL Lagura
submitted his accomplished ballot sheet.
We rule for respondents.
As to the manner of voting by the HC members, the Honor Code
tersely provides:
After a thorough discussion and deliberation, the presiding
member of the Board will call for the members to vote whether
the accused is GUILTY or NOT GUILTY. A unanimous vote (9
votes) of GUILTY decides that a cadet is found guilty of violating
the Honor Code.198
From the above-quoted provision, it readily appears that the HC
practice of conducting "executive session" or "chambering" is not
at all prohibited. The HC is given leeway on the voting procedures
in' actual cases taking into account the exigency of the times.
What is important is that, in the end, there must be a unanimous
nine votes in order to hold a cadet guilty of violating the Honor
Code.
Granting, for argument's sake, that the HC violated its written
procedure,199 We still rule that there is nothing inherently wrong
with the practice of "chambering" considering that the presence of
intimidation or force cannot automatically be inferred therefrom.
The essence of secret balloting and the freedom to vote based on
what is in the heart and mind of the voting member is not
necessarily diluted by the fact that a second/final voting was
conducted. As explained by Cadet 1CL Mogol before the CRAB:
13. x x x [The] dissenting voter would have to explain his side and
insights regarding the case at hand. The other members, on the
other hand, would be given the chance to explain their votes as
well as their insights to the dissenting voter. The decision to
change the vote of the dissenting voter rests solely on his
personal conviction. Thus, if he [or she] opted not to change
his/her vote despite the discussion, his [or her] vote is accorded
respect by the Honor Committee.200
It is elementary that intimidation or force is never presumed. Mere
allegation is definitely not evidence. It must be substantiated and
1w phi 1
proved because a person is presumed to be innocent of a crime
or wrong and that official duty has been regularly performed.201
The oral and written statements of Cadet 1 CL Lagura should
settle the issue. Before the Fact-Finding Board/Investigating Body
and the CHR, he consistently denied that he was pressured by
the other voting members of the HC. His representation must be
accepted as it is regardless of whether he has satisfactorily
elaborated his decision to change his vote. Being the one who
was "chambered," he is more credible to clarify the issue. In case
of doubt, We have to rely on the faith that Cadet 1 CL Lagura
observed the Honor Code, which clearly states that every cadet
must be his or her own Final' Authority in honor; that he or she
should not let other cadets dictate on him or her their sense of
honor.202 Moreover, the Code implies that any person can have
confidence that a cadet and any graduate of the PMA will be fair
and just in dealing with him; that his actions, words and ways are
sincere and true.203
As to the other alleged "irregularities" committed such as not
putting on record the initial/first voting and Cadet 1CL Lagura's
bringing of his ballot sheet to and accomplishing it in the
barracks, the Court shall no longer dwell on the same for being
harmless procedural errors that do not materially affect the
validity of the HC proceedings.
Cadet 1 CL Cudia 's alleged untruthful statements
Petitioners insist that Cadet 1 CL Cudia did not lie. According to
them, there is no clear time reference as to when was the actual
dismissal or what was the exact time of dismissal - whether it
should be the dismissal inside the room or the dismissal after the
section grade was given by Dr. Costales -in the minds of Cadet 1
CL Cudia, Maj. Hindang, and the HC investigators and voting
members. They claim that during long examinations, the time of
dismissal was usually five minutes before the class was set to
end and the protocol of dismissing the class 15 minutes earlier
was not observed. When Maj. Hindang stated in accusatory
language that Cadet 1 CL Cudia perverted the truth by stating
that OR432 class ended at 1500H, he did not state what was the
true time of dismissal. He did not mention whether the truth he
was relying on was 5 or 15 minutes before the scheduled end of
class.
It is also averred that Cadet 1 CL Cudia's only business was to
ask Dr. Costales a query such that his business was already
finished as soon as she gave an answer. However, a new
business was initiated by Dr. Costales, which is, Cadet 1 CL
Cudia must stay and wait for the section grade. At that point in
time, he was no longer in control of the circumstances. Petitioners
claim that Dr. Costales never categorically stated that Cadet lCL
Cudia was lying. She recognized the confusion. Her text
messages to him clarified his alleged violation. Also, the CHR
noted during its investigation that she could not exactly recall
what happened in her class on November 14, 2013.
Furthermore, petitioners reasoned out that when respondents
stated that ENG412 class started at 3:05 p.m., it proves that
Cadet 1 CL Cudia was obviously not late. If, as indicated in his
Delinquency Report, he was late two (2) minutes in his 1500-
1600H class in ENG 412, he must have arrived 3:02 p.m.
Respondents, however, claim that the class started at 3:05 p.m.
Thus, Cadet 1 CL Cudia was not late.
Relative to his explanation to the delinquency report, petitioners
were of the view that what appears to have caused confusion in
the minds of respondents is just a matter of semantics; that the
entire incident was a product of inaccuracy, not lying. It is
malicious for them to insinuate that Cadet 1 CL Cudia purposely
used incorrect language to hide the truth. Citing Merriam
Webster's Dictionary, petitioners argue that "dismiss" means to
permit or cause to leave, while "class" refers to a body of
students meeting regularly to study the same subject. According
to them, these two words do not have definite and precise
meanings but are generic terms. Other than the words "class"
and "dismiss" used by Cadet 1 CL Cudia, which may actually be
used in their generic sense, there is nothing deceiving about what
he said. Thus, the answer he chose might be wrong or not
correct, but it is not false or not true.
For petitioners, Cadet lCL Cudia's explanations are evidently
truthful and with no intent to deceive or mislead. He did not
manipulate any fact and was truthful of his explanation. His ..
statements were clear and unambiguous but were given a
narrow-minded interpretation. Even the Honor Code
acknowledges that "[e]xperience demonstrates that human
communication is imperfect at best, and some actions are often
misinterpreted."
Lastly, petitioners contend that Cadet 1 CL Cudia's transcript of
records reflects not only his outstanding academic performance
but proves his good conduct during his four-year stay in the
Academy. He has above-average grades in Conduct, with grades
ranging from 96 to 100 in Conduct I to XI. His propensity to lie is,
therefore, far from the truth.
On the other hand, respondents were equally adamant to contend
that Cadet 1 CL Cudia was obviously quibbling, which, in the
military parlance, is tantamount to lying. He fell short in telling a
simple truth. He lied by making untruthful statements in his written
explanation. Respondents want Us to consider the following:
First, their OR432 class was not dismissed late. During the formal
investigation, Dr. Costales testified that a class is dismissed as
long as the instructor is not there and the bell has rung. In cases
of lesson examinations (LE), cadets are dismissed from the time
they have answered their respective LEs. Here, as Cadet Cudia
stated in his Request for Reconsideration of Meted Punishment,
"We had an LE that day (14 November 2013) in OR432 class.
When the first bell rang (1455), I stood up, reviewed my paper
and submitted it to my instructor, Ms. Costales. xxx" Clearly, at
the time Cadet Cudia submitted his papers, he was already
considered dismissed. Thus, he cannot claim that his [OR432]
class ended at 3:00 in the afternoon (1500H) or "a bit late."
Second, Cadet Cudia was in control of the circumstances leading
to his tardiness. After submitting his paper, Cadet Cudia is free to
leave and attend his next class. However, he initiated a
conversation with Dr. Costales regarding their grades. He was not
under instruction by Dr. Costales to stay beyond the period of her
class.
Furthermore, during the investigation of the Fact-Finding
Board/Investigating Body, Dr. Costales clarified her statements in
her written explanation. She explained that the "instruction to
wait" is a response to Cadet Cudia' s request and that it was not
her initiated instruction. Clearly, there was no directive from Dr.
Costales for Cadet Cudia and the other cadets to stay. On the
contrary, it was them who wanted to meet with the instructor.
Third, contrary to Cadet Cudia's explanation, his subsequent
class, ENG412, did not exactly start at 3:00 in the afternoon
(1500H). In the informal review conducted by the HTG to check
the findings of the HC, Professor Berong confirmed that her
English class started as scheduled (3:05 in the afternoon, or
1505H) and not earlier. Cadet 1 CL Barrawed, the acting class
marcher of ENG412 also testified that their class started as
scheduled (3 :05 in the afternoon, or 1505) and not earlier.204
Respondents were unimpressed with the excuse that Cadet 1 CL
Cudia had no intention to mislead or deceive but merely used
wrong and unfitting words in his explanations. For them,
considering his academic standing, it is highly improbable that he
used incorrect language to justify his mistake. Respondents'
arguments are tenable.
The issue of whether Cadet 1 CL Cudia committed lying is an
issue of fact. Unfortunately for petitioners, the Court, not being a
trier of facts, cannot pass upon factual matters as it is not duty-
bound to analyze and weigh again the evidence considered in the
proceedings below. Moreover, We reiterate the long standing rule
that factual findings of administrative tribunals are ordinarily
accorded respect if not finality by the Court. In this case, as
shown in the previous discussions, there is no evidence that the
findings of the investigating and reviewing bodies below are not
supported by evidence or vitiated by fraud, imposition or
collusion; that the procedure which led to the findings is irregular;
that palpable errors were committed; or that a grave abuse of
discretion, arbitrariness, or capriciousness is manifest. With
respect to the core issue of whether lying is present in this case,
all investigating and reviewing bodies are in consonance in
holding that Cadet 1 CL Cudia in truth and in fact lied.
For purposes of emphasis though, We shall supplement some
points.
As succinctly worded, the Honor Code of the Cadet Corps Armed
Forces of the Philippines (CCAFP) states: "We, the Cadets, do
not lie, cheat, steal, nor tolerate among us those who do. "
The First Tenet of the Honor-Code is "We do not lie. " Cadets
violate the Honor Code by lying if they make an oral or written
statement which is contrary to what is true or use doubtful
information with the intent to deceive or mislead.205 It is expected
that every cadet's word is accepted without challenge on its
truthfulness; that it is true without qualification; and that the
cadets must answer directly, completely and truthfully even
though the answer may result in punitive action under the CCPB
and CCAFPR.206
To refresh, in his Explanation of Report dated December 8, 2013,
Cadet 1 CL Cudia justified that: "I came directly from OR432
Class. We were dismissed a bit late by our instructor Sir."
Subsequently, in his Request for Reconsideration of Meted
Punishment to Maj. Leander, he reasoned out as follows:
I strongly believe that I am not in control of the circumstances, our
4th period class ended 1500H and our 5th period class, which is
ENG412, started 1500H also. Immediately after 4t period class, I
went to my next class without any intention of being late Sir.207
In this case, the Court agrees with respondents that Cadet 1 CL
Cudia committed quibbling; hence, he lied in violation of the
Honor Code.
Following an Honor Reference Handbook, the term "Quibbling"
has been defined in one U.S. case as follows:
A person can easily create a false impression in the mind of his
listener by cleverly wording what he says, omitting relevant facts,
or telling a partial truth. When he knowingly does so with the
intent to deceive or mislead, he is quibbling. Because it is an
intentional deception, quibbling is a form of lying.208
The above definition can be applied in the instant case. Here,
instead of directly and completely telling the cause of his being
late in the ENG412 class of Prof. Berong, Cadet 1 CL Cudia
chose to omit relevant facts, thereby, telling a half-truth.
The two elements that must be presented for a cadet to have
committed an honor violation are:
1. The act and/or omission, and
2. The intent pertinent to it.
Intent does not only refer to the intent to violate the Honor Code,
but intent to commit or omit the act itself.209
The basic questions a cadet must always seek to answer
unequivocally are:
1. Do I intend to deceive?
2. Do I intend to take undue advantage?
If a cadet can answer NO to BOTH questions, he or she is doing
the honorable thing.210
Intent, being a state of mind, is rarely susceptible of direct proof,
but must ordinarily be inferred from the facts, and therefore, can
only be proved by unguarded expressions, conduct and
circumstances generally.211 In this case, Cadet 1 CL Cudia's intent
to deceive is manifested from the very act of capitalizing on the
use of the words "dismiss" and "class." The truth of the matter is
that the ordinary usage of these two terms, in the context of an
educational institution, does not correspond to what Cadet 1 CL
Cudia is trying to make it appear. In that sense, the words are not
generic and have definite and precise meaning.
By no stretch of the imagination can Cadets 1 CL Cudia, Miranda,
Arcangel, and Narciso already constitute a "class." The Court
cannot agree that such term includes "every transaction and
communication a teacher does with her students." Clearly, it does
not take too much intelligence to conclude that Cadet 1 CL Cudia
should have been accurate by pinpointing who were with him
when he was late in the next class. His deceptive explanation is
made more obvious when compared with what Cadets 1 CL
Archangel and Narciso wrote in their DR explanation, which was:
"We approached our instructor after our class."212
Further, it is unimportant whether the time of dismissal on
November 14, 2013 was five or fifteen minutes ahead of the
scheduled end of class. Worth noting is that even Dr. Costales,
who stood as a witness for Cadet 1 CL Cudia, consistently
admitted before the HC, the Fact-Finding Board/Investigating
Body, and the CHR that he was already dismissed when he
passed his LE paper.213 During the hearing of the Board/Body, she
also declared that she merely responded to his request to see the
results of the UE 1 and that she had reservations on the phrases
"under my instruction" and "dismissed a bit late" used in his letter
of explanation to the HC. In addition, Dr. Costales manifested her
view before the CHR that the act of Cadet 1 CL Cudia of inquiring
about his grade outside their classroom after he submitted his LE
paper is not part of the class time because the consultation, being
cadet-initiated, is voluntary.214 Assuming, for the sake of
argument, that a new business was initiated by Dr. Costales
when Cadet 1 CL Cudia was asked to stay and wait for the
section grade, still, this does not acquit him. Given such situation,
a responsible cadet who is fully aware of the time constraint has
the last say, that is, to politely decline the invitation and
immediately go to the next class. This was not done by Cadet 1
CL Cudia. Thus, it cannot be said that he already lost control over
the circumstances.
It is apparent, therefore, that Cadet 1 CL Cudia cunningly chose
words which led to confusion in the minds of respondents and
eventually commenced the HC inquiry. His case is not just a
matter of semantics and a product of plain and simple inaccuracy.
There is manipulation of facts and presentation of untruthful
explanation constitutive of Honor Code violation.
Evidence of prior good conduct cannot clear Cadet 1 CL Cudia ..
While his Transcript of Records (TOR) may reflect not only his
outstanding academic performance but his excellent grade in
subjects on Conduct during his four-year stay in the PMA,215 it
does not necessarily follow that he is innocent of the offense
charged. It is enough to say that "evidence that one did or did not
do a certain thing at one time is not admissible to prove that he
did or did not do the same or similar thing at another
time."216 While the TOR may be received to prove his identity or
habit as an exceptional PMA student, it does not show his
specific intent, plan, or scheme as cadet accused of committing a
specific Honor Code violation.
Dismissal from the PMA as unjust and cruel punishment
Respondents insist that violation of the Honor Code warrants
separation of the guilty cadet from the cadet corps. Under the
Cadet Corps Armed Forces of the Philippines Regulation
(CCAFPR), a violation of the Cadet Honor Code is considered
Grave (Class 1) delinquency which merits a recommendation for
a cadet's dismissal from the PMA Superintendent. The same is
likewise clear from the Honor Code and Honor System
Handbook. Cadet 1 CL Cudia is, therefore, presumed to know
that the Honor Code does not accommodate a gradation or
degree of offenses. There is no difference between a little lie and
a huge falsehood. Respondents emphasize that the Honor Code
has always been considered as an absolute yardstick against
which cadets have measured themselves ever since the PMA
began and that the Honor Code and System seek to assure that
only those who are able to meet the high standards of integrity
and honor are produced by the PMA. As held in Andrews, it is
constitutionally permissible for the military "to set and enforce
uncommonly high standards of conduct and ethics. " Thus, in
violating the Honor Code, Cadet 1 CL Cudia forfeits his privilege
to graduate from the PMA.
On their part, petitioners concede that if it is proven that a cadet
breached the Honor Code, the offense warrants his or her
dismissal since such a policy may be the only means to maintain
and uphold the spirit of integrity in the military.217 They maintain
though that in Cadet 1 CL Cudia's case there is no need to
distinguish between a "little lie" and a "huge falsehood" since he
did not lie at all. Absent any intent to deceive and to take undue
advantage, the penalty imposed on him is considered as unjust
and cruel. Under the circumstances obtaining in this case, the
penalty of dismissal is not commensurate to the fact that he is a
graduating cadet with honors and what he allegedly committed
does not amount to an academic deficiency or an intentional and
flagrant violation of the PMA non-academic rules and regulations.
Citing Non, petitioners argue that the penalty imposed must be
proportionate to the offense. Further, lsabelo, Jr. is squarely
applicable to the facts of the case. Cadet 1 CL Cudia was
deprived of his right to education, the only means by which he
may have a secure life and future.
Considering Our finding that Cadet 1 CL Cudia in truth and in fact
lied and his acceptance that violation of the Honor Code warrants
the ultimate penalty of dismissal from the PMA, there is actually
no more dispute to resolve. Indeed, the sanction is clearly set
forth and Cadet 1 CL Cudia, by contract, risked this when he
entered the Academy.218 We adopt the ruling in
Andrews219 wherein it was held that, while the penalty is severe, it
is nevertheless reasonable and not arbitrary, and, therefore, not
in violation of due process. It quoted the disposition of the district
court, thus:
The fact that a cadet will be separated from the Academy upon a
finding that he has violated the Honor Code is known to all cadets
even prior to the beginning of their careers there. The finding of a
Code violation by hypothesis includes a finding of scienter on the
part of the offender. While separation is admittedly a drastic and
tragic consequence of a cadet's transgression, it is not an
unconstitutionally arbitrary one, but rather a reasonable albeit
severe method of preventing men who have suffered ethical
lapses from becoming career officers. That a policy of
admonitions or lesser penalties for single violations might be
more compassionate --or even more effective in achieving the
intended result --is quite immaterial to the question of whether the
harsher penalty violates due process.220
Nature of the CHR Findings
Petitioners contend that the PMA turned a blind eye on the CHR's
recommendations. The CHR, they note, is a constitutional body
mandated by the 1987 Constitution to investigate all forms of
human rights violations involving civil and political rights, and to
conduct investigative monitoring of economic, social, and cultural
rights, particularly of vulnerable sectors of society. Further, it was
contended that the results of CHR's investigation and
recommendations are so persuasive that this Court, on several
occasions like in the cases of Cruz v. Sec. of Environment &
Natural Resources221 and Ang Ladlad LGBT Party v. Commission
on Elections,222 gave its findings serious consideration. It is not,
therefore, too late for the Court to hear what an independent and
unbiased fact-finding body has to say on the case.
In opposition, respondents assert that Simon, Jr. v. Commission
on Human Rights223 ruled that the CHR is merely a
recommendatory body that is not empowered to arrive at a
conclusive determination of any controversy.
We are in accord with respondents.
The findings of fact and the conclusions of law of the CHR are
merely recommendatory and, therefore, not binding to this Court.
The reason is that the CHR's constitutional mandate extends only
to the investigation of all forms of human rights violations
involving civil and political rights.224 As held in Cario v.
Commission on Human Rights225 and a number of subsequent
cases,226 the CHR is only a fact-finding body, not a court of justice
or a quasi-judicial agency. It is not empowered to adjudicate
claims on the merits or settle actual case or controversies. The
power to investigate is not the same as adjudication:
The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive
evidence and make findings of fact as regards claimed human
rights violations involving civil and political rights. But fact-finding
is not adjudication, and cannot be likened to the judicial function
of a court of justice, or even a quasi-judicial agency or official.
The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function, properly speaking.
To be considered such, the faculty of receiving evidence and
making factual conclusions in a controversy must be
accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or
determined authoritatively, finally and definitively, subject to such
appeals or modes of review as may be provided by law. This
function, to repeat, the Commission does not have.
xxxx
[i]t cannot try and decide cases (or hear and determine causes)
as courts of justice, or even quasi-judicial bodies do. To
investigate is not to adjudicate or adjudge. Whether in the popular
or the technical sense, these terms have well understood and
quite distinct meanings.
"Investigate, "commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of "investigate" is "to observe or study closely: inquire
into systematically: "to search or inquire into: x x x to subject to
an official probe x x x: to conduct an official inquiry;" The purpose
of investigation, of course, is to discover, to find out, to learn,
obtain information. Nowhere included or intimated is the notion of
settling, deciding or resolving a controversy involved in the facts
inquired into by application of the law to the facts established by
the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o
follow up step by step by patient inquiry or observation. To trace
or track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking Cadet 1 CL Cudia could still practice other equally noble
of evidence; a legal inquiry;" "to inquire; to make an profession or calling that is best suited to his credentials,
investigation," "investigation" being in turn described as "(a)n competence, and potential. Definitely, nobody can deprive him of
administrative function, the exercise of which ordinarily does not that choice.
require a hearing. 2 Am J2d Adm L Sec. 257; xx x an inquiry,
judicial or otherwise, for the discovery and collection of facts WHEREFORE, the Petition is DENIED. The dismissal of Cadet
concerning a certain matter or matters." First Class Aldrin Jeff P. Cudia from the Philippine Military
Academy is hereby AFFIRMED. No costs.
"Adjudicate," commonly or popularly understood, means to
adjudge, arbitrate, judge, decide, determine, resolve, rule on, SO ORDERED.
settle. The dictionary defines the term as "to settle finally (the
rights and duties of the parties to a court case) on the merits of Republic of the Philippines
issues raised: xx to pass judgment on: settle judicially: x x x act SUPREME COURT
as judge." And "adjudge" means "to decide or rule upon as a Manila
judge or with judicial or quasi-judicial powers: xx to award or grant
judicially in a case of controversy x x x."
FIRST DIVISION
In the legal sense, "adjudicate" means: "To settle in the exercise
G.R. No. 181293 February 23, 2015
of judicial authority. To determine finally. Synonymous with
1w phi1

adjudge in its strictest sense;" and "adjudge" means: "To pass on

judicially, to decide, settle or decree, or to sentence or condemn. ANA THERESIA "RISA" HONTIVEROS-BARAQUEL, DANIEL
xx Implies a judicial determination of a fact, and the entry of a L. EDRALIN, VICTOR M. GONZALES, SR., JOSE APOLLO R.
judgment. "226 ADO, RENE D. SORIANO, ALLIANCE OF PROGRESSIVE
LABOR, BUKLURAN NG MANGGAGAWANG PILIPINO,
LAHING PILIPINO MULTIPURPOSE TRANSPORT SERVICE
All told, petitioners are not entitled to moral and exemplary
COOPERATIVE, PNCC SKYWAY CORPORATION
damages in accordance with Articles 19, 2217, 2219 and 2229 of
EMPLOYEES UNION (PSCEU), and PNCC TRAFFIC
the Civil Code. The dismissal of Cadet 1 CL Cudia from the PMA
MANAGEMENT & SECURITY DEPARTMENT WORKERS
did not effectively deprive him of a future. Cliche though it may
ORGANIZATION (PTMSDWO), Petitioners,
sound, being a PMA graduate is not the "be-all and end-all" of his
vs.
existence. A cadet separated from the PMA may still continue to
TOLL REGULATORY BOARD, THE SECRETARY OF THE
pursue military or civilian career elsewhere without suffering the
DEPARTMENT OF TRANSPORTATION AND
stigma attached to his or her dismissal. For one, as suggested by
COMMUNICATIONS (DOTC), PNCC SKYWAY
respondents, DND-AFP Circular No. 13, dated July 15, 1991, on
CORPORATION, PHILIPPINE NATIONAL CONSTRUCTION
the enlistment and reenlistment in the APP Regular Force,
CORPORATION, SKYWAY O & M CORPORATION, and CITRA
provides under Section 14 (b) thereof that priority shall be given
METRO MANILA TOLLWAYS CORP., Respondents.
to, among others, the ex-PMA or PAFFFS cadets.227 If the
positions open does not appeal to his interest for being way
below the rank he could have achieved as a PMA graduate, DECISION
SERENO, CJ:
This is an original petition for certiorari and prohibition under Rule
65 of the Rules of Court, with a prayer for the issuance of a writ of
preliminary injunction and/or temporary restraining order, seeking
the annulment of the following:
1. The Amendment to the Supplemental Toll Operation
Agreement executed on 18 July 2007 between the
Republic of the Philippines, the Philippine National
Construction Corporation, and Citra Metro Manila
Tollways Corporation;
2. The Memorandum dated 20 July 2007 of the Secretary
of Transportation and Communications, approving the
Amendment to the Supplemental Toll Operation
Agreement;
3. The Memorandum of Agreement executed on 21
December 2007 between the Philippine National
Construction Corporation, PNCC Skyway Corporation,
and Citra Metro Manila Tollways Corporation; and
4. The Toll Operation Certificate issued by the Toll
Regulatory Board on 28 December 2007 in favor of
Skyway O & M Corporation.
The annulment of the above is sought for being unconstitutional,
contrary to law, and grossly disadvantageous to the government.
Petitioners also seek to prohibit Skyway O & M Corporation from
assuming operations and maintenance responsibilities over the
Skyway toll facilities. ANTECEDENT FACTS
The Toll Regulatory Board (TRB) was created on 31 March 1977
by Presidential Decree No. (P.D.) 11121 in order to supervise and
regulate, on behalf of the government, the collection of toll fees
and the operation of toll facilities by the private sector.
On the same date, P.D. 11132 was issued granting to the
Construction and Development Corporation of the Philippines
(now Philippine National Construction Corporation or PNCC) the
right, privilege, and authority to construct, operate, and maintain
toll facilities in the North and South Luzon Toll Expressways for a
period of 30 years starting 1 May1977.
TRB and PNCC later entered into a Toll Operation
Agreement,3 which prescribed the operating conditions of the right
granted to PNCC under P.D. 1113.
P.D. 1113 was amended by P.D. 1894,4 which granted PNCC the
right, privilege, and authority to construct, maintain, and operate
the North Luzon, South Luzon and Metro Manila Expressways,
together with the toll facilities appurtenant thereto. The term of 30
years provided under P. D. 1113 starting from 1 May 1977
remained the same for the North and the South Luzon
Expressways, while the franchise granted for the Metro Manila
Expressway (MME) provided a term of 30 years commencing
from the date of completion of the project.
On 22 September 1993, PNCC entered into an agreement5 with
PT Citra Lamtoro Gung Persada (CITRA), a limited liability
company organized and established under the laws of the
Republic of Indonesia, whereby the latter committed to provide
PNCC with a pre-feasibility study on the proposed MME project.
The agreement was supplemented6 on 14 February 1994 with a
related undertaking on the part of CITRA. CITRA was to provide a
preliminary feasibility study on the Metro Manila Skyways (MMS)
project, a system of elevated roadway networks passing through
the heart of the Metropolitan Manila area. In order to accelerate
the actual implementation of both the MME and the MMS
projects, PNCC and CITRA entered into a second
agreement.7 Through that agreement, CITRA committed to
finance and undertake the preparation, updating, and revalidation
of previous studies on the construction, operation, and
maintenance of the projects.
As a result of the feasibility and related studies, PNCC and
CITRA submitted, through the TRB, a Joint Investment Proposal
(JIP) to the Republic of the Philippines.8 The JIP embodied the
implementation schedule for the financing, design and
construction of the MMS in three stages: the South Metro Manila
Skyway, the North Metro Manila Skyway, and the Central Metro
Manila Skyway.9
The TRB reviewed, evaluated and approved the JIP, particularly
as it related to Stage 1, Phases 1 and 2; and Stage 2, Phase 1 of
the South Metro Manila Skyway.
On 30 August 1995, PNCC and CITRA entered into a Business
and Joint Venture Agreement10 and created the Citra Metro
Manila Tollways Corporation (CMMTC). CMMTC was a joint
venture corporation organized under Philippine laws to serve as a
channel through which CITRA shall participate in the construction
and development of the project.
On 27 November 1995, the Republic of the Philippines - through
the TRB - as Grantor, CMMTC as Investor, and PNCC as
Operator executed a Supplemental Toll Operation Agreement
(STOA)11 covering Stage 1, Phases 1 and 2; and Stage 2, Phase
1 of the South Metro Manila Skyway. Under the STOA, the design
and construction of the project roads became the primary and
exclusive privilege and responsibility of CMMTC. The operation
and maintenance of the project roads became the primary and
exclusive privilege and responsibility of the PNCC Skyway
Corporation (PSC), a wholly owned subsidiary of PNCC, which
undertook and performed the latter's obligations under the STOA.
CMMTC completed the design and construction of Stage 1 of the
South Metro Manila Skyway, which was operated and maintained
by PSC.12
On 18 July 2007, the Republic of the Philippines, through the
TRB, CMMTC, and PNCC executed the assailed Amendment to
the Supplemental Toll Operation Agreement (ASTOA).13 The
ASTOA incorporated the amendments, revisions, and
modifications necessary to cover the design and construction of
Stage 2 of the South Metro Manila Skyway. Also under the
ASTOA, Skyway 0 & M Corporation (SOMCO) replaced PSC in
performing the operations and maintenance of Stage 1 of the
South Metro Manila Skyway.
Pursuant to the authority granted to him under Executive Order
No. (E.O.) 49714 dated 24 January 2006, Department of
Transportation and Communications (DOTC) Secretary Leandro
Mendoza approved the ASTOA through the challenged
Memorandum dated 20 July 2007.15
On 21 December 2007, PNCC, PSC, and CMMTC entered into
the assailed Memorandum of Agreement (MOA)16providing for the
successful and seamless assumption by SOMCO of the
operations and maintenance of Stage 1 of the South Metro
Manila Skyway. Under the MOA, PSC received the amount
of P320 million which was used for the settlement of its liabilities
arising from the consequent retrenchment or separation of its
affected employees.
The TRB issued the challenged Toll Operation Certificate
(TOC)17 to SOM CO on 28 December 2007, authorizing the latter
to operate and maintain Stage 1 of the South Metro Manila
Skyway effective 10:00 p.m. on 31December2007.
Meanwhile, on 28 December 2007, petitioner PNCC Traffic
Management and Security Department Workers Organization
(PTMSDWO) filed a Notice of Strike against PSC on the ground
of unfair labor practice, specifically union busting.18 The Secretary
of Labor and Employment19 assumed jurisdiction over the dispute
in an Order dated 31 December 2007 and set the initial hearing of
the case on 2 January 2008.20
On 3 January 2008, petitioners PTMSDWO and PNCC Skyway
Corporation Employees Union (PSCEU) filed before the Regional
Trial Court of Paraaque City, Branch 258 (RTC), a complaint
against respondents TRB, PNCC, PSC, CMMTC, and SOMCO.
The complaint was for injunction and prohibition with a prayer for
a writ of preliminary injunction and/or a temporary restraining
order, and sought to prohibit the implementation of the AS TOA
and the MOA, as well as the assumption of the toll operations by
SOMCO.21 Petitioners PSCEU and PTMSDWO also sought the
subsequent nullification of the ASTOA and the MOA for being
contrary to law and for being grossly disadvantageous to the
government.22 They later filed an Amended Complaint23 dated 8
January 2008, additionally praying that PSC be allowed to
continue the toll operations. With the exception of TRB, all
defendants therein filed their Opposition.
On 23 January 2008, the RTC issued an Order24 denying the
prayer for the issuance of a temporary restraining order and/or
writ of preliminary injunction. According to the RTC, petitioners
were seeking to enjoin a national government infrastructure
project. Under Republic Act No. (R.A.) 8975,25 lower courts are
prohibited from issuing a temporary restraining order or
preliminary injunction against the government - or any person or
entity acting under the government's direction - to restrain the
execution, implementation, or operation of any such contract or
project. Furthermore, the RTC ruled that it could no longer issue a
temporary restraining order or preliminary injunction, considering
that the act sought to be restrained had already been
consummated.26 The AS TOA, the MOA, and the assumption of
the toll operations by SOMCO took effect at 10:00 p.m. on 31
December 2007, while petitioners PSCEU and PTMSDWO
sought to prohibit their implementation only on 3 January 2008.
In view of its denial of the ancillary prayer, the RTC required
defendants to file their respective Answers to the Amended
Complaint.27
On 28 January 2008, petitioners PSCEU and PTMSDWO filed a
Notice of Dismissal with Urgent Ex-Parte Motion for the Issuance
of Order Confirming the Dismissal,28 considering that no Answers
had yet been filed. On the basis thereof, the R TC dismissed the
case without prejudice on 29 January 2008.29
On 4 February 2008, petitioners filed the instant Petition30 before
this Court. On 13 February 2008, we required respondents to
comment on the same.31
Meanwhile, defendants PNCC32 and PSC33 filed their respective
Motions for Partial Reconsideration of the Order of the R TC
dismissing the case without prejudice. Both argued that the RTC
should have dismissed the case with prejudice. They pointed out
that petitioners PSCEU and PTMSDWO had acted in bad faith by
filing the complaint before the RTC, despite the pendency of a
labor case over which the Secretary of Labor and Employment
had assumed jurisdiction. Defendant CMMTC joined PNCC and
PSC in moving for a partial reconsideration of the RTC Order.34
The RTC denied the Motions for Partial Reconsideration in an
Order dated 13 June 2008.35
Before this Court, SOMCO,36 PSC,37 PNCC,38 CMMTC,39 and
TRB40 filed their respective Comments on the Petition.
THE PARTIES' POSITIONS
Petitioners argue that the franchise for toll operations was
exclusively vested by P.D. 1113 in PNCC, which exercised the
powers under its franchise through PSC in accordance with the
STOA. By agreeing to the arrangement whereby SOMCO would
replace PSC in the toll operations and management, PNCC
seriously breached the terms and conditions of its undertaking
under the franchise and effectively abdicated its rights and
privileges in favor of SOMCO.
Furthermore, the TOC granted to SOMCO was highly irregular
and contrary to law, because 1) it did not indicate the conditions
that shall be imposed on SOMCO as provided under P.D.
1112;41 2) none of the requirements on public bidding,
negotiations, or even publication was complied with before the
issuance of the TOC to SOMCO; 3) applying the stricter
"grandfather rule," SOMCO does not qualify as a facility operator
as defined under R.A. 6957,42 as amended by R.A. 7718;43 and 4)
there were no public notices and hearings conducted wherein all
legitimate issues and concerns about the transfer of the toll
operations would have been properly ventilated.
Petitioners also claim that the approval by the DOTC Secretary of
the AS TOA could not take the place of the presidential approval
required under P.D. 111344 and P.D. 189445 concerning the
franchise granted to PNCC.
Finally, petitioners claim that the assumption of the toll operations
by SOM CO was grossly disadvantageous to the government,
because 1) for a measly capital investment of P2.5 million,
SOMCO stands to earn P400 million in gross revenues based on
official and historical records; 2) with its measly capital, SOMCO
would not be able to cover the direct overhead for personal
services in the amount of P226 million as borne out by
Commission on Audit reports; 3) the net revenue from toll
operations would go to private shareholders of SOMCO, whereas
all earnings of PSC when it was still in charge of the toll
operations went to PNCC - the mother company whose earnings,
as an "acquired-asset corporation," formed part of the public
treasury; 4) the new arrangement would result in the poor delivery
of toll services by SOMCO, which had no proven track record; 5)
PSC received only P320 million as settlement for the transfer of
toll operations to SOMCO.
All respondents counter that petitioners do not have the requisite
legal standing to file the petition. According to respondents,
petitioner Hontiveros-Baraquel filed the instant petition as a
legislator in her capacity as party-list representative of Akbayan.
As such, she was only allowed to sue to question the validity of
any official action when it infringed on her prerogative as a
legislator.46 Presently, she has cited no such prerogative, power,
or privilege that is adversely affected by the assailed acts.47
While suing as citizens, the individual petitioners have not shown
any personal or substantial interest in the case indicating that
they sustained or will sustain direct injury as a result of the
implementation of the assailed acts.48 The maintenance of the suit
by petitioners as taxpayers has no merit either because the
assailed acts do not involve the disbursement of public
funds.49 Finally, the bringing of the suit by petitioners as people's
organizations does not automatically confer legal standing,
especially since petitioner-organizations do not even allege that
they represent their members,50 nor do they cite any particular
constitutional provision that has been violated or disregarded by
the assailed acts.51 In fact, the suit raises only issues of contract
law, and none of the petitioners is a party or is privy to the
assailed agreements and issuances.52
Respondents also argue that petitioners violate the hierarchy of
courts. In particular, it is alleged that while lower courts are
prohibited from issuing temporary restraining orders or
preliminary injunctions against national government projects
under R.A. 8975, the law does not preclude them from assuming
jurisdiction over complaints that seek the nullification of a national
government project as ultimate relief.53
As a final procedural challenge to the petition, respondents aver
that petitioners are guilty of forum shopping. When petitioners
filed the instant petition, the case before the R TC seeking similar
reliefs was still pending, as respondents PNCC, PSC and
CMMTC had moved for the partial reconsideration of the RTC's
Order of dismissal within the reglementary period.54 Furthermore,
the instant case and the one before the RTC were filed while
petitioners' labor grievances seeking similar reliefs were also
being heard before the Department of Labor and Employment.55
On the merits of the arguments in the petition, respondents argue
that nothing in the ASTOA, the approval thereof by the DOTC
Secretary, the MOA, or the TOC was violative of the Constitution.
It is argued that the authority to operate a public utility can be
granted by administrative agencies when authorized by
law.56 Under P.D. 1112, the TRB is empowered to grant authority
and enter into contracts for the construction, operation, and
maintenance of a toll facility,57 such as the ASTOA in this case.
Also, the ASTOA was an amendment, not to the legislative
franchise of PNCC, but to the STOA previously executed
between the Republic of the Philippines through the TRB, PNCC,
and CMMTC.58 In fact, PNCC's franchise was never sold,
transferred, or otherwise assigned to SOMCO59 in the same way
that PSC's previous assumption of the operation and
maintenance of the South Metro Manila Skyway did not amount
to a sale, transfer or assignment of PNCC's franchise.60
There can be no valid objection to the approval of the ASTOA by
the DOTC Secretary, because he was authorized by the
President to do so by virtue of E.O. 497.61 Also, the phrase
"subject to the approval of the President of the Philippines" in
P.D. 1112 and 1113 does not in any way mean that the
presidential approval must be obtained prior to the execution of a
contract, or that the approval be made personally by the
President.62 The presidential approval may be obtained under the
doctrine of qualified political agency.63
Respondents argue that there is no merit in the claim that the
TOC granted to SOMCO was highly irregular and contrary to law.
First, the TOC clearly states that the toll operation and
maintenance by SOMCO shall be regulated by the Republic of
the Philippines in accordance with P.D. 1112, the STOA, the toll
operations and maintenance rules and regulations, and lawful
orders, instructions, and conditions that may be imposed from
time to time.64 Second, there is no need to comply with the public
bidding and negotiation requirements, because the South Metro
Manila Skyway is an ongoing project, not a new
one.65 Furthermore, the STOA, which was the basis for the
ASTOA, was concluded way before the effectivity of R.A.
918466 in 2003.67
Third, SOMCO is a Filipino corporation with substantial 72%
Filipino ownership.68 Fourth, the law requires prior notice and
hearing only in an administrative body's exercise of quasi-judicial
functions.69 In this case, the transfer of the toll operations and
maintenance to SOM CO was a contractual arrangement entered
into in accordance with law.70
Finally, the assumption of the toll operation and maintenance by
SOMCO is not disadvantageous to the government. Petitioners
belittle the P2.5 million capitalization of SOMCO, considering that
PSC's capitalization at the time it was incorporated was
merely P500,000.71
Respondents claim that under the ASTOA, PNCC shall get a
direct share in the toll revenues without any corollary obligation,
unlike the arrangement in the STOA whereby PNCC's 10% share
in the toll revenues was intended primarily for the toll operation
and maintenance by PSC.72
Finally, respondents assert that there is no reason to fear that the
assumption by SOMCO would result in poor delivery of toll
services. CITRA and the other shareholders of SOMCO are
entities with experience and proven track record in toll
operations.73 Also, SOM CO hired or absorbed more than 300
PSC employees,74 who brought with them their work expertise
and experience.
ISSUES
The instant case shall be resolved on the basis of the following
issues:
Procedural:
 I. Whether petitioners have standing;
II. Whether petitioners are guilty of forum-shopping;
Substantive:
III. Whether the TRB has the power to grant authority to
operate a toll facility;
IV. Whether the TOC issued to SOMCO was valid;
V. Whether the approval of the ASTOA by the DOTC
Secretary was valid; and
VI. Whether the assumption of toll operations by SOMCO
is disadvantageous to the government.
OUR RULING
I indirectly from the state through a duly designated agency, and to
Not all petitioners have personality to sue.
Standing is a constitutional law concept allowing suits to be
brought not necessarily by parties personally injured by the
operation of a law or official action, but by concerned citizens,
taxpayers, or voters who sue in the public interest.75 Determining
the standing of concerned citizens, taxpayers, or voters requires
a partial consideration of the substantive merit of the
constitutional question,76 or at least a preliminary estimate
thereof.77
In this case, petitioners raise the power of Congress to grant
franchises as a constitutional question. They allege that the
execution of the ASTOA and the MOA, the approval of the AS
TOA by the DOTC Secretary and the issuance of the TOC
infringed on the constitutional power of Congress, which has the
sole authority to grant franchises for the operation of public
utilities. This Court has had a few occasions to rule that a
franchise from Congress is not required before each and every
public utility may operate.78 Unless there is a law that specifically
requires a franchise for the operation of a public utility, particular
agencies in the executive branch may issue authorizations and
licenses for the operation of certain classes of public utilities.79 In
the instant case, there is no law that states that a legislative
franchise is necessary for the operation of toll facilities.
In PAL v. Civil Aeronautics Board,80 this Court enunciated:
Congress has granted certain administrative agencies the power
to grant licenses for, or to authorize the operation of certain public
utilities. With the growing complexity of modem life, the
multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly
growing tendency towards the delegation of greater powers by
the legislature, and towards the approval of the practice by the
courts. It is generally recognized that a franchise may be derived
this extent, the power to grant franchises has frequently been
delegated, even to agencies other than those of a legislative
nature. In pursuance of this, it has been held that privileges
conferred by grant by local authorities as agents for the state
constitute as much a legislative franchise as though the grant had
been made by an act of the Legislature.81
It is thus clear that Congress does not have the sole authority to
grant franchises for the operation of public utilities. Considering
the foregoing, we find that the petition raises no issue of
constitutional import. More particularly, no legislative prerogative,
power, or privilege has been impaired. Hence, legislators have no
standing to file the instant petition, for they are only allowed to
sue to question the validity of any official action when it infringes
on their prerogatives as members of Congress.82 Standing is
accorded to them only if there is an unmistakable showing that
the challenged official act affects or impairs their rights and
prerogatives as legislators.83
In line with our ruling in Kilosbayan, Inc. v. Morato,84 the rule
concerning a real party in interest - which is applicable to private
litigation rather than the liberal rule on standing, should be
applied to petitioners.
A real party in interest is one who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the
avails of the suit.85 One's interest must be personal and not one
based on a desire to vindicate the constitutional right of some
third and unrelated party.86 The purposes of the rule are to
prevent the prosecution of actions by persons without any right or
title to or interest in the case; to require that the actual party
entitled to legal relief be the one to prosecute the action; to avoid
a multiplicity of suits; and to discourage litigation and keep it
within certain bounds, pursuant to sound public policy.87
At bottom, what is being questioned in the petition is the
relinquishment by PSC of the toll operations in favor of SOMCO,
effectively leading to the cessation of the former' s business. In
this case, we find that among petitioners, the only real parties in
interest are the labor unions PSCEU and PTMSDWO.
PSCEU and PTMSDWO filed the petition not as a representative
suit on behalf of their members who are rank-and-file employees
of PSC, but as people's organizations "invested with a public duty
to defend the rule of law."88 PSCEU and PTMSDWO cite
Kilosbayan v. Ermita89 as authority to support their standing to file
the instant suit.
It is well to point out that the Court, in Ermita, accorded standing
to people's organizations to file the suit, because the matter
involved therein was the qualification of a person to be appointed
as a member of this Court -"an issue of utmost and far-reaching
constitutional importance."90 As discussed, the instant petition
raises no genuine constitutional issues.
Nevertheless, for a different reason, we accord standing to
PSCEU and PTMSDWO to file the instant suit. With the transfer
of toll operations to SOMCO and the resulting cessation of PSC's
business comes the retrenchment and separation of all its
employees. The existence of petitioner labor unions would
terminate with the dissolution of its employer and the separation
of its members. This is why the petition also prays that this Court
issue an order "that would smoothly preserve the toll operations
services of respondent PNCC and/or respondent PSC under its
legislative franchise."91
We have recognized that the right of self-preservation is inherent
in every labor union or any organization for that matter.92 Thus,
PSCEU and PTMSDWO, as real parties in interest, have the
personality to question the assumption of the toll operations by
SOMCO.
II
PSCEU and PTMSDWO are not guilty of forum-shopping.
Forum shopping refers to the act of availing of several remedies
in different courts and/or administrative agencies, either
simultaneously or successively, when these remedies are
substantially founded on the same material facts and
circumstances and raise basically the same issues either pending
in or already resolved by some other court or administrative
agency.93 What is pivotal in determining whether forum shopping
exists is the vexation caused to the courts and litigants and the
possibility of conflicting decisions being rendered by different
courts and/or administrative agencies upon the same issues.94
The elements of forum shopping are as follows: a) identity of
parties or at least such parties that represent the same interests
in both actions; b) identity of rights asserted and the relief prayed
for, the relief founded on the same facts; and c) identity of the two
preceding particulars, such that any judgment rendered in one
action will amount to res judicata in the other.95 Respondents
argue that petitioners PSCEU and PTMSDWO committed forum
shopping by filing the complaint for injunction and prohibition
before the RTC during the pendency of NCMB-NCR-NS-12-188-
07 entitled In Re: Labor Dispute at PNCC Skyway Corporation. It
was a case they also filed, over which the Secretary of Labor and
Employment has assumed jurisdiction.
The case involves a Notice of Strike filed against PSC on the
ground of unfair labor practice. While the specific act in question
is not specified, the prohibited acts constituting unfair labor
practice96 essentially relate to violations concerning the workers'
right to self-organization.97 When compared with the complaint
filed with the RTC for injunction and prohibition seeking to prohibit
the implementation of the ASTOA and the MOA, as well as the
assumption of the toll operations by SOM CO for being
unconstitutional, contrary to law and disadvantageous to the
government, it is easily discernible that there is no identity of
rights asserted and relief prayed for. These cases are distinct and
dissimilar in their nature and character.
For the sake of argument, let us assume that, in order to hurt the
unions, PSC feigned a cessation of business that led to the
retrenchment and separation of all employees. That is an unfair
labor practice. In that complaint, the unions cannot be expected
to ask for, or the Secretary of Labor and Employment to grant, the
annulment of the ASTOA and the MOA and the continuation of
toll operations by PSC. The Secretary would only focus on the
legality of the retrenchment and separation, and on the presence
or absence of bad faith in PSC's cessation of business. On the
other hand, the complaint before the RTC would require it to
focus on the legality of the ASTOA, the MOA and the transfer of
toll operations. Ultimately, even if the Secretary of Labor and
Employment makes a finding of unfair labor practice, this
determination would not amount to res judicata as regards the
case before the RTC.
We also reject the claim of respondents that petitioners PSCEU
and PTMSDWO committed forum shopping by filing the instant
petition before this Court while the motion for partial
reconsideration of the RTC's Order of dismissal without prejudice
was still pending. Section 1, Rule 17 of the Rules of Court states:
SECTION 1. Dismissal upon notice by plaintiff. - A complaint may
be dismissed by the plaintiff by filing a notice of dismissal at any
time before service of the answer or of a motion for summary
judgment. Upon such notice being filed, the court shall issue an
order confirming the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a notice
operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action
based on or including the same claim.
In this case, petitioners PSCEU and PTMSDWO had filed a
notice of dismissal of the complaint before the RTC on 28
January 2008, before respondents filed their Answers. The
following day, the RTC issued an order confirming the dismissal.
Under the above-cited rule, this confirmation is the only
qualification imposed on the right of a party to dismiss the action
before the adverse party files an answer.98 In this case, the
dismissal of the action therefore became effective upon that
confirmation by the RTC despite the subsequent filing of the
motions for partial reconsideration.
Thus, when the instant petition was filed on 4 February 2008, the
complaint before the RTC was no longer pending. The complaint
was dismissed without prejudice by virtue of the notice of
dismissal filed by petitioners PSCEU and PTMSDWO.
Consequently, there was not even any need for petitioners to
mention the prior filing and dismissal of the complaint in the
certificate of non-forum shopping in the instant petition,99 but they
did so anyway.100
Parenthetically, in their motions for partial reconsideration,
respondents PNCC and PSC insisted that the dismissal should
have been with prejudice, because petitioners allegedly acted in
bad faith in filing the notice of dismissal, were guilty of forum
shopping, and did not notify respondents of their intention to file a
notice of dismissal. With regard to the first and the third
allegation, petitioners may ask for dismissal at any time before
the filing of the answer as a matter of right, even if the notice cites
"the most ridiculous of grounds for dismissal."101 As to the second,
we have already ruled that there was no forum shopping as
regards the successive filings of the labor case and the complaint
before the RTC.
II
TRB has the power to grant authority to operate a toll facility.
This matter has already been settled by the Court in Francisco,
Jr. v. TRB,102 which ruled thus:
It is abundantly clear that Sections 3 (a) and (e) of P.D. 1112 in
relation to Section 4 of P.D. 1894 have invested the TRB with
sufficient power to grant a qualified person or entity with authority
to construct, maintain, and operate a toll facility and to issue the
corresponding toll operating permit or TOC.
Sections 3 (a) and (e) of P.D. 1112 and Section 4 of P.D. 1894
amply provide the power to grant authority to operate toll facilities:
Section 3. Powers and Duties of the Board. - The Board shall
have in addition to its general powers of administration the
following powers and duties:
(a) Subject to the approval of the President of the Philippines, to
enter into contracts in behalf of the Republic of the Philippines
with persons, natural or juridical, for the construction, operation
and maintenance of toll facilities such as but not limited to
national highways, roads, bridges, and public thoroughfares. Said
contract shall be open to citizens of the Philippines and/or to
corporations or associations qualified under the Constitution and
authorized by law to engage in toll operations;
xxxx
(e) To grant authority to operate a toll facility and to issue
therefore the necessary "Toll Operation Certificate" subject to
such conditions as shall be imposed by the Board including inter
alia the following:
(1) That the Operator shall desist from collecting toll upon
the expiration of the Toll Operation Certificate.
(2) That the entire facility operated as a toll system
including all operation and maintenance equipment
directly related thereto shall be turned over to the
government immediately upon the expiration of the Toll
Operation Certificate.
(3) That the toll operator shall not lease, transfer, grant
the usufruct of, sell or assign the rights or privileges
acquired under the Toll Operation Certificate to any
person, firm, company, corporation or other commercial
or legal entity, nor merge with any other company or
corporation organized for the same purpose, without the
prior approval of the President of the Philippines. In the
event of any valid transfer of the Toll Operation
Certificate, the Transferee shall be subject to all the
conditions, terms, restrictions and limitations of this
Decree as fully and completely and to the same extent as
if the Toll Operation Certificate has been granted to the
same person, firm, company, corporation or other
commercial or legal entity.
 (4) That in time of war, rebellion, public peril, emergency,
calamity, disaster or disturbance of peace and order, the
President of the Philippines may cause the total or partial
closing of the toll facility or order to take over thereof by
the Government without prejudice to the payment of just
compensation.
(5) That no guarantee, Certificate of Indebtedness,
collateral, securities, or bonds shall be issued by any
government agency or government-owned or controlled
corporation on any financing program of the toll operator
in connection with his undertaking under the Toll
Operation Certificate.
(6) The Toll Operation Certificate may be amended,
modified or revoked whenever the public interest so
requires.
(a) The Board shall promulgate rules and
regulations governing the procedures for the grant
of Toll Certificates. The rights and privileges of a
grantee under a Toll Operation Certificate shall be
defined by the Board.
(b) To issue rules and regulations to carry out the
purposes of this Decree.
SECTION 4. The Toll Regulatory Board is hereby given
jurisdiction and supervision over the GRANTEE with respect to
the Expressways, the toll facilities necessarily appurtenant
thereto and, subject to the provisions of Section 8 and 9 hereof,
the toll that the GRANTEE will charge the users thereof.
By explicit provision of law, the TRB was given the power to grant
administrative franchise for toll facility projects.103(Emphases
supplied)
We cannot abide by the contention of petitioners that the
franchise for toll operations was exclusively vested in PNCC,
which effectively breached its franchise when it transferred the toll
operations to SOMCO. First, there is nothing in P.D. 1113 or P.D.
1894 that states that the franchise granted to PNCC is to the
exclusion of all others.
Second, if we were to go by the theory of petitioners, it is only the
operation and maintenance of the toll facilities that is vested with
PNCC. This interpretation is contrary to the wording of P.D. 1113
and P.D. 1894 g ranting PNCC the right, privilege and authority to
construct, operate and maintain the North Luzon, South Luzon
and Metro Manila Expressways and their toll facilities.
It appears that petitioners have confused the franchise granted
under P.D. 1113 and P.D. 1894 with particular provisions in the
STOA. To clarify, the operation and maintenance of the project
roads were the primary and exclusive privilege and responsibility
of PNCC through PSC under the STOA. On the other hand, the
design and construction of the project roads were the primary and
exclusive privilege and responsibility of CMMTC. However, with
the execution of the AS TOA, the parties agreed that SOM CO
shall replace PSC in undertaking the operations and maintenance
of the project roads. Thus, the "exclusivity clause" was a matter of
agreement between the parties, which amended it in a later
contract; it was not a matter provided under the law.
Third, aside from having been granted the power to grant
administrative franchises for toll facility projects, TRB is also
empowered to modify, amend, and impose additional conditions
on the franchise of PNCC in an appropriate contract, particularly
when public interest calls for it. This is provided under Section 3
of P.D. 1113 and Section 6 of P.D. 1894, to wit:
SECTION 3. This franchise is granted subject to such conditions
as may be imposed by the [Toll Regulatory] Board in an
appropriate contract to be executed for this purpose, and with the
understanding and upon the condition that it shall be subject to
amendment, alteration or repeal when public interest so requires.
xxx
SECTION 6. This franchise is granted subject to such conditions,
consistent with the provisions of this Decree, as may be imposed
by the Toll Regulatory Board in the Toll Operation Agreement and
such other modifications or amendments that may be made
thereto, and with the understanding and upon the condition that it
shall be subject to amendment or alteration when public interest
so dictates.
Section 6 of P.D. 1894 specifically mentions the Toll Operation
Agreement. The STOA was one such modification or amendment
of the franchise of PNCC. So was the ASTOA, which further
modified the franchise. PNCC cannot be said to have breached
its franchise when it transferred the toll operations to SOMCO.
PNCC remained the franchise holder for the construction,
operation, and maintenance of the project roads; it only opted to
partner with investors in the exercise of its franchise leading to
the organization of companies such as PSC and SOMCO.
Again, considering that PNCC was granted the right, privilege,
and authority to construct, operate, and maintain the North Luzon,
South Luzon, and Metro Manila Expressways and their toll
facilities, we have not heard petitioners decrying the "breach" by
PNCC of its franchise when it agreed to make CMMTC
responsible for the design and construction of the project roads
under the STOA.
IV
The TOC issued to SOMCO was not irregular.
Petitioners argue that the conditions provided under Section 3(e)
of P.D. 1112104 were not imposed on SOMCO, because these do
not appear on the face of the TOC. Petitioners are mistaken.
The TOC, as a grant of authority from the government, is subject
to the latter's control insofar as the grant affects or concerns the
public.105 Like all other franchises or licenses issued by the
government, the TOC is issued subject to terms, conditions, and
limitations under existing laws and agreements. This rule
especially holds true in this instance since the TRB has the power
to issue "the necessary 'Toll Operation Certificate' subject to such
conditions as shall be imposed by the Board including inter alia"
those specified under Section 3(e) of P.D. 1112. Thus, impliedly
written into every TOC are the conditions prescribed therein.
In any case, part of the TOC issued to SOMCO reads:
Pursuant to Section 3(e) of Presidential Decree No. 1112 or the
Toll Operation Decree, Skyway O & M Corporation is hereby
given authority to operate and maintain Stage 1 of the South
Metro Manila Skyway effective as of 10:00 p.m. of 31 December
2007.
This authorization is issued upon the clear understanding that the
operation and maintenance of Stage 1 of the South Metro Manila
Skyway as a toll facility and the collection of toll fees shall be
closely supervised and regulated by the Grantor, by and through
the Board of Directors, in accordance with the terms and
conditions set forth in the STOA, as amended, the rules and
regulations duly promulgated by the Grantor for toll road
operations and maintenance, as well as the lawful orders,
instructions and conditions which the Grantor, through the TRB,
may impose from time to time in view of the public nature of the
facility.
As regards the allegation that none of the requirements for public
bidding was observed before the TOC was issued to SOMCO,
this matter was also squarely answered by the Court in
Francisco, Jr. v. TRB,106 to wit:
Where, in the instant case, a franchisee undertakes the tollway
projects of construction, rehabilitation and expansion of the
tollways under its franchise, there is no need for a public bidding.
In pursuing the projects with the vast resource requirements, the
franchisee can partner with other investors, which it may choose
in the exercise of its management prerogatives. In this case, no
public bidding is required upon the franchisee in choosing its
partners as such process was done in the exercise of
management prerogatives and in pursuit of its right of delectus
personae. Thus, the subject tollway projects were undertaken by
companies, which are the product of the joint ventures between
PNCC and its chosen partners.107
Under the STOA in this case, PNCC partnered with CMMTC in
Stages 1 and 2 of the South Metro Manila Skyway. The STOA
gave birth to PSC, which was put in charge of the operation and
maintenance of the project roads. The ASTOA had to be
executed for Stage 2 to accommodate changes and modifications
in the original design. The ASTOA then brought forth the
incorporation of SOMCO to replace PSC in the operations and
maintenance of Stage 1 of the South Metro Manila Skyway.
Clearly, no public bidding was necessary because PNCC, the
franchisee, merely exercised its management prerogative when it
decided to undertake the construction, operation, and
maintenance of the project roads through companies which are
products of joint ventures with chosen partners.
Petitioners also insist that SOMCO is not qualified to operate a
toll facility, because it does not meet the nationality requirement
for a corporation when scrutinized under the "grandfather rule."
Other than advancing this argument, however, petitioners have
not shown how SOMCO fails to meet the nationality requirement
for a public utility operator. Petitioners only aver in their petition
that 40% of SOMCO is owned by CMMTC, a foreign company,
while the rest is owned by the following: a) Toll Road Operation
and Maintenance Venture Corporation (TROMVC), almost 40% of
which is owned by a Singaporean company; b) Asset values
Holding Company, Inc. (AHCI), of which almost 40% is Dutch-
owned; and c) Metro Strategic Infrastructure Holdings, Inc.
(MSIHI), 40% of which is owned by Metro Pacific Corporation,
whose ownership or nationality was not specified.108
Section 11, Article XII of the Constitution provides that "[n]o
franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of
the Philippines or to corporations or associations organized under
the laws of the Philippines at least sixty per centum of whose
capital is owned by such citizens x x x." Clearly, under the
Constitution, a corporation at least 60% of whose capital is owned
by Filipinos is of Philippine nationality. Considering this
constitutional provision, petitioners' silence on the ownership of
the remaining 60% of the corporations cited is very telling.
In order to rebut petitioners' allegations, respondents readily
present matrices showing the itemization of percentage
ownerships of the subscribed capital stock of SOMCO, as well as
that of TROMVC, AHCI, and MSIHI. Respondents attempt to
show that all these corporations are of Philippine nationality, with
60% of their capital stock owned by Filipino citizens. We need not
reproduce the itemization here. Suffice it to say that in their
Consolidated Reply,109petitioners did not refute the unanimous
claim of respondents. It is axiomatic that one who alleges a fact
has the burden of proving it. On this matter, we find that
petitioners have failed to prove their allegation that SOMCO is not
qualified to operate a toll facility for failure to meet the nationality
requirement under the Constitution.
Finally, no public notices and hearings were necessary prior to
the issuance of the TOC to SOMCO. For the same reason that a
public bidding is not necessary, PNCC cannot be required to call
for public hearings concerning matters within its prerogative. At
any rate, we have studied P.D. 1112 and the Implementing Rules
and Regulations Authorizing the Establishment of Toll Facilities
and found no provision requiring the issuance of public notices
and the conduct of public hearings prior to the issuance of a TOC.
V executive policy, they may be granted departmental autonomy as
Approval of the AS TOA by the DOTC Secretary was approval by
the President.
The doctrine of qualified political agency declares that, save in
matters on which the Constitution or the circumstances require
the President to act personally, executive and administrative
functions are exercised through executive departments headed
by cabinet secretaries, whose acts are presumptively the acts of
the President unless disapproved by the latter.110 As explained in
Villena v. Executive Secretary,111 this doctrine is rooted in the
Constitution:
x x x With reference to the Executive Department of the
government, there is one purpose which is crystal-clear and is
readily visible without the projection of judicial searchlight, and
that is, the establishment of a single, not plural, Executive. The
first section of Article VII of the Constitution, dealing with the
Executive Department, begins with the enunciation of the
principle that "The executive power shall be vested in a President
of the Philippines." This means that the President of the
Philippines is the Executive of the Government of the Philippines,
and no other. The heads of the executive departments occupy
political positions and hold office in an advisory capacity, and, in
the language of Thomas Jefferson, "should be of the President's
bosom confidence," and, in the language of Attorney-General
Cushing, "are subject to the direction of the President." Without
minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of
that of the President. Stated otherwise, and as forcibly
characterized by Chief Justice Taft of the Supreme Court of the
United States, "each head of a department is, and must be, the
President's alter ego in the matters of that department where the
President is required by law to exercise authority." Secretaries of
departments, of course, exercise certain powers under the law
but the law cannot impair or in any way affect the constitutional
power of control and direction of the President. As a matter of
to certain matters but this is by mere concession of the executive,
in the absence of valid legislation in the particular field. If the
President, then, is the authority in the Executive Department, he
assumes the corresponding responsibility. The head of a
department is a man of his confidence; he controls and directs his
acts; he appoints him and can remove him at pleasure; he is the
executive, not any of his secretaries.112 x x x (Citations omitted)
Applying the doctrine of qualified political agency, we have ruled
that the Secretary of Environment and Natural Resources can
validly order the transfer of a regional office by virtue of the power
of the President to reorganize the national government.113 In
Constantino v. Cuisia,114 the Court upheld the authority of the
Secretary of Finance to execute debt-relief contracts. The
authority emanates from the power of the President to contract
foreign loans under Section 20, Article VII of the Constitution. In
Angeles v. Gaite,115 the Court ruled that there can be no issue with
regard to the President's act of limiting his power to review
decisions and orders of the Secretary of Justice, especially since
the decision or order was issued by the secretary, the President's
"own alter ego."116
There can be no question that the act of the secretary is the act of
the President, unless repudiated by the latter. In this case,
approval of the ASTOA by the DOTC Secretary had the same
effect as approval by the President. The same would be true even
without the issuance of E.O. 497, in which the President, on 24
January 2006, specifically delegated to the DOTC Secretary the
authority to approve contracts entered into by the TRB.
Petitioners are unimpressed. They cite Section 8 of P.D. 1113
and Section 13 of P.D. 1894 as follows:
SECTION 8. The GRANTEE shall not lease, transfer, grant the
usufruct of, sell or assign this franchise nor the rights or privileges
acquired hereby, to any person, firm, company, corporation or
other commercial or legal entity, nor merge with any other
company or corporation without the prior approval of the
President of the Philippines. In the event that this franchise is
sold, transferred or assigned, the transferee shall be subject to all
the conditions, terms, restrictions and limitations of this Decree as
fully and completely and to the same extents as if the franchise
has been granted to the same person, firm, company, corporation
or other commercial or legal entity. (Emphasis supplied)
SECTION 13. The GRANTEE shall not lease, transfer, grant the
usufruct of, sell or assign this franchise nor the rights or privileges
required hereby, to any person, firm, company, corporation or
other legal entity, nor merge with any other company or
corporation without the prior approval of the President of the
Philippines. In the event that this franchise is sold, transferred or
assigned, the transferee shall be subject to all the conditions,
terms, restrictions and limitations of this Decree as fully and
completely and to the same extent as if the franchise has been
granted to the said person, firm, company, corporation or other
legal entity. (Emphasis supplied) Petitioners insist that based on
the above provisions, it is the President who should give personal
approval considering that the power to grant franchises was
exclusively vested in Congress. Hence, to allow the DOTC
Secretary to exercise the power of approval would supposedly
dilute that legislative prerogative.
The argument of petitioners is founded on the assumption that
PNCC in some way leased, transferred, granted the usufruct of,
sold, or assigned to SOMCO its franchise or the rights or
privileges PNCC had acquired by it. Here lies the error in
petitioners' stand. First, as discussed above, the power to grant
franchises or issue authorizations for the operation of a public
utility is not exclusively exercised by Congress. Second, except
where the situation falls within that special class that demands
the exclusive and personal exercise by the President of
constitutionally vested power,117 the President acts through alter
egos whose acts are as if the Chief Executive's own.
Third, no lease, transfer, grant of usufruct, sale, or assignment of
franchise by PNCC or its merger with another company ever took
place.
The creation of the TRB and the grant of franchise to PNCC were
made in the light of the recognition on the part of the government
that the private sector had to be involved as an alternative source
of financing for the pursuance of national infrastructure projects.
As the franchise holder for the construction, maintenance and
operation of infrastructure toll facilities, PNCC was equipped with
the right and privilege, but not necessarily the means, to
undertake the project. This is where joint ventures with private
investors become necessary.
A joint venture is an association of companies jointly undertaking
a commercial endeavor, with all of them contributing assets and
sharing risks, profits, and losses.118 It is hardly distinguishable
from a partnership considering that their elements are similar and,
thus, generally governed by the law on partnership.119
In joint ventures with investor companies, PNCC contributes the
franchise it possesses, while the partner contributes the financing
- both necessary for the construction, maintenance, and operation
of the toll facilities. PNCC did not thereby lease, transfer, grant
the usufruct of, sell, or assign its franchise or other rights or
privileges. This remains true even though the partnership
acquires a distinct and separate personality from that of the joint
venturers or leads to the formation of a new company that is the
product of such joint venture, such as PSC and SOMCO in this
case.
Hence, when we say that the approval by the DOTC Secretary in
this case was approval by the President, it was not in connection
with the franchise of PNCC, as required under Section 8 of P.D.
1113 and Section 13 of P.D. 1894. Rather, the approval was in
connection with the powers of the TRB to enter into contracts on
behalf of the government as provided under Section 3(a) of P.D.
1112, which states:
SECTION 3. Powers and Duties of the Board. - The Board shall
have in addition to its general powers of administration the
following powers and duties:
(a) Subject to the approval of the President of the Philippines, to
enter into contracts in behalf of the Republic of the Philippines
with persons, natural or juridical, for the construction, operation
and maintenance of toll facilities such as but not limited to
national highways, roads, bridges, and public thoroughfares. Said
contract shall be open to citizens of the Philippines and/or to
corporations or associations qualified under the Constitution and
authorized by law to engage in toll operations; (Emphasis
supplied)
VI
Petitioners have not shown that the transfer of toll operations to
SOM CO was grossly disadvantageous to the government.
In support of their contention that the transfer of toll operations
from PSC to SOMCO was grossly disadvantageous to the
government, petitioners belittle the initial capital investment,
private ownership, and track record of SOMCO.
When one uses the term "grossly disadvantageous to the
government," the allegations in support thereof must reflect the
meaning accorded to the phrase. "Gross" means glaring,
reprehensible, culpable, flagrant, and shocking.120 It requires that
the mere allegation shows that the disadvantage on the part of
the government is unmistakable, obvious, and certain.
In this case, we find that the allegations of petitioners are nothing
more than speculations, apprehensions, and suppositions. They1wphi1
speculate that with its "measly" capital investment, SOMCO
would not be able to cover the overhead expenses for personal
services alone. They fear that the revenue from toll operations
would go to "private pockets" in exchange for a small settlement
amount to be given to PSC. Given that SOMCO has no proven
track record, petitioners deduce that its assumption of the toll
operations would lead to poor delivery of toll services to the
public.
The aim in the establishment of toll facilities is to draw from
private resources the financing of government infrastructure
projects. Naturally, these private investors would want to receive
reasonable return on their investments. Thus, the collection of toll
fees for the use of public improvements has been authorized,
subject to supervision and regulation by the national
government.121 As regards the P320 million settlement given to
PSC, the amount was to be used principally for the payment of its
liabilities of PSC arising from the retrenchment of its employees.
We note that under the MOA, the residual assets of PSC shall still
be offered for sale to CMMTC, subject to valuation.122 Thus, it
would be inaccurate to say that PSC would receive only P320
million for the entire arrangement.
It is quite understandable that SOMCO does not yet have a
proven track record in toll operations, considering that it was only
the ASTOA and the MOA that gave birth to it. We are not
prepared to rule that this lack of track record would result in poor
delivery of toll services, especially because most of the former
employees of PSC have been rehired by SOMCO, an allegation
of respondents that was never refuted by petitioners. Neither are
we prepared to take the amount of SOMCO's initial capital
investment against it, as it is considerably higher than P500,000,
the authorized capital stock of PSC as of 2002.123
A FINAL NOTE
R.A. 8975 prohibits lower courts from issuing any temporary
restraining order, preliminary injunction, or preliminary mandatory
injunction against the government - or any of its subdivisions,
officials or any person or entity, whether public or private, acting
under the government's direction - to restrain, prohibit or compel
acts related to the implementation and completion of government
infrastructure projects.
The rationale for the law is easily discernible. Injunctions and
restraining orders tend to derail the expeditious and efficient
implementation and completion of government infrastructure
projects; increase construction, maintenance and repair costs;
and delay the enjoyment of the social and economic benefits
therefrom. Thus, unless the matter is of extreme urgency
involving a constitutional issue, judges of lower courts who shall
issue injunctive writs or restraining orders in violation of the law
shall be administratively liable.
The law is clear that what is prohibited is merely the issuance of
provisional orders enjoining the implementation of a national
government project. R.A. 8975 does not bar lower courts from
assuming jurisdiction over complaints that seek the nullification or
implementation of a national government infrastructure project as
ultimate relief.124
There is no question that the ultimate prayer in the instant case is
the nullification of a national government project considering that
the ASTOA involved the design and construction of Stage 2 of the
South Metro Manila Skyway, as well as the operation and
maintenance of Stage 1 thereof. The prayer is grounded on the
contract's alleged unconstitutionality, violation of the law, and
gross disadvantage to the government. Such principal action and
relief were within the jurisdiction of the RTC, which acted correctly
when it ordered respondents to file their respective answers to
the complaint, even while it denied the prayer for the issuance of
a writ of preliminary injunction and/or temporary restraining order
in observance of R.A. 8975.
It was therefore error on the part of petitioners to come directly
before this Court for the sole reason that the lower courts will not
be able to grant the prayer for the issuance of a writ of preliminary
injunction and/or temporary restraining order to enjoin the
assumption of toll operations by SOMCO. The error even takes
on a whole new meaning, because SOMCO assumed
responsibility for the operations and maintenance of the South
Metro Manila Skyway at 10:00 p.m. on 31 December 2007. On
the other hand, the complaint before the RTC seeking to enjoin
the assumption by SOMCO was filed only on 3 January 2008,
while the instant petition was filed on 4 February 2008.
As we held in Aznar Brothers Realty, Inc. v. CA,125 injunction does
not lie when the act sought to be enjoined has already become a
fait accompli or an accomplished or consummated act.
Parties must observe the hierarchy of courts before seeking relief
from this Court. Observance thereof minimizes the imposition on
the already limited time of this Court and prevents delay, intended
or otherwise, in the adjudication of cases.126 We do not appreciate
the litigants' practice of directly seeking recourse before this
Court, relying on the gravitas of a personality yet making serious
claims without the proof to support them.
WHEREFORE, the petition is DISMISSED. The prayer for the
issuance of a writ of preliminary injunction and/or temporary
restraining order is DENIED.
SO ORDERED.