EN BANC SECTION 1. Section 2 of Republic Act No.
7720 is hereby
[G.R. No. 133064. September 16, 1999]
JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H.
AFIADO, MARIANO V. BABARAN and ANDRES R.
CABUYADAO, petitioners, vs. HON. ALEXANDER
AGUIRRE, In his capacity as Executive Secretary;
HON. EPIMACO VELASCO, in his capacity as
Secretary of Local Government, HON. SALVADOR
ENRIQUEZ, in his capacity as Secretary of Budget,
THE COMMISSION ON AUDIT THE
COMMISSION ON ELECTIONS HON. BENJAMIN
G. DY, in his capacity as Governor of Isabela, THE
HONORABLE SANGGUNIANG PANLALAWIGAN
OF ISABELA, ATTY. BALTAZAR PICIO, in his
capacity as Provincial Administrator, and MR.
ANTONIO CHUA, in his capacity as Provincial
Treasurer, respondents,
GIORGIDI B. AGGABAO, intervenor.
DECISION
PUNO, J.:
This is a petition for a writ of prohibition with prayer for preliminary
injunction assailing the constitutionality of Republic Act No. 8528
converting the city of Santiago, Isabela from an independent component
city to a component city.
On May 5, 1994, Republic Act No. 7720 which converted the
municipality of Santiago, Isabela into an independent component city was
signed into law. On July 4, 1994, the people of Santiago ratified R.A. No.
7720 in a plebiscite.1
On February 14, 1998, Republic Act No. 8528 was enacted. It
amended R.A. No. 7720. Among others, it changed the status of Santiago
from an independent component city to a component city,viz:
AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT
NUMBERED 7720 AN ACT CONVERTING THE MUNICIPALITY OF
SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN
AS THE CITY OF SANTIAGO.
Be it enacted by the Senate and House of Representatives of the Philippines
in Congress assembled:
amended by deleting the words an independent thereon so that said
Section will read as follows:
SEC. 2. The City of Santiago. The Municipality of Santiago shall
be converted into a component city to be known as the City of Santiago,
hereinafter referred to as the City, which shall comprise of the present
territory of the Municipality of Santiago, Isabela. The territorial
jurisdiction of the City shall be within the present metes and bounds of
the Municipality of Santiago.
Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting the
entire section and in its stead substitute the following:
SEC. 51. Election of Provincial Governor, Vice-Governor,
Sangguniang Panlalawigan Members, and any Elective Provincial
Position for the Province of Isabela.- The voters of the City of Santiago
shall be qualified to vote in the elections of the Provincial Governor,
Vice-Governor, Sangguniang Panlalawigan members and other elective
provincial positions of the Province of Isabela, and any such qualified
voter can be a candidate for such provincial positions and any elective
provincial office.
Sec. 3. Repealing Clause.- All existing laws or parts thereof inconsistent with
the provisions of this Act are hereby repealed or modified accordingly.
Sec. 4. Effectivity.- This Act shall take effect upon its approval.
Approved.
Petitioners assail the constitutionality of R.A. No. 8528.2 They alleged
as ground the lack of provision in R.A. No. 8528 submitting the law for
ratification by the people of Santiago City in a proper plebiscite. Petitioner
Miranda was the mayor of Santiago at the time of the filing of the petition
at bar. Petitioner Afiado is the President of the Liga ng mga Barangay ng
Santiago City.Petitioners Dirige, Cabuyadao and Babaran are residents of
Santiago City.
In their Comment, respondent provincial officials of Isabela defended
the constitutionality of R.A. No. 8528. They assailed the standing of
petitioners to file the petition at bar. They also contend that the petition
raises a political question over which this Court lacks jurisdiction.
Another Comment was filed by the Solicitor General for the
respondent public officials. The Solicitor General also contends that
petitioners are not real parties in interest. More importantly, it is contended
that R.A. No. 8528 merely reclassified Santiago City from an independent
component city to a component city. It allegedly did not involve any
creation, division, merger, abolition, or substantial alteration of boundaries
of local government units, hence, a plebiscite of the people of Santiago is
unnecessary.
A third Comment similar in tone was submitted by intervenor Giorgidi
B. Aggabao,3 a member of the provincial board of Isabela.4 He contended
that both the Constitution and the Local Government Code of 1991 do not
require a plebiscite to approve a law that merely allowed qualified voters of
a city to vote in provincial elections. The rules implementing the Local
Government Code cannot require a plebiscite. He also urged that
petitioners lacked locus standi.
Petitioners filed a Reply to meet the arguments of the respondents and
the intervenor. They defended their standing. They also stressed the
changes that would visit the city of Santiago as a result of its
reclassification.
We find merit in the petition.
First. The challenge to the locus standi of petitioners cannot
succeed. It is now an ancient rule that the constitutionality of law can be
challenged by one who will sustain a direct injury as a result of its
enforcement.5 Petitioner Miranda was the mayor of Santiago City when he
filed the present petition in his own right as mayor and not on behalf of the
city, hence, he did not need the consent of the city council of Santiago
City. It is also indubitable that the change of status of the city of Santiago
from independent component city to a mere component city will affect his
powers as mayor, as will be shown hereafter. The injury that he would
sustain from the enforcement of R.A. No. 8528 is direct and immediate and
not a mere generalized grievance shared with the people of Santiago
City.Similarly, the standing of the other petitioners rests on a firm
foundation. They are residents and voters in the city of Santiago. They have
the right to be heard in the conversion of their city thru a plebiscite to be
conducted by the COMELEC. The denial of this right in R.A. No. 8528
gives them proper standing to strike the law as unconstitutional.
Second. The plea that this court back off from assuming jurisdiction
over the petition at bar on the ground that it involves a political question
has to be brushed aside. This plea has long lost its appeal especially in light
of Section 1 of Article VIII of the 1987 Constitution which defines 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. To be sure, the cut between a
political and justiciable issue has been made by this Court in many cases
and need no longer mystify us. In Taada v. Cuenco,6 we held:
xxx
The term political question connotes what it means in ordinary parlance,
namely, a question of policy. It refers to those questions which under the
Constitution are to be decided by the people in their sovereign capacity; or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon
the wisdom, not legality, of a particular measure.
In Casibang v. Aquino,7 we defined a justiciable issue as follows:
A purely justiciable issue implies a given right, legally demandable and
enforceable, an act or omission violative of such right, and a remedy granted and
sanctioned by law, for said breach of right.
Clearly, the petition at bar presents a justiciable issue. Petitioners claim that
under Section 10, Article X of the 1987 Constitution they have a right to
approve or disapprove R.A. No. 8528 in a plebiscite before it can be
enforced. It ought to be self-evident that whether or not petitioners have the
said right is a legal not a political question. For whether or not laws passed
by Congress comply with the requirements of the Constitution pose
questions that this Court alone can decide. The proposition that this Court
is the ultimate arbiter of the meaning and nuances of the Constitution need
not be the subject of a prolix explanation.
Third. The threshold issue is whether R.A. No. 8528 is
unconstitutional for its failure to provide that the conversion of the city of
Santiago from an independent component city to a component city should
be submitted to its people in a proper plebiscite. We hold that the
Constitution requires a plebiscite. Section 10, Article X of the 1987
Constitution provides:
No province, city, municipality, or barangay may be created, or divided,
merged, abolished, or its boundary substantially altered except in accordance with
the criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly affected.
This constitutional requirement is reiterated in Section 10, Chapter 2 of
the Local Government Code (R.A. No. 7160), thus:
Sec. 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered except in
accordance with the criteria established in the local government code and subject
to approval by a majority of the votes cast in a plebiscite in the political units
directly affected.
The power to create, divide, merge, abolish or substantially alter
boundaries of local government units belongs to Congress.8 This power is
part of the larger power to enact laws which the Constitution vested in
Congress.9 The exercise of the power must be in accord with the mandate
of the Constitution. In the case at bar, the issue is whether the downgrading
of Santiago City from an independent component city to a mere component
city requires the approval of the people of Santiago City in a plebiscite. The
resolution of the issue depends on whether or not the downgrading falls
within the meaning of creation, division, merger, abolition or substantial
alteration of boundaries of municipalities per Section 10, Article X of the
Constitution. A close analysis of the said constitutional provision will
reveal that the creation, division, merger, abolition or substantial alteration
of boundaries of local government units involve a common denominator -
- - material change in the political and economic rights of the local
government units directly affected as well as the people therein. It is
precisely for this reason that the Constitution requires the approval of the
people in the political units directly affected. It is not difficult to appreciate
the rationale of this constitutional requirement. The 1987 Constitution,
more than any of our previous Constitutions, gave more reality to the
sovereignty of our people for it was borne out of the people power in the
1986 EDSA revolution. Its Section 10, Article X addressed the undesirable
practice in the past whereby local government units were created,
abolished, merged or divided on the basis of the vagaries of politics and not
of the welfare of the people. Thus, the consent of the people of the local
government unit directly affected was required to serve as a checking
mechanism to any exercise of legislative power creating, dividing,
abolishing, merging or altering the boundaries of local government units. It
is one instance where the people in their sovereign capacity decide on a
matter that affects them - - - direct democracy of the people as opposed to
democracy thru peoples representatives. This plebiscite requirement is also
in accord with the philosophy of the Constitution granting more autonomy
to local government units.
The changes that will result from the downgrading of the city of
Santiago from an independent component city to a component city are
many and cannot be characterized as insubstantial. For one, the
independence of the city as a political unit will be diminished. The city
mayor will be placed under the administrative supervision of the provincial
governor. The resolutions and ordinances of the city council of Santiago
will have to be reviewed by the Provincial Board of Isabela. Taxes that will
be collected by the city will now have to be shared with the
province. Petitioners pointed out these far reaching changes on the life of
the people of the city of Santiago, viz:10
Although RESPONDENTS would like to make it appear that R.A. No. 8528
had merely re-classified Santiago City from an independent component city into
a component city, the effect when challenged (sic) the Act were operational would
be, actually, that of conversion. Consequently, there would be substantial
changes in the political culture and administrative responsibilities of Santiago
City, and the Province of Isabela.Santiago City from an independent component
city will revert to the Province of Isabela, geographically, politically and
administratively. Thus, the territorial land area of Santiago City will be added to
the land area comprising the province of Isabela. This will be to the benefit or
advantage of the Provincial Government of Isabela on account of the subsequent
increase of its share from the internal revenue allotment (IRA) from the National
Government (Section 285, R.A. No. 7160 or the Local Government Code of
1991). The IRA is based on land area and population of local government units,
provinces included.
The nature or kinds, and magnitude of the taxes collected by the City
Government, and which taxes shall accrue solely to the City Government, will be
redefined (Section 151, R.A. No. 7160), and may be shared with the province
such as taxes on sand, gravel and other quarry resources (Section 138, R.A. No.
7160), professional taxes (Section 139, R.A. No. 7160), or amusement taxes
(Section 140, R.A. No. 7160). The Provincial Government will allocate operating
funds for the City. Inarguably, there would be a (sic) diminished funds for the
local operations of the City Government because of reduced shares of the IRA in
accordance with the schedule set forth by Section 285 of the R.A. No. 7160. The
City Governments share in the proceeds in the development and utilization of
national wealth shall be diluted since certain portions shall accrue to the
Provincial Government (Section 292, R.A. No.7160).
The registered voters of Santiago City will vote for and can be voted as
provincial officials (Section 451 and 452 [c], R.A. No. 7160).
The City Mayor will now be under the administrative supervision of the
Provincial Governor who is tasked by law to ensure that every component city and
municipality within the territorial jurisdiction of the province acts within the scope
of its prescribed powers and functions (Section 29 and 465 (b) (2) (i), R.A. No.
7160), and to review (Section 30, R.A. No. 7160) all executive orders submitted
by the former (Section 455 (b) (1) (xii), R.A. No. 7160) and (R)eportorial
requirements with respect to the local governance and state of affairs of the city
(Section 455 (b) (1) (xx), R.A. No. 7160). Elective city officials will also be
effectively under the control of the Provincial Governor (Section 63, R.A. No.
7160). Such will be the great change in the state of the political autonomy of what
is now Santiago City where by virtue of R.A. No. 7720, it is the Office of the
President which has supervisory authority over it as an independent component
city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987 Constitution).
The resolutions and ordinances adopted and approved by the Sangguniang
Panlungsod will be subject to the review of the Sangguniang Panlalawigan
(Sections 56, 468 (a) (1) (i), 468 (a) (2) (vii), and 469 (c) (4), R.A. No.
7160). Likewise, the decisions in administrative cases by the former could be
appealed and acted upon by the latter (Section 67, R.A. No. 7160).
It is markworthy that when R.A. No. 7720 upgraded the status of Santiago
City from a municipality to an independent component city, it required the
approval of its people thru a plebiscite called for the purpose. There is
neither rhyme nor reason why this plebiscite should not be called to
determine the will of the people of Santiago City when R.A. No.
8528 downgrades the status of their city.Indeed, there is more reason to
consult the people when a law substantially diminishes their right. Rule II,
Article 6, paragraph (f) (1) of the Implementing Rules and Regulations of
the Local Government Code is in accord with the Constitution when it
provides that:
 (f) Plebiscite - (1) no creation, conversion, division, merger, abolition, or
substantial alteration of boundaries of LGUS shall take effect unless approved by
a majority of the votes cast in a plebiscite called for the purpose in the LGU or
LGUs affected. The plebiscite shall be conducted by the Commission on Elections
(COMELEC) within one hundred twenty (120) days from the effectivity of the
law or ordinance prescribing such action, unless said law or ordinance fixes
another date.
x x x.
The rules cover all conversions, whether upward or downward in
character, so long as they result in a material change in the local
government unit directly affected, especially a change in the political and
economic rights of its people.
A word on the dissenting opinions of our esteemed brethren. Mr.
Justice Buena justifies R.A. No. 8528 on the ground that Congress has the
power to amend the charter of Santiago City. This power of amendment,
however, is limited by Section 10, Article X of the Constitution. Quite
clearly, when an amendment of a law involves the creation, merger,
division, abolition or substantial alteration of boundaries of local
government units, a plebiscite in the political units directly affected is
mandatory. He also contends that the amendment merely caused
a transition in the status of Santiago as a city. Allegedly, it is a transition
because no new city was created nor was a former city dissolved by R.A.
No. 8528. As discussed above, the spirit of Section 10, Article X of the
Constitution calls for the people of the local government unit directly
affected to vote in a plebiscite whenever there is a material change in their
rights and responsibilities. They may call the downgrading of Santiago to a
component city as a mere transition but they cannot blink away from the
fact that the transition will radically change its physical and political
configuration as well as the rights and responsibilities of its people.
On the other hand, our esteemed colleague, Mr. Justice Mendoza,
posits the theory that "only if the classification involves changes in income,
population, and land area of the local government unitis there a need for
such changes to be approved by the people x x x."
With due respect, such an interpretation runs against the letter and
spirit of section 10, Article X of the 1987 Constitution which, to repeat,
states: "No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered except in
accordance with the criteria established in the Local Government Code and
subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected." It is clear that the Constitution
imposes two conditions - - - first, the creation, division, merger, abolition
or substantial alteration of boundary of a local government unit must meet
the criteria fixed by the Local Government Code on income, population
and land area and second, the law must be approved by the people "by a
majority of the votes cast in a plebiscite in the political units directly
affected."
In accord with the Constitution, sections 7, 8, and 9 of the Local
Government Code fixed the said criteria and they involve requirements on
income, population and land area. These requirements, however, are
imposed to help assure the economic viability of the local government
unit concerned. They were not imposed to determine the necessity for a
plebiscite of the people. Indeed, the Local Government Code does not
state that there will be no more plebiscite after its requirements on income,
population and land area have been satisfied. On the contrary, section 10,
Chapter 2 of the Code provides: "No creation, division, merger, abolition,
or substantial alteration of boundaries of local government units shall take
effect unless approved by a majority of the votes casts in a plebiscite called
for the purpose in the political unit or units directly affected. Said plebiscite
shall be conducted by the COMELEC within one hundred twenty (120)
days from the date of the effectivity of the law or ordinance effecting such
action, unless said law or ordinance fixes another date."11 Senator
Aquilino Pimentel, the principal author of the Local Government Code
of 1991, opines that the plebiscite is absolute and mandatory.12
It cannot be overstressed that the said two requirements of the
Constitution have different purposes. The criteria fixed by the Local
Government Code on income, population and land area are designed to
achieve an economic purpose. They are to be based on verified indicators,
hence, section 7, Chapter 2 of the Local Government Code requires that
these "indicators shall be attested by the Department of Finance, the
National Statistics Office, and the Lands Management Bureau of the
Department of Environment and Natural Resources." In contrast, the
people's plebiscite is required to achieve a political purpose --- to use the
people's voice as a check against the pernicious political practice of
gerrymandering. There is no better check against this excess committed by
the political representatives of the people themselves than the exercise of
direct people power. As well-observed by one commentator, as the
creation, division, merger, abolition, or substantial alteration of boundaries
are "xxx basic to local government, it is also imperative that these acts be
done not only by Congress but also be approved by the inhabitants of the
locality concerned. xxx By giving the inhabitants a hand in their approval,
the provision will also eliminate the old practice of gerrymandering and
minimize legislative action designed for the benefit of a few
politicians. Hence, it promotes the autonomy of local government units."13
 The records show that the downgrading of Santiago City was opposed
by certain segments of its people. In the debates in Congress, it was noted
that at the time R.A. No. 8528 was proposed, Santiago City has been
converted to an independent component city barely two and a half (2 1/2)
years ago and the conversion was approved by a majority of 14,000
votes. Some legislators expressed surprise for the sudden move to
downgrade the status of Santiago City as there had been no significant
change in its socio-economic-political status. The only reason given for the
downgrading is to enable the people of the city to aspire for the leadership
of the province. To say the least, the alleged reason is unconvincing for it is
the essence of an independent component city that its people can no longer
participate or be voted for in the election of officials of the province. The
people of Santiago City were aware that they gave up that privilege when
they voted to be independent from the province of Isabela. There was an
attempt on the part of the Committee on Local Government to submit the
downgrading of Santiago City to its people via a plebiscite. The
amendment to this effect was about to be voted upon when a recess was
called. After the recess, the chairman of the Committee anounced the
withdrawal of the amendment "after a very enlightening conversation with
the elders of the Body." We quote the debates, viz:14
"BILL ON SECOND READING
H.B. No. 8729 - City of Santiago
"Senator Tatad. Mr. President, I move that we consider House Bill No. 8729
as reported out under Committee Report No. 971.
"The President. Is there any objection? [Silence] there being none, the motion
is approved.
"Consideration of House Bill No. 8729 is now in order. With the permission
of the Body, the Secretary will read only the title of the bill without prejudice to
inserting in the Record the whole text thereof.
"The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled
AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720
ENTITLED "AN ACT CONVERTING THE MUNICIPALITY OF
SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE
KNOWN AS THE CITY OF SANTIAGO
_______________________________________________________
The following is the full text of H.B. No. 8729
Insert
_______________________________________________________
"Senator Tatad. Mr. President, for the sponsorship, I ask that the
distinguished Chairman of the Committee on Local Government be
recognized.
"The President. Senator Sotto is recognized.
SPONSORSHIP SPEECH OF SENATOR SOTTO
"Mr. President. House Bill No. 8729, which was introduced in the House by
Congressman Antonio M. Abaya as its principal author, is a simple
measure which merely seeks to convert the City of Santiago into a
component city of the Province of Isabela.
"The City of Santiago is geographically located within, and is physically an
integral part of the Province of Isabela. As an independent component
city, however, it is completely detached and separate from the said
province as a local political unit. To use the language of the Explanatory
Note of the proposed bill, the City of Santiago is an island in the
provincial milieu.
"The residents of the city no longer participate in the elections, nor are they
qualified to run for any elective positions in the Province of Isabela.
"The Province of Isabela, on the other hand, is no longer vested with the power
and authority of general supervision over the city and its officials, which
power and authority are now exercised by the Office of the President,
which is very far away from Santiago City.
Being geographically located within the Province of Isabela, the City of
Santiago is affected, one way or the other, by the happenings in the said
province, and is benefited by its progress and development. Hence, the
proposed bill to convert the City of Santiago into a component city of
Isabela.
"Mr. President, it is my pleasure, therefore, to present for consideration of this
august Body Committee Report No. 971 of the Committee on Local
Government , recommending approval, with our proposed committee
amendment, of House Bill No. 8729.
"Thank you, Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. Mr. President, I moved (sic) that we close the period of
interpellations.
"The President. Is there any objection? [Silence] There being none, the period
of interpellations is closed.
"Senator Tatad. I move that we now consider the committee amendments.
"Senator Roco. Mr. President.
"The President. What is the pleasure of Senator Roco?
"Senator Roco. Mr. President, may I ask for a reconsideration of the ruling on
the motion to close the period of interpellations just to be able to ask a
few questions?
"Senator Tatad. May I move for a reconsideration of my motion, Mr.
President.
"The President. Is there any objection to the reconsideration of the closing of
the period of interpellations? [Silence] There being none, the motion is
approved.
"Senator Roco is recognized.
"Senator Roco. Will the distinguished gentleman yield for some questions?
"Senator Sotto. Willingly, Mr. President.
"Senator Roco. Mr. President, together with the Chairman of the
Committee on Local Government, we were with the sponsors when
we approved this bill to make Santiago a City. That was about two
and a half years ago. At that time, I remember it was the cry of the
city that it be independent. Now we are deleting that word
independent.
"Mr. President, only because I was a co-author and a co-sponsor, for
the Record, I want some explanation on what happened between then
and now that has made us decide that the City of Santiago should
cease to be independent and should now become a component city.
"Senator Sotto. Mr. President, the officials of the province said during the
public hearing that they are no longer vested with the power and authority
of general supervision over the city. The power and authority is now
being exercised by the Office of the President and it is quite far from the
City of Santiago.
"In the public hearing, we also gathered that there is a clamor from some
sectors that they want to participate in the provincial elections.
"Senator Roco. Mr. President, I did not mean to delay this. I did want it on
record, however. I think there was a majority of 14,000 who approved the
charter, and maybe we owe it to those who voted for that charter some
degree of respect. But if there has been a change of political will, there
has been a change of political will, then so be it.
"Thank you, Mr. President.
"Senator Sotto. Mr. President, to be very frank about it, that was a very
important point raised by Senator Roco, and I will have to place it on the
Record of the Senate that the reason why we are proposing a committee
amendment is that, originally, there was an objection on the part of the
local officials and those who oppose it by incorporating a plebiscite in this
bill. That was the solution. Because there were some sectors in the City of
Santiago who were opposing the reclassification or reconversion of the
city into a component city.
"Senator Roco. All I wanted to say, Mr. President -- because the two of us had
special pictures (sic) in the city -- is that I thought it should be put on
record that we have supported originally the proposal to make it an
independent city. But now if it is their request, then, on the manifestation
of the Chairman, let it be so.
"Thank you.
"Senator Drilon. Mr. President.
"Senator Drilon. Will the gentleman yield for a few questions, Mr. President?
"Senator Sotto. Yes, Mr. President.
"Senator Drilon. Mr. President, further to the interpellation of our good
friend, the Senator from Bicol, on the matter of the opinion of the
citizens of Santiago City, there is a resolution passed by the
Sanggunian on January 30, 1997 opposing the conversion of Santiago
from an independent city.
"This opposition was placed on records during the committee
hearings. And that is the reason why, as mentioned by the good
sponsor, one of the amendments is that a plebiscite be conducted
before the law takes effect.
"The question I would like to raise-- and I would like to recall the
statement of our Minority Leader -- is that, at this time we should not
be passing it for a particular politician.
"In this particular case, it is obvious that this bill is being passed in order
that the additional territory be added to the election of the provincial
officials of the province of Isabela.
"Now, is this for the benefit of any particular politician, Mr. President.
"Senator Sotto. If it is, I am not aware of it, Mr. President.
"Senator Alvarez. Mr. President.
"The President. With the permission of the two gentlemen on the Floor,
Senator Alvarez is recognized.
"Senator Alvarez. As a born inbred citizen of this city, Mr. President, may I
share some information.
"Mr. President, if we open up the election of the city to the provincial
leadership, it will not be to the benefit of the provincial leadership,
because the provincial leadership will then campaign in a bigger territory.
"As a matter of fact, the ones who will benefit from this are the citizens of
Santiago who will now be enfranchised in the provincial electoral process,
and whose children will have the opportunity to grow into provincial
leadership. This is one of the prime reasons why this amendment is being
put forward.
"While it is true that there may have been a resolution by the city council,
those who signed the resolution were not the whole of the council. This
bill was sponsored by the congressman of that district who represents a
constituency, the voice of the district.
"I think, Mr. President, in considering which interest is paramount, whose
voice must be heard, and if we have to fathom the interest of the people,
the law which has been crafted here in accordance with the rules should
be given account, as we do give account to many of the legislations
coming from the House on local issues.
"Senator Drilon. Mr. President, the reason why I am raising this question
is that, as Senator Roco said, just two-and-a-half years ago we passed
a bill which indeed disenfranchized--if we want to use that phrase--
the citizens of the City of Santiago in the matter of the provincial
election. Two-and-a-half years after, we are changing the rule.
"In the original charter, the citizens of the City of Santiago participated in
a plebiscite in order to approve the conversion of the city into an
independent city. I believe that the only way to resolve this issue
raised by Senator Roco is again to subject this issue to another
plebiscite as part of the provision of this proposed bill and as will be
proposed by the Committee Chairman as an amendment.
"Thank you very much, Mr. President.
 "Senator Alvarez. Mr. President, the Constitution does not require that the
change from an independent to a component city be subjected to a
plebiscite.
Sections 10, 11, 12 of Article X of the 1987 Constitution provides as follows:
Sec. 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered, except
in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected.
This change from an independent city into a component city is none of those
enumerated. So the proposal coming from the House is in adherence to
this constitutional mandate which does not require a plebiscite.
Senator Sotto. Mr. President, the key word here is conversion. The word
conversion appears in that provision wherein we must call a
plebiscite. During the public hearing, the representative of Congressman
Abaya was insisting that this is not a conversion; this is merely a
reclassification. But it is clear in the bill.
We are amending a bill that converts, and we are converting it into a
component city. That is how the members of the committee felt. That
is why we have proposed an amendment to this, and this is to
incorporate a plebiscite in as much as there is no provision on
incorporating a plebiscite. Because we would like not only to give the
other people of Santiago a chance or be enfranchised as far as the
leadership of the province is concerned, but also we will give a chance
to those who are opposing it. To them, this is the best
compromise. Let the people decide, instead of the political leaders of
Isabela deciding for them.
"Senator Tatad. Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. At this point, Mr. President, I think we can move to close the
period of interpellations.
"The President. Is there any objection? [Silence] There being none, the
motion is approved.
"Senator Tatad. I move that we now consider the committee amendments,
Mr. President.
"The President. Is there any objection? Silence] There being none, the motion
is approved.
"Senator Sotto. On page 2, after line 13, insert a new Section 3, as follows:
"SEC. 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY
AMENDED BY DELETING THE ENTIRE SECTION AND IN ITS STEAD
SUBSTITUTE THE FOLLOWING:
"SEC. 49. PLEBISCITE. - THE CONVERSION OF THE CITY OF
SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF ISABELA
SHALL TAKE EFFECT UPON THE RATIFICATION OF THIS ACT BY A
MAJORITY OF THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH
SHALL BE HELD FOR THE PURPOSE WITHIN SIXTY (60) DAYS FROM
THE APPROVAL OF THIS ACT. THE COMMISSION ON ELECTIONS
SHALL CONDUCT AND SUPERVISE SUCH PLEBISCITE.
"The President. Is there any objection?
"Senator Enrile. Mr. President.
"The President. Senator Enrile is recognized.
"Senator Enrile. I object to this committee amendment, Mr. President.
"SUSPENSION OF SESSION
"Senator Tatad. May I ask for a one-minute suspension of the session.
"The President. The session is suspended for a few minutes if there is no
objection. [There was none]
"It was 7:54 p.m.
"RESUMPTION OF SESSION
"At 7:57 p.m., the session was resumed.
"The President. The session is resumed.
"Senator Sotto is recognized.
"Senator Sotto. Mr. President, after a very enlightening conversation with the
elders of the Body, I withdraw my amendment.
"The President. The amendment is withdrawn.
"Senator Maceda. Mr. President.
"The President. Senator Maceda is recognized.
"Senator Maceda. We wish to thank the sponsor for the withdrawal of the
amendment.
"Mr. President, with due respect to the Senator from Isabela -- I am no
great fan of the Senator from Isabela -- but it so happens that this is a
local bill affecting not only his province but his own city where he is a
resident and registered voter.
"So, unless the issue is really a matter of life and death and of national
importance, senatorial courtesy demands that we, as much as possible,
accommodate the request of the Senator from Isabela as we have done on
matters affecting the district of other senators. I need not remind them.
"Thank you anyway, Mr. President.
"Senator Alvarez. Mr. President.
"The President. Senator Alvarez is recognized.
"Senator Alvarez. Mr. President, may I express my deepest appreciation for
the statement of the gentleman from Ilocos and Laguna. Whatever he may
have said, the feeling is not mutual. At least for now, I have suddenly
become his great fan for the evening.
"May I put on record, Mr. President, that I campaigned against the cityhood of
Santiago not because I do not want it to be a city but because it had
disenfranchised the young men of my city from aspiring for the leadership
of the province. The town is the gem of the province. How could we
extricate the town from the province?
"But I would like to thank the gentleman, Mr. President, and also the Chairman
of the Committee.
"Senator Tatad. Mr. President.
"The President. The Majority Leader is recognized.
 "Senator Tatad. There being no committee amendments, I move that the
period of committee amendments be closed.
"The President. Shall we amend the title of this bill by removing the word
independent preceding component city?
"Senator Sotto. No, Mr. President. We are merely citing the title. The main
title of this House Bill No. 8729 is An Act Amending Certain Sections of
Republic Act 7720. The title is the title of Republic Act 7720. So, I do not
think that we should amend that anymore.
"The President. What is the pending motion? Will the gentleman kindly state
the motion?
"Senator Tatad. I move that we close the period of committee amendments.
"The President. Is there any objection? [Silence] There being none, the
motion is approved.
"Senator Tatad. Unless there are any individual amendments, I move that we
close the period of individual amendments.
"The President. Is there any objection? [Silence] There being none, the period
of individual amendments is closed.
"APPROVAL OF H.B. NO. 8729 ON SECOND READING
"Senator Tatad. Mr. President, I move that we vote on Second Reading on
House Bill No. 8729.
"The President. Is there any objection? [Silence] There being none, we shall
now vote on Second Reading on House Bill No. 8729.
"As many as are in favor of the bill, say aye.
"Several Members. Aye
As many as are against the bill, say nay. [Silence]
"House Bill No. 8729 is approved on Second Reading."
The debates cannot but raise some quizzical eyebrows on the real purpose
for the downgrading of the city of Santiago. There is all the reason to listen
to the voice of the people of the city via a plebiscite.
In the case of Tan, et al. vs. COMELEC,15 BP 885 was enacted
partitioning the province of Negros Occidental without consulting its
people in a plebiscite. In his concurring opinion striking down the law as
unconstitutional, Chief Justice Teehankee cited the illicit political
purpose behind its enactment, viz:
"The scenario, as petitioners urgently asserted, was to have the creation of the
new Province a fait accompli by the time elections are held on February 7,
1986. The transparent purpose is unmistakably so that the new Governor and other
officials shall by then have been installed in office, ready to function for purposes
of the election for President and Vice-President. Thus, the petitioners reported
after the event: With indecent haste, the plebiscite was held; Negros del Norte was
set up and proclaimed by President Marcos as in existence; a new set of
government officials headed by Governor Armando Gustilo was appointed; and,
by the time the elections were held on February 7, 1986, the political machinery
was in place to deliver the solid North to ex-President Marcos. The rest is
history. What happened in Negros del Norte during the elections - the unashamed
use of naked power and resources - contributed in no small way to arousing
peoples power and steel the ordinary citizen to perform deeds of courage and
patriotism that makes one proud to be a Filipino today.
"The challenged Act is manifestly void and unconstitutional. Consequently,
all the implementing acts complained of, viz. the plebiscite, the proclamation of a
new province of Negros del Norte and the appointment of its officials are equally
void. The limited holding of the plebiscite only in the areas of the proposed new
province (as provided by Section 4 of the Act) to the exclusion of the voters of the
remaining areas of the integral province of Negros Occidental (namely, the three
cities of Bacolod, Bago and La Carlota and the Municipalities of Las Castellana,
Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan,
Murcia, Valladolid, San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and
Candoni), grossly contravenes and disregards the mandate of Article XI, section 3
of the then prevailing 1973 Constitution that no province may be created or
divided or its boundary substantially altered without the approval of a majority of
the votes in a plebiscite in the unit or units affected. It is plain that all the cities
and municipalities of the province of Negros Occidental, not merely those of the
proposed new province, comprise the units affected. It follows that the voters of
the whole and entire province of Negros Occidental have to participate and give
their approval in the plebiscite, because the whole province is affected by its
proposed division and substantial alteration of its boundary. To limit the plebiscite
to only the voters of the areas to be partitioned and seceded from the province is
as absurd and illogical as allowing only the secessionists to vote for the secession
that they demanded against the wishes of the majority and to nullify the basic
principle of majority rule.
Mr. Justice Mendoza and Mr. Justice Buena also cite two instances
when allegedly independent component cities were downgraded into
component cities without need of a plebiscite. They cite the City of
Oroquieta, Misamis Occidental,16 and the City of San Carlos,
Pangasinan17 whose charters were amended to allow their people to vote
and be voted upon in the election of officials of the province to which their
city belongs without submitting the amendment to a plebiscite. With due
respect, the cities of Oroquieta and San Carlos are not similarly
situated as the city of Santiago. The said two cities then were not
independent component cities unlike the city of Santiago. The two
cities were chartered but were not independent component cities for
both were not highly urbanized cities which alone were considered
independent cities at that time. Thus, when the case of San Carlos City
was under consideration by the Senate, Senator Pimentel explained:18
"x x x Senator Pimentel. The bill under consideration, Mr. President, merely
empowers the voters of San Carlos to vote in the elections of provincial
officials. There is no intention whatsoever to downgrade the status of the City
of San Carlos and there is no showing whatsoever that the enactment of this bill
will, in any way, diminish the powers and prerogatives already enjoyed by the
City of San Carlos. In fact, the City of San Carlos as of now, is a component Republic of the Philippines
city. It is not a highly urbanized city. Therefore, this bill merely, as we said SUPREME COURT
earlier, grants the voters of the city, the power to vote in provincial Manila
elections, without in any way changing the character of its being a component EN BANC
city. It is for this reason that I vote in favor of this bill. G.R. No. 147780 May 10, 2001
It was Senator Pimentel who also sponsored the bill19 allowing qualified PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO,
petitioners,
voters of the city of Oroquieta to vote in provincial elections of the
vs.
province of Misamis Occidental. In his sponsorship speech, he explained SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA,
that the right to vote being given to the people of Oroquieta City was and P/SR. SUPT. REYNALDO BERROYA, respondents.
consistent with its status as a component city.20 Indeed, during the debates, ----------------------------------------
former Senator Neptali Gonzales pointed out the need to remedy the G.R. No. 147781 May 10, 2001
anomalous situation then obtaining xxx where voters of one component MIRIAM DEFENSOR-SANTIAGO, petitioner,
city can vote in the provincial election while the voters of another vs.
ANGELO REYES, Secretary of National Defense, ET AL., respondents.
component city cannot vote simply because their charters so
----------------------------------------
provide.21 Thus, Congress amended other charters of component cities G.R. No. 147799 May 10, 2001
prohibiting their people from voting in provincial elections. RONALDO A. LUMBAO, petitioner,
IN VIEW WHEREOF, the petition is granted. Republic Act No. vs.
8528 is declared unconstitutional and the writ of prohibition is hereby SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA,
issued commanding the respondents to desist from implementing said law. P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
SO ORDERED. BERROYA, respondents.
----------------------------------------
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Pardo,
G.R. No. 147810 May 10, 2001
Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,
Vitug, J., see separate opinion. vs.
Mendoza, J., see dissenting opinion. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE
Quisumbing, and Purisima, JJ., joins J. Mendoza in his dissenting ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO
opinion. VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
Buena, J., see dissenting opinion. GENERAL LEANDRO MENDOZA, respondents.
RESOLUTION
MELO, J.:
On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent
- A. Actual case or controversy mob armed with explosives, firearms, bladed weapons, clubs, stones and
- Lacson vs. Perez, GR No. 147780, May other deadly weapons" assaulting and attempting to break into Malacaang,
10, 2001 issued Proclamation No. 38 declaring that there was a state of rebellion in the
- Alunan III vs. Mirasol, GR No. 108399, National Capital Region. She likewise issued General Order No. 1 directing
July 31, 1997 the Armed Forces of the Philippines and the Philippine National Police to
suppress the rebellion in the National Capital Region. Warrantless arrests of
- Salonga vs. Pano, 134 SCRA 438 several alleged leaders and promoters of the "rebellion" were thereafter
- PACU vs. Secretary of Education, 97 effected.
Phil. 806 Aggrieved by the warrantless arrests, and the declaration of a "state of
rebellion," which allegedly gave a semblance of legality to the arrests, the
following four related petitions were filed before the Court
(1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas
corpus (with an urgent application for the issuance of temporary restraining
order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael
Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781
for mandamus and/or review of the factual basis for the suspension of the
privilege of the writ of habeas corpus, with prayer for the suspension of the
privilege of the writ ofhabeas corpus, with prayer for a temporary restraining
order filed by Miriam Defensor-Santiago; (3) G. R. No. 147799 for prohibition
and injunction with prayer for a writ of preliminary injunction and/or restraining
order filed by Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and
prohibition filed by the political party Laban ng Demokratikong Pilipino.
All the foregoing petitions assail the declaration of a state of rebellion by
President Gloria Macapagal-Arroyo and the warrantless arrests allegedly
effected by virtue thereof, as having no basis both in fact and in law.
Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting
of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the
instant petitions have been rendered moot and academic. As to petitioners'
claim that the proclamation of a "state of rebellion" is being used by the
authorities to justify warrantless arrests, the Secretary of Justice denies that it
has issued a particular order to arrest specific persons in connection with the
"rebellion." He states that what is extant are general instructions to law
enforcement officers and military agencies to implement Proclamation No. 38.
Indeed, as stated in respondents' Joint Comments:
[I]t is already the declared intention of the Justice Department
and police authorities to obtain regular warrants of arrests from
the courts for all acts committed prior to and until May 1, 2001
which means that preliminary investigations will henceforth be
conducted.
(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18;
G.R. No. 147799, p. 16; G.R. No. 147810, p. 24)
With this declaration, petitioners' apprehensions as to warrantless arrests
should be laid to rest.
In quelling or suppressing the rebellion, the authorities may only resort to
warrantless arrests of persons suspected of rebellion, as provided under
Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant.
The warrantless arrest feared by petitioners is, thus, not based on the
declaration of a "state of rebellion."
Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition),
147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they
are under imminent danger of being arrested without warrant do not justify
their resort to the extraordinary remedies of mandamus and prohibition, since
an individual subjected to warrantless arrest is not without adequate remedies
in the ordinary course of law. Such an individual may ask for a preliminary
investigation under Rule 112 of the Rules of Court, where he may adduce
evidence in his defense, or he may submit himself to inquest proceedings to
determine whether or not he should remain under custody and
correspondingly be charged in court. Further, a person subject of a
warrantless arrest must be delivered to the proper judicial authorities within
the periods provided in Article 125 of the Revised Penal Code, otherwise the
arresting officer could be held liable for delay in the delivery of detained
persons. Should the detention be without legal ground, the person arrested
can charge the arresting officer with arbitrary detention. All this is without
prejudice to his filing an action for damages against the arresting officer under
Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies
which they can avail themselves of, thereby making the prayer for prohibition
and mandamus improper at this time (Section 2 and 3, Rule 65, Rules of
Court).1wphi1.nt
Aside from the foregoing reasons, several considerations likewise inevitably
call for the dismissal of the petitions at bar.
G.R. No. 147780
In connection with their alleged impending warrantless arrest, petitioners
Lacson, Aquino, and mancao pray that the "appropriate court before whom
the informations against petitioners are filed be directed to desist from
arraigning and proceeding with the trial of the case, until the instant petition is
finally resolved." This relief is clearly premature considering that as of this
date, no complaints or charges have been filed against any of the petitioners
for any crime. And in the event that the same are later filed, this Court cannot
enjoin criminal prosecution conducted in accordance with the Rules of Court,
for by that time any arrest would have been in pursuant of a duly issued
warrant.
As regards petitioners' prayer that the hold departure orders issued against
them be declared null and void ab initio, it is to be noted that petitioners are
not directly assailing the validity of the subject hold departure orders in their
petition. They are not even expressing intention to leave the country in the
near future. The prayer to set aside the same must be made in proper
proceedings initiated for that purpose.
Anent petitioners' allegations ex abundante ad cautelam in support of their
application for the issuance of a writ of habeas corpus, it is manifest that the
writ is not called for since its purpose is to relieve petitioners from unlawful
restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which
remains speculative up to this very day.
G.R. No. 147781
The petition herein is denominated by petitioner Defensor-Santiago as one
for mandamus. It is basic in matters relating to petitions for mandamus that
the legal right of the petitioner to the performance of a particular act which is
sought to be compelled must be clear and complete. Mandamus will not issue
unless the right to relief is clear at the time of the award (Palileo v. Ruiz
Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has
not shown that she is in imminent danger of being arrested without a warrant.
In point of fact, the authorities have categorically stated that petitioner will not
be arrested without a warrant.
G.R. No. 147799
Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP),
for his part, argues that the declaration of a "state of rebellion" is violative of
the doctrine of separation of powers, being an encroachment on the domain of
the judiciary which has the constitutional prerogative to "determine or
interpret" what took place on May 1, 2001, and that the declaration of a state
of rebellion cannot be an exception to the general rule on the allocation of the
governmental powers.
We disagree. To be sure, Section 18, Article VII of the Constitution expressly jurisdiction of the Court to cases affecting ambassadors, other public ministers
provides that "[t]he President shall be the Commander-in-Chief of all armed and consuls, and over petitions forcertiorari, prohibition, mandamus, quo
forces of the Philippines and whenever it becomes necessary, he may call out warranto, and habeas corpus.
such armed forces to prevent or suppress lawless violence, invasion or WHEREFORE, premises considered, the petitions are hereby DISMISSED.
rebellion" Thus, we held in Integrated Bar of the Philippines v. Hon. Zamora, However, in G.R. No. 147780, 147781, and 147799, respondents, consistent
(G.R. No. 141284, August 15, 2000): and congruent with their undertaking earlier adverted to, together with their
x x x The factual necessity of calling out the armed forces is not easily agents, representatives, and all persons acting for and in their behalf, are
quantifiable and cannot be objectively established since matters hereby enjoined from arresting petitioners therein without the required judicial
considered for satisfying the same is a combination of several factors warrant for all acts committed in relation to or in connection with the may 1,
which are not always accessible to the courts. Besides the absence of 2001 siege of Malacaang.
textual standards that the court may use to judge necessity, SO ORDERED.
information necessary to arrive at such judgment might also prove Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes,
unmanageable for the courts. Certain pertinent information might be JJ., concur.
difficult to verify, or wholly unavailable to the courts. In many Vitug, separate opinion.
instances, the evidence upon which the President might decide that Kapunan, dissenting opinion.
there is a need to call out the armed forces may be of a nature not Pardo, join the dissent of J. Kapunan.
constituting technical proof. Sandoval-Gutierrez, dissenting opinion.
On the other hand, the President as Commander-in-Chief has a vast Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.
intelligence network to gather information, some of which may be
classified as highly confidential or affecting the security of the state. In
the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of EN BANC
human lives and mass destruction of property. x x x [G.R. No. 108399. July 31, 1997]
(at pp.22-23) RAFAEL M. ALUNAN III, in his capacity as Secretary of
The Court, in a proper case, may look into the sufficiency of the factual basis the Department of Interior and Local Government
of the exercise of this power. However, this is no longer feasible at this time,
Proclamation No. 38 having been lifted. (DILG), the BOARD OF ELECTION
G.R. No. 147810 SUPERVISORS composed of Atty. RUBEN M.
Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The RAMIREZ, Atty. RAFAELITO GARAYBLAS, and
rule requires that a party must show a personal stake in the outcome of the
case or an injury to himself that can be redressed by a favorable decision so Atty. ENRIQUE C. ROA, GUILLERMINA RUSTIA,
as to warrant an invocation of the court's jurisdiction and to justify the exercise in her capacity as Director of the Barangay
of the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., Bureau, City Treasurer Atty. ANTONIO
239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to
itself which would justify resort to the Court. Petitioner is a juridical person not ACEBEDO, Budget Officer EUFEMIA
subject to arrest. Thus, it cannot claim to be threatened by a warrantless DOMINGUEZ, all of the City Government of
arrest. Nor is it alleged that its leaders, members, and supporters are being Manila, petitioners, vs. ROBERT MIRASOL,
threatened with warrantless arrest and detention for the crime of rebellion.
Every action must be brought in the name of the party whose legal right has NORMAN T. SANGUYA, ROBERT DE JOYA,
been invaded or infringed, or whose legal right is under imminent threat of ARNEL R. LORENZO, MARY GRACE ARIAS,
invasion or infringement. RAQUEL L. DOMINGUEZ, LOURDES ASENCIO,
At best, the instant petition may be considered as an action for declaratory
relief, petitioner claiming that its right to freedom of expression and freedom of FERDINAND ROXAS, MA. ALBERTINA
assembly is affected by the declaration of a "state of rebellion" and that said RICAFORT,and BALAIS M. LOURICH, and the
proclamation is invalid for being contrary to the Constitution. HONORABLE WILFREDO D. REYES,Presiding
However, to consider the petition as one for declaratory relief affords little
comfort to petitioner, this Court not having jurisdiction in the first instance over Judge of the Regional Trial Court, Branch 36,
such a petition. Section 5[1], Article VIII of the Constitution limits the original Metro Manila, respondents.
 DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision dated
January 19, 1993 of the Regional Trial Court of Manila (Branch
36),[1] nullifying an order of the Department of Interior and Local
Government (DILG), which in effect cancelled the general elections
for the Sangguniang Kabataan (SK) slated on December 4, 1992 in
the City of Manila, on the ground that the elections previously held
on May 26, 1990 served the purpose of the first elections for the SK
under the Local Government Code of 1991 (R.A. No. 7160).
Section 423 of the Code provides for a SK in every barangay, to
be composed of a chairman, seven (7) members, a secretary, and a
treasurer. Section 532(a) provides that the first elections for the SK
shall be held thirty (30) days after the next local elections. The Code
took effect on January 1, 1992.
The first local elections under the Code were held on May 11,
1992. Accordingly, on August 27, 1992, the Commission on
Elections issued Resolution No. 2499, providing guidelines for the
holding of the general elections for the SK on September 30,
1992. The guidelines placed the SK elections under the direct
control and supervision of the DILG, with the technical assistance of
the COMELEC.[2] After two postponements, the elections were finally
scheduled on December 4, 1992.
Accordingly, registration in the six districts of Manila was
conducted. A total of 152,363 youngsters, aged 15 to 21 years old,
registered, 15,749 of them filing certificates of candidacies. The City
Council passed the necessary appropriations for the elections.
On September 18, 1992, however, the DILG, through then
Secretary Rafael M. Alunan III, issued a letter-resolution exempting
the City of Manila from holding elections for the SK on the ground
that the elections previously held on May 26, 1990 were to be
considered the first under the newly-enacted Local Government
Code. The DILG acted on a letter of Joshue R. Santiago, acting
president of the KB City Federation of Manila and a member of City
Council of Manila, which called attention to the fact that in the City of
Manila elections for the Kabataang Barangay (the precursor of the
Sangguniang Kabataan) had previously been held on May 26,
1990. In its resolution, the DILG stated:
[A] close examination of . . . RA 7160 would readily reveal the
intention of the legislature to exempt from the forthcoming
Sangguniang Kabataan elections those kabataang barangay
chapters which may have conducted their elections within the
period of January 1, 1988 and January 1, 1992 under BP
337.Manifestly the term of office of those elected KB officials
have been correspondingly extended to coincide with the term of
office of those who may be elected under RA 7160.
On November 27, 1992 private respondents, claiming to
represent the 24,000 members of the Katipunan ng Kabataan, filed
a petition for certiorari and mandamus in the RTC of Manila to set
aside the resolution of the DILG. They argued that petitioner
Secretary of Interior and Local Government had no power to amend
the resolutions of the COMELEC calling for general elections for
SKs and that the DILG resolution in question denied them the equal
protection of the laws.
On November 27, 1992, the trial court, through Executive
Judge, now COMELEC Chairman, Bernardo P. Pardo, issued an
injunction, ordering petitioners to desist from implementing the order
of the respondent Secretary dated September 18, 1992, . . . until
further orders of the Court. On the same day, he ordered petitioners
to perform the specified pre-election activities in order to implement
Resolution No. 2499 dated August 27, 1992 of the Commission on
Elections providing for the holding of a general election of the
Sangguniang Kabataan on December 4, 1992 simultaneously in
every barangay throughout the country.
The case was subsequently reraffled to Branch 36 of the same
court. On January 19, 1993, the new judge, Hon. Wilfredo D. Reyes,
rendered a decision, holding that (1) the DILG had no power to
exempt the City of Manila from holding SK elections on December 4,
1992 because under Art. IX, C, 2(1) of the Constitution the power to
enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall is
vested solely in the COMELEC; (2) the COMELEC had already in
effect determined that there had been no previous elections for KB
by calling for general elections for SK officers in every barangay
without exception; and (3) the exemption of the City of Manila was
violative of the equal protection clause of the Constitution because,
according to the DILGs records, in 5,000 barangays KB elections
were held between January 1, 1988 and January 1, 1992 but only in
the City of Manila, where there were 897 barangays, was there no
elections held on December 4, 1992.
Petitioners sought this review on certiorari. They insist that the
City of Manila, having already conducted elections for the KB on
May 26, 1990, was exempted from holding elections on December
4, 1992. In support of their contention, they cite 532(d) of the Local
Government Code of 1991, which provides that:
All seats reserved for the pederasyon ng mga sangguniang
kabataan in the different sanggunians shall be deemed vacant until
such time that the sangguniang kabataan chairmen shall have been
elected and the respective pederasyon presidents have been
selected: Provided, That, elections for the kabataang barangay
conducted under Batas Pambansa Blg. 337 at any time between
January 1, 1988 and January 1, 1992 shall be considered as the
first elections provided for in this Code. The term of office of the
kabataang barangay officials elected within the said period shall be
extended correspondingly to coincide with the term of office of
those elected under this Code. (emphasis added)
They maintain that the Secretary of the DILG had authority to
determine whether the City of Manila came within the exception
clause of 532(d) so as to be exempt from holding the elections on
December 4, 1992.
The preliminary question is whether the holding of the second
elections on May 13, 1996[3] rendered this case moot and
academic. There are two questions raised in this case.The first is
whether the Secretary of Interior and Local Government can exempt
a local government unit from holding elections for SK officers on
December 4, 1992 and the second is whether the COMELEC can
provide that the Department of Interior and Local Government shall
have direct control and supervision over the election of sangguniang
kabataan with the technical assistance by the Commission on
Elections.
We hold that this case is not moot and that it is in fact necessary
to decide the issues raised by the parties. For one thing, doubt may
be cast on the validity of the acts of those elected in the May 26,
1990 KB elections in Manila because this Court enjoined the
enforcement of the decision of the trial court and these officers
continued in office until May 13, 1996. For another, this case comes
within the rule that courts will decide a question otherwise moot and
academic if it is capable of repetition, yet evading review.[4] For the
question whether the COMELEC can validly vest in the DILG the
control and supervision of SK elections is likely to arise in
connection with every SK election and yet the question may not be
decided before the date of such elections.
In the Southern Pacific Terminal case, where the rule was first
articulated, appellants were ordered by the Interstate Commerce
Commission to cease and desist from granting a shipper what the
ICC perceived to be preferences and advantages with respect to
wharfage charges. The cease and desist order was for a period of
about two years, from September 1, 1908 (subsequently extended
to November 15), but the U.S. Supreme Court had not been able to
hand down its decision by the time the cease and desist order
expired. The case was decided only on February 20, 1911, more
than two years after the order had expired. Hence, it was contended
that the case had thereby become moot and the appeal should be
dismissed. In rejecting this contention, the Court held:
The question involved in the orders of the Interstate Commerce
Commission are usually continuing (as are manifestly those in
the case at bar), and these considerations ought not to be, as
they might be, defeated, by short-term orders, capable of
repetition, yet evading review, and at one time the
government, and at another time the carriers, have their rights
determined by the Commission without a chance of redress. [5]
In Roe v. Wade,[6] petitioner, a pregnant woman, brought suit in
1970 challenging anti-abortion statutes of Texas and Georgia on the
ground that she had a constitutional right to terminate her pregnancy
at least within the first trimester. The case was not decided until
1973 when she was no longer pregnant. But the U.S. Supreme
Court refused to dismiss the case as moot. It was
explained: [W]hen, as here, pregnancy is a significant fact in the
litigation, the normal 266-day human gestation period is so short
that the pregnancy will come to term before the usual appellate
process is complete. If that termination makes a case moot,
pregnancy litigation seldom will survive. Our laws should not be that
rigid. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be capable of repetition, yet evading
review.[7]
We thus reach the merits of the questions raised in this
case. The first question is whether then DILG Secretary Rafael M.
Alunan III had authority to determine whether under 532(d) of the
Local Government Code, the City of Manila was required to hold its
first elections for SK. As already stated, petitioners sustain the
affirmative side of the proposition. On the other hand, respondents
argue that this is a power which Art.IX,C, 2(1) of the Constitution
vests in the COMELEC. Respondents further argue that, by
mandating that elections for the SK be held on December 4, 1992 in
every barangay, the COMELEC in effect determined that there had
been no elections for the KB previously held in the City of Manila.
We find the petition to be meritorious.
First. As already stated, by 4 of Resolution No. 2499, the
COMELEC placed the SK elections under the direct control and
supervision of the DILG. Contrary to respondents contention, this
did not contravene Art. IX, C, 2(1) of the Constitution which provides
that the COMELEC shall have the power to enforce and administer
all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall. Elections for SK officers
are not subject to the supervision of the COMELEC in the same way
that, as we have recently held, contests involving elections of SK
officials do not fall within the jurisdiction of the
COMELEC. In Mercado v. Board of Election Supervisors,[8] it was
contended that
COMELEC Resolution No. 2499 is null and void
because: (a) it prescribes a separate set of rules for the
election of the SK Chairman different from and
inconsistent with that set forth in the Omnibus Election
Code, thereby contravening Section 2, Article 1 of the
said Code which explicitly provides that it shall govern
all elections of public officers; and, (b) it constitutes a
total, absolute, and complete abdication by the
COMELEC of its constitutionally and statutorily
mandated duty to enforce and administer all election laws
as provided for in Section 2(1), Article IX-C of the
Constitution; Section 52, Article VIII of the Omnibus
Election Code; and Section 2, Chapter 1, Subtitle C, Title
1, Book V of the 1987 Administrative Code. [9]
Rejecting this contention, this Court, through Justice Davide,
held:
Section 252 of the Omnibus Election Code and that portion of
paragraph (2), Section 2, Article IX-C of the Constitution on the
COMELECs exclusive appellate jurisdiction over contests
involving elective barangay officials refer to the elective barangay
officials under the pertinent laws in force at the time the Omnibus
Election Code was enacted and upon the ratification of the
Constitution. That law was B.P. Blg. 337, otherwise known as the
Local Government Code, and the elective barangay officials
referred to were the punong barangay and the six sangguniang
bayan members. They were to be elected by those qualified to
exercise the right of suffrage. They are also the same officers
referred to by the provisions of the Omnibus Election Code of the
Philippines on election of barangay officials. Metropolitan and
municipal trial courts had exclusive original jurisdiction over
contests relating to their election. The decisions of these courts
were appealable to the Regional Trial Courts.
....
In the light of the foregoing, it is indisputable that contests
involving elections of SK (formerly KB) officials do not fall
within Section 252 of the Omnibus Election Code and paragraph 2,
Section 2, Article IX-C of the Constitution and that no law in
effect prior to the ratification of the Constitution had made the SK
chairman an elective barangay official. His being an ex-officio
member of the sangguniang barangay does not make him one for
the law specifically provides who are its elective members, viz.,
the punong barangay and the seven regular sangguniang barangay
members who are elected at large by those who are qualified to
exercise the right of suffrage under Article V of the Constitution
and who are duly registered voters of the barangay. [10]
The choice of the DILG for the task in question was appropriate
and was in line with the legislative policy evident in several
statutes. Thus, P.D. No. 684 (April 15, 1975), in creating Kabataang
Barangays in every barangay throughout the country, provided in 6
that the Secretary of Local Government and Community
Development shall promulgate such rules and regulations as may
be deemed necessary to effectively implement the provisions of this
Decree. Again, in 1985 Proclamation No. 2421 of the President of
the Philippines, in calling for the general elections of the Kabataang
Barangay on July 13-14, 1985, tasked the then Ministry of Local
Government, the Ministry of Education, Culture and Sports, and the
Commission on Elections to assist the Kabataang Barangay in the
conduct of the elections. On the other hand, in a Memorandum
Circular dated March 7, 1988, President Corazon C. Aquino directed
the Secretary of Local Government to issue the necessary rules and
regulations for effecting the representation of the Kabataang
Barangay, among other sectors, in the legislative bodies of the local
government units.
The role of the COMELEC in the 1992 elections for SK officers
was by no means inconsequential. DILG supervision was to be
exercised within the framework of detailed and comprehensive rules
embodied in Resolution No. 2499 of the COMELEC. What was left
to the DILG to perform was the enforcement of the rules.
Second. It is contended that, in its resolution in question, the
COMELEC did not name the barangays which, because they had
conducted kabataang barangay elections between January 1, 1988
and January 1, 1992, were not included in the SK elections to be
held on December 4, 1992. That these barangays were precisely to
be determined by the DILG is, however, fairly inferable from the
authority given to the DILG to supervise the conduct of the
elections. Since 532(d) provided for kabataang barangay officials
whose term of office was extended beyond 1992, the authority to
supervise the conduct of elections in that year must necessarily be
deemed to include the authority to determine which kabataang
barangay would not be included in the 1992 elections.
The authority granted was nothing more than the ascertainment
of a fact, namely, whether between January 1, 1988 and January 1,
1992 elections had been held in a given kabataang barangay. If
elections had been conducted, then no new elections had to be held
on December 4, 1992 since by virtue of 532(d) the term of office of
the kabataang barangay officials so elected was extended
correspondingly to coincide with the term of office of those elected
under [the Local Government Code of 1991]. In doing this, the
Secretary of Interior and Local Government was to act merely as the
agent of the legislative department, to determine and declare the
event upon which its expressed will was to take effect.[11] There was
no undue delegation of legislative power but only of the discretion as
to the execution of a law. That this is constitutionally permissible is
the teaching of our cases.[12]
Third. Respondents claim, however, that the May 26, 1990 KB
elections in Manila were void because (a) they were called at the
instance of then Mayor Gemiliano C. Lopez who did not have
authority to do so and (b) it was not held under COMELEC
supervision.
The 1990 elections for the Kabataang Barangay were called by
then Manila Mayor Gemiliano C. Lopez, Jr., who in his Executive
Order No. 21 dated April 25, 1990 stated:
WHEREAS, the Kabataang Barangay as an organization provided
for under Batas Pambansa Bilang 337, has been practically
dormant since the advent of the present national administration;
WHEREAS, there is an urgent need to involve the youth in the
affairs and undertakings of the government to ensure the
participation of all sectors of our population in the task of nation
building;
WHEREAS, the last elections for the Kabataang Barangay officers
were held in November 1985 yet, which is over their three years
term of office;
WHEREAS, most of the present crop of KB officers are way past
the age limit provided for under the law;
....
The elections were actually held on May 26, 1990 in the 897
barangays of Manila. Later, on June 30, 1990, KB City Federation
elections were conducted.
It was precisely to foreclose any question regarding the validity
of KB elections held in the aftermath of the EDSA revolution and
upon the effectivity of the new Local Government Code that the
exception clause of 532(d) was inserted. The proceedings of the
Bicameral Conference Committee which drafted the Code show the
following:[13]
CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o
chapter o section, ha!
HON. LINA: . . .
Page 436, lines 13 to 14 delete within eighteen months prior to
December 31, 1990, and in lieu thereof, insert from 1988 up
to the effectivity of the Code. The rationale. . . .
CHAIRMAN DE PEDRO: How should it be read?
HON. LINA: It will read as follows: Provided however, that the
Local Government Units which have conducted elections for
the Kabataang Barangay as provided for, in Batas Pambansa
Bilang 337, up to the effectivity. . . .
CHAIRMAN DE PEDRO: So, any deletion from the word within,
ha, up to. . . .
HON. LINA: Remove the words, the phrase, within eighteen
months prior to December 31, 1990, and insert from 1988 up
to the effectivity of this Code.
CHAIRMAN DE PEDRO: From?
HON. LINA: From 1988 up to the effectivity of this Code. Kasi
meron nang mga election, eh, na ginawa, eh. There are five
thousand barangays, based on the record of the DILG, out of
 forty thousand, imagine that, na nag-conduct na ng election
nila based on the KB Constitution and By-Laws, and theyre
sitting already, now if we do not recognize that,
mag[ka]karoon sila ng question.
CHAIRMAN DE PEDRO: Accepted, Mr. Chairman.
Section 532(d) may thus be deemed to be a curative
law. Curative laws, which in essence are retrospective in effect, are
enacted to validate acts done which otherwise would be invalid
under existing laws, by considering them as having complied with
the existing laws. Such laws are recognized in this jurisdiction.[14]
Fourth. It is finally contended that the exemption of the
barangays of the City of Manila from the requirement to hold
elections for SK officers on December 4, 1992 would deny the youth
voters in those barangays of the equal protection of laws.
Respondents claim that only in the barangays in the City of Manila,
which then numbered 897, were elections for SK not held in 1992 on
the ground that between January 1, 1988 and January 1, 1992 there
had already been SK elections held, when, according to petitioners
own evidence, during that period, SK elections had actually been
conducted in 5,000 barangays.
Whether this claim is true cannot be ascertained from the
records of this case. Merely showing that there were 5,000
barangays which similarly held KB elections between January 1,
1988 and January 1, 1992 does not prove that despite that fact
these same barangays were permitted to hold elections on
December 4, 1992. For one thing, according to the Manila
Bulletin issue of November 18, 1992 (p. 9), 568 barangays in the
Province of Bulacan did not have SK elections on December 4,
1992 either, because they already had elections between January 1,
1988 and January 1, 1992. For another, even assuming that only
barangays in Manila were not permitted to hold SK elections on
December 4, 1992 while the rest of the 5,000 barangays were
allowed even if KB elections had already been held there before,
this fact does not give the youth voters in the 897 Manila barangays
ground for complaint because what the other barangays did was
contrary to law. There is no discrimination here.
In People v. Vera[15] this Court struck down the Probation Law
because it permitted unequal application of its benefits by making its
applicability depend on the decision of provincial governments to
appropriate or not to appropriate funds for the salaries of probation
officers, with the result that those not disposed to allow the benefits
of probations to be enjoyed by their inhabitants could simply omit to
provide for the salaries of probation officers. The difference between
that case and the one at bar lies in the fact that what youth voters in
the other barangays might have been allowed was not a right which
was denied to youth voters in Manila. If those barangays were not
entitled to have SK elections on December 4, 1992 but nevertheless
were allowed to have such elections, that fact did not mean those in
Manila should similarly have been allowed to conduct elections on
December 4, 1992 because the fact was that they already had their
own, just two years before on May 26, 1990. Respondents equal
protection argument violates the dictum that one wrong does not
make another wrong right.
WHEREFORE, the decision of the Regional Trial Court of
Manila, Branch 36 is REVERSED and the case filed against
petitioner by private respondents is DISMISSED.
SO ORDERED.
Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Francisco, Hermosisima, Jr., and Panganiban,
JJ., concur.
Narvasa, C.J., and Torres, Jr., J., on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-59524 February 18, 1985
JOVITO R. SALONGA, petitioner,
vs.
HON. ERNANI CRUZ PAO, Presiding Judge of the Court of First
Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO
ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch
XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City;
COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.
GUTIERREZ, JR., J.:
The petitioner invokes the constitutionally protected right to life and liberty
guaranteed by the due process clause, alleging that no prima facie case has
been established to warrant the filing of an information for subversion against
him. Petitioner asks this Court to prohibit and prevent the respondents from
using the iron arm of the law to harass, oppress, and persecute him, a
member of the democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
A rash of bombings occurred in the Metro Manila area in the months of
August, September and October of 1980. On September 6, 1980, one Victor
Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles,
California, almost killed himself and injured his younger brother, Romeo, as a
result of the explosion of a small bomb inside his room at the YMCA building
in Manila. Found in Lovely's possession by police and military authorities were
several pictures taken sometime in May, 1980 at the birthday party of former
Congressman Raul Daza held at the latter's residence in a Los Angeles
suburb. Petitioner Jovito R. Salonga and his wife were among those whose
likenesses appeared in the group pictures together with other guests,
including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by military
and police authorities to the AFP Medical Center (V. Luna Hospital) where he
was placed in the custody and detention of Col. Roman P. Madella, under the
over-all direction of General Fabian Ver, head of the National Intelligence and
Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers,
Romeo and Baltazar Lovely were charged with subversion, illegal possession
of explosives, and damage to property.
On September 12, 1980, bombs once again exploded in Metro Manila
including one which resulted in the death of an American lady who was
shopping at Rustan's Supermarket in Makati and others which caused injuries
to a number of persons.
On September 20, 1980, the President's anniversary television radio press
conference was broadcast. The younger brother of Victor Lovely, Romeo, was
presented during the conference. In his interview, Romeo stated that he had
driven his elder brother, Victor, to the petitioner's house in Greenhills on two
occasions. The first time was on August 20, 1980. Romeo stated that Victor
did not bring any bag with him on that day when he went to the petitioner's
residence and did not carry a bag when he left. The second time was in the
afternoon of August 31, 1980 when he brought Victor only to the gate of the
petitioner's house. Romeo did not enter the petitioner's residence. Neither did
he return that day to pick up his brother.
The next day, newspapers came out with almost Identical headlines stating in
effect that petitioner had been linked to the various bombings in Metro Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's
intensive care unit and transferred to the office of Col. Madella where he was
held incommunicado for some time.
On the night of October 4, 1980, more bombs were reported to have exploded
at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park
Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of
the General Military Council was called for October 6, 1980.
On October 19, 1980, minutes after the President had finished delivering his
speech before the International Conference of the American Society of Travel
Agents at the Philippine International Convention Center, a small bomb
exploded. Within the next twenty-four hours, arrest, search, and seizure
orders (ASSOs) were issued against persons who were apparently implicated
by Victor Lovely in the series of bombings in Metro Manila. One of them was
herein petitioner. Victor Lovely offered himself to be a "state witness" and in
his letter to the President, he stated that he will reveal everything he knows
about the bombings.
On October 21, 1980, elements of the military went to the hospital room of the
petitioner at the Manila Medical Center where he was confined due to his
recurrent and chronic ailment of bronchial asthma and placed him under
arrest. The arresting officer showed the petitioner the ASSO form which
however did not specify the charge or charges against him. For some time,
the petitioner's lawyers were not permitted to visit him in his hospital room
until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No.
55345, October 28, 1980) issued an order directing that the petitioner's right to
be visited by counsel be respected.
On November 2, 1980, the petitioner was transferred against his objections
from his hospital arrest to an isolation room without windows in an army prison
camp at Fort Bonifacio, Makati. The petitioner states that he was not informed
why he was transferred and detained, nor was he ever investigated or
questioned by any military or civil authority.
Subsequently, on November 27, 1980, the petitioner was released for
humanitarian reasons from military custody and placed "under house arrest in
the custody of Mrs. Lydia Salonga" still without the benefit of any investigation
or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a
"Notice of Preliminary Investigation" inPeople v. Benigno Aquino, Jr., et al.
(which included petitioner as a co-accused), stating that "the preliminary
investigation of the above-entitled case has been set at 2:30 o'clock p.m. on
December 12, 1980" and that petitioner was given ten (10) days from receipt
of the charge sheet and the supporting evidence within which to file his
counter-evidence. The petitioner states that up to the time martial law was
lifted on January 17, 1981, and despite assurance to the contrary, he has not
received any copies of the charges against him nor any copies of the so-
called supporting evidence.
On February 9, 1981, the records of the case were turned over by the Judge
Advocate General's Office to the Ministry of Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint accusing
petitioner, among others of having violated Republic Act No. 1700, as
amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142
of the Revised Penal Code. The inquest court set the preliminary investigation
for March 17, 1981.
On March 6, 1981, the petitioner was allowed to leave the country to attend a
series of church conferences and undergo comprehensive medical
examinations of the heart, stomach, liver, eye and ear including a possible
removal of his left eye to save his right eye. Petitioner Salonga almost died as
one of the principal victims of the dastardly bombing of a Liberal Party rally at
Plaza Miranda on August 20, 1971. Since then, he has suffered serious
disabilities. The petitioner was riddled with shrapnel and pieces still remain in
various parts of his body. He has an AV fistula caused by a piece of shrapnel
lodged one millimeter from his aorta. The petitioner has limited use of his one
remaining hand and arms, is completely blind and physical in the left eye, and
has scar like formations in the remaining right eye. He is totally deaf in the
right ear and partially deaf in the left ear. The petitioner's physical ailments led
him to seek treatment abroad.
On or around March 26, 1981, the counsel for petitioner was furnished a copy
of an amended complaint signed by Gen. Prospero Olivas, dated March 12,
1981, charging the petitioner, along with 39 other accused with the violation of
R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736.
Hearings for preliminary investigation were conducted. The prosecution
presented as its witnesses Ambassador Armando Fernandez, the Consul
General of the Philippines in Los Angeles, California, Col. Balbino Diego,
PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security
Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to dismiss the
charges against petitioner for failure of the prosecution to establish a prima
facie case against him.
On December 2, 1981, the respondent judge denied the motion. On January
4, 1982, he issued a resolution ordering the filing of an information for
violation of the Revised Anti-Subversion Act, as amended, against forty (40)
people, including herein petitioner.
The resolutions of the respondent judge dated December 2, 1981 and
January 4, 1982 are now the subject of the petition. It is the contention of the
petitioner that no prima facie case has been established by the prosecution to
justify the filing of an information against him. He states that to sanction his
further prosecution despite the lack of evidence against him would be to admit
that no rule of law exists in the Philippines today.
After a painstaking review of the records, this Court finds the evidence offered
by the prosecution utterly insufficient to establish a prima facie case against
the petitioner. We grant the petition.
However, before going into the merits of the case, we shall pass upon a
procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of a
motion to quash or to dismiss, being interlocutory in character, cannot be
questioned by certiorari; that since the question of dismissal will again be
considered by the court when it decides the case, the movant has a plain,
speedy and adequate remedy in the ordinary course of law; and that public
interest dictates that criminal prosecutions should not be enjoined.
The general rule is correctly stated. However, the respondents fail to
appreciate or take into account certain exceptions when a petition for certiorari
is clearly warranted. The case at bar is one such exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions were
advanced by the respondents to wit:
xxx xxx xxx
... Respondents advert to the rule that when a motion to quash
filed by an accused in a criminal case shall be denied, the
remedy of the accused-movant is not to file a petition for
certiorari or mandamus or prohibition, the proper recourse
being to go to trial, without prejudice to his right to reiterate the
grounds invoked in his motion to quash if an adverse judgment
is rendered against him, in the appeal that he may take
therefrom in the manner authorized by law. (Mill v. People, et
al., 101 Phil. 599; Echarol v. Purisima, et al., 13 SCRA 309.)
On this argument, we ruled:
There is no disputing the validity and wisdom of the rule
invoked by the respondents. However, it is also recognized
that, under certain situations, recourse to the extraordinary
legal remedies of certiorari, prohibition or mandamus to
question the denial of a motion to quash is considered proper
in the interest of "more enlightened and substantial justice", as
was so declared in "Yap v. Lutero, G.R. No. L-12669, April 30,
1969."
Infinitely more important than conventional adherence to general rules of
criminal procedure is respect for the citizen's right to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious
prosecution. The integrity of a democratic society is corrupted if a person is
carelessly included in the trial of around forty persons when on the very face
of the record no evidence linking him to the alleged conspiracy exists. Ex-
Senator Jovito Salonga, himself a victim of the still unresolved and heinous
Plaza Miranda bombings, was arrested at the Manila Medical Center while
hospitalized for bronchial asthma. When arrested, he was not informed of the
nature of the charges against him. Neither was counsel allowed to talk to him
until this Court intervened through the issuance of an order directing that his
lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No.
55345, October 28, 1980). Only after four months of detention was the
petitioner informed for the first time of the nature of the charges against him.
After the preliminary investigation, the petitioner moved to dismiss the
complaint but the same was denied. Subsequently, the respondent judge
issued a resolution ordering the filing of an information after finding that a
prima facie case had been established against an of the forty persons
accused.
In the light of the failure to show prima facie that the petitioner was probably
guilty of conspiring to commit the crime, the initial disregard of petitioner's
constitutional rights together with the massive and damaging publicity made
against him, justifies the favorable consideration of this petition by this Court.
With former Senator Benigno Aquino, Jr. now deceased, there are at least 38
other co-accused to be tried with the petitioner. The prosecution must present
proof beyond reasonable doubt against each and every one of the 39
accused, most of whom have varying participations in the charge for
subversion. The prosecution's star witness Victor Lovely and the only source
of information with regard to the alleged link between the petitioner and the
series of terrorist bombings is now in the United States. There is reason to
believe the petitioner's citation of international news dispatches * that the
prosecution may find it difficult if not infeasible to bring him back to the Philippines to testify against the
petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made to
testify when the charges against the respondent come up in the course of the trial against the 39 accused.
Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or
not the respondent judge gravely abused his discretion in issuing the questioned resolutions.
The respondents contend that the prosecution will introduce additional
evidence during the trial and if the evidence, by then, is not sufficient to prove
the petitioner's guilt, he would anyway be acquitted. Yes, but under the
circumstances of this case, at what cost not only to the petitioner but to the
basic fabric of our criminal justice system?
The term "prima facie evidence" denotes evidence which, if unexplained or
uncontradicted, is sufficient to sustain the proposition it supports or to
establish the facts, or to counter-balance the presumption of innocence to
warrant a conviction. The question raised before us now is: Were the
evidences against the petitioner uncontradicted and if they were unexplained
or uncontradicted, would they, standing alone, sufficiently overcome the
presumption of innocence and warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the respondent
judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely.
Ambassador Armando Fernandez, when called upon to testify on subversive
organizations in the United States nowhere mentioned the petitioner as an
organizer, officer or member of the Movement for Free Philippines (MFP), or
any of the organizations mentioned in the complaint. Col. Diego, on the other
hand, when asked what evidence he was able to gather against the petitioner
depended only on the statement of Lovely "that it was the residence of ex-
Senator Salonga where they met together with Renato Taada, one of the
brains of the bombing conspiracy ... and the fact that Sen. Salonga has been
meeting with several subversive personnel based in the U.S.A. was also
revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at
former Congressman Raul Daza's birthday party. In concluding that a
conspiracy exists to overthrow by violent means the government of the
Philippines in the United States, his only bases were "documentary as well as
physical and sworn statements that were referred to me or taken by me
personally," which of course negate personal knowledge on his part. When
asked by the court how he would categorize petitioner in any of the subversive
organizations, whether petitioner was an organizer, officer or a member, the
witness replied:
A. To categorize former Senator Salonga if he were an
organizer, he is an officer or he is a member, your Honor,
please, we have to consider the surrounding circumstances
and on his involvement: first, Senator Salonga wanted always
to travel to the United States at least once a year or more
often under the pretext of to undergo some sort of operation
and participate in some sort of seminar. (t.s.n., April 21, 1981,
pp- 14-15)
Such testimony, being based on affidavits of other persons and purely
hearsay, can hardly qualify as prima facie evidence of subversion. It should
not have been given credence by the court in the first place. Hearsay
evidence, whether objected to or not, -has no probative value as the affiant
could not have been cross-examined on the facts stated therein. (See People
v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as
Victor Lovely, himself, was personally examined by the court, there was no
need for the testimony of Col. Diego. Thus, the inquest judge should have
confined his investigation to Victor Burns Lovely, the sole witness whose
testimony had apparently implicated petitioner in the bombings which
eventually led to the filing of the information.
Lovely's account of the petitioner's involvement with the former's bombing
mission is found in his sworn statement made before Col. Diego and Lt. Col.
Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely
was not presented as a prosecution or state witness but only as a defense
witness for his two younger brothers, Romeo and Baltazar, who were both
included in the complaint but who were later dropped from the information.
Victor Lovely was examined by his counsel and cross-examined by the fiscal.
In the process, he Identified the statement which he made before Col. Diego
and Lt. Col. Madella. After Lovely's testimony, the prosecution made a
manifestation before the court that it was adopting Lovely as a prosecution
witness.
According to Lovely's statement, the following events took place:
36. Q. Did Psinakis tell you where to stay?
A. Yes, at first he told me to check-in at Manila
Hotel or the Plaza Hotel where somebody
would come to contact me and give the
materials needed in the execution of my
mission. I thought this was not safe so I
disagreed with him. Mr. Psinakis changed the
plan and instead told me to visit the residence
of Ex-Sen. Jovito Salonga as often as I can
and someone will meet me there to give the
materials I needed to accomplish my mission
37. Q. Did you comply as instructed?
A. Yes, I arrived in Manila on August 20, 1980
and stayed at the residence of Mr. Johnny
Chua, husband of my business partner, then I
went to the Hospital where I visited my mother
and checked-in at Room 303 of the YMCA at
Concepcion Street, Manila.
38. Q. Did you visit the residence of former
Senator Jovito Salonga as directed by
Psinakis?
A. I visited Sen. Salonga's place three (3)
times, the first visit was August 20 or 21, and
the last was 4:00 P.M. of August 31, 1980. In
addition to these visits, I TALKED to him on the
phone about three or four times. On my first
visit, I told him "I am expecting an attache case
from somebody which will be delivered to your
house," for which Sen. Salonga replied "Wala
namang nagpunta dito at wala namang attache
case para sa iyo." However, if your attache
case arrives, I'll just call you." I gave him my
number. On my second visit, Salonga said, "I'll
be very busy so just come back on the 31st of
 August at 4 P.M." On that date, I was with
friends at Batulao Resort and had to hurry back
to be at Salonga's place for the appointment. I
arrived at Salonga's place at exactly 4 P.M.
39. Q. What happened then?
A. I was ushered to the sala by Mrs. Salonga
and after five minutes, Sen. Salonga joined me
in the sala. Sen. Salonga informed me that
somebody will be coming to give me the
attache case but did not tell me the name.
40. Q. Are there any subject matters you
discuss while waiting for that somebody to
deliver your materials?
A. Yes, Salonga asked if Sen. Aquino and I
have met, I explained to him the efforts of Raul
Daza in setting up that meeting but I have
previous business commitments at Norfolk,
Virginia. I told him, however, that through the
efforts of Raul Daza, I was able to talk with
Ninoy Aquino in the airport telephone booth in
San Francisco. He also asked about Raul
Daza, Steve Psinakis and the latest opposition
group activities but it seems he is well
informed.
41. Q. How long did you wait until that
somebody arrived?
A. About thirty (30) minutes.
41. Q. What happened when the man arrived?
A. This man arrived and I was greatly surprised
to see Atty. Renato Taada Jovy Salonga was
the one who met him and as I observed parang
nasa sariling bahay si Taada nung dumating.
They talked for five (5) minutes in very low
tones so I did not hear what they talked about.
After their whispering conversations, Sen.
Salonga left and at this time Atty. "Nits"
Taada told me "Nasa akin ang kailangan mo,
nasa kotse."
43. Q. Were the materials given to you?
A. When Sen. Salonga came back, we asked
to be permitted to leave and I rode in Atty.
"Nits" Taadas old Pontiac car colored dirty
brown and proceeded to Broadway Centrum
where before I alighted, Atty. Taada handed
me a "Puma" bag containing all the materials I
needed.
xxx xxx xxx
45. Q. What were the contents of the Puma
bag?
A. Ten (10) pieces of Westclox pocket watch
with screw and wirings, ten (10) pieces
electrical blasting caps 4" length, ten (10)
pieces non-electrical blasting caps 1 " length,
nine (9) pieces volts dry cell battery, two (2)
improvised electrical testers. ten (10) plastic
packs of high explosive about 1 pound weight
each.
However, in his interview with Mr. Ronnie Nathanielz which was aired on
Channel 4 on November 8, 1980 and which was also offered as evidence by
the accused, Lovely gave a different story which negates the above testimony
insofar as the petitioner's participation was concerned:
xxx xxx xxx
Q. Who were the people that you contacted in
Manila and for what purpose?
A. Before I left for the Philippines, Mr. Psinakis
told me to check in at the Manila Hotel or the
Plaza Hotel, and somebody would just deliver
the materials I would need. I disapproved of
this, and I told him I would prefer a place that is
familiar to me or who is close to me. Mr.
Psinakis suggested the residence of Sen.
Salonga.
And so, I arrived in Manila on August 20, 1980,
1 made a call to Sen. Salonga, but he was out.
The next day I made a call again. I was able to
contact him. I made an appointment t see
him. I went to Sen. Salonga's house the
following day. I asked Sen. Salonga if
someone had given him an attache case for
me. He said nobody. Afterwards, I made three
calls to Sen. Salonga. Sen. Salonga told me
"call me again on the 31st of August. I did not
call him, I just went to his house on the 31st of
August at 4 P.M. A few minutes after my arrival
Atty. Renato Taada arrived. When he had a
chance to be near me, he (Atty. Tanada)
whispered to me that he had the attache case
and the materials I needed in his car. These
materials were given to me by Atty. Tanada
When I alighted at the Broadway
Centrum. (Emphasis supplied)
During the cross-examination, counsel for petitioner asked Lovely about the
so-called destabilization plan which the latter mentioned in his sworn
statement:
 Q. You mentioned in your statement taken on
October 17, 1980, marked Exhibit "G" about
the so-called destabilization plan of Aquino.
When you attended the birthday party of Raul
Daza wherein Jovito Salonga was also
present, was this destabilization plan as
alleged by you already formulated?
WITNESS:
A. Not to my knowledge.
COURT TO WITNESS:
Q. Mr. Witness, who invited you to the party?
A. Raul Daza, your Honor.
Q. Were you told that Mr. Salonga would be
present in the party.
A. I am really not quite sure, your Honor.
Q. Alright. You said initially it was social but
then it became political. Was there any political
action taken as a result of the party?
A. Only political discussion, your Honor. (TSN,
July 8, 1981, pp. 69-84).
Counsel for petitioner also asked Lovely whether in view of the latter's
awareness of the physical condition of petitioner, he really implicated
petitioner in any of the bombings that occurred in Metro Manila. The fiscal
objected without stating any ground. In sustaining the objection, the Court
said:
Sustained . . . The use of the word 'implicate' might expand the
role of Mr. Salonga. In other words, you are widening the
avenue of Mr. Salonga's role beyond the participation stated in
the testimony of this witness about Mr. Salonga, at least, as far
as the evidence is concerned, I supposed, is only being in the
house of Mr. Salonga which was used as the contact point. He
never mentions Mr. Salonga about the bombings. Now these
words had to be put in the mouth of this witness. That would
be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67)
Respondent judge further said:
COURT:
As the Court said earlier, the parts or portions
affecting Salonga only refers to the witness
coming to Manila already then the matter of . . .
I have gone over the statement and there is no
mention of Salonga insofar as activities in the
United States is concerned. I don't know why it
concerns this cross-examination.
ATTY. YAP:
Because according to him, it was in pursuance
of the plan that he came to Manila.
COURT:
According to him it was Aquino, Daza, and
Psinakis who asked him to come here, but
Salonga was introduced only when he (Lovely)
came here. Now, the tendency of the question
is also to connect Salonga to the activities in
the United States. It seems to be the thrust of
the questions.
COURT:
In other words, the point of the Court as of the
time when you asked him question, the focus
on Salonga was only from the time when he
met Salonga at Greenhills. It was the first time
that the name of Salonga came up. There was
no mention of Salonga in the formulation of the
destabilization plan as affirmed by him. But you
are bringing this up although you are only
cross-examining for Salonga as if his (Lovely's)
activities in the United States affected Salonga.
(TSN. July 8, 1981, pp. 73-74).
Apparently, the respondent judge wanted to put things in proper perspective
by limiting the petitioner's alleged "participation" in the bombing mission only
to the fact that petitioner's house was used as a "contact point" between
Lovely and Taada, which was all that Lovely really stated in his testimony.
However, in the questioned resolution dated December 2, 1981, the
respondent judge suddenly included the "activities" of petitioner in the United
States as his basis for denying the motion to dismiss:
On the activities of Salonga in the United States, the witness,
Lovely, in one of his statements declared: 'To the best of my
recollection he mentioned of some kind of violent struggle in
the Philippines being most likely should reforms be not
instituted by President Marcos immediately.
It is therefore clear that the prosecution's evidence has
established facts and circumstances sufficient for a finding that
excludes a Motion to Dismiss by respondent Salonga. The
Movement for Free Philippines is undoubtedly a force born on
foreign soil it appears to rely on the resources of foreign
entities, and is being (sic) on gaining ascendancy in the
Philippines with the use of force and for that purpose it has
linked itself with even communist organizations to achieve its
end. It appears to rely on aliens for its supporters and
financiers.
The jump from the "contact point" theory to the conclusion of involvement in
subversive activities in the United States is not only inexplicable but without
foundation.
The respondents admit that no evidence was presented directly linking
petitioner Salonga to actual acts of violence or terrorism. There is no proof of
his direct participation in any overt acts of subversion. However, he is tagged
as a leader of subversive organizations for two reasons-
(1) Because his house was used as a "contactpoint"; and
(2) Because "he mentioned some kind of violent struggle in the Philippines
being most likely should reforms be not instituted by President Marcos
immediately."
The "contact point" theory or what the petitioner calls the guilt by visit or guilt
by association" theory is too tenuous a basis to conclude that Senator
Salonga was a leader or mastermind of the bombing incidents. To indict a
person simply because some plotters, masquerading as visitors, have
somehow met in his house or office would be to establish a dangerous
precedent. The right of citizens to be secure against abuse of governmental
processes in criminal prosecutions would be seriously undermined.
The testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Taada could not have
whispered to one another because the petitioner is almost totally deaf. Lovely
could not have met Senator Salonga at a Manglapus party in Washington,
D.C. in 1977 because the petitioner left for the United States only
on November, 1978. Senator Salonga denies having known Mr. Lovely in the
United States or in the Philippines. He states that he has hundred of visitors
from week to week in his residence but cannot recall any Victor Lovely.
The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday
party in Los Angeles where Senator Salonga was a guest is not proof of
conspiracy. As stated by the petitioner, in his many years in the turbulent
world of politics, he has posed with all kinds of people in various groups and
various places and could not possibly vouch for their conduct. Commenting on
the matter, newspaper columnist Teodoro Valencia stated that Filipinos love
to pose with important visitors and the picture proves nothing.
It is likewise probable that a national figure and former politician of Senator
Salonga's stature can expect guests and visitors of all kinds to be visiting his
home or office. If a rebel or subversive happens to pose with the petitioner for
a group picture at a birthday party abroad, or even visit him with others in his
home, the petitioner does not thereby become a rebel or subversive, much
less a leader of a subversive group. More credible and stronger evidence is
necessary for an indictment. Nonetheless, even if we discount the flaws in
Lovely's testimony and dismiss the refutations and arguments of the
petitioner, the prosecution evidence is still inadequate to establish a prima
facie finding.
The prosecution has not come up with even a single iota of evidence which
could positively link the petitioner to any proscribed activities of the Movement
for Free Philippines or any subversive organization mentioned in the
complaint. Lovely had already testified that during the party of former
Congressman Raul Daza which was alleged to have been attended by a
number of members of the MFP, no political action was taken but only political
discussion. Furthermore, the alleged opinion of the petitioner about the
likelihood of a violent struggle here in the Philippines if reforms are not
instituted, assuming that he really stated the same, is nothing but a legitimate
exercise of freedom of thought and expression. No man deserves punishment
for his thoughts. Cogitationis poenam memo meretur. And as the late Justice
Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ...
if there is any principle of the Constitution that more imperatively calls for
attachment than any other it is the principle of free thought not free thought for
those who agree with us but freedom for the thought that we hate."
We have adopted the concept that freedom of expression is a "preferred" right
and, therefore, stands on a higher level than substantive economic or other
liberties. The primacy, the high estate accorded freedom of expression is a
fundamental postulate of our constitutional system. (Gonzales v. Commission
on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v.
Connecticut (302 U.S. 319) this must be so because the lessons of history,
both political and legal, illustrate that freedom of thought and speech is the
indispensable condition of nearly every other form of freedom. Protection is
especially mandated for political discussions. This Court is particularly
concerned when allegations are made that restraints have been imposed
upon mere criticisms of government and public officials. Political discussion is
essential to the ascertainment of political truth. It cannot be the basis of
criminal indictments.
The United States Supreme Court in Noto v. United States (367 U.S. 290)
distinguished between the abstract teaching of the moral propriety or even
moral necessity for a resort to force and violence and speech which would
prepare a group for violent action and steel it to such action. In Watts v.
United States (394 U.S. 705), the American court distinguished between
criminal threats and constitutionally protected speech.
It stated:
We do not believe that the kind of political hyperbole indulged
in by petitioner fits within that statutory term. For we must
interpret the language Congress chose against the
background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and
wide open and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and
public officials. New York Times Co. v. Sullivan (376 U.S.
254). The language of the political arena, like the language
used in labor disputed is often vituperative abusive, and
inexact. We agree with petitioner that his only offense was a
kind of very crude offensive method of stating a political
opposition to the President.
In the case before us, there is no teaching of the moral propriety of a resort to
violence, much less an advocacy of force or a conspiracy to organize the use
of force against the duly constituted authorities. The alleged remark about the
likelihood of violent struggle unless reforms are instituted is not a threat
against the government. Nor is it even the uninhibited, robust, caustic, or
unpleasantly sharp attack which is protected by the guarantee of free speech.
Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444)
states that the constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action. The
words which petitioner allegedly used according to the best recollections of
Mr. Lovely are light years away from such type of proscribed advocacy.
Political discussion even among those opposed to the present administration
is within the protective clause of freedom of speech and expression. The
same cannot be construed as subversive activities per se or as evidence of
membership in a subversive organization. Under Presidential Decree No. 885,
Section 3, paragraph 6, political discussion will only constitute, prima facie
evidence of membership in a subversive organization if such discussion
amounts to:
(6) Conferring with officers or other members of such
association or organization in furtherance of any plan or
enterprise thereof.
As stated earlier, the prosecution has failed to produce evidence that would
establish any link between petitioner and any subversive organization. Even if
we lend credence to Lovely's testimony that a political discussion took place at
Daza's birthday party, no proof whatsoever was adduced that such discussion
was in furtherance of any plan to overthrow the government through illegal
means. The alleged opinion that violent struggle is likely unless reforms are
instituted by no means shows either advocacy of or incitement to violence or
furtherance of the objectives of a subversive organization.
Lovely also declared that he had nothing to do with the bombing on August
22, 1980, which was the only bombing incident that occurred after his arrival
in Manila on August 20, and before the YMCA explosion on September 6,
1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that:
WITNESS:
Actually, it was not my intention to do some
kind of bombing against the government. My
bombing mission was directed against the
particular family (referring to the Cabarrus
family [TSN, p. 11, July 9, 1981] [Rollo, p. 10].
Such a statement wholly negates any politically motivated or subversive
assignment which Lovely was supposed to have been commissioned to
perform upon the orders of his co- accused and which was the very reason
why they answer charged in the first place. The respondent judge also asked
Lovely about the possible relation between Cabarrus and petitioner:
COURT:
Q. Did you suspect any relation between
Cabarrus and Jovito Salonga, why did you
implicate Jovito Salonga?
A. No, your Honor. I did not try to implicate
Salonga.
It should be noted that after Lovely's testimony, the prosecution manifested to
the court that it was adopting him as a prosecution witness. Therefore, the
prosecution became irreversively bound by Lovely's disclaimers on the
witness stand, that it was not his intention "to do some kind of bombing
against the government" and that he "did not try to implicate Salonga",
especially since Lovely is the sole witness adopted by the prosecution who
could supposedly establish the link between the petitioner and the bombing
incidents.
The respondent court should have taken these factors into consideration
before concluding that a prima facie case exists against the petitioner.
Evidence must not only proceed from the mouth of a credible witness but it
must be credible in itself such as the common experience and observation of
mankind can approve as probable under the circumstances. (People v.
Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even
present a credible version of the petitioner's role in the bombings even if it
ignores the subsequent disclaimers of Lovely and without relying on mere
affidavits including those made by Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect. In this
resolution, Lovely's previous declarations about the bombings as part of the
alleged destabilization plan and the people behind the same were accorded
such credibility by the respondent judge as if they had already been proved
beyond reasonable doubt.
The purpose of a preliminary investigation is to secure the innocent against
hasty, malicious and oppressive prosecution, and to protect him from an open
and public accusation of crime, from the trouble, expense and anxiety of a
public trial, and also to protect the state from useless and expensive trials.
(Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The
right to a preliminary investigation is a statutory grant, and to withhold it would
be to transgress constitutional due process. (See People v. Oandasa, 25
SCRA 277) However, in order to satisfy the due process clause it is not
enough that the preliminary investigation is conducted in the sense of making
sure that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is a
part of the guarantees of freedom and fair play which are birthrights of all who
live in our country. It is, therefore, imperative upon the fiscal or the judge as
the case may be, to relieve the accused from the pain of going through a trial
once it is ascertained that the evidence is insufficient to sustain a prima facie
case or that no probable cause exists to form a sufficient belief as to the guilt
of the accused. Although there is no general formula or fixed rule for the
determination of probable cause since the same must be decided in the light
of the conditions obtaining in given situations and its existence depends to a
large degree upon the finding or opinion of the judge conducting the
examination, such a finding should not disregard the facts before the judge
nor run counter to the clear dictates of reasons (See La Chemise Lacoste,
S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not
go on with the prosecution in the hope that some credible evidence might later
turn up during trial for this would be a flagrant violation of a basic right which
the courts are created to uphold. It bears repeating that the judiciary lives up
to its mission by vitalizing and not denigrating constitutional rights. So it has
been before. It should continue to be so. Mercado v. Court of First Instance of
Rizal, 116 SCRA 93).
The Court had already deliberated on this case, a consensus on the Court's
judgment had been arrived at, and a draft ponencia was circulating for
concurrences and separate opinions, if any, when on January 18, 1985,
respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal
Sergio Apostol to drop the subversion case against the petitioner. Pursuant to
instructions of the Minister of Justice, the prosecution restudied its evidence
and decided to seek the exclusion of petitioner Jovito Salonga as one of the
accused in the information filed under the questioned resolution.
We were constrained by this action of the prosecution and the respondent
Judge to withdraw the draft ponencia from circulating for concurrences and
signatures and to place it once again in the Court's crowded agenda for
further deliberations.
Insofar as the absence of a prima facie case to warrant the filing of subversion
charges is concerned, this decision has been rendered moot and academic by
the action of the prosecution.
Respondent Fiscal Sergio Apostol correctly points out, however, that he is not
precluded from filing new charges for the same acts because the petitioner
has not been arraigned and double jeopardy does not apply. in that sense, the
case is not completely academic.
Recent developments in this case serve to focus attention on a not too well
known aspect of the Supreme Court's functions.
The setting aside or declaring void, in proper cases, of intrusions of State
authority into areas reserved by the Bill of Rights for the individual as
constitutionally protected spheres where even the awesome powers of
Government may not enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of
educating bench and bar on the extent of protection given by constitutional
guarantees.
In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a
P1,195,200.00 bail bond as excessive and, therefore, constitutionally void,
escaped from the provincial jail while his petition was pending. The petition
became moot because of his escape but we nonetheless rendered a decision
and stated:
The fact that the case is moot and academic should not
preclude this Tribunal from setting forth in language clear and
unmistakable, the obligation of fidelity on the part of lower
court judges to the unequivocal command of the Constitution
that excessive bail shall not be required.
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of
the Philippines could validly be created through an executive order was
mooted by Presidential Decree No. 15, the Center's new charter pursuant to
the President's legislative powers under martial law. Stan, this Court
discussed the constitutional mandate on the preservation and development of
Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the
Constitution).
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the
pendency of the case, 26 petitioners were released from custody and one
withdrew his petition. The sole remaining petitioner was facing charges of
murder, subversion, and illegal possession of firearms. The fact that the
petition was moot and academic did not prevent this Court in the exercise of
its symbolic function from promulgating one of the most voluminous decisions
ever printed in the Reports.
In this case, the respondents agree with our earlier finding that the
prosecution evidence miserably fails to establish a prima facie case against
the petitioner, either as a co-conspirator of a destabilization plan to overthrow
the government or as an officer or leader of any subversive organization. They
have taken the initiative of dropping the charges against the petitioner. We
reiterate the rule, however, that this Court will not validate the filing of an
information based on the kind of evidence against the petitioner found in the
records.
WHEREFORE, the petition is DISMISSED for having become moot and
academic.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera,
Plana, Escolin, Relova and Cuevas, JJ., concur.
Aquino, De la Fuente and Alampay, JJ., took no part.
Separate Opinions
ABAD SANTOS, J., concurring
Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA
405, was a petition for the writ of habeas corpus. Before this Court could
finally act on the petition, the subject was released and for that reason the
majority of this Court resolved to dismiss the petition for having become moot
and academic. Justice Teehankee and the undersigned disagreed with the
majority; we expressed the view that despite the release of the subject, the
petition should have been resolved on the merits because it posed important
legal questions.
Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al.,
G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain the
respondents from interrogating the petitioners, members of the print media, on
various aspects of their works, feelings, sentiments, beliefs, associations and
even their private lives. Again the majority of this Court dismissed the petition
because the assailed proceedings had come to an end thereby rendering the
petition moot and academic. In dismissing the petition a short and mild note of
concern was added. And again Justice Teehankee and the undersigned
disagreed with the majority. We expressed the view that this Court should rule
squarely on the matters raised in the petition rather than dismiss it for having
become moot and academic.
I am glad that this Court has abandoned its cavalier treatment of petitions by
dismissing them on the ground that they have become moot and academic
and stopped there. I am glad it has reverted to De la Camara vs. Enage,
Gonzales vs. Marcos and Aquino v. Enrile which are mentioned in the
ponencia of Justice Gutierrez.
I agree with the ponencia of Justice Gutierrez that because the subversion
charges against the petitioner had been dropped by the trial court on January
18, 1985, there is no longer any need to prohibit the respondents from
prosecuting Criminal Case No. Q-18606 insofar as he is concerned.
I am not revealing any confidential matter by saying that the initial action of
this Court was to grant the petition, i.e. prohibit the prosecution of the
petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that
on this matter the Court has been preempted by a "first strike" which has
occurred once too often.
Justice Gutierrez states that, "The Court had already deliberated on this case,
and a consensus on the Court's judgment had been arrived at." Let me add
that the consensus had taken place as early as October 24, 1984, and the
decision started to circulate for signature on November 2, 1984. Alas, on
January 18, 1985, the decision was still circulating overtaken by events. The
decision could have had a greater impact had it been promulgated prior to the
executive action.
Separate Opinions
ABAD SANTOS, J., concurring
Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA
405, was a petition for the writ of habeas corpus. Before this Court could
finally act on the petition, the subject was released and for that reason the
majority of this Court resolved to dismiss the petition for having become moot
and academic. Justice Teehankee and the undersigned disagreed with the
majority; we expressed the view that despite the release of the subject, the
petition should have been resolved on the merits because it posed important
legal questions.
Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al.,
G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain the
respondents from interrogating the petitioners, members of the print media, on
various aspects of their works, feelings, sentiments, beliefs, associations and
even their private lives. Again the majority of this Court dismissed the petition
because the assailed proceedings had come to an end thereby rendering the
petition moot and academic. In dismissing the petition a short and mild note of
concern was added. And again Justice Teehankee and the undersigned
disagreed with the majority. We expressed the view that this Court should rule
squarely on the matters raised in the petition rather than dismiss it for having
become moot and academic.
I am glad that this Court has abandoned its cavalier treatment of petitions by
dismissing them on the ground that they have become moot and academic
and stopped there. I am glad it has reverted to De la Camara vs. Enage,
Gonzales vs. Marcos and Aquino v. Enrile which are mentioned in the
ponencia of Justice Gutierrez.
I agree with the ponencia of Justice Gutierrez that because the subversion
charges against the petitioner had been dropped by the trial court on January
18, 1985, there is no longer any need to prohibit the respondents from
prosecuting Criminal Case No. Q-18606 insofar as he is concerned.
I am not revealing any confidential matter by saying that the initial action of
this Court was to grant the petition, i.e. prohibit the prosecution of the
petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that
on this matter the Court has been preempted by a "first strike" which has
occurred once too often.
Justice Gutierrez states that, "The Court had already deliberated on this case,
and a consensus on the Court's judgment had been arrived at." Let me add
that the consensus had taken place as early as October 24, 1984, and the
decision started to circulate for signature on November 2, 1984. Alas, on
January 18, 1985, the decision was still circulating overtaken by events. The
decision could have had a greater impact had it been promulgated prior to the
executive action.
Footnotes
* In the Philippines Daily Express, dated December 8, 1981,
Lovely was quoted as having said in the United States that "I
was not the bomber, I was bombed."
Lovely, who was granted immunity in the United States,
reportedly would not testify before a San Francisco federal
grand jury and instead said, "Your Honor, I came back to tell
what happened in the Philippines. I was not the bomber, I was
bombed."
The United Press International dispatch from San Francisco,
U.S., written by Spencer Sherman, gives a fuller account, thus:
With the grand jury present in the courtroom Lovely alleged it
was Philippine authorities who were responsible for his
injuries. It was they, not him, who placed the bomb in his hotel
room, he said.
I came back to the States to tell what happened in the
Philippines. I was not the bomber. I was bombed. There are so
many secrets that will come out soon. I cannot (testify) even if
I will be jailed for lifetime. I welcome that." UPO press
dispatch from San Francisco, November 24, 1981.
The Philippine News, a San Francisco-based weekly, in its
issue of December 23, 1981, contains the same account, with
the following words:
"Your Honor . . . I am not going to participate I was almost
murdered. I cannot continue. My friends were murdered before
I came to the United States . . . I came back to the United
States to tell what happened in the Philippines. I was not the
bomber, I was bombed. There are many secrets that will come
out very soon I cannot. Even if I will be jailed for lifetime. I
welcome that."
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5279 October 31, 1955
PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC.,
petitioner,
vs.
SECRETARY OF EDUCATION and the BOARD OF
TEXTBOOKS, respondents.
Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M.
Fernando for petitioner.
Office of the Solicitor General Pompeyo Diaz and Assistant Solicitor General
Francisco Carreon for respondents.
BENGZON, J.:
The petitioning colleges and universities request that Act No. 2706 as
amended by Act No. 3075 and Commonwealth Act No. 180 be declared
unconstitutional, because: A. They deprive owners of schools and colleges as
well as teachers and parents of liberty and property without due process of
law; B. They deprive parents of their natural rights and duty to rear their
children for civic efficiency; and C. Their provisions conferring on the
Secretary of Education unlimited power and discretion to prescribe rules and
standards constitute an unlawful delegation of legislative power.
A printed memorandum explaining their position in extenso is attached to the
record.
The Government's legal representative submitted a mimeographed
memorandum contending that, (1) the matter constitutes no justiciable
controversy exhibiting unavoidable necessity of deciding the constitutional
questions; (2) petitioners are in estoppel to challenge the validity of the said
acts; and (3) the Acts are constitutionally valid.
Petitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and
recognition of private schools and colleges obligatory for the Secretary of
Public Instruction." Under its provisions, the Department of Education has, for
the past 37 years, supervised and regulated all private schools in this country
apparently without audible protest, nay, with the general acquiescence of the
general public and the parties concerned.
It should be understandable, then, that this Court should be doubly reluctant
to consider petitioner's demand for avoidance of the law aforesaid, specially
where, as respondents assert, petitioners suffered no wrongnor allege
anyfrom the enforcement of the criticized statute.
It must be evident to any one that the power to declare a legislative
enactment void is one which the judge, conscious of the fallability of
the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath
decline the responsibility. (Cooley Constitutional Limitations, 8th Ed.,
Vol. I, p. 332.)
When a law has been long treated as constitutional and important
rights have become dependent thereon, the Court may refuse to
consider an attack on its validity. (C. J. S. 16, p. 204.)
As a general rule, the constitutionality of a statute will be passed on
only if, and to the extent that, it is directly and necessarily involved in a
justiciable controversy and is essential to the protection of the rights of
the parties concerned. (16 C. J. S., p. 207.)
In support of their first proposition petitioners contend that the right of a citizen
to own and operate a school is guaranteed by the Constitution, and any law
requiring previous governmental approval or permit before such person could
exercise said right, amounts to censorship of previous restraint, a practice
abhorent to our system of law and government. Petitioners obviously refer to
section 3 of Act No. 2706 as amended which provides that before a private
school may be opened to the public it must first obtain a permit from the
Secretary of Education. The Solicitor General on the other hand points out
that none of the petitioners has cause to present this issue, because all of
them have permits to operate and are actually operating by virtue of their
permits.1 And they do not assert that the respondent Secretary of Education
has threatened to revoke their permits. They have suffered no wrong under
the terms of lawand, naturally need no relief in the form they now seek to
obtain.
It is an established principle that to entitle a private individual
immediately in danger of sustaining a direct injury as the result of that
action and it is not sufficient that he has merely a general to invoke the
judicial power to determine the validity of executive or legislative
action he must show that he has sustained or is interest common to all
members of the public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed. 493.)
Courts will not pass upon the constitutionality of a law upon the
complaint of one who fails to show that he is injured by its operation.
(Tyler vs. Judges, 179 U. S. 405; Hendrick vs. Maryland, 235 U. S.
610; Coffman vs.Breeze Corp., 323 U. S. 316-325.)
The power of courts to declare a law unconstitutional arises only when
the interests of litigant require the use of that judicial authority for their
protection against actual interference, a hypothetical threat being
insufficient. (United Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed.
754.)
Bona fide suit.Judicial power is limited to the decision of actual
cases and controversies. The authority to pass on the validity of
statutes is incidental to the decision of such cases where conflicting
claims under the Constitution and under a legislative act assailed as
contrary to the Constitution are raised. It is legitimate only in the last
resort, and as necessity in the determination of real, earnest, and vital
controversy between litigants. (Taada and Fernando, Constitution of
the Philippines, p. 1138.)
Mere apprehension that the Secretary of Education might under the law
withdraw the permit of one of petitioners does not constitute a justiciable
controversy. (Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S.
W. 2d. 771.)
And action, like this, is brought for a positive purpose, nay, to obtain actual
and positive relief. (Salonga vs. Warner Barnes, L-2245, January, 1951.)
Courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest therein, however intellectually solid the problem may be. This is
specially true where the issues "reach constitutional dimensions, for then
there comes into play regard for the court's duty to avoid decision of
constitutional issues unless avoidance becomes evasion." (Rice vs. Sioux
City, U. S. Sup. Ct. Adv. Rep., May 23, 1995, Law Ed., Vol. 99, p. 511.)
The above notwithstanding, in view of the several decisions of the United
States Supreme Court quoted by petitioners, apparently outlawing censorship
of the kind objected to by them, we have decided to look into the matter, lest
they may allege we refuse to act even in the face of clear violation of
fundamental personal rights of liberty and property.
Petitioners complain that before opening a school the owner must secure a
permit from the Secretary of Education. Such requirement was not originally
included in Act No. 2706. It was introduced by Commonwealth Act No. 180
approved in 1936. Why?
In March 1924 the Philippine Legislature approved Act No. 3162 creating a
Board of Educational Survey to make a study and survey of education in the
Philippines and of all educational institutions, facilities and agencies thereof. A
Board chairmaned by Dr. Paul Munroe, Columbia University, assisted by a
staff of carefully selected technical members performed the task, made a five-
month thorough and impartial examination of the local educational system,
and submitted a report with recommendations, printed as a book of 671
pages. The following paragraphs are taken from such report:
PRIVATE-ADVENTURE SCHOOLS
There is no law or regulation in the Philippine Islands today to prevent
a person, however disqualified by ignorance, greed, or even immoral
character, from opening a school to teach the young. It it true that in
order to post over the door "Recognized by the Government," a private
adventure school must first be inspected by the proper Government
official, but a refusal to grant such recognition does not by any means
result in such a school ceasing to exist. As a matter of fact, there are
more such unrecognized private schools than of the recognized
variety. How many, no one knows, as the Division of Private Schools
keeps records only of the recognized type.
Conclusion.An unprejudiced consideration of the fact presented
under the caption Private Adventure Schools leads but to one
conclusion, viz.: the great majority of them from primary grade to
university are money-making devices for the profit of those who
organize and administer them. The people whose children and youth
attend them are not getting what they pay for. It is obvious that the
system constitutes a great evil. That it should be permitted to exist
with almost no supervision is indefensible. The suggestion has been
made with the reference to the private institutions of university grade
that some board of control be organized under legislative control to
supervise their administration. The Commission believes that the
recommendations it offers at the end of this chapter are more likely to
bring about the needed reforms.
Recommendations.The Commission recommends that legislation be
enacted to prohibit the opening of any school by an individual or
organization without the permission of the Secretary of Public
Instruction. That before granting such permission the Secretary assure
himself that such school measures up to proper standards in the
following respects, and that the continued existence of the school be
dependent upon its continuing to conform to these conditions:
(1) The location and construction of the buildings, the lighting and
ventilation of the rooms, the nature of the lavatories, closets, water
supply, school furniture and apparatus, and methods of cleaning shall
be such as to insure hygienic conditions for both pupils and teachers.
(2) The library and laboratory facilities shall be adequate to the needs
of instruction in the subjects taught.
(3) The classes shall not show an excessive number of pupils per
teacher. The Commission recommends 40 as a maximum.
(4) The teachers shall meet qualifications equal to those of teachers in
the public schools of the same grade.
xxx xxx xxx
In view of these findings and recommendations, can there be any doubt that
the Government in the exercise of its police power to correct "a great evil"
could validly establish the "previous permit" system objected to by petitioners?
This is what differentiates our law from the other statutes declared invalid in
other jurisdictions. And if any doubt still exists, recourse may now be had to
the provision of our Constitution that "All educational institutions shall be
under the supervision and subject to regulation by the State." (Art. XIV, sec.
5.) The power to regulate establishments or business occupations implies the
power to require a permit or license. (53 C. J. S. 4.)
What goes for the "previous permit" naturally goes for the power to revoke
such permit on account of violation of rules or regulations of the Department.
II. This brings us to the petitioners' third proposition that the questioned
statutes "conferring on the Secretary of Education unlimited power and
discretion to prescribe rules and standards constitute an unlawful delegation
of legislative power."
This attack is specifically aimed at section 1 of Act No. 2706 which, as
amended, provides:
It shall be the duty of the Secretary of Public Instruction to maintain a
general standard of efficiency in all private schools and colleges of the
Philippines so that the same shall furnish adequate instruction to the
public, in accordance with the class and grade of instruction given in
them, and for this purpose said Secretary or his duly authorized
representative shall have authority to advise, inspect, and regulate
said schools and colleges in order to determine the efficiency of
instruction given in the same,
"Nowhere in this Act" petitioners argue "can one find any description, either
general or specific, of what constitutes a 'general standard of efficiency.'
Nowhere in this Act is there any indication of any basis or condition to
ascertain what is 'adequate instruction to the public.' Nowhere in this Act is
there any statement of conditions, acts, or factors, which the Secretary of
Education must take into account to determine the 'efficiency of instruction.'"
The attack on this score is also extended to section 6 which provides:
The Department of Education shall from time to time prepare and
publish in pamphlet form the minimum standards required of primary,
 intermediate, and high schools, and colleges granting the degrees of
Bachelor of Arts, Bachelor of Science, or any other academic degree.
It shall also from time to time prepare and publish in pamphlet form the
minimum standards required of law, medical, dental, pharmaceutical,
engineering, agricultural and other medical or vocational schools or
colleges giving instruction of a technical, vocational or professional
character.
Petitioners reason out, "this section leaves everything to the uncontrolled
discretion of the Secretary of Education or his department. The Secretary of
Education is given the power to fix the standard. In plain language, the statute
turns over to the Secretary of Education the exclusive authority of the
legislature to formulate standard. . . .."
It is quite clear the two sections empower and require the Secretary of
Education to prescribe rules fixing minimum standards of adequate and
efficient instruction to be observed by all such private schools and colleges as
may be permitted to operate. The petitioners contend that as the legislature
has not fixed the standards, "the provision is extremely vague, indefinite and
uncertain"and for that reason constitutionality objectionable. The best
answer is that despite such alleged vagueness the Secretary of Education has
fixed standards to ensure adequate and efficient instruction, as shown by the
memoranda fixing or revising curricula, the school calendars, entrance and
final examinations, admission and accreditation of students etc.; and the
system of private education has, in general, been satisfactorily in operation for
37 years. Which only shows that the Legislature did and could, validly rely
upon the educational experience and training of those in charge of the
Department of Education to ascertain and formulate minimum requirements of
adequate instruction as the basis of government recognition of any private
school.
At any rate, petitioners do not show how these standards have injured any of
them or interfered with their operation. Wherefore, no reason exists for them
to assail the validity of the power nor the exercise of the power by the
Secretary of Education.
True, the petitioners assert that, the Secretary has issued rules and
regulations "whimsical and capricious" and that such discretionary power has
produced arrogant inspectors who "bully heads and teachers of private
schools." Nevertheless, their remedy is to challenge those regulations
specifically, and/or to ring those inspectors to book, in proper administrative or
judicial proceedingsnot to invalidate the law. For it needs no argument, to
show that abuse by the officials entrusted with the execution of a statute does
not per se demonstrate the unconstitutionality of such statute.
Anyway, we find the defendants' position to be sufficiently sustained by the
decision in Alegra vs. Collector of Customs, 53 Phil., 394 upon holding the
statute that authorized the Director of Agriculture to "designate standards for
the commercial grades of abaca, maguey and sisal" against vigorous attacks
on the ground of invalid delegation of legislative power.
Indeed "adequate and efficient instruction" should be considered sufficient, in
the same way as "public welfare" "necessary in the interest of law and order"
"public interest" and "justice and equity and substantial merits of the case"
have been held sufficient as legislative standards justifying delegation of
authority to regulate. (See Taada and Fernando, Constitution of the
Philippines, p. 793, citing Philippine cases.)
On this phase of the litigation we conclude that there has been no undue
delegation of legislative power.
In this connection, and to support their position that the law and the Secretary
of Education have transcended the governmental power of supervision and
regulation, the petitioners appended a list of circulars and memoranda issued
by the said Department. However they failed to indicate which of such official
documents was constitutionally objectionable for being "capricious," or pain
"nuisance"; and it is one of our decisional practices that unless a constitutional
point is specifically raised, insisted upon and adequately argued, the court will
not consider it. (Santiago vs. Far Eastern, 73 Phil., 408.)
We are told that such list will give an idea of how the statute has placed in the
hands of the Secretary of Education complete control of the various activities
of private schools, and why the statute should be struck down as
unconstitutional. It is clear in our opinion that the statute does not in express
terms give the Secretary completecontrol. It gives him powers to inspect
private schools, to regulate their activities, to give them official permits to
operate under certain conditions, and to revoke such permits for cause. This
does not amount to complete control. If any of such Department circulars or
memoranda issued by the Secretary go beyond the bounds of regulation and
seeks to establish complete control, it would surely be invalid. Conceivably
some of them are of this nature, but besides not having before us the text of
such circulars, the petitioners have omitted to specify. In any event with the
recent approval of Republic Act No. 1124 creating the National Board of
Education, opportunity for administrative correction of the supposed
anomalies or encroachments is amply afforded herein petitioners. A more
expeditious and perhaps more technically competent forum exists, wherein to
discuss the necessity, convenience or relevancy of the measures criticized by
them. (See also Republic Act No. 176.)
If however the statutes in question actually give the Secretary control over
private schools, the question arises whether the power of supervision and
regulation granted to the State by section 5 Article XIV was meant to include
control of private educational institutions. It is enough to point out that local
educators and writers think the Constitution provides for control of Education
by the State. (See Tolentino, Government of the Philippine Constitution, Vol.
II, p. 615; Benitez, Philippine Social Life and Progress, p. 335.)
The Constitution (it) "provides for state control of all educational institutions"
even as it enumerates certain fundamental objectives of all education to wit,
the development of moral character, personal discipline, civic conscience and
vocational efficiency, and instruction in the duties of citizenship. (Malcolm &
Laurel, Philippine Constitutional Law, 1936.)
The Solicitor General cities many authorities to show that the power to
regulate means power to control, and quotes from the proceedings of the
Constitutional Convention to prove that State control of private education was
intended by the organic law. It is significant to note that the Constitution grants
power to supervise and to regulate. Which may mean greater power than
mere regulation.
III. Another grievance of petitionersprobably the most significantis the
assessment of 1 per cent levied on gross receipts of all private schools for
additional Government expenses in connection with their supervision and
regulation. The statute is section 11-A of Act No. 2706 as amended by
Republic Act No. 74 which reads as follows:
SEC. 11-A. The total annual expense of the Office of Private
Education shall be met by the regular amount appropriated in the
annual Appropriation Act: Provided, however, That for additional
expenses in the supervision and regulation of private schools, colleges
and universities and in the purchase of textbook to be sold to student
of said schools, colleges and universities and President of the
Philippines may authorize the Secretary of Instruction to levy an
equitable assessment from each private educational institution
equivalent to one percent of the total amount accruing from tuition and
other fees: . . . and non-payment of the assessment herein provided
by any private school, college or university shall be sufficient cause for
the cancellation by the Secretary of Instruction of the permit for
recognition granted to it.
Petitioners maintain that this is a tax on the exercise of a constitutional right
the right to open a school, the liberty to teach etc. They claim this is
unconstitutional, in the same way that taxes on the privilege of selling religious
literature or of publishing a newspaperboth constitutional privilegeshave
been held, in the United States, to be invalid as taxes on the exercise of a
constitutional right.
The Solicitor General on the other hand argues that insofar as petitioners'
action attempts to restrain the further collection of the assessment, courts
have no jurisdiction to restrain the collection of taxes by injunction, and in so
far as they seek to recover fees already paid the suit, it is one against the
State without its consent. Anyway he concludes, the action involving "the
legality of any tax impost or assessment" falls within the original jurisdiction of
Courts of First Instance.
There are good grounds in support of Government's position. If this levy of 1
per cent is truly a mere feeand not a taxto finance the cost of the
Department's duty and power to regulate and supervise private schools, the
exaction may be upheld; but such point involves investigation and
examination of relevant data, which should best be carried out in the lower
courts. If on the other hand it is a tax, petitioners' issue would still be within the
original jurisdiction of the Courts of First Instance.
The last grievance of petitioners relates to the validity of Republic Act No. 139
which in its section 1 provides:
The textbooks to be used in the private schools recognized or
authorized by the government shall be submitted to the Board (Board
of Textbooks) which shall have the power to prohibit the use of any of
said textbooks which it may find to be against the law or to offend the
dignity and honor of the government and people of the Philippines, or
which it may find to be against the general policies of the government,
or which it may deem pedagogically unsuitable.
This power of the Board, petitioners aver, is censorship in "its baldest form".
They cite two U. S. cases (Miss. and Minnesota) outlawing statutes that
impose previous restraints upon publication of newspapers, or curtail the right
of individuals to disseminate teachings critical of government institutions or
policies.
Herein lies another important issue submitted in the cause. The question is
really whether the law may be enacted in the exercise of the State's
constitutional power (Art. XIV, sec. 5) to supervise and regulate private
schools. If that power amounts to control of private schools, as some think it
is, maybe the law is valid. In this connection we do not share the belief that
section 5 has added new power to what the State inherently possesses by
virtue of the police power. An express power is necessarily more extensive
than a mere implied power. For instance, if there is conflict between an
express individual right and the express power to control private education it
cannot off-hand be said that the latter must yield to the formerconflict of two
express powers. But if the power to control education ismerely implied from
the police power, it is feasible to uphold the express individual right, as was
probably the situation in the two decisions brought to our attention, of
Mississippi and Minnesota, states where constitutional control of private
schools is not expressly produced.
However, as herein previously noted, no justiciable controversy has been
presented to us. We are not informed that the Board on Textbooks has
prohibited this or that text, or that the petitioners refused or intend to refuse to
submit some textbooks, and are in danger of losing substantial privileges or
rights for so refusing.
The average lawyer who reads the above quoted section of Republic Act 139
will fail to perceive anything objectionable. Why should not the State prohibit
the use of textbooks that are illegal, or offensive to the Filipinos or adverse to
governmental policies or educationally improper? What's the power of
regulation and supervision for? But those trained to the investigation of
constitutional issues are likely to apprehend the danger to civil liberties, of
possible educational dictatorship or thought control, as petitioners' counsel
foresee with obvious alarm. Much depends, however, upon the execution and
implementation of the statute. Not that constitutionality depends necessarily
upon the law's effects. But if the Board on Textbooks in its actuations strictly
adheres to the letter of the section and wisely steers a middle course between
the Scylla of "dictatorship" and the Charybdis of "thought control", no cause
for complaint will arise and no occasion for judicial review will develop.
Anyway, and again, petitioners now have a more expeditious remedy thru an
administrative appeal to the National Board of Education created by Republic
Act 1124.
Of course it is necessary to assure herein petitioners, that when and if, the
dangers they apprehend materialize and judicial intervention is suitably
invoked, after all administrative remedies are exhausted, the courts will not
shrink from their duty to delimit constitutional boundaries and protect
individual liberties.
IV. For all the foregoing considerations, reserving to the petitioners the right to
institute in the proper court, and at the proper time, such actions as may call
for decision of the issue herein presented by them, this petition for prohibition
will be denied. So ordered.
Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, JJ., concur.
Footnotes
1 Court will not pass upon the validity of statute at the instance of one
who has availed itself of its benefits. (Fahey vs. Mallonee, 322 U. S.
245; 91 L. Ed. 2030; Phil. Scrappers Inc. vs. Auditor-General, 96 Phil.,
449.)
2 Cf. Montenegro vs. Castaeda, 48 Off. Gaz (8) 3392.
3 It should be observed that petitioners may not assert complete liberty
to teach, in their schools, as or what they please; because the
Constitution says "All schools shall aim to develop moral character,
personal discipline, civil conscience and vocational efficiency and to
teach the duties of citizenship." (Art. XIV, Sec. 5.) Would petitioners
assert that pursuant to their civil liberties under the Bill of Rights they
may refuse to teach in their schools the duties of citizenship or that
they may authorize the broadcast therein of immoral doctrines?
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 124360 November 5, 1997
FRANCISCO S. TATAD, petitioner,
vs.
THE SECRETARY OF THE DEPARTMENT OF ENERGY AND THE
SECRETARY OF THE DEPARTMENT OF FINANCE, respondents.
G.R. No. 127867 November 5, 1997
EDCEL C. LAGMAN, JOKER P. ARROYO, ENRIQUE GARCIA, WIGBERTO
TANADA, FLAG HUMAN RIGHTS FOUNDATION, INC., FREEDOM FROM
DEBT COALITION (FDC), SANLAKAS, petitioners,
vs.
HON. RUBEN TORRES in his capacity as the Executive Secretary, HON.
FRANCISCO VIRAY, in his capacity as the Secretary of Energy, CALTEX
Philippines, Inc., PETRON Corporation and PILIPINAS SHELL
Corporation, respondents.
PUNO, J.:
The petitions at bar challenge the constitutionality of Republic Act No. 8180
entitled "An Act Deregulating the Downstream Oil Industry and For Other
Purposes". 1 R.A. No. 8180 ends twenty six (26) years of government regulation
of the downstream oil industry. Few cases carry a surpassing importance on the
life of every Filipino as these petitions for the upswing and downswing of our
economy materially depend on the oscillation of oil.
First, the facts without the fat. Prior to 1971, there was no government agency
regulating the oil industry other than those dealing with ordinary commodities.
Oil companies were free to enter and exit the market without any government
interference. There were four (4) refining companies (Shell, Caltex, Bataan
Refining Company and Filoil Refining) and six (6) petroleum marketing
companies (Esso, Filoil, Caltex, Getty, Mobil and Shell), then operating in the
country. 2
In 1971, the country was driven to its knees by a crippling oil crisis. The
government, realizing that petroleum and its products are vital to national
security and that their continued supply at reasonable prices is essential to the
general welfare, enacted the Oil Industry Commission Act. 3 It created the Oil
Industry Commission (OIC) toregulate the business of importing, exporting, re-
exporting, shipping, transporting, processing, refining, storing, distributing,
marketing and selling crude oil, gasoline, kerosene, gas and other refined
petroleum products. The OIC was vested with the power to fix the market prices of
petroleum products, to regulate the capacities of refineries, to license new
refineries and to regulate the operations and trade practices of the industry. 4
In addition to the creation of the OIC, the government saw the imperious need
for a more active role of Filipinos in the oil industry. Until the early seventies,
the downstream oil industry was controlled by multinational companies. All the
oil refineries and marketing companies were owned by foreigners whose
economic interests did not always coincide with the interest of the Filipino.
Crude oil was transported to the country by foreign-controlled tankers. Crude
processing was done locally by foreign-owned refineries and petroleum
products were marketed through foreign-owned retail outlets. On November 9,
1973, President Ferdinand E. Marcos boldly created the Philippine National
Oil Corporation (PNOC) to break the control by foreigners of our oil
industry. 5 PNOC engaged in the business of refining, marketing, shipping,
transporting, and storing petroleum. It acquired ownership of ESSO Philippines
and Filoil to serve as its marketing arm. It bought the controlling shares of Bataan
Refining Corporation, the largest refinery in the country. 6PNOC later put up its
own marketing subsidiary Petrophil. PNOC operated under the business name
PETRON Corporation. For the first time, there was a Filipino presence in the
Philippine oil market.
In 1984, President Marcos through Section 8 of Presidential Decree No. 1956,
created the Oil Price Stabilization Fund (OPSF) to cushion the effects of
frequent changes in the price of oil caused by exchange rate adjustments or
increase in the world market prices of crude oil and imported petroleum
products. The fund is used (1) to reimburse the oil companies for cost
increases in crude oil and imported petroleum products resulting from
exchange rate adjustment and/or increase in world market prices of crude oil,
and (2) to reimburse oil companies for cost underrecovery incurred as a result
of the reduction of domestic prices of petroleum products. Under the law, the
OPSF may be sourced from:
1. any increase in the tax collection from ad valorem tax or
customs duty imposed on petroleum products subject to tax
under P.D. No. 1956 arising from exchange rate adjustment,
 2. any increase in the tax collection as a result of the lifting of
tax exemptions of government corporations, as may be
determined by the Minister of Finance in consultation with the
Board of Energy,
3. any additional amount to be imposed on petroleum products
to augment the resources of the fund through an appropriate
order that may be issued by the Board of Energy requiring
payment of persons or companies engaged in the business of
importing, manufacturing and/or marketing petroleum
products, or
4. any resulting peso costs differentials in case the actual peso
costs paid by oil companies in the importation of crude oil and
petroleum products is less than the peso costs computed
using the reference foreign exchange rate as fixed by the
Board of Energy. 7
By 1985, only three (3) oil companies were operating in the country Caltex,
Shell and the government-owned PNOC.
In May, 1987, President Corazon C. Aquino signed Executive Order No. 172
creating the Energy Regulatory Boardto regulate the business of importing,
exporting, re-exporting, shipping, transporting, processing, refining, marketing
and distributing energy resources "when warranted and only when public
necessity requires." The Board had the following powers and functions:
1. Fix and regulate the prices of
petroleum products;
2. Fix and regulate the rate schedule or
prices of piped gas to be charged by
duly franchised gas companies which
distribute gas by means of
underground pipe system;
3. Fix and regulate the rates of pipeline
concessionaries under the provisions
of R.A. No. 387, as amended . . . ;
4. Regulate the capacities of new
refineries or additional capacities of
existing refineries and license refineries
that may be organized after the
issuance of (E.O. No. 172) under such
terms and conditions as are consistent
with the national interest; and
5. Whenever the Board has determined
that there is a shortage of any
petroleum product, or when public
interest so requires, it may take such
steps as it may consider necessary,
including the temporary adjustment of
the levels of prices of petroleum
products and the payment to the Oil
Price Stabilization Fund . . . by persons
or entities engaged in the petroleum
industry of such amounts as may be
determined by the Board, which may
enable the importer to recover its cost
of importation. 8
On December 9, 1992, Congress enacted R.A. No. 7638 which created
the Department of Energy to prepare, integrate, coordinate, supervise and
control all plans, programs, projects, and activities of the government in
relation to energy exploration, development, utilization, distribution and
conservation. 9 The thrust of the Philippine energy program under the law was
toward privatization of government agencies related to energy, deregulation of the
power and energy industry and reduction of dependency on oil-fired plants. 10 The
law also aimed to encourage free and active participation and investment by the
private sector in all energy activities. Section 5(e) of the law states that "at the end
of four (4) years from the effectivity of this Act, the Department shall, upon
approval of the President, institute the programs and timetable of deregulation of
appropriate energy projects and activities of the energy industry."
Pursuant to the policies enunciated in R.A. No. 7638, the government
approved the privatization of Petron Corporation in 1993. On December 16,
1993, PNOC sold 40% of its equity in Petron Corporation to the Aramco
Overseas Company.
In March 1996, Congress took the audacious step of deregulating the
downstream oil industry. It enacted R.A. No.8180, entitled the "Downstream
Oil Industry Deregulation Act of 1996." Under the deregulated environment,
"any person or entity may import or purchase any quantity of crude oil and
petroleum products from a foreign or domestic source, lease or own and
operate refineries and other downstream oil facilities and market such crude
oil or use the same for his own requirement," subject only to monitoring by the
Department of
Energy. 11
The deregulation process has two phases: the transition phase and the full
deregulation phase. During the transition phase, controls of the non-pricing
aspects of the oil industry were to be lifted. The following were to be
accomplished: (1) liberalization of oil importation, exportation, manufacturing,
marketing and distribution, (2) implementation of an automatic pricing
mechanism, (3) implementation of an automatic formula to set margins of
dealers and rates of haulers, water transport operators and pipeline
concessionaires, and (4) restructuring of oil taxes. Upon full
deregulation, controls on the price of oil and the foreign exchange cover were
to be lifted and the OPSF was to be abolished.
The first phase of deregulation commenced on August 12, 1996.
On February 8, 1997, the President implemented the full deregulation of the
Downstream Oil Industry through E.O.No. 372.
The petitions at bar assail the constitutionality of various provisions of R.A No.
8180 and E.O. No. 372.
In G.R. No. 124360, petitioner Francisco S. Tatad seeks the annulment of
section 5(b) of R.A. No. 8180. Section 5(b) provides:
 b) Any law to the contrary notwithstanding and starting with the
effectivity of this Act, tariff duty shall be imposed and collected on
imported crude oil at the rate of three percent (3%) and imported
refined petroleum products at the rate of seven percent (7%), except
fuel oil and LPG, the rate for which shall be the same as that for
imported crude oil: Provided, That beginning on January 1, 2004 the
tariff rate on imported crude oil and refined petroleum products shall
be the same: Provided, further, That this provision may be amended
only by an Act of Congress.
The petition is anchored on three arguments:
First, that the imposition of different tariff rates on imported crude oil and
imported refined petroleum products violates the equal protection clause.
Petitioner contends that the 3%-7% tariff differential unduly favors the three
existing oil refineries and discriminates against prospective investors in the
downstream oil industry who do not have their own refineries and will have to
source refined petroleum products from abroad.
Second, that the imposition of different tariff rates does not deregulate the
downstream oil industry but instead controls the oil industry, contrary to the
avowed policy of the law. Petitioner avers that the tariff differential between
imported crude oil and imported refined petroleum products bars the entry of
other players in the oil industry because it effectively protects the interest of oil
companies with existing refineries. Thus, it runs counter to the objective of the
law "to foster a truly competitive market."
Third, that the inclusion of the tariff provision in section 5(b) of R.A. No. 8180
violates Section 26(1) Article VI of the Constitution requiring every law to have
only one subject which shall be expressed in its title. Petitioner contends that
the imposition of tariff rates in section 5(b) of R.A. No. 8180 is foreign to the
subject of the law which is the deregulation of the downstream oil industry.
In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P. Arroyo, Enrique
Garcia, Wigberto Tanada, Flag Human Rights Foundation, Inc., Freedom from
Debt Coalition (FDC) and Sanlakas contest the constitutionality of section 15
of R.A. No. 8180 and E.O. No. 392. Section 15 provides:
Sec. 15. Implementation of Full Deregulation. Pursuant to Section
5(e) of Republic Act No. 7638, the DOE shall, upon approval of the
President, implement the full deregulation of the downstream oil
industry not later than March 1997. As far as practicable, the DOE
shall time the full deregulation when the prices of crude oil and
petroleum products in the world market are declining and when the
exchange rate of the peso in relation to the US dollar is stable. Upon
the implementation of the full deregulation as provided herein, the
transition phase is deemed terminated and the following laws are
deemed repealed:
xxx xxx xxx
E.O. No. 372 states in full, viz.:
WHEREAS, Republic Act No. 7638, otherwise known as the
"Department of Energy Act of 1992," provides that, at the end of four
years from its effectivity last December 1992, "the Department (of
Energy) shall, upon approval of the President, institute the programs
and time table of deregulation of appropriate energy projects and
activities of the energy sector;"
WHEREAS, Section 15 of Republic Act No. 8180, otherwise known as
the "Downstream Oil Industry Deregulation Act of 1996," provides that
"the DOE shall, upon approval of the President, implement full
deregulation of the downstream oil industry not later than March,
1997. As far as practicable, the DOE shall time the full deregulation
when the prices of crude oil and petroleum products in the world
market are declining and when the exchange rate of the peso in
relation to the US dollar is stable;"
WHEREAS, pursuant to the recommendation of the Department of
Energy, there is an imperative need to implement the full deregulation
of the downstream oil industry because of the following recent
developments: (i) depletion of the buffer fund on or about 7 February
1997 pursuant to the Energy Regulatory Board's Order dated 16
January 1997; (ii) the prices of crude oil had been stable at $21-$23
per barrel since October 1996 while prices of petroleum products in
the world market had been stable since mid-December of last year.
Moreover, crude oil prices are beginning to soften for the last few days
while prices of some petroleum products had already declined; and (iii)
the exchange rate of the peso in relation to the US dollar has been
stable for the past twelve (12) months, averaging at around P26.20 to
one US dollar;
WHEREAS, Executive Order No. 377 dated 31 October 1996 provides
for an institutional framework for the administration of the deregulated
industry by defining the functions and responsibilities of various
government agencies;
WHEREAS, pursuant to Republic Act No. 8180, the deregulation of
the industry will foster a truly competitive market which can better
achieve the social policy objectives of fair prices and adequate,
continuous supply of environmentally-clean and high quality petroleum
products;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic
of the Philippines, by the powers vested in me by law, do hereby
declare the full deregulation of the downstream oil industry.
In assailing section 15 of R.A. No. 8180 and E.O. No. 392, petitioners offer the
following submissions:
First, section 15 of R.A. No. 8180 constitutes an undue delegation of
legislative power to the President and the Secretary of Energy because it
does not provide a determinate or determinable standard to guide the
Executive Branch in determining when to implement the full deregulation of
the downstream oil industry. Petitioners contend that the law does not define
when it is practicable for the Secretary of Energy to recommend to the
President the full deregulation of the downstream oil industry or when the
President may consider it practicable to declare full deregulation. Also, the law
does not provide any specific standard to determine when the prices of crude
oil in the world market are considered to be declining nor when the exchange
rate of the peso to the US dollar is considered stable.
Second, petitioners aver that E.O. No. 392 implementing the full deregulation
of the downstream oil industry is arbitrary and unreasonable because it was
enacted due to the alleged depletion of the OPSF fund a condition not
found in R.A. No. 8180.
Third, section 15 of R.A. No. 8180 and E.O. No. 392 allow the formation of
a de facto cartel among the three existing oil companies Petron, Caltex and
Shell in violation of the constitutional prohibition against monopolies,
combinations in restraint of trade and unfair competition.
Respondents, on the other hand, fervently defend the constitutionality of R.A.
No. 8180 and E.O. No. 392. In addition, respondents contend that the issues
raised by the petitions are not justiciable as they pertain to the wisdom of the
law. Respondents further aver that petitioners have no locus standi as they
did not sustain nor will they sustain direct injury as a result of the
implementation of R.A. No. 8180.
The petitions were heard by the Court on September 30, 1997. On October 7,
1997, the Court ordered the private respondents oil companies "to maintain
the status quo and to cease and desist from increasing the prices of gasoline
and other petroleum fuel products for a period of thirty (30) days . . . subject to
further orders as conditions may warrant."
We shall now resolve the petitions on the merit. The petitions raise procedural
and substantive issues bearing on the constitutionality of R.A. No. 8180 and
E.O. No. 392. The procedural issues are: (1) whether or not the petitions raise
a justiciable controversy, and (2) whether or not the petitioners have the
standing to assail the validity of the subject law and executive order.
The substantive issues are: (1) whether or not section 5 (b) violates the one
title one subject requirement of the Constitution; (2) whether or not the
same section violates the equal protection clause of the Constitution; (3)
whether or not section 15 violates the constitutional prohibition on undue
delegation of power; (4) whether or not E.O. No. 392 is arbitrary and
unreasonable; and (5) whether or not R.A. No. 8180 violates the constitutional
prohibition against monopolies, combinations in restraint of trade and unfair
competition.
We shall first tackle the procedural issues. Respondents claim that the
avalanche of arguments of the petitioners assail the wisdom of R.A. No. 8180.
They aver that deregulation of the downstream oil industry is a policy decision
made by Congress and it cannot be reviewed, much less be reversed by this
Court. In constitutional parlance, respondents contend that the petitions failed
to raise a justiciable controversy.
Respondents' joint stance is unnoteworthy. Judicial power includes not only
the duty of the courts to settle actual controversies involving rights which are
legally demandable and enforceable, but also the duty to determine whether
or not there has been grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
government. 12 The courts, as guardians of the Constitution, have the inherent
authority to determine whether a statute enacted by the legislature transcends the
limit imposed by the fundamental law. Where a statute violates the Constitution, it
is not only the right but the duty of the judiciary to declare such act as
unconstitutional and void. 13We held in the recent case of Tanada v. Angara: 14
xxx xxx xxx
In seeking to nullify an act of the Philippine Senate on the ground that
it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute.
The question thus posed is judicial rather than political. The duty to
adjudicate remains to assure that the supremacy of the Constitution is
upheld. Once a controversy as to the application or interpretation of a
constitutional provision is raised before this Court, it becomes a legal
issue which the Court is bound by constitutional mandate to decide.
Even a sideglance at the petitions will reveal that petitioners have raised
constitutional issues which deserve the resolution of this Court in view of their
seriousness and their value as precedents. Our statement of facts and
definition of issues clearly show that petitioners are assailing R.A. No. 8180
because its provisions infringe the Constitution and not because the law lacks
wisdom. The principle of separation of power mandates that challenges on the
constitutionality of a law should be resolved in our courts of justice while
doubts on the wisdom of a law should be debated in the halls of Congress.
Every now and then, a law may be denounced in court both as bereft of
wisdom and constitutionally infirmed. Such denunciation will not deny this
Court of its jurisdiction to resolve the constitutionality of the said law while
prudentially refusing to pass on its wisdom.
The effort of respondents to question the locus standi of petitioners must also
fall on barren ground. In language too lucid to be misunderstood, this Court
has brightlined its liberal stance on a petitioner's locus standi where the
petitioner is able to craft an issue of transcendental significance to the
people. 15 In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas,
Inc. v. Tan, 16 we stressed:
xxx xxx xxx
Objections to taxpayers' suit for lack of sufficient personality, standing
or interest are, however, in the main procedural matters. Considering
the importance to the public of the cases at bar, and in keeping with
the Court's duty, under the 1987 Constitution, to determine whether or
not the other branches of government have kept themselves within the
limits of the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of these
petitions.
There is not a dot of disagreement between the petitioners and the
respondents on the far reaching importance of the validity of RA No. 8180
deregulating our downstream oil industry. Thus, there is no good sense in
being hypertechnical on the standing of petitioners for they pose issues which
are significant to our people and which deserve our forthright resolution.
We shall now track down the substantive issues. In G.R. No. 124360 where
petitioner is Senator Tatad, it is contended that section 5(b) of R.A. No. 8180
on tariff differential violates the provision 17 of the Constitution requiring every
law to have only one subject which should be expressed in its title. We do not
concur with this contention. As a policy, this Court has adopted a liberal
construction of the one title one subject rule. We have consistently ruled 18 that
the title need not mirror, fully index or catalogue all contents and minute details of
a law. A law having a single general subject indicated in the title may contain any
number of provisions, no matter how diverse they may be, so long as they are not
inconsistent with or foreign to the general subject, and may be considered in
furtherance of such subject by providing for the method and means of carrying out
the general subject. 19 We hold that section 5(b) providing for tariff differential is
germane to the subject of R.A. No. 8180 which is the deregulation of the
downstream oil industry. The section is supposed to sway prospective investors to
put up refineries in our country and make them rely less on imported
petroleum. 20 We shall, however, return to the validity of this provision when we
examine its blocking effect on new entrants to the oil market.
We shall now slide to the substantive issues in G.R. No. 127867. Petitioners
assail section 15 of R.A. No. 8180 which fixes the time frame for the full
deregulation of the downstream oil industry. We restate its pertinent portion
for emphasis, viz.:
Sec. 15. Implementation of Full Deregulation Pursuant to section
5(e) of Republic Act No. 7638, the DOE shall, upon approval of the
President, implement the full deregulation of the downstream oil
industry not later than March 1997. As far as practicable, the DOE
shall time the full deregulation when the prices of crude oil and
petroleum products in the world market are declining and when the
exchange rate of the peso in relation to the US dollar is stable . . .
Petitioners urge that the phrases "as far as practicable," "decline of crude oil
prices in the world market" and "stability of the peso exchange rate to the US
dollar" are ambivalent, unclear and inconcrete in meaning. They submit that
they do not provide the "determinate or determinable standards" which can
guide the President in his decision to fully deregulate the downstream oil
industry. In addition, they contend that E.O. No. 392 which advanced the date
of full deregulation is void for it illegally considered the depletion of the OPSF
fund as a factor.
The power of Congress to delegate the execution of laws has long been
settled by this Court. As early as 1916 inCompania General de Tabacos de
Filipinas vs. The Board of Public Utility Commissioners, 21 this Court thru, Mr.
Justice Moreland, held that "the true distinction is between the delegation of
power to make the law, which necessarily involves a discretion as to what it shall
be, and conferring authority or discretion as to its execution, to be exercised under
and in pursuance of the law. The first cannot be done; to the latter no valid
objection can be made." Over the years, as the legal engineering of men's
relationship became more difficult, Congress has to rely more on the practice of
delegating the execution of laws to the executive and other administrative
agencies. Two tests have been developed to determine whether the delegation of
the power to execute laws does not involve the abdication of the power to make
law itself. We delineated the metes and bounds of these tests in Eastern Shipping
Lines, Inc. VS. POEA, 22 thus:
There are two accepted tests to determine whether or not there is a
valid delegation of legislative power, viz: the completeness test and
the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislative
such that when it reaches the delegate the only thing he will have to
do is to enforce it. Under the sufficient standard test, there must be
adequate guidelines or limitations in the law to map out the boundaries
of the delegate's authority and prevent the delegation from running
riot. Both tests are intended to prevent a total transference of
legislative authority to the delegate, who is not allowed to step into the
shoes of the legislature and exercise a power essentially legislative.
The validity of delegating legislative power is now a quiet area in our
constitutional landscape. As sagely observed, delegation of legislative power
has become an inevitability in light of the increasing complexity of the task of
government. Thus, courts bend as far back as possible to sustain the
constitutionality of laws which are assailed as unduly delegating legislative
powers. Citing Hirabayashi v. United States 23 as authority, Mr. Justice Isagani
A. Cruz states "that even if the law does not expressly pinpoint the standard, the
courts will bend over backward to locate the same elsewhere in order to spare the
statute, if it can, from constitutional infirmity." 24
Given the groove of the Court's rulings, the attempt of petitioners to strike
down section 15 on the ground of undue delegation of legislative power
cannot prosper. Section 15 can hurdle both the completeness test and the
sufficient standard test. It will be noted that Congress expressly provided in
R.A. No. 8180 that full deregulation will start at the end of March 1997,
regardless of the occurrence of any event. Full deregulation at the end of
March 1997 is mandatory and the Executive has no discretion to postpone it
for any purported reason. Thus, the law is complete on the question of the
final date of full deregulation. The discretion given to the President is to
advance the date of full deregulation before the end of March 1997. Section
15 lays down the standard to guide the judgment of the President he is to
time it as far as practicable when the prices of crude oil and petroleum
products in the world market are declining and when the exchange rate of the
peso in relation to the US dollar is stable.
Petitioners contend that the words "as far as practicable," "declining" and
"stable" should have been defined in R.A. No. 8180 as they do not set
determinate or determinable standards. The stubborn submission deserves
scant consideration. The dictionary meanings of these words are well settled
and cannot confuse men of reasonable intelligence. Webster defines
"practicable" as meaning possible to practice or perform, "decline" as meaning
to take a downward direction, and "stable" as meaning firmly
established. 25 The fear of petitioners that these words will result in the exercise of
executive discretion that will run riot is thus groundless. To be sure, the Court has
sustained the validity of similar, if not more general standards in other cases. 26
It ought to follow that the argument that E.O. No. 392 is null and void as it was
based on indeterminate standards set by R.A. 8180 must likewise fail. If that
were all to the attack against the validity of E.O. No. 392, the issue need not
further detain our discourse. But petitioners further posit the thesis that the
Executive misapplied R.A. No. 8180 when it considered the depletion of the
OPSF fund as a factor in fully deregulating the downstream oil industry in
February 1997. A perusal of section 15 of R.A. No. 8180 will readily reveal
that it only enumerated two factors to be considered by the Department of
Energy and the Office of the President, viz.: (1) the time when the prices of
crude oil and petroleum products in the world market are declining, and (2) the
time when the exchange rate of the peso in relation to the US dollar is stable.
Section 15 did not mention the depletion of the OPSF fund as a factor to be
given weight by the Executive before ordering full deregulation. On the
contrary, the debates in Congress will show that some of our legislators
wanted to impose as a pre-condition to deregulation a showing that the OPSF
fund must not be in deficit. 27 We therefore hold that the Executive department
failed to follow faithfully the standards set by R.A. No. 8180 when it considered the
extraneous factor of depletion of the OPSF fund. The misappreciation of this extra
factor cannot be justified on the ground that the Executive department considered
anyway the stability of the prices of crude oil in the world market and the stability
of the exchange rate of the peso to the dollar. By considering another factor to
hasten full deregulation, the Executive department rewrote the standards set forth
in R.A. 8180. The Executive is bereft of any right to alter either by subtraction or
addition the standards set in R.A. No. 8180 for it has no power to make laws. To
cede to the Executive the power to make law is to invite tyranny, indeed, to
transgress the principle of separation of powers. The exercise of delegated power
is given a strict scrutiny by courts for the delegate is a mere agent whose action
cannot infringe the terms of agency. In the cases at bar, the Executive co-mingled
the factor of depletion of the OPSF fund with the factors of decline of the price of
crude oil in the world market and the stability of the peso to the US dollar. On the
basis of the text of E.O. No. 392, it is impossible to determine the weight given by
the Executive department to the depletion of the OPSF fund. It could well be the
principal consideration for the early deregulation. It could have been accorded an
equal significance. Or its importance could be nil. In light of this uncertainty, we
rule that the early deregulation under E.O. No. 392 constitutes a misapplication of
R.A. No. 8180.
We now come to grips with the contention that some provisions of R.A. No.
8180 violate section 19 of Article XII of the 1987 Constitution. These
provisions are:
(1) Section 5 (b) which states "Any law to the contrary
notwithstanding and starting with the effectivity of this Act, tariff duty
shall be imposed and collected on imported crude oil at the rate of
three percent (3%) and imported refined petroleum products at the
rate of seven percent (7%) except fuel oil and LPG, the rate for which
shall be the same as that for imported crude oil. Provided, that
beginning on January 1, 2004 the tariff rate on imported crude oil and
refined petroleum products shall be the same. Provided, further, that
this provision may be amended only by an Act of Congress."
(2) Section 6 which states "To ensure the security and continuity of
petroleum crude and products supply, the DOE shall require the
refiners and importers to maintain a minimum inventory equivalent to
ten percent (10%) of their respective annual sales volume or forty (40)
days of supply, whichever is lower," and
(3) Section 9 (b) which states "To ensure fair competition and
prevent cartels and monopolies in the downstream oil industry, the
following acts shall be prohibited:
xxx xxx xxx
(b) Predatory pricing which means selling or offering to
sell any product at a price unreasonably below the
industry average cost so as to attract customers to the
detriment of competitors.
On the other hand, section 19 of Article XII of the Constitution allegedly
violated by the aforestated provisions of R.A. No. 8180 mandates: "The State
shall regulate or prohibit monopolies when the public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed."
A monopoly is a privilege or peculiar advantage vested in one or more
persons or companies, consisting in the exclusive right or power to carry on a
particular business or trade, manufacture a particular article, or control the
sale or the whole supply of a particular commodity. It is a form of market
structure in which one or only a few firms dominate the total sales of a product
or service. 28 On the other hand, a combination in restraint of trade is an
agreement or understanding between two or more persons, in the form of a
contract, trust, pool, holding company, or other form of association, for the
purpose of unduly restricting competition, monopolizing trade and commerce in a
certain commodity, controlling its, production, distribution and price, or otherwise
interfering with freedom of trade without statutory authority. 29 Combination in
restraint of trade refers to the means while monopoly refers to the end. 30
Article 186 of the Revised Penal Code and Article 28 of the New Civil Code
breathe life to this constitutional policy. Article 186 of the Revised Penal Code
penalizes monopolization and creation of combinations in restraint of
trade, 31 while Article 28 of the New Civil Code makes any person who shall
engage in unfair competition liable for damages. 32
Respondents aver that sections 5(b), 6 and 9(b) implement the policies and
objectives of R.A. No. 8180. They explain that the 4% tariff differential is
designed to encourage new entrants to invest in refineries. They stress that
the inventory requirement is meant to guaranty continuous domestic supply of
petroleum and to discourage fly-by-night operators. They also submit that the
prohibition against predatory pricing is intended to protect prospective
entrants. Respondents manifested to the Court that new players have entered
the Philippines after deregulation and have now captured 3% 5% of the oil
market.
The validity of the assailed provisions of R.A. No. 8180 has to be decided in
light of the letter and spirit of our Constitution, especially section 19, Article
XII. Beyond doubt, the Constitution committed us to the free enterprise system
but it is a system impressed with its own distinctness. Thus, while the
Constitution embraced free enterprise as an economic creed, it did not
prohibit per se the operation of monopolies which can, however, be regulated
in the public interest. 33 Thus too, our free enterprise system is not based on a
market of pure and unadulterated competition where the State pursues a strict
hands-off policy and follows the let-the-devil devour the hindmost rule.
Combinations in restraint of trade and unfair competitions are absolutely
proscribed and the proscription is directed both against the State as well as the
private sector. 34 This distinct free enterprise system is dictated by the need to
achieve the goals of our national economy as defined by section 1, Article XII of
the Constitution which are: more equitable distribution of opportunities, income
and wealth; a sustained increase in the amount of goods and services produced
by the nation for the benefit of the people; and an expanding productivity as the
key to raising the quality of life for all, especially the underprivileged. It also calls
for the State to protect Filipino enterprises against unfair competition and trade
practices.
Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It
espouses competition. The desirability of competition is the reason for the
prohibition against restraint of trade, the reason for the interdiction of unfair
competition, and the reason for regulation of unmitigated monopolies.
Competition is thus the underlying principle of section 19, Article XII of our
Constitution which cannot be violated by R.A. No. 8180. We subscribe to the
observation of Prof. Gellhorn that the objective of anti-trust law is "to assure a
competitive economy, based upon the belief that through competition
producers will strive to satisfy consumer wants at the lowest price with the
sacrifice of the fewest resources. Competition among producers allows
consumers to bid for goods and services, and thus matches their desires with
society's opportunity costs." 35 He adds with appropriateness that there is a
reliance upon "the operation of the 'market' system (free enterprise) to decide
what shall be produced, how resources shall be allocated in the production
process, and to whom the various products will be distributed. The market system
relies on the consumer to decide what and how much shall be produced, and on
competition, among producers to determine who will manufacture it."
Again, we underline in scarlet that the fundamental principle espoused by
section 19, Article XII of the Constitution is competition for it alone can release
the creative forces of the market. But the competition that can unleash these
creative forces is competition that is fighting yet is fair. Ideally, this kind of
competition requires the presence of not one, not just a few but several
players. A market controlled by one player (monopoly) or dominated by a
handful of players (oligopoly) is hardly the market where honest-to-goodness
competition will prevail. Monopolistic or oligopolistic markets deserve our
careful scrutiny and laws which barricade the entry points of new players in
the market should be viewed with suspicion.
Prescinding from these baseline propositions, we shall proceed to examine
whether the provisions of R.A. No. 8180 on tariff differential, inventory
reserves, and predatory prices imposed substantial barriers to the entry and
exit of new players in our downstream oil industry. If they do, they have to be
struck down for they will necessarily inhibit the formation of a truly competitive
market. Contrariwise, if they are insignificant impediments, they need not be
stricken down.
In the cases at bar, it cannot be denied that our downstream oil industry is
operated and controlled by an oligopoly, a foreign oligopoly at that. Petron,
Shell and Caltex stand as the only major league players in the oil market. All
other players belong to the lilliputian league. As the dominant players, Petron,
Shell and Caltex boast of existing refineries of various capacities. The tariff
differential of 4% therefore works to their immense benefit. Yet, this is only
one edge of the tariff differential. The other edge cuts and cuts deep in the
heart of their competitors. It erects a high barrier to the entry of new players.
New players that intend to equalize the market power of Petron, Shell and
Caltex by building refineries of their own will have to spend billions of pesos.
Those who will not build refineries but compete with them will suffer the huge
disadvantage of increasing their product cost by 4%. They will be competing
on an uneven field. The argument that the 4% tariff differential is desirable
because it will induce prospective players to invest in refineries puts the cart
before the horse. The first need is to attract new players and they cannot be
attracted by burdening them with heavy disincentives. Without new players
belonging to the league of Petron, Shell and Caltex, competition in our
downstream oil industry is an idle dream.
The provision on inventory widens the balance of advantage of Petron, Shell
and Caltex against prospective new players. Petron, Shell and Caltex can
easily comply with the inventory requirement of R.A. No. 8180 in view of their
existing storage facilities. Prospective competitors again will find compliance
with this requirement difficult as it will entail a prohibitive cost. The
construction cost of storage facilities and the cost of inventory can thus scare
prospective players. Their net effect is to further occlude the entry points of
new players, dampen competition and enhance the control of the market by
the three (3) existing oil companies.
Finally, we come to the provision on predatory pricing which is defined as ". . .
selling or offering to sell any product at a price unreasonably below the
industry average cost so as to attract customers to the detriment of
competitors." Respondents contend that this provision works against Petron,
Shell and Caltex and protects new entrants. The ban on predatory pricing
cannot be analyzed in isolation. Its validity is interlocked with the barriers
imposed by R.A. No. 8180 on the entry of new players. The inquiry should be
to determine whether predatory pricing on the part of the dominant oil
companies is encouraged by the provisions in the law blocking the entry of
new players. Text-writer
Hovenkamp, 36 gives the authoritative answer and we quote:
xxx xxx xxx
The rationale for predatory pricing is the sustaining of losses today
that will give a firm monopoly profits in the future. The monopoly
profits will never materialize, however, if the market is flooded with
new entrants as soon as the successful predator attempts to raise its
price. Predatory pricing will be profitable only if the market contains
significant barriers to new entry.
As aforediscsussed, the 4% tariff differential and the inventory requirement
are significant barriers which discourage new players to enter the market.
Considering these significant barriers established by R.A. No. 8180 and the
lack of players with the comparable clout of PETRON, SHELL and CALTEX,
the temptation for a dominant player to engage in predatory pricing and
succeed is a chilling reality. Petitioners' charge that this provision on predatory
pricing is anti-competitive is not without reason.
Respondents belittle these barriers with the allegation that new players have
entered the market since deregulation. A scrutiny of the list of the alleged new
players will, however, reveal that not one belongs to the class and category of
PETRON, SHELL and CALTEX. Indeed, there is no showing that any of these
new players intends to install any refinery and effectively compete with these
dominant oil companies. In any event, it cannot be gainsaid that the new
players could have been more in number and more impressive in might if the
illegal entry barriers in R.A. No. 8180 were not erected.
We come to the final point. We now resolve the total effect of the untimely
deregulation, the imposition of 4% tariff differential on imported crude oil and
refined petroleum products, the requirement of inventory and the prohibition
on predatory pricing on the constitutionality of R.A. No. 8180. The question is
whether these offending provisions can be individually struck down without
invalidating the entire R.A. No. 8180. The ruling case law is well stated by
authorAgpalo, 37 viz.:
xxx xxx xxx
The general rule is that where part of a statute is void as repugnant to
the Constitution, while another part is valid, the valid portion, if
separable from the invalid, may stand and be enforced. The presence
of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the
statute. To justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it
could not constitutionally enact the other. Enough must remain to
make a complete, intelligible and valid statute, which carries out the
legislative intent. . . .
The exception to the general rule is that when the parts of a statute
are so mutually dependent and connected, as conditions,
considerations, inducements, or compensations for each other, as to
warrant a belief that the legislature intended them as a whole, the
nullity of one part will vitiate the rest. In making the parts of the statute
dependent, conditional, or connected with one another, the legislature
intended the statute to be carried out as a whole and would not have
enacted it if one part is void, in which case if some parts are
unconstitutional, all the other provisions thus dependent, conditional,
or connected must fall with them.
R.A. No. 8180 contains a separability clause. Section 23 provides that "if for
any reason, any section or provision of this Act is declared unconstitutional or
invalid, such parts not affected thereby shall remain in full force and effect."
This separability clause notwithstanding, we hold that the offending provisions
of R.A. No. 8180 so permeate its essence that the entire law has to be struck
down. The provisions on tariff differential, inventory and predatory pricing are
among the principal props of R.A. No. 8180. Congress could not have
deregulated the downstream oil industry without these provisions.
Unfortunately, contrary to their intent, these provisions on tariff differential,
inventory and predatory pricing inhibit fair competition, encourage
monopolistic power and interfere with the free interaction of market forces.
R.A. No. 8180 needs provisions to vouchsafe free and fair competition. The
need for these vouchsafing provisions cannot be overstated. Before
deregulation, PETRON, SHELL and CALTEX had no real competitors but did
not have a free run of the market because government controls both the
pricing and non-pricing aspects of the oil industry. After deregulation,
PETRON, SHELL and CALTEX remain unthreatened by real competition yet
are no longer subject to control by government with respect to their pricing
and non-pricing decisions. The aftermath of R.A. No. 8180 is a deregulated
market where competition can be corrupted and where market forces can be
manipulated by oligopolies.
The fall out effects of the defects of R.A. No. 8180 on our people have not
escaped Congress. A lot of our leading legislators have come out openly
with bills seeking the repeal of these odious and offensive provisions in R.A.
No. 8180. In the Senate, Senator Freddie Webb has filed S.B. No. 2133 which
is the result of the hearings conducted by the Senate Committee on Energy.
The hearings revealed that (1) there was a need to level the playing field for
the new entrants in the downstream oil industry, and (2) there was no law
punishing a person for selling petroleum products at unreasonable
prices. Senator Alberto G. Romulo also filed S.B. No. 2209 abolishing the tariff
differential beginning January 1, 1998. He declared that the amendment ". .
. would mean that instead of just three (3) big oil companies there will be other
major oil companies to provide more competitive prices for the market and the
consuming public." Senator Heherson T . Alvarez, one of the principal
proponents of R.A. No. 8180, also filed S.B. No. 2290 increasing the penalty
for violation of its section 9. It is his opinion as expressed in the explanatory
note of the bill that the present oil companies are engaged in cartelization
despite R.A. No. 8180, viz,:
xxx xxx xxx
Since the downstream oil industry was fully deregulated in February
1997, there have been eight (8) fuel price adjustments made by the
three oil majors, namely: Caltex Philippines, Inc.; Petron Corporation;
and Pilipinas Shell Petroleum Corporation. Very noticeable in the price
adjustments made, however, is the uniformity in the pump prices of
practically all petroleum products of the three oil companies. This,
despite the fact, that their selling rates should be determined by a
combination of any of the following factors: the prevailing peso-dollar
exchange rate at the time payment is made for crude purchases,
sources of crude, and inventory levels of both crude and refined
petroleum products. The abovestated factors should have resulted in
different, rather than identical prices.
The fact that the three (3) oil companies' petroleum products are
uniformly priced suggests collusion, amounting to cartelization, among
Caltex Philippines, Inc., Petron Corporation and Pilipinas Shell
Petroleum Corporation to fix the prices of petroleum products in
violation of paragraph (a), Section 9 of R.A. No. 8180.
To deter this pernicious practice and to assure that present and
prospective players in the downstream oil industry conduct their
business with conscience and propriety, cartel-like activities ought to
be severely penalized.
Senator Francisco S. Tatad also filed S.B. No. 2307 providing for a uniform
tariff rate on imported crude oil and refined petroleum products. In the
explanatory note of the bill, he declared in no uncertain terms that ". . . the
present set-up has raised serious public concern over the way the three oil
companies have uniformly adjusted the prices of oil in the country, an
indication of a possible existence of a cartel or a cartel-like situation within the
downstream oil industry. This situation is mostly attributed to the foregoing
provision on tariff differential, which has effectively discouraged the entry of
new players in the downstream oil industry."
In the House of Representatives, the moves to rehabilitate R.A. No. 8180 are
equally feverish. Representative Leopoldo E. San Buenaventura has filed H.B.
No. 9826 removing the tariff differential for imported crude oil and imported
refined petroleum products. In the explanatory note of the bill, Rep.
Buenaventura explained:
xxx xxx xxx
As we now experience, this difference in tariff rates between imported
crude oil and imported refined petroleum products, unwittingly
provided a built-in-advantage for the three existing oil refineries in the
country and eliminating competition which is a must in a free
enterprise economy. Moreover, it created a disincentive for other
players to engage even initially in the importation and distribution of
refined petroleum products and ultimately in the putting up of
refineries. This tariff differential virtually created a monopoly of the
downstream oil industry by the existing three oil companies as shown
by their uniform and capricious pricing of their products since this law
took effect, to the great disadvantage of the consuming public.
Thus, instead of achieving the desired effects of deregulation, that of
free enterprise and a level playing field in the downstream oil industry,
R.A. 8180 has created an environment conducive to cartelization,
unfavorable, increased, unrealistic prices of petroleum products in the
country by the three existing refineries.
Representative Marcial C. Punzalan, Jr., filed H.B. No. 9981 to prevent
collusion among the present oil companies by strengthening the oversight
function of the government, particularly its ability to subject to a review any
adjustment in the prices of gasoline and other petroleum products. In the
explanatory note of the bill, Rep. Punzalan, Jr., said:
xxx xxx xxx
To avoid this, the proposed bill seeks to strengthen the oversight
function of government, particularly its ability to review the prices set
for gasoline and other petroleum products. It grants the Energy
Regulatory Board (ERB) the authority to review prices of oil and other
petroleum products, as may be petitioned by a person, group or any
entity, and to subsequently compel any entity in the industry to submit
any and all documents relevant to the imposition of new prices. In
cases where the Board determines that there exist collusion,
economic conspiracy, unfair trade practice, profiteering and/or
overpricing, it may take any step necessary to protect the public,
including the readjustment of the prices of petroleum products.
Further, the Board may also impose the fine and penalty of
imprisonment, as prescribed in Section 9 of R.A. 8180, on any person
or entity from the oil industry who is found guilty of such prohibited
acts.
By doing all of the above, the measure will effectively provide Filipino
consumers with a venue where their grievances can be heard and
immediately acted upon by government.
Thus, this bill stands to benefit the Filipino consumer by making the
price-setting process more transparent and making it easier to
prosecute those who perpetrate such prohibited acts as collusion,
overpricing, economic conspiracy and unfair trade.
Representative Sergio A.F . Apostol filed H.B. No. 10039 to remedy an
omission in R.A. No. 8180 where there is no agency in government that
determines what is "reasonable" increase in the prices of oil
products. Representative Dente O. Tinga, one of the principal sponsors of
R.A. No. 8180, filed H.B. No. 10057 to strengthen its anti-trust provisions. He
elucidated in its explanatory note:
xxx xxx xxx
The definition of predatory pricing, however, needs to be tightened up
particularly with respect to the definitive benchmark price and the
specific anti-competitive intent. The definition in the bill at hand which
was taken from the Areeda-Turner test in the United States on
predatory pricing resolves the questions. The definition reads,
"Predatory pricing means selling or offering to sell any oil product at a
price below the average variable cost for the purpose of destroying
competition, eliminating a competitor or discouraging a competitor
from entering the market."
The appropriate actions which may be resorted to under the Rules of
Court in conjunction with the oil deregulation law are adequate. But to
stress their availability and dynamism, it is a good move to incorporate
all the remedies in the law itself. Thus, the present bill formalizes the
concept of government intervention and private suits to address the
problem of antitrust violations. Specifically, the government may file an
action to prevent or restrain any act of cartelization or predatory
pricing, and if it has suffered any loss or damage by reason of the
antitrust violation it may recover damages. Likewise, a private person
or entity may sue to prevent or restrain any such violation which will
result in damage to his business or property, and if he has already
suffered damage he shall recover treble damages. A class suit may
also be allowed.
To make the DOE Secretary more effective in the enforcement of the
law, he shall be given additional powers to gather information and to
require reports.
Representative Erasmo B. Damasing filed H.B. No. 7885 and has a more
unforgiving view of R.A. No. 8180. He wants it completely repealed. He
explained:
xxx xxx xxx
Contrary to the projections at the time the bill on the Downstream Oil
Industry Deregulation was discussed and debated upon in the plenary
session prior to its approval into law, there aren't any new players or
investors in the oil industry. Thus, resulting in practically a cartel or
monopoly in the oil industry by the three (3) big oil companies, Caltex,
 Shell and Petron. So much so, that with the deregulation now being
partially implemented, the said oil companies have succeeded in
increasing the prices of most of their petroleum products with little or
no interference at all from the government. In the month of August,
there was an increase of Fifty centavos (50) per liter by subsidizing
the same with the OPSF, this is only temporary as in March 1997, or a
few months from now, there will be full deregulation (Phase II)
whereby the increase in the prices of petroleum products will be fully
absorbed by the consumers since OPSF will already be abolished by
then. Certainly, this would make the lives of our people, especially the
unemployed ones, doubly difficult and unbearable.
The much ballyhooed coming in of new players in the oil industry is
quite remote considering that these prospective investors cannot fight
the existing and well established oil companies in the country today,
namely, Caltex, Shell and Petron. Even if these new players will come
in, they will still have no chance to compete with the said three (3)
existing big oil companies considering that there is an imposition of oil
tariff differential of 4% between importation of crude oil by the said oil
refineries paying only 3% tariff rate for the said importation and 7%
tariff rate to be paid by businessmen who have no oil refineries in the
Philippines but will import finished petroleum/oil products which is
being taxed with 7% tariff rates.
So, if only to help the many who are poor from further suffering as a
result of unmitigated increase in oil products due to deregulation, it is a
must that the Downstream Oil Industry Deregulation Act of 1996, or
R.A.8180 be repealed completely.
Various resolutions have also been filed in the Senate calling for
an immediate and comprehensive review of R.A. No. 8180 to prevent the
downpour of its ill effects on the people. Thus, S. Res. No. 574 was filed
by Senator Gloria M. Macapagal entitled Resolution "Directing the Committee
on Energy to Inquire Into The Proper Implementation of the Deregulation of
the Downstream Oil Industry and Oil Tax Restructuring As Mandated Under
R.A. Nos. 8180 and 8184, In Order to Make The Necessary Corrections In the
Apparent Misinterpretation Of The Intent And Provision Of The Laws And
Curb The Rising Tide Of Disenchantment Among The Filipino Consumers And
Bring About The Real Intentions And Benefits Of The Said Law." Senator Blas
P. Ople filed S. Res. No. 664 entitled resolution "Directing the Committee on
Energy To Conduct An Inquiry In Aid Of Legislation To Review The
Government's Oil Deregulation Policy In Light Of The Successive Increases In
Transportation, Electricity And Power Rates, As well As Of Food And Other
Prime Commodities And Recommend Appropriate Amendments To Protect
The Consuming Public." Senator Ople observed:
xxx xxx xxx
WHEREAS, since the passage of R.A. No. 8180, the Energy
Regulatory Board (ERB) has imposed successive increases in oil
prices which has triggered increases in electricity and power rates,
transportation fares, as well as in prices of food and other prime
commodities to the detriment of our people, particularly the poor;
WHEREAS, the new players that were expected to compete with the
oil cartel-Shell, Caltex and Petron-have not come in;
WHEREAS, it is imperative that a review of the oil deregulation policy
be made to consider appropriate amendments to the existing law such
as an extension of the transition phase before full deregulation in
orderto give the competitive market enough time to develop;
WHEREAS, the review can include the advisability of providing some
incentives in order to attract the entry of new oil companies to effect a
dynamic competitive market;
WHEREAS, it may also be necessary to defer the setting up of the
institutional framework for full deregulation of the oil industry as
mandated under Executive Order No. 377 issued by President Ramos
last October 31, 1996 . . .
Senator Alberto G. Romulo filed S. Res. No. 769 entitled resolution "Directing
the Committees on Energy and Public Services In Aid Of Legislation To
Assess The Immediate Medium And Long Term Impact of Oil Deregulation On
Oil Prices And The Economy." Among the reasons for the resolution is the
finding that "the requirement of a 40-day stock inventory effectively limits the
entry of other oil firms in the market with the consequence that instead of
going down oil prices will rise."
Parallel resolutions have been filed in the House of
Representatives. Representative Dante O. Tinga filed H. Res. No. 1311
"Directing The Committee on Energy To Conduct An Inquiry, In Aid of
Legislation, Into The Pricing Policies And Decisions Of The Oil Companies
Since The Implementation of Full Deregulation Under the Oil Deregulation Act
(R.A. No. 8180) For the Purpose of Determining In the Context Of The
Oversight Functions Of Congress Whether The Conduct Of The Oil
Companies, Whether Singly Or Collectively, Constitutes Cartelization Which Is
A Prohibited Act Under R.A. No. 8180, And What Measures Should Be Taken
To Help Ensure The Successful Implementation Of The Law In Accordance
With Its Letter And Spirit, Including Recommending Criminal Prosecution Of
the Officers Concerned Of the Oil Companies If Warranted By The Evidence,
And For Other Purposes." Representatives Marcial C. Punzalan, Jr. Dante
O. Tinga and Antonio E. Bengzon III filed H.R. No. 894 directing the House
Committee on Energy to inquire into the proper implementation of the
deregulation of the downstream oil industry. House Resolution No. 1013 was
also filed by Representatives Edcel C. Lagman, Enrique T . Garcia, Jr. and
Joker P.Arroyo urging the President to immediately suspend the
implementation of E.O. No. 392.
In recent memory there is no law enacted by the legislature afflicted with so
much constitutional deformities as R.A. No. 8180. Yet, R.A. No. 8180 deals
with oil, a commodity whose supply and price affect the ebb and flow of the
lifeblood of the nation. Its shortage of supply or a slight, upward spiral in its
price shakes our economic foundation. Studies show that the areas most
impacted by the movement of oil are food manufacture, land transport, trade,
electricity and water. 38 At a time when our economy is in a dangerous downspin,
the perpetuation of R.A. No. 8180 threatens to multiply the number of our people
with bent backs and begging bowls. R.A. No. 8180 with its anti-competition
provisions cannot be allowed by this Court to stand even while Congress is
working to remedy its defects.
The Court, however, takes note of the plea of PETRON, SHELL and CALTEX
to lift our restraining order to enable them to adjust upward the price of
petroleum and petroleum products in view of the plummeting value of the
peso. Their plea, however, will now have to be addressed to the Energy
Regulatory Board as the effect of the declaration of unconstitutionality of R.A.
No. 8180 is to revive the former laws it repealed. 39 The length of our return to
the regime of regulation depends on Congress which can fasttrack the writing of a
new law on oil deregulation in accord with the Constitution.
With this Decision, some circles will chide the Court for interfering with an
economic decision of Congress. Such criticism is charmless for the Court is
annulling R.A. No. 8180 not because it disagrees with deregulation as an
economic policy but because as cobbled by Congress in its present form, the
law violates the Constitution. The right call therefor should be for Congress to
write a new oil deregulation law that conforms with the Constitution and not for
this Court to shirk its duty of striking down a law that offends the Constitution.
Striking down R.A. No. 8180 may cost losses in quantifiable terms to the oil
oligopolists. But the loss in tolerating the tampering of our Constitution is not
quantifiable in pesos and centavos. More worthy of protection than the supra-
normal profits of private corporations is the sanctity of the fundamental
principles of the Constitution. Indeed when confronted by a law violating the
Constitution, the Court has no option but to strike it down dead. Lest it is
missed, the Constitution is a covenant that grants and guarantees both the
political and economic rights of the people. The Constitution mandates this
Court to be the guardian not only of the people's political rights but their
economic rights as well. The protection of the economic rights of the poor and
the powerless is of greater importance to them for they are concerned more
with the exoterics of living and less with the esoterics of liberty. Hence, for as
long as the Constitution reigns supreme so long will this Court be vigilant in
upholding the economic rights of our people especially from the onslaught of
the powerful. Our defense of the people's economic rights may appear
heartless because it cannot be half-hearted.
IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is declared
unconstitutional and E.O. No. 372 void.
SO ORDERED.
Regalado, Davide, Jr., Romero, Bellosillo and Vitug, JJ., concur.
Mendoza, J., concurs in the result.
Narvasa, C.J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 97787 August 1, 1996
The Anti-Graft League of the Philippines, Inc., represented by
REYNALDO L. BAGATSING, in his capacity as Chief
Prosecutor/Investigator, petitioner,
vs.
Hon. REYNALDO SAN JUAN, Provincial Governor, Hon. JOSE M.
BARRETO, SR., Provincial Vice-Governor, Hons. ERNESTO ESTRADA,
ROMAN REYES, ISIDRO PACIS, LEONISA VERGEL DE DIOS, REMEDIOS
PARALEJAS, TIMOTEO PASCUAL, ALFREDO VILLANUEVA, AMOS
REYES, Members of the Provincial Board of Rizal, Hon. EUTROPIO
MIGRIO, Presiding Judge, RTC-Pasig, Branch CLI (151), Ortigas &
Company Ltd., represented by ATTY. FRACISCO ORTIGAS, JR., Asian
Appraisal Co. Inc., Rizal Provincial Appraisal Assessor, Provincial
Auditor and District Engineer, JESS DOE, STEVE DOE and HECTOR
DOE,respondents.
ROMERO, J.:p
It is fundamental in this jurisdiction that any party may only come to
court if he has legal standing and a valid cause of action. Petitioner
Anti-Graft League of the Philippines, a self-confessed "non-
governmental, non-stock and non-profit organization, which was
constituted to protect the interest of the Republic and its
instrumentalities and political subdivisions and its constituents against
abuses of its public officials and employees," claims the instant
petition for certiorari is a taxpayer's suit which it filed because the
Provincial Board of Rizal (the Board) allegedly illegally disbursed
public funds in transactions involving four parcels of land in Ugong
Norte, Pasig. The allegation is denied by respondents who challenge
the propriety of this action, as well as the capacity of petitioner to file
the same. Public respondents, officers of the Province of Rizal (the
Province), even intimate that the filing of this petition is politically-
motivated.
On March 20, 1975, the President Ferdinand E. Marcos issued
Presidential Decree No. 674, establishing the Technological Colleges
of Rizal. Among other things, it directed the Board to provide funds for
the purchase of a site and the construction of the necessary structures
thereon. Acting upon an authority granted by the office of the
President, the Province was able to negotiate with respondent Ortigas
& Co., Ltd. (Ortigas) for the acquisition of four parcels of land located
in Ugong Norte, Pasig. Three deeds of absolute sale were executed
on April 22 and May 9, 1975, whereby Ortigas transferred its
ownership over a total of 192,177 square meters of land to the
Province at P110.00 per square meter. The projected construction,
however, never materialized because of the decimation of the
Province's resources brought about by the creation of the Metro
Manila Commission (MMC) in 1976.
Twelve years later, with the property lying idle and the Province
needing funds to propel its 5-years Comprehensive Development
Program, the then incumbent Board passed Resolution No. 87-205
dated October 15, 1987 authorizing the Governor to sell the same.
The said property was eventually sold to Valley View Realty
Development Corporation (Valley View) for P700.00 per square meter
or a total of P134,523,900.00, of which 30 million was given as
downpayment. On May 10, 1988, after learning about the sale, Ortigas
filed before Branch 151 of the Regional Trial Court of Pasig an action
for recission of contract plus damages with preliminary injunction
against the Province. Docketed as Civil Case No. 55904, the
complaint alleged that the Province violated one of the terms of its
contracts with Ortigas by selling the subject lots which were intended
to be utilized solely as a site for the construction of the Rizal
Technological Colleges and the Rizal Provincial Hospital.
Meanwhile, the new provincial officials, including herein public
respondents, assumed office. On April 21, 1988, the Board adopted
Resolution No. 88-65 which provided for the rescission of the deed of
sale between the Province and Valley View on the ground that the
sale price was exceedingly low and, thus, prejudicial to the Province.
Because of this, Valley View then filed a complaint docketed as a Civil
Case No. 55913 against the Province for specific performance and
damages. The case was, however, dismissed after the parties
executed on August 12, 1988 a compromise agreement whereby the
Province returned the 30-million peso downpayment earlier given by
Valley View.
Civil Case No. 55904 was also resolved through a compromise
agreement executed by and between the Province and Ortigas on
March 20, 1989. Under the said compromise agreement, which was
approved by respondent Judge Eutropio Migrio in his decision dated
March 21, 1989, the Province agreed to reconvey the four parcels of
land to Ortigas at a price of P2,250.00 per square meter, or a total of
P432,398,250.00, payable within two years at an annual interest rate
of fourteen percent. This amount is higher than the market values
separately determined by respondents Asian Appraisal, Inc. and the
Provincial Appraisal Committee, which respectively pegged the price
of the subject properties at P1,800.00 and P2,200.00 per square
meter. Ortigas made its final payment on March 30, 1991.
On April 1, 1991, petitioner filed the instant petition for certiorari with
application for preliminary injunction seeking the nullification of the
March 20, 1989 compromise agreement, and, corollarily, the decision
of respondent Judge approving the same.
A reading of the petition immediately raises several questions: (1) Is
the present action a taxpayer's suit? Collarily, does petitioner possess
the legal standing to question the transaction entered into by the
Provincial Board of Rizal with private respondent Ortigas? (2) Is the
Supreme Court the proper forum for the instant petition? (3)
Assuming arguendo that the prior questions may be answered in the
affirmative, is the present action barred by laches?
Petitioner and respondents agree that to constitute a taxpayer's suit,
two requisites must be met, namely, that public funds are disbursed by
a political subdivision or instrumentality and in doing so, a law is
violated or some irregularity is committed, and that the petitioner is
directly affected by the alleged ultra vires act. 1 The same
pronouncement was made in Kilosbayan, Inc. v. Guingona, Jr., 2 where
the Court also reiterated its liberal stance in entertaining so-called
taxpayer's suits, especially when important issues are involved. A closer
examination of the facts of this case would readily demonstrate that
petitioner's standing should not even be made an issue here, "since
standing is a concept in constitutional law and here no constitutional
question is actually involved." 3
In the case at bar, disbursement of public funds was only made in
1975 when the Province bought the lands from Ortigas at P110.00 per
square meter in line with the objectives of P.D. 674. Petitioner never
referred to such purchase as an illegal disbursement of public funds
but focused on the alleged fraudulent reconveyance of said property to
Ortigas because the price paid was lower than the prevailing market
value of neighboring lots. The first requirement, therefore, which would
make this petition a taxpayer's suit is absent. The only remaining
justification for petitioner to be allowed to pursue this action is whether
it is, or would be, directly affected by the act complained of. As we
stated in Kilosbayan, Inc. v. Morato, 4
Standing is a special concern in constitutional law because in
some cases suits are brought not by parties who have been
personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually
sue in the public interest. Hence the question in standing is
whether such parties have "alleged such a personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions." (Citing Baker v. Carr, 369 U.S. 186, 7 L.
Ed. 2d 633 [1962])
Undeniably, as a taxpayer, petitioner would somehow be adversely
affected by an illegal use of public money. When, however, no such
unlawful spending has been shown, as in the case at bar, petitioner,
even as a taxpayer, cannot question the transaction validly executed
by and between the Province and Ortigas for the simple reason that it
is not privy to said contract. In other words, petitioner has absolutely
no cause of action, and consequently no locus standi, in the instant
case.
Petitioner committed further procedural error by filing its petition with
this Court. While it is ostensibly questioning the reconveyance of the
subject lots to Ortigas, that is, the acts of the Governor of Rizal and of
the members of the Provincial Board, it is in effect mainly assailing the
March 21, 1989 judgment of respondent Judge Migrio who approved
the compromise agreement. The proper remedy which it should have
taken was to file a petition for review of the trial court's decision before
the Court of Appeals because petitioner is questioning the wisdom of
the trial court's action which, in turn, calls for a factual determination of
the feasibility of an amicable settlement between the litigants. No legal
issue cognizable by this Court was ever raised by petitioner. Even if
 there was, such an action would have failed because of petitioner's
lack of legal standing to file the same.
Assuming arguendo that petitioner did have the personality and was
justified in lodging this case before the Court, did it do so seasonably?
We think not. The questioned decision was promulgated on March 21,
1989 and, no appeal having been made therefrom, became final and
executory on April 55, 1989. Petitioner filed the present action only on
April 1, 1991, two years later, contending that the trial court's decision
merely adopted the compromise agreement which provided, inter alia,
that the last installment was due only on March 30, 1991. This
specious line of reasoning is easily demolished. Why should petitioner
wait until the parties to the transaction have fulfilled their respective
obligations, which is two years from the date of the contract, when it
could have questioned the same much earlier, even at the contract's
inception, and in the process, spared everyone from unnecessary
aggravation?
Accordingly, after concluding that, not only does petitioner lack the
legal personality to file this so-called taxpayer's suit, but that it filed the
same beyond the reglementary period, this Court no longer finds any
reason to delve into the merits, or the lack of it, of the instant petition.
WHEREFORE, premises considered, the instant petition
for certiorari is hereby DISMISSED. Cost against petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Melo, Puno, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ.,
concur.
Vitug, J., concurs in the result.
Bellosillo, J., is on leave.
Footnotes
1 Bugnay Construction & Development Corp. v. Laron, 176 SCRA 240
(1989).
2 232 SCRA 110 (1994), reiterated in Tatad v. Garcia, Jr., 243 SCRA
436 (1995 and Bagatsing v. Committee on Privatization, 246 SCRA
334 (1995).
3 Kilosbayan, Inc. v. Morato, 246 SCRA 540 (1995).
4 Supra.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 107921 July 1, 1993
POLICE GENERAL LEVY MACASIANO (Ret.), in his capacity as the
consultant of the Department of Public Works and Highways (DPWH)
Task Force on Demolition and/or in his personal capacity as
taxpayer,petitioner,
vs.
NATIONAL HOUSING AUTHORITY, HOUSING AND LAND USE
REGULATORY BOARD and NATIONAL MAPPING RESOURCES
INFORMATION AUTHORITY, respondents.
RESOLUTION
DAVIDE, JR., J.:
Petitioner seeks to have this Court declare as unconstitutional Sections 28
and 44 of Republic Act No. 7279, otherwise known as the Urban Development
and Housing Act of 1992. He predicates his locust standi on his being a
consultant of the Department of Public Works and Highways (DPWH)
pursuant to a Contract of Consultancy on Operation for Removal of
Obstructions and Encroachments on Properties of Public Domain (executed
immediately after his retirement on 2 January 1992 from the Philippine
National Police) and his being a taxpayer. As to the first, he alleges that said
Sections 28 and 44 "contain the seeds of a ripening controversy that serve as
drawback" to his "tasks and duties regarding demolition of illegal structures";
because of the said sections, he "is unable to continue the demolition of illegal
structures which he assiduously and faithfully carried out in the past." 1 As a
taxpayer, he alleges that "he has a direct interest in seeing to it that public funds
are properly and lawfully disbursed." 2
Republic Act No. 7279 was approved on 24 March 1992 and published in the
4 May 1992 issue of the Official Gazette. 3 The challenged provisions therein
read as follows:
SEC. 28. Eviction and Demolition. Eviction or demolition as
a practice shall be discouraged. Eviction or demolition,
however, may be allowed under the following situations:
(a) When persons or entities occupy danger areas such
as esteros, railroad tracks, garbage dumps, riverbanks,
shorlines, waterways, and other public places such as
sidewalks, roads, parks and playgrounds;
(b) When government infrastructure projects with available
funding are about to be implemented; or
(c) When there is a court order for eviction and demolition.
In the execution of eviction or demolition orders involving
underprivileged and homeless citizens, the following shall be
mandatory:
(1) Notice upon the affected persons or entities at least thirty
(30) days prior to the date of eviction or demolition;
(2) Adequate consultations on the matter of resettlement with
the duly designated representatives of the families to be
resettled and the affected communities in the areas where
they are to be relocated;
(3) Presence of local government officials or their
representatives during eviction or demolition;
(4) Proper identification of all persons taking part in the
demolition;
 (5) Execution of eviction or demolition only during regular
office hours from Mondays to Fridays and during good
weather, unless the affected families consent otherwise;
(6) no use of heavy equipment for demolition except for
structures that are permanent and of concrete materials;
(7) Proper uniforms for members of the Philippine National
Police who shall occupy the first line of law enforcement and
observe proper disturbance control procedures; and
(8) Adequate relocation, whether temporary or
permanent: Provided, however, That in cases of eviction and
demolition pursuant to a court order involving underprivileged
and homeless citizens, relocations shall be undertaken by the
local government unit concerned and the National Housing
Authority with the assistance of other government agencies
within forty-five(45) days from service of notice of final
judgment by the court, after which period the said order shall
be executed: Provided, further, That should relocation not be
possible within the said period financial assistance in the
amount equivalent to the prevailing minimum daily wage
multiplied by sixty (60) days shall be extended to the affected
families by the local government concerned.
The Department of the Interior and Local Government and the
Housing and Urban Development Coordinating Council shall
jointly promulgate the necessary rules and regulations to carry
out the above provision.
xxx xxx xxx
Sec. 44. Moratorium on Eviction and Demolition. There
shall be a moratorium on the eviction of all program
beneficiaries and on the demolition of their houses or dwelling
units for a period of three (3) years from the effectivity of this
Act: Provided, That the moratorium shall not apply to those
persons who have constructed their structures after the
effectivity of this Act and for cases enumerated in Section 28
hereof.
Petitioner maintains that the said provisions are unconstitutional because:
(a) They deprive the government, and more so, private
property owners of their property without due process of law
and without compensation;
(b) They reward, instead of punish, what this Honorable Court
has categorically declared as unlawful acts;
(c) They violate the prohibition against legislation that" takes
away one's property to be given to plain interlopers;
(d) They sweep overbroadly over legitimate concerns of the
police power of the State; and
(e) They encroach upon the judicial power to its valid
judgments and orders. 4
On 10 December 1992, we required the respondents to comment on the
petition.
In its Comment 5 filed on 15 January 1993, respondent National Mapping and
Resource Information Authority alleges that the implementation of the assailed
sections of the Act does not belong to or fall within its jurisdiction. It disagrees with
the petitioner's stand that the said sections are unconstitutional and avers that
Section 28 merely provides for the "humanitarian approach" towards less
privileged, citizens and does not in fact prohibit but merely discourages eviction or
demolition, while Section 44 only covers program beneficiaries.
On 15 January 1993, the Realty Owners Association of the Philippines, Inc.
filed a motion to intervene 6 alleging that it has a legal interest in the success of
the petition and is in full accord with it. This Court required the parties to comment
thereon.
On 16 February 1993, the Office of the Government Corporate (OGCC) filed a
comment 7 for the respondent National Housing Authority (NHA) informing this
Court that "in a letter of respondent NHA addressed to the office of the
undersigned counsel, dated 29 January 1993, . . ., the former categorically
expressed as its official stand on the instant petition that Sections 28 and 44 of
Republic Act No. 7279 are indeed unconstitutional," and that "after a circumspect
evaluation of petition. We find no cogent reason not to support the position
heretofore taken by respondent NHA." Said office then prays that the instant
petition be given due course.
On 14 May 1993, the Solicitor General filed his Comment to the petition. He
maintains that, the instant petition is devoid of merit for non-compliance with
the essential requisites for the exercise of judicial review in cases involving
the constitutionality of a law. He contends that there is no actual case or
controversy with litigants asserting adverse legal rights or interests, that the
petitioner merely asks for an advisory opinion, that the petitioner is not the
proper party to question the Act as he does not state that he has property
"being squatted upon" and that there is no showing that the question of
constitutionality is the very lis mota presented. He argues that Sections 28
and 44 of the Act are not constitutionality infirm.
Up to this time, no comment has been submitted by the parties on the motion
to intervene. Considering, however, that the issues are clear and simple
enough, this Court dispenses with the need for a comment on the said motion,
denies the same and, after deliberating on the issues said and the arguments
adduced by the parties in the petition and comments, declares this petition to
be without merit.
It is a rule firmly entrenched in our jurisprudence that the constitutionality of an
act of the legislature will not be determined by the courts unless that, question
is properly raised and presented in appropriate cases and is necessary to a
determination of the case, i.e., the issue of constitutionality must be very lis
mota presented. 8 To reiterate, the essential requisites for a successful judicial
inquiry into the constitutionality of a law are: (a) the existence of an actual case or
controversy involving a conflict of legal rights susceptible of judicial determination,
(b) the constitutional question must be raised by a proper property, (c) the
constitutional question must be raised at the opportunity, and (d) the resolution of
the constitutional question must be necessary to the decision of the case. 9A
proper party is one who has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of. 10
It is easily discernible in the instant case that the first two (2) fundamental
requisites are absent. There is no actual controversy. Moreover, petitioner
does not claim that, in either or both of the capacities in which he is filing the
petition, he has been actually prevented from performing his duties as a
consultant and exercising his rights as a property owner because of the
assertion by other parties of any benefit under the challenged sections of the
said Act. Judicial review cannot be exercised in vacuo. Judicial power is the
"right to determine actual controversies arising between adverse litigants." 11
In reality, his petition is one for declaratory relief as he prays therein that, "his
rights as well as those of private landowners be clearly defined and his duties
under the Constitution and the pertinent laws be dearly stated with respect to
the demolition of illegal structures on public and private lands." 12 Even so, it is
still not viable since among the essential requisites of a petition for declaratory
relief are controversy, (a) there must be a justiciable controversy,(b)the
controversy must be between persons whose interests are adverse and (c) the
party seeking declaratory relief must have a legal interest in the
controversy. 13 Furthermore, an action for declaratory relief does not fall within the
original jurisdiction of the Supreme Court even if only questions of law are
involved. 14 True, we have said that such a petition may be treated as one for
prohibition 15 or mandamus 16 if it has far reaching implications and raises
questions that need to be resolved; but the exercise of such discretion
presupposes, at the outset, that the petition is otherwise viable or meritorious.
The petitioner is not likewise a "proper party." As a consultant of the DPWH
under the "Contract for Consultancy . . .," he is not vested with any authority to
demolish obstructions and encroachments on properties of the public domain,
much less on private lands. The consultancy contract limits his duties to the
following: "(a) to organize and train selected DPWH personnel for the different
Engineering Districts in the NCR in the techniques and methods of
removing/demolishing illegal structures/stalls, etc. as well as in crowd control,
self-defense and security procedures . . .; (b) to provide advice to the
Secretary and other DPWH officials regarding prioritization of areas to be
cleared of obstructions and encroachments; (c) to conduct field inspection
from time to time of areas recommend for clearing; (d) to provide advice in
developing appropriate standards and techniques in cost effective
implementation of the removal and demolition of obstructions and
encroachments . . .; and (e) to develop operational procedures that will
institutionalize demolition
processes." 17 Moreover, the consultancy contract expired on 31 December 1992
and the petitioner has not manifested that he obtained a renewal or extension
thereof.
Nor does the petitioner claim that he is an owner of an urban property whose
enjoyment and use would be affected by the challenged provisions of R.A. No.
7279.
Although the petitioner likewise anchors his locus standi on the fact that he is
a taxpayer, it does not mean, however, that in each and every instance where
such a ground is invoked, this Court is left with no alternative except to hear
the parties. In Tan vs. Macapagal, 18 we clarified that "as far as a taxpayer's suit
s concerned, this Court is not devoid of the discretion as to whether or not it
should be entertained."
We do not, as well, find an indubitable ground for the constitutional challenge.
As this Court said through Mr. Justice Isagani A. Cruz in Garcia vs. Executive
Secretary. 19
On the merits, We find that the constitutional challenge must
be rejected for failure to show that there is an indubitable
ground for it, not to say even a necessity to resolve it. The
policy of the courts is to avoid ruling on constitutional
questions and to presume that the acts of the political
departments are valid in the absence of a clear and
unmistakable showing to the contrary. To doubt is to sustain.
This presumption is based on the doctrine of separation of
powers which enjoins upon each department a becoming
respect for the acts of the other departments. The theory is
that as the joint act of Congress and the President of the
Philippines, a law has been carefully studied and determined
to be in accordance with the fundamental law before it was
finally enacted.
We cannot end this resolution without a few words on the comment of the
OGCC for public respondent National Housing Authority wherein the OGCC
merely adopted the stand of the officer-in-charge of the Legal Department of
the said Authority that the challenged sections of R.A. No. 7279 are
unconstitutional. On its own, the OGCC did not even attempt to reason out
why this petition should be granted or denied. It has obviously treated this
case without the circumspection and seriousness expected of it especially in
the light of the functions, duties and responsibilities of the NHA under the
challenged Act. The OGCC should not have cursorily adopted the opinion of
the officer-in-charge who acted on his own and who, apparently, did not even
refer his opinion to the Board of Directors of the NHA.
Wherefore, for lack of merit, the instant petition is DISMISSED with costs
against the petitioner.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Grio-Aquino, Regalado, Romero,
Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Padilla, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG &
SHANGHAI BANKING CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and
MARIANO CU UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the
Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking
Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and
McDonough for respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the
issuance of the writ of certiorari and of prohibition to the Court of First
Instance of Manila so that this court may review the actuations of the
aforesaid Court of First Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more
particularly the application of the defendant Mariano Cu Unjieng therein for
probation under the provisions of Act No. 4221, and thereafter prohibit the
said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the
defendant Mariano Cu Unjieng may be forthwith committed to prison in
accordance with the final judgment of conviction rendered by this court in said
case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and
Shanghai Banking Corporation, are respectively the plaintiff and the offended
party, and the respondent herein Mariano Cu Unjieng is one of the
defendants, in the criminal case entitled "The People of the Philippine Islands
vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First
Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon.
Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of
First Instance of Manila, who heard the application of the defendant Mariano
Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First
Instance of Manila on October 15, 1931, petitioner herein Hongkong and
Shanghai Banking Corporation intervening in the case as private prosecutor.
After a protracted trial unparalleled in the annals of Philippine jurisprudence
both in the length of time spent by the court as well as in the volume in the
testimony and the bulk of the exhibits presented, the Court of First Instance of
Manila, on January 8, 1934, rendered a judgment of conviction sentencing the
defendant Mariano Cu Unjieng to indeterminate penalty ranging from four
years and two months of prision correccional to eight years of prision mayor,
to pay the costs and with reservation of civil action to the offended party, the
Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on
March 26, 1935, modified the sentence to an indeterminate penalty of from
five years and six months of prision correccional to seven years, six months
and twenty-seven days of prision mayor, but affirmed the judgment in all other
respects. Mariano Cu Unjieng filed a motion for reconsideration and four
successive motions for new trial which were denied on December 17, 1935,
and final judgment was accordingly entered on December 18, 1935. The
defendant thereupon sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied the petition
for certiorari in November, 1936. This court, on November 24,
1936, denied the petition subsequently filed by the defendant for leave to file a
second alternative motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by
the herein respondent Mariano Cu Unjieng on November 27, 1936,
before the trial court, under the provisions of Act No. 4221 of the defunct
Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted,
that he has no criminal record and that he would observe good conduct in the
future. The Court of First Instance of Manila, Judge Pedro Tuason presiding,
referred the application for probation of the Insular Probation Office which
recommended denial of the same June 18, 1937. Thereafter, the Court of First
Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the
petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the
granting of probation to the herein respondent Mariano Cu Unjieng. The
private prosecution also filed an opposition on April 5, 1937, alleging, among
other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section
1, subsection (1), Article III of the Constitution guaranteeing equal protection
of the laws for the reason that its applicability is not uniform throughout the
Islands and because section 11 of the said Act endows the provincial boards
with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a
supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative
power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private
prosecution except with respect to the questions raised concerning the
constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a
resolution with a finding that "las pruebas no han establecido de unamanera
concluyente la culpabilidad del peticionario y que todos los hechos probados
no son inconsistentes o incongrentes con su inocencia" and concludes that
the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of
the crime of which he stands convicted by this court in G.R. No. 41200, but
denying the latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las
circunstancias y la historia social que se han expuesto en el cuerpo de
esta resolucion, que hacen al peticionario acreedor de la misma, una
parte de la opinion publica, atizada por los recelos y las suspicacias,
podria levantarse indignada contra un sistema de probacion que
permite atisbar en los procedimientos ordinarios de una causa
criminal perturbando la quietud y la eficacia de las decisiones ya
recaidas al traer a la superficie conclusiones enteramente differentes,
 en menoscabo del interes publico que demanda el respeto de las
leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed
an exception to the resolution denying probation and a notice of intention to
file a motion for reconsideration. An alternative motion for reconsideration or
new trial was filed by counsel on July 13, 1937. This was supplemented by an
additional motion for reconsideration submitted on July 14, 1937. The
aforesaid motions were set for hearing on July 31, 1937, but said hearing was
postponed at the petition of counsel for the respondent Mariano Cu Unjieng
because a motion for leave to intervene in the case as amici curiae signed by
thirty-three (thirty-four) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the aforesaid motion
subsequently filed a petition for leave to withdraw his appearance as amicus
curiae on the ground that the motion for leave to intervene as amici
curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng
on the evening of July 30, 1937, and that he signed the same "without mature
deliberation and purely as a matter of courtesy to the person who invited me
(him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial
court for the issuance of an order of execution of the judgment of this court in
said case and forthwith to commit the herein respondent Mariano Cu Unjieng
to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion
for leave to intervene as amici curiaeaforementioned, asking that a date be
set for a hearing of the same and that, at all events, said motion should be
denied with respect to certain attorneys signing the same who were members
of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10,
1937, herein respondent Judge Jose O. Vera issued an order requiring all
parties including the movants for intervention as amici curiae to appear before
the court on August 14, 1937. On the last-mentioned date, the Fiscal of the
City of Manila moved for the hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as amici curiae but, upon
objection of counsel for Mariano Cu Unjieng, he moved for the postponement
of the hearing of both motions. The respondent judge thereupon set the
hearing of the motion for execution on August 21, 1937, but proceeded to
consider the motion for leave to intervene as amici curiae as in order.
Evidence as to the circumstances under which said motion for leave to
intervene as amici curiae was signed and submitted to court was to have been
heard on August 19, 1937. But at this juncture, herein petitioners came to this
court on extraordinary legal process to put an end to what they alleged was an
interminable proceeding in the Court of First Instance of Manila which fostered
"the campaign of the defendant Mariano Cu Unjieng for delay in the execution
of the sentence imposed by this Honorable Court on him, exposing the courts
to criticism and ridicule because of the apparent inability of the judicial
machinery to make effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon
the issuance of a temporary restraining order by this court on August 21,
1937.
To support their petition for the issuance of the extraordinary writs
of certiorari and prohibition, herein petitioners allege that the respondent judge
has acted without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent
Mariano Cu Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine
Legislature is made to apply only to the provinces of the Philippines; it
nowhere states that it is to be made applicable to chartered cities like
the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to
the effect that in the absence of a special provision, the term
"province" may be construed to include the City of Manila for the
purpose of giving effect to laws of general application, it is also true
that Act No. 4221 is not a law of general application because it is
made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation
officer.
(3) Even if the City of Manila were considered to be a province, still,
Act No. 4221 would not be applicable to it because it has provided for
the salary of a probation officer as required by section 11 thereof; it
being immaterial that there is an Insular Probation Officer willing to act
for the City of Manila, said Probation Officer provided for in section 10
of Act No. 4221 being different and distinct from the Probation Officer
provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain
the application for probation of the respondent Mariano Cu Unjieng, he
nevertheless acted without jurisdiction or in excess thereof in continuing to
entertain the motion for reconsideration and by failing to commit Mariano Cu
Unjieng to prison after he had promulgated his resolution of June 28, 1937,
denying Mariano Cu Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by
Act No. 4221 to the granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's
petition for probation on June 28, 1937, it became final and executory
at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said
order or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is
innocent of the crime for which he was convicted by final judgment of this
court, which finding is not only presumptuous but without foundation in fact
and in law, and is furthermore in contempt of this court and a violation of the
respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his
duty, which became imperative when he issued his order of June 28, 1937,
denying the application for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate
remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner
Hongkong and Shanghai Banking Corporation further contends that Act No.
4221 of the Philippine Legislature providing for a system of probation for
persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it is violative of section 1, subsection (1), Article III,
of the Constitution of the Philippines guaranteeing equal protection of the laws
because it confers upon the provincial board of its province the absolute
discretion to make said law operative or otherwise in their respective
provinces, because it constitutes an unlawful and improper delegation to the
provincial boards of the several provinces of the legislative power lodged by
the Jones Law (section 8) in the Philippine Legislature and by the Constitution
(section 1, Art. VI) in the National Assembly; and for the further reason that it
gives the provincial boards, in contravention of the Constitution (section 2, Art.
VIII) and the Jones Law (section 28), the authority to enlarge the powers of
the Court of First Instance of different provinces without uniformity. In another
supplementary petition dated September 14, 1937, the Fiscal of the City of
Manila, in behalf of one of the petitioners, the People of the Philippine Islands,
concurs for the first time with the issues raised by other petitioner regarding
the constitutionality of Act No. 4221, and on the oral argument held on
October 6, 1937, further elaborated on the theory that probation is a form of
reprieve and therefore Act. No. 4221 is an encroachment on the exclusive
power of the Chief Executive to grant pardons and reprieves. On October 7,
1937, the City Fiscal filed two memorandums in which he contended that Act
No. 4221 not only encroaches upon the pardoning power to the executive, but
also constitute an unwarranted delegation of legislative power and a denial of
the equal protection of the laws. On October 9, 1937, two memorandums,
signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of
the People of the Philippine Islands, and by counsel for the petitioner, the
Hongkong and Shanghai Banking Corporation, one sustaining the power of
the state to impugn the validity of its own laws and the other contending that
Act No. 4221 constitutes an unwarranted delegation of legislative power, were
presented. Another joint memorandum was filed by the same persons on the
same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional
because it denies the equal protection of the laws and constitutes an unlawful
delegation of legislative power and, further, that the whole Act is void: that the
Commonwealth is not estopped from questioning the validity of its laws; that
the private prosecution may intervene in probation proceedings and may
attack the probation law as unconstitutional; and that this court may pass
upon the constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral
argument and memorandums, challenge each and every one of the foregoing
proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to
warrant the issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy
sought by the petitioners is the very same remedy prayed for by them
before the trial court and was still pending resolution before the trial
court when the present petition was filed with this court.
(3) That the petitioners having themselves raised the question as to
the execution of judgment before the trial court, said trial court has
acquired exclusive jurisdiction to resolve the same under the theory
that its resolution denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction
with the Court of First Instance to decide the question as to whether or
not the execution will lie, this court nevertheless cannot exercise said
jurisdiction while the Court of First Instance has assumed jurisdiction
over the same upon motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in
seeking to deprive the trial court of its jurisdiction over the case and
elevate the proceedings to this court, should not be tolerated because
it impairs the authority and dignity of the trial court which court while
sitting in the probation cases is "a court of limited jurisdiction but of
great dignity."
(6) That under the supposition that this court has jurisdiction to resolve
the question submitted to and pending resolution by the trial court, the
present action would not lie because the resolution of the trial court
denying probation is appealable; for although the Probation Law does
not specifically provide that an applicant for probation may appeal
from a resolution of the Court of First Instance denying probation, still
it is a general rule in this jurisdiction that a final order, resolution or
decision of an inferior court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein
respondent Mariano Cu Unjieng being appealable, the same had not
become final and executory for the reason that the said respondent
had filed an alternative motion for reconsideration and new trial within
the requisite period of fifteen days, which motion the trial court was
able to resolve in view of the restraining order improvidently and
erroneously issued by this court. lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted
that the resolution of the trial court denying probation is not final and
unappealable when he presented his answer to the motion for
reconsideration and agreed to the postponement of the hearing of the
said motion.
(9) That under the supposition that the order of the trial court denying
probation is not appealable, it is incumbent upon the accused to file an
action for the issuance of the writ ofcertiorari with mandamus, it
appearing that the trial court, although it believed that the accused
was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the
 trial court could lie, it is incumbent upon the petitioner to file a motion
for reconsideration specifying the error committed so that the trial
court could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not
appealable, the trial court retains its jurisdiction within a reasonable
time to correct or modify it in accordance with law and justice; that this
power to alter or modify an order or resolution is inherent in the courts
and may be exercise either motu proprio or upon petition of the proper
party, the petition in the latter case taking the form of a motion for
reconsideration.
(11) That on the hypothesis that the resolution of the trial court is
appealable as respondent allege, said court cannot order execution of
the same while it is on appeal, for then the appeal would not be
availing because the doors of probation will be closed from the
moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents
maintain that Act No. 4221 is constitutional because, contrary to the
allegations of the petitioners, it does not constitute an undue delegation of
legislative power, does not infringe the equal protection clause of the
Constitution, and does not encroach upon the pardoning power of the
Executive. In an additional memorandum filed on the same date, counsel for
the respondents reiterate the view that section 11 of Act No. 4221 is free from
constitutional objections and contend, in addition, that the private prosecution
may not intervene in probation proceedings, much less question the validity of
Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped
from questioning the validity of the Act; that the validity of Act cannot be
attacked for the first time before this court; that probation in unavailable; and
that, in any event, section 11 of the Act No. 4221 is separable from the rest of
the Act. The last memorandum for the respondent Mariano Cu Unjieng was
denied for having been filed out of time but was admitted by resolution of this
court and filed anew on November 5, 1937. This memorandum
elaborates on some of the points raised by the respondents and refutes those
brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the
present case, we noted that the court below, in passing upon the merits of the
application of the respondent Mariano Cu Unjieng and in denying said
application assumed the task not only of considering the merits of the
application, but of passing upon the culpability of the applicant,
notwithstanding the final pronouncement of guilt by this court. (G.R. No.
41200.) Probation implies guilt be final judgment. While a probation case may
look into the circumstances attending the commission of the offense, this does
not authorize it to reverse the findings and conclusive of this court, either
directly or indirectly, especially wherefrom its own admission reliance was
merely had on the printed briefs, averments, and pleadings of the parties. As
already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337),
and reiterated in subsequent cases, "if each and every Court of First Instance
could enjoy the privilege of overruling decisions of the Supreme Court, there
would be no end to litigation, and judicial chaos would result." A becoming
modesty of inferior courts demands conscious realization of the position that
they occupy in the interrelation and operation of the intergrated judicial system
of the nation.
After threshing carefully the multifarious issues raised by both counsel for the
petitioners and the respondents, this court prefers to cut the Gordian knot and
take up at once the two fundamental questions presented, namely, (1)
whether or not the constitutionality of Act No. 4221 has been properly raised
in these proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a discussion of
certain incidental questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain guiding
principles is necessary. It is a well-settled rule that the constitutionality of an
act of the legislature will not be determined by the courts unless that question
is properly raised and presented inappropriate cases and is necessary to a
determination of the case; i.e., the issue of constitutionality must be the
very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563,
568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently
raised in ordinary actions. Nevertheless, resort may be made to extraordinary
legal remedies, particularly where the remedies in the ordinary course of law
even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs.
Patstone ([1922]), 42 Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the petitioner
in mandamusproceedings (see, also, 12 C. J., p. 783); and in Government of
the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer
vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed.,
845]), this court declared an act of the legislature unconstitutional in an action
of quo warranto brought in the name of the Government of the Philippines. It
has also been held that the constitutionality of a statute may be questioned
inhabeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol.
I, pp. 97, 117), although there are authorities to the contrary; on an application
for injunction to restrain action under the challenged statute
(mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an
application for preliminary injunction where the determination of the
constitutional question is necessary to a decision of the case. (12 C. J., p.
783.) The same may be said as regards prohibition and certiorari.(Yu Cong
Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed.,
1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875;
113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited).
The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve
years ago was, like the present one, an original action for certiorari and
prohibition. The constitutionality of Act No. 2972, popularly known as the
Chinese Bookkeeping Law, was there challenged by the petitioners, and the
constitutional issue was not met squarely by the respondent in a demurrer. A
point was raised "relating to the propriety of the constitutional question being
decided in original proceedings in prohibition." This court decided to take up
the constitutional question and, with two justices dissenting, held that Act No.
2972 was constitutional. The case was elevated on writ of certiorari to the
Supreme Court of the United States which reversed the judgment of this court
and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the
question of jurisdiction, however, the Federal Supreme Court, though its Chief
Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516,
the Philippine supreme court is granted concurrent jurisdiction in
prohibition with courts of first instance over inferior tribunals or
persons, and original jurisdiction over courts of first instance, when
such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the
validity of the criminal statute must usually be raised by a defendant in
the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But
in this case where a new act seriously affected numerous persons and
extensive property rights, and was likely to cause a multiplicity of
actions, the Supreme Court exercised its discretion to bring the issue
to the act's validity promptly before it and decide in the interest of the
orderly administration of justice. The court relied by analogy upon the
cases of Ex parteYoung (209 U. S., 123;52 Law ed., 714; 13 L. R. A.
[N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich,
239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct.
Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332;
61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann.
Cas. 1918A, 1024). Although objection to the jurisdiction was raise by
demurrer to the petition, this is now disclaimed on behalf of the
respondents, and both parties ask a decision on the merits. In view of
the broad powers in prohibition granted to that court under the Island
Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of
preventing the inferior tribunal from usurping a jurisdiction with which it is not
legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general
rule, although there is a conflict in the cases, is that the merit of prohibition will
not lie whether the inferior court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in such cases the interior
court having jurisdiction may itself determine the constitutionality of the
statute, and its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal without
resort to the writ of prohibition. But where the inferior court or tribunal derives
its jurisdiction exclusively from an unconstitutional statute, it may be prevented
by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex
parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365;
Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk
[1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185;
Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their
jurisdiction solely from Act No. 4221 which prescribes in detailed manner the
procedure for granting probation to accused persons after their conviction has
become final and before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily the execution
of the sentence is recognized and, according to a number of state courts,
including those of Massachusetts, Michigan, New York, and Ohio, the power
is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115
Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497;
People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs.
State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United
States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37
Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United
States expressed the opinion that under the common law the power of the
court was limited to temporary suspension, and brushed aside the contention
as to inherent judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses
against the criminal laws and upon conviction to impose the
punishment provided by law is judicial, and it is equally to be
conceded that, in exerting the powers vested in them on such subject,
courts inherently possess ample right to exercise reasonable, that is,
judicial, discretion to enable them to wisely exert their authority. But
these concessions afford no ground for the contention as to power
here made, since it must rest upon the proposition that the power to
enforce begets inherently a discretion to permanently refuse to do so.
And the effect of the proposition urged upon the distribution of powers
made by the Constitution will become apparent when it is observed
that indisputable also is it that the authority to define and fix the
punishment for crime is legislative and includes the right in advance to
bring within judicial discretion, for the purpose of executing the statute,
elements of consideration which would be otherwise beyond the scope
of judicial authority, and that the right to relieve from the punishment,
fixed by law and ascertained according to the methods by it provided
belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director of
Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this
court in 1915, also reached the conclusion that the power to suspend the
execution of sentences pronounced in criminal cases is not inherent in the
judicial function. "All are agreed", he said, "that in the absence of statutory
authority, it does not lie within the power of the courts to grant such
suspensions." (at p. 278.) Both petitioner and respondents are correct,
therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such
proceedings is conferred exclusively by Act No. 4221 of the Philippine
Legislature.
It is, of course, true that the constitutionality of a statute will not be considered
on application for prohibition where the question has not been properly
brought to the attention of the court by objection of some kind (Hill vs. Tarver
[1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo.,
120; 168 S. W., 746). In the case at bar, it is unquestionable that the
constitutional issue has been squarely presented not only before this court by
the petitioners but also before the trial court by the private prosecution. The
respondent, Hon. Jose O Vera, however, acting as judge of the court below,
declined to pass upon the question on the ground that the private prosecutor,
not being a party whose rights are affected by the statute, may not raise said
question. The respondent judge cited Cooley on Constitutional Limitations
(Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex
County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on the
constitutionality of a statute by one who has no interest in defeating it because
his rights are not affected by its operation. The respondent judge further
stated that it may not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a legislative enactment void is
one which the judge, conscious of the fallibility of the human judgment, will
shrink from exercising in any case where he can conscientiously and with due
regard to duty and official oath decline the responsibility" (Constitutional
Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No.
4221 is constitutional. While therefore, the court a quo admits that the
constitutional question was raised before it, it refused to consider the question
solely because it was not raised by a proper party. Respondents herein
reiterates this view. The argument is advanced that the private prosecution
has no personality to appear in the hearing of the application for probation of
defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First
Instance of Manila, and hence the issue of constitutionality was not properly
raised in the lower court. Although, as a general rule, only those who are
parties to a suit may question the constitutionality of a statute involved in a
judicial decision, it has been held that since the decree pronounced by a court
without jurisdiction is void, where the jurisdiction of the court depends on the
validity of the statute in question, the issue of the constitutionality will be
considered on its being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And,
even if we were to concede that the issue was not properly raised in the court
below by the proper party, it does not follow that the issue may not be here
raised in an original action of certiorari and prohibitions. It is true that, as a
general rule, the question of constitutionality must be raised at the earliest
opportunity, so that if not raised by the pleadings, ordinarily it may not be
raised at the trial, and if not raised in the trial court, it will not considered on
appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del
Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule
admits of exceptions. Courts, in the exercise of sounds discretion, may
determine the time when a question affecting the constitutionality of a statute
should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in
criminal cases, although there is a very sharp conflict of authorities, it is said
that the question may be raised for the first time at any stage of the
proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in
civil cases, it has been held that it is the duty of a court to pass on the
constitutional question, though raised for the first time on appeal, if it appears
that a determination of the question is necessary to a decision of the case.
(McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S.
W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W.
1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W.,
913.) And it has been held that a constitutional question will be considered by
an appellate court at any time, where it involves the jurisdiction of the court
below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of
this court to consider the constitutional question raised for the first time before
this court in these proceedings, we turn again and point with emphasis to the
case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the
Hongkong & Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional question here
a point we do not now have to decide we are of the opinion that the People
of the Philippines, represented by the Solicitor-General and the Fiscal of the
City of Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a statute
must have a personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its enforcement. It goes
without saying that if Act No. 4221 really violates the constitution, the People
of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of grater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute. Hence, the
well-settled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312;
41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to
question the constitutionality of the statute was though, as a general rule, only
those who are parties to a suit may question the constitutionality of a statute
involved in a judicial decision, it has been held that since the decree
pronounced by a court without jurisdiction in void, where the jurisdiction of the
court depends on the validity of the statute in question, the issue of
constitutionality will be considered on its being brought to the attention of the
court by persons interested in the effect to begin the statute. (12 C.J., sec.
184, p. 766.) And, even if we were to concede that the issue was not properly
raised in the court below by the proper party, it does not follow that the issue
may not be here raised in an original action of certiorari and prohibition. It is
true that, as a general rule, the question of constitutionality must be raised at
the earliest opportunity, so that if not raised by the pleadings, ordinarily it may
not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that
the general rule admits of exceptions. Courts, in the exercise of sound
discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [19884], 95
N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict
of authorities, it is said that the question may be raised for the first time at any
state of the proceedings, either in the trial court or on appeal. (12 C.J., p.
786.) Even in civil cases, it has been held that it is the duty of a court to pass
on the constitutional question, though raised for first time on appeal, if it
appears that a determination of the question is necessary to a decision of the
case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124
S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S.
W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W.,
913.) And it has been held that a constitutional question will be considered by
an appellate court at any time, where it involves the jurisdiction of the court
below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of
this court to consider the constitutional question raised for the first time before
this court in these proceedings, we turn again and point with emphasis to the
case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the
Hongkong & Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional question here
a point we do not now have to decide we are of the opinion that the People
of the Philippines, represented by the Solicitor-General and the Fiscal of the
City of Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a statute
must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement. It goes
without saying that if Act No. 4221 really violates the Constitution, the People
of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute. Hence, the
well-settled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312;
41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to
question the constitutionality of the statute was itself questioned. Said the
Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their representatives; that
to an accusation by the people of Michigan of usurpation their
government, a statute enacted by the people of Michigan is an
adequate answer. The last proposition is true, but, if the statute relied
on in justification is unconstitutional, it is statute only in form, and lacks
the force of law, and is of no more saving effect to justify action under
it than if it had never been enacted. The constitution is the supreme
law, and to its behests the courts, the legislature, and the people must
bow . . . The legislature and the respondents are not the only parties in
interest upon such constitutional questions. As was remarked by Mr.
Justice Story, in speaking of an acquiescence by a party affected by
an unconstitutional act of the legislature: "The people have a deep and
vested interest in maintaining all the constitutional limitations upon the
exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action
(mandamus) was brought by the Attorney-General of Kansas to test the
constitutionality of a statute of the state. In disposing of the question whether
or not the state may bring the action, the Supreme Court of Kansas said:
. . . the state is a proper party indeed, the proper party to bring
this action. The state is always interested where the integrity of its
Constitution or statutes is involved.
"It has an interest in seeing that the will of the
Legislature is not disregarded, and need not, as an
individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57
Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103
Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law
officer, its Attorney-General, or county attorney, may exercise his bet
judgment as to what sort of action he will bring to have the matter
determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus
to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108
Pac., 846), or by injunction to restrain proceedings under its
questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan.
App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S.
W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155
S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board
of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs.
State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind.,
339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11).
In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney,
being charged with the duty of enforcing the laws, has no right to
plead that a law is unconstitutional. In support of the argument three
decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge
of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls,
Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6
So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47
La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not
 forbid a district attorney to plead that a statute is unconstitutional if he
finds if in conflict with one which it is his duty to enforce. In State ex
rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge
should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information
charging a person with a violation of the statute. In other words, a
judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it must
be decided in order to determine the right of a party litigant. State ex
rel. Nicholls, Governor, etc., is authority for the proposition merely that
an officer on whom a statute imposes the duty of enforcing its
provisions cannot avoid the duty upon the ground that he considers
the statute unconstitutional, and hence in enforcing the statute he is
immune from responsibility if the statute be unconstitutional. State ex
rel. Banking Co., etc., is authority for the proposition merely that
executive officers, e.g., the state auditor and state treasurer, should
not decline to perform ministerial duties imposed upon them by a
statute, on the ground that they believe the statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the
state, and, above all, to support the Constitution of the state. If, in the
performance of his duty he finds two statutes in conflict with each
other, or one which repeals another, and if, in his judgment, one of the
two statutes is unconstitutional, it is his duty to enforce the other; and,
in order to do so, he is compelled to submit to the court, by way of a
plea, that one of the statutes is unconstitutional. If it were not so, the
power of the Legislature would be free from constitutional limitations in
the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the
general proposition that the state may impugn the validity of its laws. They
have not cited any authority running clearly in the opposite direction. In fact,
they appear to have proceeded on the assumption that the rule as stated is
sound but that it has no application in the present case, nor may it be invoked
by the City Fiscal in behalf of the People of the Philippines, one of the
petitioners herein, the principal reasons being that the validity before this
court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside
said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,.
10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past
and all that time has not been attacked as unconstitutional by the Fiscal of
Manila but, on the contrary, has been impliedly regarded by him as
constitutional, is no reason for considering the People of the Philippines
estopped from nor assailing its validity. For courts will pass upon a
constitutional questions only when presented before it in bona fide cases for
determination, and the fact that the question has not been raised before is not
a valid reason for refusing to allow it to be raised later. The fiscal and all
others are justified in relying upon the statute and treating it as valid until it is
held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act
No. 4221 is necessary to the resolution of the instant case. For, ". . . while the
court will meet the question with firmness, where its decision is indispensable,
it is the part of wisdom, and just respect for the legislature, renders it proper,
to waive it, if the case in which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also
Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the
determination of a constitutional question is necessary whenever it is essential
to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs.
Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1:
105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs.
Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.],
458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W.,
605), as where the right of a party is founded solely on a statute the validity of
which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F.
Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74
N.E., 306). There is no doubt that the respondent Cu Unjieng draws his
privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of
the fact that the Probation Act is a new addition to our statute books and its
validity has never before been passed upon by the courts; that may persons
accused and convicted of crime in the City of Manila have applied for
probation; that some of them are already on probation; that more people will
likely take advantage of the Probation Act in the future; and that the
respondent Mariano Cu Unjieng has been at large for a period of about four
years since his first conviction. All wait the decision of this court on the
constitutional question. Considering, therefore, the importance which the
instant case has assumed and to prevent multiplicity of suits, strong reasons
of public policy demand that the constitutionality of Act No. 4221 be now
resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S.,
500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913],
207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk
Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489;
Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng
vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch
as the property and personal rights of nearly twelve thousand merchants are
affected by these proceedings, and inasmuch as Act No. 2972 is a new law
not yet interpreted by the courts, in the interest of the public welfare and for
the advancement of public policy, we have determined to overrule the defense
of want of jurisdiction in order that we may decide the main issue. We have
here an extraordinary situation which calls for a relaxation of the general rule."
Our ruling on this point was sustained by the Supreme Court of the United
States. A more binding authority in support of the view we have taken can not
be found.
We have reached the conclusion that the question of the constitutionality of
Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act
unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary
to enforce the Constitution. This court, by clear implication from the provisions
of section 2, subsection 1, and section 10, of Article VIII of the Constitution,
may declare an act of the national legislature invalid because in conflict with
the fundamental lay. It will not shirk from its sworn duty to enforce the
Constitution. And, in clear cases, it will not hesitate to give effect to the
supreme law by setting aside a statute in conflict therewith. This is of the
essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature
that all reasonable doubts should be resolved in favor of the constitutionality
of a statute. An act of the legislature approved by the executive, is presumed
to be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well. "The
question of the validity of every statute is first determined by the legislative
department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10;
Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson
[1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by
the sanction of the executive. The members of the Legislature and the Chief
Executive have taken an oath to support the Constitution and it must be
presumed that they have been true to this oath and that in enacting and
sanctioning a particular law they did not intend to violate the Constitution. The
courts cannot but cautiously exercise its power to overturn the solemn
declarations of two of the three grand departments of the governments. (6
R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the
judiciary to reflect the wisdom of the people as expressed through an elective
Legislature and an elective Chief Executive. It follows, therefore, that the
courts will not set aside a law as violative of the Constitution except in a clear
case. This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned
argument, called attention to the fact that the President of the Philippines had
already expressed his opinion against the constitutionality of the Probation
Act, adverting that as to the Executive the resolution of this question was a
foregone conclusion. Counsel, however, reiterated his confidence in the
integrity and independence of this court. We take notice of the fact that the
President in his message dated September 1, 1937, recommended to the
National Assembly the immediate repeal of the Probation Act (No. 4221); that
this message resulted in the approval of Bill No. 2417 of the Nationality
Assembly repealing the probation Act, subject to certain conditions therein
mentioned; but that said bill was vetoed by the President on September 13,
1937, much against his wish, "to have stricken out from the statute books of
the Commonwealth a law . . . unfair and very likely unconstitutional." It is
sufficient to observe in this connection that, in vetoing the bill referred to, the
President exercised his constitutional prerogative. He may express the
reasons which he may deem proper for taking such a step, but his reasons
are not binding upon us in the determination of actual controversies submitted
for our determination. Whether or not the Executive should express or in any
manner insinuate his opinion on a matter encompassed within his broad
constitutional power of veto but which happens to be at the same time
pending determination in this court is a question of propriety for him
exclusively to decide or determine. Whatever opinion is expressed by him
under these circumstances, however, cannot sway our judgment on way or
another and prevent us from taking what in our opinion is the proper course of
action to take in a given case. It if is ever necessary for us to make any
vehement affirmance during this formative period of our political history, it is
that we are independent of the Executive no less than of the Legislative
department of our government independent in the performance of our
functions, undeterred by any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the accomplishment of our sworn duty
as we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds:
(1) That said Act encroaches upon the pardoning power of the Executive; (2)
that its constitutes an undue delegation of legislative power and (3) that it
denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as
the Jones Law, in force at the time of the approval of Act No. 4221, otherwise
known as the Probation Act, vests in the Governor-General of the Philippines
"the exclusive power to grant pardons and reprieves and remit fines and
forfeitures". This power is now vested in the President of the Philippines. (Art.
VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution
differ in some respects. The adjective "exclusive" found in the Jones Law has
been omitted from the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of the offense, either
before or after conviction (Vide Constitution of the United States, Art. II, sec.
2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines
was thus empowered, like the President of the United States, to pardon a
person before the facts of the case were fully brought to light. The framers of
our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after
conviction". So, too, under the new Constitution, the pardoning power does
not extend to "cases of impeachment". This is also the rule generally followed
in the United States (Vide Constitution of the United States, Art. II, sec. 2).
The rule in England is different. There, a royal pardon can not be pleaded in
bar of an impeachment; "but," says Blackstone, "after the impeachment has
been solemnly heard and determined, it is not understood that the king's royal
grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How.,
307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am.
Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The
reason for the distinction is obvious. In England, Judgment on impeachment is
not confined to mere "removal from office and disqualification to hold and
enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec.
4, Constitution of the Philippines) but extends to the whole punishment
attached by law to the offense committed. The House of Lords, on a
conviction may, by its sentence, inflict capital punishment, perpetual
banishment, perpetual banishment, fine or imprisonment, depending upon the
gravity of the offense committed, together with removal from office and
incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also
makes specific mention of "commutation" and of the power of the executive to
impose, in the pardons he may grant, such conditions, restrictions and
limitations as he may deem proper. Amnesty may be granted by the President
under the Constitution but only with the concurrence of the National
Assembly. We need not dwell at length on the significance of these
fundamental changes. It is sufficient for our purposes to state that the
pardoning power has remained essentially the same. The question is: Has the
pardoning power of the Chief Executive under the Jones Law been impaired
by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the
Chief Executive. The exercise of the power may not, therefore, be vested in
anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be
taken away nor fettered by any legislative restrictions, nor can like power be
given by the legislature to any other officer or authority. The coordinate
departments of government have nothing to do with the pardoning power,
since no person properly belonging to one of the departments can exercise
any powers appertaining to either of the others except in cases expressly
provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . .
where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither
exercise such power itself nor delegate it elsewhere, nor interfere with or
control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases
cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is
for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme
Court of the United States ruled in 1916 that an order indefinitely suspending
sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law.
ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.)
Chief Justice White, after an exhaustive review of the authorities, expressed
the opinion of the court that under the common law the power of the court was
limited to temporary suspension and that the right to suspend sentenced
absolutely and permanently was vested in the executive branch of the
government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ".
. . and so far as the future is concerned, that is, the causing of the imposition
of penalties as fixed to be subject, by probation legislation or such other
means as the legislative mind may devise, to such judicial discretion as may
be adequate to enable courts to meet by the exercise of an enlarged but wise
discretion the infinite variations which may be presented to them for judgment,
recourse must be had Congress whose legislative power on the subject is in
the very nature of things adequately complete." (Quoted in Riggs vs. United
States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation
Association and others to agitate for the enactment by Congress of a federal
probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43
Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an appropriation
to defray the salaries and expenses of a certain number of probation officers
chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72
Law. ed., 309), the Supreme Court of the United States, through Chief Justice
Taft, held that when a person sentenced to imprisonment by a district court
has begun to serve his sentence, that court has no power under the Probation
Act of March 4, 1925 to grant him probation even though the term at which
sentence was imposed had not yet expired. In this case of Murray, the
constitutionality of the probation Act was not considered but was assumed.
The court traced the history of the Act and quoted from the report of the
Committee on the Judiciary of the United States House of Representatives
(Report No. 1377, 68th Congress, 2 Session) the following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the
district courts exercised a form of probation either, by suspending
sentence or by placing the defendants under state probation officers
or volunteers. In this case, however (Ex parte United States, 242 U.S.,
27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann.
Cas. 1917B, 355), the Supreme Court denied the right of the district
courts to suspend sentenced. In the same opinion the court pointed
out the necessity for action by Congress if the courts were to exercise
probation powers in the future . . .
Since this decision was rendered, two attempts have been made to
enact probation legislation. In 1917, a bill was favorably reported by
the Judiciary Committee and passed the House. In 1920, the judiciary
Committee again favorably reported a probation bill to the House, but
it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal
government with reference to its treatment of those convicted of
violations of its criminal laws in harmony with that of the states of the
Union. At the present time every state has a probation law, and in all
but twelve states the law applies both to adult and juvenile offenders.
(see, also, Johnson, Probation for Juveniles and Adults [1928], Chap.
I.)
The constitutionality of the federal probation law has been sustained by
inferior federal courts. In Riggs vs. United States supra, the Circuit Court of
Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the
questions under consideration have been reviewed by the Circuit
Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the
constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President. This
case will be found to contain an able and comprehensive review of the
law applicable here. It arose under the act we have to consider, and to
it and the authorities cited therein special reference is made (Nix vs.
James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court
of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762),
likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain
and unequivocal language, pointed to Congress as possessing the requisite
power to enact probation laws, that a federal probation law as actually
enacted in 1925, and that the constitutionality of the Act has been assumed by
the Supreme Court of the United States in 1928 and consistently sustained by
the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the
United States, may legally enact a probation law under its broad power to fix
the punishment of any and all penal offenses. This conclusion is supported by
other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A,
1285; 151 Pac., 698, the court said: "It is clearly within the province of the
Legislature to denominate and define all classes of crime, and to prescribe for
each a minimum and maximum punishment." And in State vs. Abbott ([1910],
87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the
court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial
judges, if it sees fit, the largest discretion as to the sentence to be imposed, as
to the beginning and end of the punishment and whether it should be certain
or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C.,
455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes
and fixed the penalties for their violation. Invariably, the legislature has
demonstrated the desire to vest in the courts particularly the trial courts
large discretion in imposing the penalties which the law prescribes in
particular cases. It is believed that justice can best be served by vesting this
power in the courts, they being in a position to best determine the penalties
which an individual convict, peculiarly circumstanced, should suffer. Thus,
while courts are not allowed to refrain from imposing a sentence merely
because, taking into consideration the degree of malice and the injury caused
by the offense, the penalty provided by law is clearly excessive, the courts
being allowed in such case to submit to the Chief Executive, through the
Department of Justice, such statement as it may deem proper (see art. 5,
Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law
provides for a penalty composed of two indivisible penalties, the courts may
allow such circumstances to offset one another in consideration of their
number and importance, and to apply the penalty according to the result of
such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera
and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the
Revised Penal Code empowers the courts to determine, within the limits of
each periods, in case the penalty prescribed by law contains three periods,
the extent of the evil produced by the crime. In the imposition of fines, the
courts are allowed to fix any amount within the limits established by law,
considering not only the mitigating and aggravating circumstances, but more
particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.)
Article 68, paragraph 1, of the same Code provides that "a discretionary
penalty shall be imposed" upon a person under fifteen but over nine years of
age, who has not acted without discernment, but always lower by two degrees
at least than that prescribed by law for the crime which he has committed.
Article 69 of the same Code provides that in case of "incomplete self-
defense", i.e., when the crime committed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same or to exempt
from criminal liability in the several cases mentioned in article 11 and 12 of the
Code, "the courts shall impose the penalty in the period which may be
deemed proper, in view of the number and nature of the conditions of
exemption present or lacking." And, in case the commission of what are
known as "impossible" crimes, "the court, having in mind the social danger
and the degree of criminality shown by the offender," shall impose upon him
either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59,
Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive
imprisonment is deducted form the entire term of imprisonment, except in
certain cases expressly mentioned (art. 29); the death penalty is not imposed
when the guilty person is more than seventy years of age, or where upon
appeal or revision of the case by the Supreme Court, all the members thereof
are not unanimous in their voting as to the propriety of the imposition of the
death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as
amended by Commonwealth Act No. 3); the death sentence is not to be
inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of
age (art. 83); and when a convict shall become insane or an imbecile after
final sentence has been pronounced, or while he is serving his sentenced, the
execution of said sentence shall be suspended with regard to the personal
penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue
harshness of the penal laws is more clearly demonstrated in various other
enactments, including the probation Act. There is the Indeterminate Sentence
Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No.
4225, establishing a system of parole (secs. 5 to 100 and granting the courts
large discretion in imposing the penalties of the law. Section 1 of the law as
amended provides; "hereafter, in imposing a prison sentence for an offenses
punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and to a minimum which
shall be within the range of the penalty next lower to that prescribed by the
Code for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum term prescribed by the same." Certain
classes of convicts are, by section 2 of the law, excluded from the operation
thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act
No. 3203) which was subsequently amended by Act No. 3559. Section 7 of
the original Act and section 1 of the amendatory Act have become article 80 of
the Revised Penal Code, amended by Act No. 4117 of the Philippine
Legislature and recently reamended by Commonwealth Act No. 99 of the
National Assembly. In this Act is again manifested the intention of the
legislature to "humanize" the penal laws. It allows, in effect, the modification in
particular cases of the penalties prescribed by law by permitting the
suspension of the execution of the judgment in the discretion of the trial court,
after due hearing and after investigation of the particular circumstances of the
offenses, the criminal record, if any, of the convict, and his social history. The
Legislature has in reality decreed that in certain cases no punishment at all
shall be suffered by the convict as long as the conditions of probation are
faithfully observed. It this be so, then, it cannot be said that the Probation Act
comes in conflict with the power of the Chief Executive to grant pardons and
reprieves, because, to use the language of the Supreme Court of New
Mexico, "the element of punishment or the penalty for the commission of a
wrong, while to be declared by the courts as a judicial function under and
within the limits of law as announced by legislative acts, concerns solely the
procedure and conduct of criminal causes, with which the executive can have
nothing to do." (Ex parteBates, supra.) In Williams vs. State ([1926], 162 Ga.,
327; 133 S.E., 843), the court upheld the constitutionality of the Georgia
probation statute against the contention that it attempted to delegate to the
courts the pardoning power lodged by the constitution in the governor alone is
vested with the power to pardon after final sentence has been imposed by the
courts, the power of the courts to imposed any penalty which may be from
time to time prescribed by law and in such manner as may be defined cannot
be questioned."
We realize, of course, the conflict which the American cases disclose. Some
cases hold it unlawful for the legislature to vest in the courts the power to
suspend the operation of a sentenced, by probation or otherwise, as to do so
would encroach upon the pardoning power of the executive. (In re Webb
[1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9
Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev.,
150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim.
Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650;
People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St.
Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A.
[N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac.,
291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep.,
175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181
N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton
[1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F.
[2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United
States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark.,
620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166;
122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex
parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick
[1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60;
168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371;
Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534;
35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64
Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs.
Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court
[1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399;
79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909],
75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl.
424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac.,
698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23
L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan
vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich
[1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281
N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N.
W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State
vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C.,
466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs.
States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S.
W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.
State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914],
73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim.
Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394;
162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W.
[2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com.
[1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash.,
287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash.,
561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena
of authorities holding that the courts may be legally authorized by the
legislature to suspend sentence by the establishment of a system of probation
however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119
Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In
that case, a statute enacted in 1921 which provided for the suspension of the
execution of a sentence until otherwise ordered by the court, and required that
the convicted person be placed under the charge of a parole or peace officer
during the term of such suspension, on such terms as the court may
determine, was held constitutional and as not giving the court a power in
violation of the constitutional provision vesting the pardoning power in the
chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166;
122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are
actually district and different from each other, both in origin and in nature. In
People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36
N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of
Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves
and pardons, as understood when the constitution was adopted, are
totally distinct and different in their nature. The former was always a
part of the judicial power; the latter was always a part of the executive
power. The suspension of the sentence simply postpones the
judgment of the court temporarily or indefinitely, but the conviction and
liability following it, and the civil disabilities, remain and become
operative when judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of the offender. It
releases the punishment, and blots out of existence the guilt, so that in
 the eye of the law, the offender is as innocent as if he had never
committed the offense. It removes the penalties and disabilities, and
restores him to all his civil rights. It makes him, as it were, a new man,
and gives him a new credit and capacity. (Ex parte Garland, 71 U. S.,
4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128;
20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly
familiar with the principles governing the power to grant pardons, and
it was conferred by these instruments upon the executive with full
knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised by
the English crown, or by its representatives in the colonies. (Ex
parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power
was understood, it did not comprehend any part of the judicial
functions to suspend sentence, and it was never intended that the
authority to grant reprieves and pardons should abrogate, or in any
degree restrict, the exercise of that power in regard to its own
judgments, that criminal courts has so long maintained. The two
powers, so distinct and different in their nature and character, were
still left separate and distinct, the one to be exercised by the
executive, and the other by the judicial department. We therefore
conclude that a statute which, in terms, authorizes courts of criminal
jurisdiction to suspend sentence in certain cases after conviction, a
power inherent in such courts at common law, which was understood
when the constitution was adopted to be an ordinary judicial function,
and which, ever since its adoption, has been exercised of legislative
power under the constitution. It does not encroach, in any just sense,
upon the powers of the executive, as they have been understood and
practiced from the earliest times. (Quoted with approval in Directors of
Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265,
Carson, J., concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He
is not finally and completely exonerated. He is not exempt from the entire
punishment which the law inflicts. Under the Probation Act, the probationer's
case is not terminated by the mere fact that he is placed on probation. Section
4 of the Act provides that the probation may be definitely terminated and the
probationer finally discharged from supervision only after the period of
probation shall have been terminated and the probation officer shall have
submitted a report, and the court shall have found that the probationer has
complied with the conditions of probation. The probationer, then, during the
period of probation, remains in legal custody subject to the control of the
probation officer and of the court; and, he may be rearrested upon the non-
fulfillment of the conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally imposed upon him. (Secs.
2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete
liberty, and may be far from it. It is really a new mode of punishment,
to be applied by the judge in a proper case, in substitution of the
imprisonment and find prescribed by the criminal laws. For this reason
its application is as purely a judicial act as any other sentence carrying
out the law deemed applicable to the offense. The executive act of
pardon, on the contrary, is against the criminal law, which binds and
directs the judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible unconstitutionality
of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F.
[2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of
the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R.
A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the
petitioners as authority in support of their contention that the power to grant
pardons and reprieves, having been vested exclusively upon the Chief
Executive by the Jones Law, may not be conferred by the legislature upon the
courts by means of probation law authorizing the indefinite judicial suspension
of sentence. We have examined that case and found that although the Court
of Criminal Appeals of Texas held that the probation statute of the state in
terms conferred on the district courts the power to grant pardons to persons
convicted of crime, it also distinguished between suspensions sentence on the
one hand, and reprieve and commutation of sentence on the other. Said the
court, through Harper, J.:
That the power to suspend the sentence does not conflict with the
power of the Governor to grant reprieves is settled by the decisions of
the various courts; it being held that the distinction between a
"reprieve" and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a suspension
is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re
Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words
& Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the
power confiding in the Governor to grant commutations of punishment,
for a commutations is not but to change the punishment assessed to a
less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac.,
525), the Supreme Court of Montana had under consideration the validity of
the adult probation law of the state enacted in 1913, now found in sections
12078-12086, Revised Codes of 1921. The court held the law valid as not
impinging upon the pardoning power of the executive. In a unanimous
decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well
understood meaning at the time our Constitution was adopted, and no
one of them was intended to comprehend the suspension of the
execution of the judgment as that phrase is employed in sections
12078-12086. A "pardon" is an act of grace, proceeding from the
power intrusted with the execution of the laws which exempts the
individual on whom it is bestowed from the punishment the law inflicts
for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8
Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693;
35 So., 816), a forgiveness of the offense (Cook vs. Middlesex
 County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am.
Rep., 71). "Commutation" is a remission of a part of the punishment; a
substitution of a less penalty for the one originally imposed (Lee vs.
Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain,
107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's
Commentaries, 394), a postponement of execution (Carnal vs. People,
1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution
(Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a
statute similar to our section 12078 has been determined; but the
same objections have been urged against parole statutes which vest
the power to parole in persons other than those to whom the power of
pardon is granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in the notes to
Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A.,
1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power
of the Executive. The pardoning power, in respect to those serving their
probationary sentences, remains as full and complete as if the Probation Law
had never been enacted. The President may yet pardon the probationer and
thus place it beyond the power of the court to order his rearrest and
imprisonment. (Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power
of the executive and is not for that reason void, does section 11 thereof
constitute, as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed
among three coordinate and substantially independent organs: the legislative,
the executive and the judicial. Each of these departments of the government
derives its authority from the Constitution which, in turn, is the highest
expression of popular will. Each has exclusive cognizance of the matters
within its jurisdiction, and is supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral
Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly
by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The
Philippine Legislature or the National Assembly may not escape its duties and
responsibilities by delegating that power to any other body or authority. Any
attempt to abdicate the power is unconstitutional and void, on the principle
that potestas delegata non delegare potest. This principle is said to have
originated with the glossators, was introduced into English law through a
misreading of Bracton, there developed as a principle of agency, was
established by Lord Coke in the English public law in decisions forbidding the
delegation of judicial power, and found its way into America as an enlightened
principle of free government. It has since become an accepted corollary of the
principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The
classic statement of the rule is that of Locke, namely: "The legislative neither
must nor can transfer the power of making laws to anybody else, or place it
anywhere but where the people have." (Locke on Civil Government, sec. 142.)
Judge Cooley enunciates the doctrine in the following oft-quoted language:
"One of the settled maxims in constitutional law is, that the power conferred
upon the legislature to make laws cannot be delegated by that department to
any other body or authority. Where the sovereign power of the state has
located the authority, there it must remain; and by the constitutional agency
alone the laws must be made until the Constitution itself is charged. The
power to whose judgment, wisdom, and patriotism this high prerogative has
been intrusted cannot relieve itself of the responsibilities by choosing other
agencies upon which the power shall be devolved, nor can it substitute the
judgment, wisdom, and patriotism of any other body for those to which alone
the people have seen fit to confide this sovereign trust." (Cooley on
Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S.
vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical
principle that such a delegated power constitutes not only a right but a duty to
be performed by the delegate by the instrumentality of his own judgment
acting immediately upon the matter of legislation and not through the
intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not
absolute and inflexible. It admits of exceptions. An exceptions sanctioned by
immemorial practice permits the central legislative body to delegate legislative
powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick
[1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs.
Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of
government, that local affairs shall be managed by local authorities, and
general affairs by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation of
the municipalities exercising local self government has never been held to
trench upon that rule. Such legislation is not regarded as a transfer of general
legislative power, but rather as the grant of the authority to prescribed local
regulations, according to immemorial practice, subject of course to the
interposition of the superior in cases of necessity." (Stoutenburgh vs.
Hennick,supra.) On quite the same principle, Congress is powered to delegate
legislative power to such agencies in the territories of the United States as it
may select. A territory stands in the same relation to Congress as a
municipality or city to the state government. (United States vs. Heinszen
[1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas.,
688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49
Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of
legislative power to the people at large. Some authorities maintain that this
may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs.
Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616).
However, the question of whether or not a state has ceased to be republican
in form because of its adoption of the initiative and referendum has been held
not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs.
Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and
as the constitutionality of such laws has been looked upon with favor by
certain progressive courts, the sting of the decisions of the more conservative
courts has been pretty well drawn. (Opinions of the Justices [1894], 160
Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57
Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific
States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14, paragraph 2, of article
VI of the Constitution of the Philippines provides that "The National Assembly
may by law authorize the President, subject to such limitations and restrictions
as it may impose, to fix within specified limits, tariff rates, import or export
quotas, and tonnage and wharfage dues." And section 16 of the same article
of the Constitution provides that "In times of war or other national emergency,
the National Assembly may by law authorize the President, for a limited period
and subject to such restrictions as it may prescribed, to promulgate rules and
regulations to carry out a declared national policy." It is beyond the scope of
this decision to determine whether or not, in the absence of the foregoing
constitutional provisions, the President could be authorized to exercise the
powers thereby vested in him. Upon the other hand, whatever doubt may
have existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove
mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective
provincial boards have provided for the salary of a probation officer at
rates not lower than those now provided for provincial fiscals. Said
probation officer shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office. (Emphasis
ours.)
In testing whether a statute constitute an undue delegation of legislative
power or not, it is usual to inquire whether the statute was complete in all its
terms and provisions when it left the hands of the legislature so that nothing
was left to the judgment of any other appointee or delegate of the legislature.
(6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1),
this court adhered to the foregoing rule when it held an act of the legislature
void in so far as it undertook to authorize the Governor-General, in his
discretion, to issue a proclamation fixing the price of rice and to make the sale
of it in violation of the proclamation a crime. (See and cf. Compaia General
de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.)
The general rule, however, is limited by another rule that to a certain extent
matters of detail may be left to be filled in by rules and regulations to be
adopted or promulgated by executive officers and administrative boards. (6 R.
C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should
take effect in their respective provinces. They are the agents or delegates of
the legislature in this respect. The rules governing delegation of legislative
power to administrative and executive officers are applicable or are at least
indicative of the rule which should be here adopted. An examination of a
variety of cases on delegation of power to administrative bodies will show that
the ratio decidendi is at variance but, it can be broadly asserted that the
rationale revolves around the presence or absence of a standard or rule of
action or the sufficiency thereof in the statute, to aid the delegate in
exercising the granted discretion. In some cases, it is held that the standard is
sufficient; in others that is insufficient; and in still others that it is entirely
lacking. As a rule, an act of the legislature is incomplete and hence invalid if it
does not lay down any rule or definite standard by which the administrative
officer or board may be guided in the exercise of the discretionary powers
delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L.
ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs.
Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and
cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case
at bar, what rules are to guide the provincial boards in the exercise of their
discretionary power to determine whether or not the Probation Act shall apply
in their respective provinces? What standards are fixed by the Act? We do not
find any and none has been pointed to us by the respondents. The probation
Act does not, by the force of any of its provisions, fix and impose upon the
provincial boards any standard or guide in the exercise of their discretionary
power. What is granted, if we may use the language of Justice Cardozo in the
recent case of Schecter, supra, is a "roving commission" which enables the
provincial boards to exercise arbitrary discretion. By section 11 if the Act, the
legislature does not seemingly on its own authority extend the benefits of the
Probation Act to the provinces but in reality leaves the entire matter for the
various provincial boards to determine. In other words, the provincial boards
of the various provinces are to determine for themselves, whether the
Probation Law shall apply to their provinces or not at all. The applicability and
application of the Probation Act are entirely placed in the hands of the
provincial boards. If the provincial board does not wish to have the Act applied
in its province, all that it has to do is to decline to appropriate the needed
amount for the salary of a probation officer. The plain language of the Act is
not susceptible of any other interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of
power to make the law, which necessarily involves a discretion as to what it
shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the
latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton
County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory
Construction, sec 68.) To the same effect are the decision of this court
in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil.,
547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court
sustained the validity of the law conferring upon the Governor-General
authority to adjust provincial and municipal boundaries. In the second case,
this court held it lawful for the legislature to direct non-Christian inhabitants to
take up their habitation on unoccupied lands to be selected by the provincial
governor and approved by the provincial board. In the third case, it was held
proper for the legislature to vest in the Governor-General authority to suspend
or not, at his discretion, the prohibition of the importation of the foreign cattle,
such prohibition to be raised "if the conditions of the country make this
advisable or if deceased among foreign cattle has ceased to be a menace to
the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the
simple transference of details of execution or the promulgation by executive or
administrative officials of rules and regulations to carry into effect the
provisions of a law. If we were, recurrence to our own decisions would be
sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29
Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu
Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31
Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as
law after it leaves the hands of the legislature. It is true that laws may be
made effective on certain contingencies, as by proclamation of the executive
or the adoption by the people of a particular community (6 R. C. L., 116, 170-
172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs.
Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the
United State ruled that the legislature may delegate a power not legislative
which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins.
Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is nothing
essentially legislative in ascertaining the existence of facts or conditions as
the basis of the taking into effect of a law. That is a mental process common
to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In
re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A.,
938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark
[1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding
the apparent tendency, however, to relax the rule prohibiting delegation of
legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public
Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign
Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in
Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on Constitutional Limitations finds
restatement in Prof. Willoughby's treatise on the Constitution of the United
States in the following language speaking of declaration of legislative
power to administrative agencies: "The principle which permits the legislature
to provide that the administrative agent may determine when the
circumstances are such as require the application of a law is defended upon
the ground that at the time this authority is granted, the rule of public policy,
which is the essence of the legislative act, is determined by the legislature. In
other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and
that, under other circumstances, different of no action at all is to be taken.
What is thus left to the administrative official is not the legislative
determination of what public policy demands, but simply the ascertainment of
what the facts of the case require to be done according to the terms of the law
by which he is governed." (Willoughby on the Constitution of the United
States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883],
109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The
efficiency of an Act as a declaration of legislative will must, of course, come
from Congress, but the ascertainment of the contingency upon which the Act
shall take effect may be left to such agencies as it may designate." (See, also,
12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859],
13 Cal., 343, 258.) The legislature, then may provide that a contingencies
leaving to some other person or body the power to determine when the
specified contingencies has arisen. But, in the case at bar, the legislature has
not made the operation of the Prohibition Act contingent upon specified facts
or conditions to be ascertained by the provincial board. It leaves, as we have
already said, the entire operation or non-operation of the law upon the
provincial board. the discretion vested is arbitrary because it is absolute and
unlimited. A provincial board need not investigate conditions or find any fact,
or await the happening of any specified contingency. It is bound by no rule,
limited by no principle of expendiency announced by the legislature. It may
take into consideration certain facts or conditions; and, again, it may not. It
may have any purpose or no purpose at all. It need not give any reason
whatsoever for refusing or failing to appropriate any funds for the salary of a
probation officer. This is a matter which rest entirely at its pleasure. The fact
that at some future time we cannot say when the provincial boards may
appropriate funds for the salaries of probation officers and thus put the law
into operation in the various provinces will not save the statute. The time of its
taking into effect, we reiterate, would yet be based solely upon the will of the
provincial boards and not upon the happening of a certain specified
contingency, or upon the ascertainment of certain facts or conditions by a
person or body other than legislature itself.
The various provincial boards are, in practical effect, endowed with the power
of suspending the operation of the Probation Law in their respective
provinces. In some jurisdiction, constitutions provided that laws may be
suspended only by the legislature or by its authority. Thus, section 28, article I
of the Constitution of Texas provides that "No power of suspending laws in
this state shall be exercised except by the legislature"; and section 26, article I
of the Constitution of Indiana provides "That the operation of the laws shall
never be suspended, except by authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a law,
or the execution or operation of a law, a law may not be suspended as to
certain individuals only, leaving the law to be enjoyed by others. The
suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec.,
174, 177, 178), it was said:
By the twentieth article of the declaration of rights in the constitution of
this commonwealth, it is declared that the power of suspending the
laws, or the execution of the laws, ought never to be exercised but by
the legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for.
 Many of the articles in that declaration of rights were adopted from the
Magna Charta of England, and from the bill of rights passed in the
reign of William and Mary. The bill of rights contains an enumeration of
the oppressive acts of James II, tending to subvert and extirpate the
protestant religion, and the laws and liberties of the kingdom; and the
first of them is the assuming and exercising a power of dispensing with
and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of
rights contained in the statute is, that the exercise of such power, by
legal authority without consent of parliament, is illegal. In the tenth
section of the same statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or part thereof,
should be allowed; but the same should be held void and of no effect,
except a dispensation be allowed of in such statute." There is an
implied reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English
Constitution, "that absolute despotic power, which must in all
governments reside somewhere," is intrusted to the parliament: 1 Bl.
Com., 160.
The principles of our government are widely different in this particular.
Here the sovereign and absolute power resides in the people; and the
legislature can only exercise what is delegated to them according to
the constitution. It is obvious that the exercise of the power in question
would be equally oppressive to the subject, and subversive of his right
to protection, "according to standing laws," whether exercised by one
man or by a number of men. It cannot be supposed that the people
when adopting this general principle from the English bill of rights and
inserting it in our constitution, intended to bestow by implication on the
general court one of the most odious and oppressive prerogatives of
the ancient kings of England. It is manifestly contrary to the first
principles of civil liberty and natural justice, and to the spirit of our
constitution and laws, that any one citizen should enjoy privileges and
advantages which are denied to all others under like circumstances; or
that ant one should be subject to losses, damages, suits, or actions
from which all others under like circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the
owner of any dog liable to the owner of domestic animals wounded by it for
the damages without proving a knowledge of it vicious disposition. By a
provision of the act, power was given to the board of supervisors to determine
whether or not during the current year their county should be governed by the
provisions of the act of which that section constituted a part. It was held that
the legislature could not confer that power. The court observed that it could no
more confer such a power than to authorize the board of supervisors of a
county to abolish in such county the days of grace on commercial paper, or to
suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis.,
504.) A similar statute in Missouri was held void for the same reason in State
vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute
formulating a road system contained a provision that "if the county court of
any county should be of opinion that the provisions of the act should not be
enforced, they might, in their discretion, suspend the operation of the same for
any specified length of time, and thereupon the act should become inoperative
in such county for the period specified in such order; and thereupon order the
roads to be opened and kept in good repair, under the laws theretofore in
force." Said the court: ". . . this act, by its own provisions, repeals the
inconsistent provisions of a former act, and yet it is left to the county court to
say which act shall be enforce in their county. The act does not submit the
question to the county court as an original question, to be decided by that
tribunal, whether the act shall commence its operation within the county; but it
became by its own terms a law in every county not excepted by name in the
act. It did not, then, require the county court to do any act in order to give it
effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous laws, the
county court is . . . empowered, to suspend this act and revive the repealed
provisions of the former act. When the question is before the county court for
that tribunal to determine which law shall be in force, it is urge before us that
the power then to be exercised by the court is strictly legislative power, which
under our constitution, cannot be delegated to that tribunal or to any other
body of men in the state. In the present case, the question is not presented in
the abstract; for the county court of Saline county, after the act had been for
several months in force in that county, did by order suspend its operation; and
during that suspension the offense was committed which is the subject of the
present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S.,
687.)
True, the legislature may enact laws for a particular locality different from
those applicable to other localities and, while recognizing the force of the
principle hereinabove expressed, courts in may jurisdiction have sustained the
constitutionality of the submission of option laws to the vote of the people. (6
R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in
character which should receive different treatment in different localities placed
under different circumstances. "They relate to subjects which, like the retailing
of intoxicating drinks, or the running at large of cattle in the highways, may be
differently regarded in different localities, and they are sustained on what
seems to us the impregnable ground, that the subject, though not embraced
within the ordinary powers of municipalities to make by-laws and ordinances,
is nevertheless within the class of public regulations, in respect to which it is
proper that the local judgment should control." (Cooley on Constitutional
Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local
self-government and the propriety of leaving matters of purely local concern in
the hands of local authorities or for the people of small communities to pass
upon, we believe that in matters of general of general legislation like that
which treats of criminals in general, and as regards the general subject of
probation, discretion may not be vested in a manner so unqualified and
absolute as provided in Act No. 4221. True, the statute does not expressly
state that the provincial boards may suspend the operation of the Probation
Act in particular provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for the salaries of
probation officers, they thereby are given absolute discretion to determine
whether or not the law should take effect or operate in their respective
provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to
be held in abeyance until the provincial boards should decide otherwise by
appropriating the necessary funds. The validity of a law is not tested by what
has been done but by what may be done under its provisions. (Walter E.
Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature
not only in the expression of what may be termed legislative policy but in the
elaboration and execution thereof. "Without this power, legislation would
become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It
has been said that popular government lives because of the inexhaustible
reservoir of power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that these
representatives are no further restrained under our system than by the
express language of the instrument imposing the restraint, or by particular
provisions which by clear intendment, have that effect. (Angara vs. Electoral
Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35
Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a
grant and a limitation of power and one of these time-honored limitations is
that, subject to certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and
unlawful delegation of legislative authority to the provincial boards and is, for
this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill
of Rights which prohibits the denial to any person of the equal protection of
the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the
tree grand departments of our government and on the subordinate
instrumentalities and subdivision thereof, and on many constitutional power,
like the police power, taxation and eminent domain. The equal protection of
laws, sententiously observes the Supreme Court of the United States, "is a
pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U.
S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina,
249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may
be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be
formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22
Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against
some and favoring others in prohibited. But classification on a reasonable
basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs.
California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C.
& S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based on substantial
distinctions which make real differences; it must be germane to the purposes
of the law; it must not be limited to existing conditions only, and must apply
equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis.,
327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs.
Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic
Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep.,
337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917],
242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs.
Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17
Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp.
1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from
the unwarranted delegation of legislative power, although perhaps this is not
necessarily the result in every case. Adopting the example given by one of the
counsel for the petitioners in the course of his oral argument, one province
may appropriate the necessary fund to defray the salary of a probation officer,
while another province may refuse or fail to do so. In such a case, the
Probation Act would be in operation in the former province but not in the latter.
This means that a person otherwise coming within the purview of the law
would be liable to enjoy the benefits of probation in one province while
another person similarly situated in another province would be denied those
same benefits. This is obnoxious discrimination. Contrariwise, it is also
possible for all the provincial boards to appropriate the necessary funds for
the salaries of the probation officers in their respective provinces, in which
case no inequality would result for the obvious reason that probation would be
in operation in each and every province by the affirmative action of
appropriation by all the provincial boards. On that hypothesis, every person
coming within the purview of the Probation Act would be entitled to avail of the
benefits of the Act. Neither will there be any resulting inequality if no province,
through its provincial board, should appropriate any amount for the salary of
the probation officer which is the situation now and, also, if we accept
the contention that, for the purpose of the Probation Act, the City of Manila
should be considered as a province and that the municipal board of said city
has not made any appropriation for the salary of the probation officer. These
different situations suggested show, indeed, that while inequality may result in
the application of the law and in the conferment of the benefits therein
provided, inequality is not in all cases the necessary result. But whatever may
be the case, it is clear that in section 11 of the Probation Act creates a
situation in which discrimination and inequality are permitted or allowed. There
are, to be sure, abundant authorities requiring actual denial of the equal
protection of the law before court should assume the task of setting aside a
law vulnerable on that score, but premises and circumstances considered, we
are of the opinion that section 11 of Act No. 4221 permits of the denial of the
equal protection of the law and is on that account bad. We see no difference
between a law which permits of such denial. A law may appear to be fair on its
face and impartial in appearance, yet, if it permits of unjust and illegal
discrimination, it is within the constitutional prohibitions. (By analogy, Chy
Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs.
Mayor [1876], 92 U. S., 259; 23 Law. ed., 543;Ex parte Virginia [1880], 100 U.
S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law.
ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145,
Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs.
Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012;
Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed.,
Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep.,
495; 62 Law. ed., 1154.) In other words, statutes may be adjudged
unconstitutional because of their effect in operation (General Oil Co. vs. Clain
[1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs.
Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If
the law has the effect of denying the equal protection of the law it is
unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct.
Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs.
Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84
Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section
11 of the Probation Act, not only may said Act be in force in one or several
provinces and not be in force in other provinces, but one province may
appropriate for the salary of the probation officer of a given year and have
probation during that year and thereafter decline to make further
appropriation, and have no probation is subsequent years. While this situation
goes rather to the abuse of discretion which delegation implies, it is here
indicated to show that the Probation Act sanctions a situation which is
intolerable in a government of laws, and to prove how easy it is, under the Act,
to make the guaranty of the equality clause but "a rope of sand". (Brewer, J.
Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666;
17 Sup. Ct. Rep., 255.) lawph!1.net
Great reliance is placed by counsel for the respondents on the case of
Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that
case, the Supreme Court of the United States affirmed the decision of this
court (18 Phil., 1) by declining to uphold the contention that there was a denial
of the equal protection of the laws because, as held in Missouri vs. Lewis
(Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the
guaranty of the equality clause does not require territorial uniformity. It should
be observed, however, that this case concerns the right to preliminary
investigations in criminal cases originally granted by General Orders No. 58.
No question of legislative authority was involved and the alleged denial of the
equal protection of the laws was the result of the subsequent enactment of Act
No. 612, amending the charter of the City of Manila (Act No. 813) and
providing in section 2 thereof that "in cases triable only in the court of first
instance of the City of Manila, the defendant . . . shall not be entitled as of
right to a preliminary examination in any case where the prosecuting attorney,
after a due investigation of the facts . . . shall have presented an information
against him in proper form . . . ." Upon the other hand, an analysis of the
arguments and the decision indicates that the investigation by the prosecuting
attorney although not in the form had in the provinces was considered a
reasonable substitute for the City of Manila, considering the peculiar
conditions of the city as found and taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case
has reference to a situation where the constitution of Missouri permits appeals
to the Supreme Court of the state from final judgments of any circuit court,
except those in certain counties for which counties the constitution establishes
a separate court of appeals called St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and it is the constitution
that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional
and void because it is also repugnant to equal-protection clause of our
Constitution.
Section 11 of the Probation Act being unconstitutional and void for the
reasons already stated, the next inquiry is whether or not the entire Act should
be avoided.
In seeking the legislative intent, the presumption is against any
mutilation of a statute, and the courts will resort to elimination only
where an unconstitutional provision is interjected into a statute
otherwise valid, and is so independent and separable that its removal
will leave the constitutional features and purposes of the act
substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J.
Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs.
Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49
Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913],
25 Phil., 44, 47), this court stated the well-established rule concerning
partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic
Law, while another part is valid, the valid portion, if separable from the
valid, may stand and be enforced. But in order to do this, the valid
portion must be in so far independent of the invalid portion that it is fair
to presume that the Legislative would have enacted it by itself if they
had supposed that they could not constitutionally enact the other.
(Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S.
R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District,
99 Miss., 739; 55 Sou., 963.) Enough must remain to make a
complete, intelligible, and valid statute, which carries out the legislative
intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void
provisions must be eliminated without causing results affecting the
main purpose of the Act, in a manner contrary to the intention of the
Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969;
Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S.,
794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People
vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S.,
1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language
used in the invalid part of a statute can have no legal force or efficacy
for any purpose whatever, and what remains must express the
legislative will, independently of the void part, since the court has no
power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L.
R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil.,
759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601,
635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act
applicable only in those provinces in which the respective provincial boards
provided for the salaries of probation officers were inoperative on
constitutional grounds, the remainder of the Act would still be valid and may
be enforced. We should be inclined to accept the suggestions but for the fact
that said section is, in our opinion, is inseparably linked with the other portions
of the Act that with the elimination of the section what would be left is the bare
idealism of the system, devoid of any practical benefit to a large number of
people who may be deserving of the intended beneficial result of that system.
The clear policy of the law, as may be gleaned from a careful examination of
the whole context, is to make the application of the system dependent entirely
upon the affirmative action of the different provincial boards through
appropriation of the salaries for probation officers at rates not lower than those
provided for provincial fiscals. Without such action on the part of the various
boards, no probation officers would be appointed by the Secretary of Justice
to act in the provinces. The Philippines is divided or subdivided into provinces
and it needs no argument to show that if not one of the provinces and this
is the actual situation now appropriate the necessary fund for the salary of
a probation officer, probation under Act No. 4221 would be illusory. There can
be no probation without a probation officer. Neither can there be a probation
officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and
visit the probationer. Every probation officer is given, as to the person placed
in probation under his care, the powers of the police officer. It is the duty of
the probation officer to see that the conditions which are imposed by the court
upon the probationer under his care are complied with. Among those
conditions, the following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or
probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at
his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the
probation officer concerning his conduct or condition; "(f) Shall
endeavor to be employed regularly; "(g) Shall remain or reside within a
specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for
actual damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time
make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-
law or regulation, promulgated in accordance with law.
The court is required to notify the probation officer in writing of the period and
terms of probation. Under section 4, it is only after the period of probation, the
submission of a report of the probation officer and appropriate finding of the
court that the probationer has complied with the conditions of probation that
probation may be definitely terminated and the probationer finally discharged
from supervision. Under section 5, if the court finds that there is non-
compliance with said conditions, as reported by the probation officer, it may
issue a warrant for the arrest of the probationer and said probationer may be
committed with or without bail. Upon arraignment and after an opportunity to
be heard, the court may revoke, continue or modify the probation, and if
revoked, the court shall order the execution of the sentence originally
imposed. Section 6 prescribes the duties of probation officers: "It shall be the
duty of every probation officer to furnish to all persons placed on probation
under his supervision a statement of the period and conditions of their
probation, and to instruct them concerning the same; to keep informed
concerning their conduct and condition; to aid and encourage them by friendly
advice and admonition, and by such other measures, not inconsistent with the
conditions imposed by court as may seem most suitable, to bring about
improvement in their conduct and condition; to report in writing to the court
having jurisdiction over said probationers at least once every two months
concerning their conduct and condition; to keep records of their work; make
such report as are necessary for the information of the Secretary of Justice
and as the latter may require; and to perform such other duties as are
consistent with the functions of the probation officer and as the court or judge
may direct. The probation officers provided for in this Act may act as parole
officers for any penal or reformatory institution for adults when so requested
by the authorities thereof, and, when designated by the Secretary of Justice
shall act as parole officer of persons released on parole under Act Number
Forty-one Hundred and Three, without additional compensation."
It is argued, however, that even without section 11 probation officers maybe
appointed in the provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its
supervision and control, a Probation Office under the direction of a
Chief Probation Officer to be appointed by the Governor-General with
the advise and consent of the Senate who shall receive a salary of
four eight hundred pesos per annum. To carry out this Act there is
hereby appropriated out of any funds in the Insular Treasury not
otherwise appropriated, the sum of fifty thousand pesos to be
disbursed by the Secretary of Justice, who is hereby authorized to
appoint probation officers and the administrative personnel of the
probation officer under civil service regulations from among those who
possess the qualifications, training and experience prescribed by the
Bureau of Civil Service, and shall fix the compensation of such
probation officers and administrative personnel until such positions
shall have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the
foregoing section are clearly not those probation officers required to be
appointed for the provinces under section 11. It may be said, reddendo
singula singulis, that the probation officers referred to in section 10 above-
quoted are to act as such, not in the various provinces, but in the central office
known as the Probation Office established in the Department of Justice, under
the supervision of the Chief Probation Officer. When the law provides that "the
probation officer" shall investigate and make reports to the court (secs. 1 and
4); that "the probation officer" shall supervise and visit the probationer (sec. 2;
sec. 6, par. d); that the probationer shall report to the "probationer officer"
(sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d),
shall truthfully answer any reasonable inquiries on the part of "the probation
officer" concerning his conduct or condition (sec. 3, par. 4); that the court shall
notify "the probation officer" in writing of the period and terms of probation
(sec. 3, last par.), it means the probation officer who is in charge of a
particular probationer in a particular province. It never could have been
intention of the legislature, for instance, to require the probationer in Batanes,
to report to a probationer officer in the City of Manila, or to require a probation
officer in Manila to visit the probationer in the said province of Batanes, to
place him under his care, to supervise his conduct, to instruct him concerning
the conditions of his probation or to perform such other functions as are
assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation
officers as there are provinces or groups of provinces is, of course possible.
But this would be arguing on what the law may be or should be and not on
what the law is. Between is and ought there is a far cry. The wisdom and
propriety of legislation is not for us to pass upon. We may think a law better
otherwise than it is. But much as has been said regarding progressive
interpretation and judicial legislation we decline to amend the law. We are not
permitted to read into the law matters and provisions which are not there. Not
for any purpose not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make
the Insular Government defray the salaries of probation officers in the
provinces but to make the provinces defray them should they desire to have
the Probation Act apply thereto. The sum of P50,000, appropriated "to carry
out the purposes of this Act", is to be applied, among other things, for the
salaries of probation officers in the central office at Manila. These probation
officers are to receive such compensations as the Secretary of Justice may fix
"until such positions shall have been included in the Appropriation Act". It was
the intention of the legislature to empower the Secretary of Justice to fix the
salaries of the probation officers in the provinces or later on to include said
salaries in an appropriation act. Considering, further, that the sum of P50,000
appropriated in section 10 is to cover, among other things, the salaries of the
administrative personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even nominal salaries to
probation officers in the provinces. We take judicial notice of the fact that there
are 48 provinces in the Philippines and we do not think it is seriously
contended that, with the fifty thousand pesos appropriated for the central
office, there can be in each province, as intended, a probation officer with a
salary not lower than that of a provincial fiscal. If this a correct, the contention
that without section 11 of Act No. 4221 said act is complete is an
impracticable thing under the remainder of the Act, unless it is conceded that
in our case there can be a system of probation in the provinces without
probation officers.
Probation as a development of a modern penology is a commendable system.
Probation laws have been enacted, here and in other countries, to permit what
modern criminologist call the "individualization of the punishment", the
adjustment of the penalty to the character of the criminal and the
circumstances of his particular case. It provides a period of grace in order to
aid in the rehabilitation of a penitent offender. It is believed that, in any cases,
convicts may be reformed and their development into hardened criminals
aborted. It, therefore, takes advantage of an opportunity for reformation and
avoids imprisonment so long as the convicts gives promise of reform. (United
States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313;
48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of
society is its chief end and aim. The benefit to the individual convict is merely
incidental. But while we believe that probation is commendable as a system
and its implantation into the Philippines should be welcomed, we are forced by
our inescapable duty to set the law aside because of the repugnancy to our
fundamental law.
In arriving at this conclusion, we have endeavored to consider the different
aspects presented by able counsel for both parties, as well in their
memorandums as in their oral argument. We have examined the cases
brought to our attention, and others we have been able to reach in the short
time at our command for the study and deliberation of this case. In the
examination of the cases and in then analysis of the legal principles involved
we have inclined to adopt the line of action which in our opinion, is supported
better reasoned authorities and is more conducive to the general welfare.
(Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of
authorities, we have declined to be bound by certain adjudicated cases
brought to our attention, except where the point or principle is settled directly
or by clear implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is justified
because:
(a) The constitutional relations between the Federal and the State
governments of the United States and the dual character of the
American Government is a situation which does not obtain in the
Philippines;
(b) The situation of s state of the American Union of the District of
Columbia with reference to the Federal Government of the United
States is not the situation of the province with respect to the Insular
Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of
the United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the
United States do not embrace the integrated judicial system of the
Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p.
1317);
(d) "General propositions do not decide concrete cases" (Justice
Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law.
ed., 937, 949) and, "to keep pace with . . . new developments of times
and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs.
Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale
Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental
 principles should be interpreted having in view existing local conditions
and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of
prohibition is, accordingly, granted. Without any pronouncement regarding
costs. So ordered.
Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 155001 May 5, 2003
DEMOSTHENES P. AGAN, JR., JOSEPH B. CATAHAN, JOSE MARI B.
REUNILLA, MANUEL ANTONIO B. BOE, MAMERTO S. CLARA, REUEL
E. DIMALANTA, MORY V. DOMALAON, CONRADO G. DIMAANO, LOLITA
R. HIZON, REMEDIOS P. ADOLFO, BIENVENIDO C. HILARIO, MIASCOR
WORKERS UNION - NATIONAL LABOR UNION (MWU-NLU), and
PHILIPPINE AIRLINES EMPLOYEES ASSOCIATION (PALEA),petitioners,
vs.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA
INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS and SECRETARY
LEANDRO M. MENDOZA, in his capacity as Head of the Department of
Transportation and Communications, respondents,
MIASCOR GROUNDHANDLING CORPORATION, DNATA-WINGS
AVIATION SYSTEMS CORPORATION, MACROASIA-EUREST SERVICES,
INC., MACROASIA-MENZIES AIRPORT SERVICES CORPORATION,
MIASCOR CATERING SERVICES CORPORATION, MIASCOR AIRCRAFT
MAINTENANCE CORPORATION, and MIASCOR LOGISTICS
CORPORATION, petitioners-in-intervention,
x---------------------------------------------------------x
G.R. No. 155547 May 5, 2003
SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and CONSTANTINO G.
JARAULA, petitioners,
vs.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA
INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, DEPARTMENT OF PUBLIC
WORKS AND HIGHWAYS, SECRETARY LEANDRO M. MENDOZA, in his
capacity as Head of the Department of Transportation and
Communications, and SECRETARY SIMEON A. DATUMANONG, in his
capacity as Head of the Department of Public Works and
Highways, respondents,
JACINTO V. PARAS, RAFAEL P. NANTES, EDUARDO C. ZIALCITA,
WILLY BUYSON VILLARAMA, PROSPERO C. NOGRALES, PROSPERO
A. PICHAY, JR., HARLIN CAST ABAYON, and BENASING O.
MACARANBON,respondents-intervenors,
x---------------------------------------------------------x
G.R. No. 155661 May 5, 2003
CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B. VALENCIA, MA.
TERESA V. GAERLAN, LEONARDO DE LA ROSA, DINA C. DE LEON,
VIRGIE CATAMIN RONALD SCHLOBOM, ANGELITO SANTOS, MA.
LUISA M. PALCON and SAMAHANG MANGGAGAWA SA PALIPARAN NG
PILIPINAS (SMPP), petitioners,
vs.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA
INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO
M. MENDOZA, in his capacity as Head of the Department of
Transportation and Communications, respondents.
PUNO, J.:
Petitioners and petitioners-in-intervention filed the instant petitions for
prohibition under Rule 65 of the Revised Rules of Court seeking to prohibit the
Manila International Airport Authority (MIAA) and the Department of
Transportation and Communications (DOTC) and its Secretary from
implementing the following agreements executed by the Philippine
Government through the DOTC and the MIAA and the Philippine International
Air Terminals Co., Inc. (PIATCO): (1) the Concession Agreement signed on
July 12, 1997, (2) the Amended and Restated Concession Agreement dated
November 26, 1999, (3) the First Supplement to the Amended and Restated
Concession Agreement dated August 27, 1999, (4) the Second Supplement to
the Amended and Restated Concession Agreement dated September 4,
2000, and (5) the Third Supplement to the Amended and Restated
Concession Agreement dated June 22, 2001 (collectively, the PIATCO
Contracts).
The facts are as follows:
In August 1989, the DOTC engaged the services of Aeroport de Paris
(ADP) to conduct a comprehensive study of the Ninoy Aquino
International Airport (NAIA) and determine whether the present airport
can cope with the traffic development up to the year 2010. The study
consisted of two parts: first, traffic forecasts, capacity of existing
facilities, NAIA future requirements, proposed master plans and
development plans; and second, presentation of the preliminary
design of the passenger terminal building. The ADP submitted a Draft
Final Report to the DOTC in December 1989.
Some time in 1993, six business leaders consisting of John
Gokongwei, Andrew Gotianun, Henry Sy, Sr., Lucio Tan, George Ty
and Alfonso Yuchengco met with then President Fidel V. Ramos to
explore the possibility of investing in the construction and operation of
a new international airport terminal. To signify their commitment to
pursue the project, they formed the Asia's Emerging Dragon Corp.
(AEDC) which was registered with the Securities and Exchange
Commission (SEC) on September 15, 1993.
 On October 5, 1994, AEDC submitted an unsolicited proposal to the
Government through the DOTC/MIAA for the development of NAIA
International Passenger Terminal III (NAIA IPT III) under a build-
operate-and-transfer arrangement pursuant to RA 6957 as amended
by RA 7718 (BOT Law).1
On December 2, 1994, the DOTC issued Dept. Order No. 94-832 constituting
the Prequalification Bids and Awards Committee (PBAC) for the
implementation of the NAIA IPT III project.
On March 27, 1995, then DOTC Secretary Jose Garcia endorsed the proposal
of AEDC to the National Economic and Development Authority (NEDA). A
revised proposal, however, was forwarded by the DOTC to NEDA on
December 13, 1995. On January 5, 1996, the NEDA Investment Coordinating
Council (NEDA ICC) Technical Board favorably endorsed the project to the
ICC Cabinet Committee which approved the same, subject to certain
conditions, on January 19, 1996. On February 13, 1996, the NEDA passed
Board Resolution No. 2 which approved the NAIA IPT III project.
On June 7, 14, and 21, 1996, DOTC/MIAA caused the publication in two daily
newspapers of an invitation for competitive or comparative proposals on
AEDC's unsolicited proposal, in accordance with Sec. 4-A of RA 6957, as
amended. The alternative bidders were required to submit three (3) sealed
envelopes on or before 5:00 p.m. of September 20, 1996. The first envelope
should contain the Prequalification Documents, the second envelope the
Technical Proposal, and the third envelope the Financial Proposal of the
proponent.
On June 20, 1996, PBAC Bulletin No. 1 was issued, postponing the availment
of the Bid Documents and the submission of the comparative bid proposals.
Interested firms were permitted to obtain the Request for Proposal Documents
beginning June 28, 1996, upon submission of a written application and
payment of a non-refundable fee of P50,000.00 (US$2,000).
The Bid Documents issued by the PBAC provided among others that the
proponent must have adequate capability to sustain the financing requirement
for the detailed engineering, design, construction, operation, and maintenance
phases of the project. The proponent would be evaluated based on its ability
to provide a minimum amount of equity to the project, and its capacity to
secure external financing for the project.
On July 23, 1996, the PBAC issued PBAC Bulletin No. 2 inviting all bidders to
a pre-bid conference on July 29, 1996.
On August 16, 1996, the PBAC issued PBAC Bulletin No. 3 amending the Bid
Documents. The following amendments were made on the Bid Documents:
a. Aside from the fixed Annual Guaranteed Payment, the proponent
shall include in its financial proposal an additional percentage of gross
revenue share of the Government, as follows:
i. First 5 years 5.0%
ii. Next 10 years 7.5%
iii. Next 10 years 10.0%
b. The amount of the fixed Annual Guaranteed Payment shall be
subject of the price challenge. Proponent may offer an Annual
Guaranteed Payment which need not be of equal amount, but
payment of which shall start upon site possession.
c. The project proponent must have adequate capability to sustain the
financing requirement for the detailed engineering, design,
construction, and/or operation and maintenance phases of the project
as the case may be. For purposes of pre-qualification, this capability
shall be measured in terms of:
i. Proof of the availability of the project proponent and/or the
consortium to provide the minimum amount of equity for the
project; and
ii. a letter testimonial from reputable banks attesting that the
project proponent and/or the members of the consortium are
banking with them, that the project proponent and/or the
members are of good financial standing, and have adequate
resources.
d. The basis for the prequalification shall be the proponent's
compliance with the minimum technical and financial requirements
provided in the Bid Documents and the IRR of the BOT Law. The
minimum amount of equity shall be 30% of the Project Cost.
e. Amendments to the draft Concession Agreement shall be issued
from time to time. Said amendments shall only cover items that would
not materially affect the preparation of the proponent's proposal.
On August 29, 1996, the Second Pre-Bid Conference was held where certain
clarifications were made. Upon the request of prospective bidder People's Air
Cargo & Warehousing Co., Inc (Paircargo), the PBAC warranted that based
on Sec. 11.6, Rule 11 of the Implementing Rules and Regulations of the BOT
Law, only the proposed Annual Guaranteed Payment submitted by the
challengers would be revealed to AEDC, and that the challengers' technical
and financial proposals would remain confidential. The PBAC also clarified
that the list of revenue sources contained in Annex 4.2a of the Bid Documents
was merely indicative and that other revenue sources may be included by the
proponent, subject to approval by DOTC/MIAA. Furthermore, the PBAC
clarified that only those fees and charges denominated as Public Utility Fees
would be subject to regulation, and those charges which would be actually
deemed Public Utility Fees could still be revised, depending on the outcome of
PBAC's query on the matter with the Department of Justice.
In September 1996, the PBAC issued Bid Bulletin No. 5, entitled "Answers to
the Queries of PAIRCARGO as Per Letter Dated September 3 and 10, 1996."
Paircargo's queries and the PBAC's responses were as follows:
1. It is difficult for Paircargo and Associates to meet the required
minimum equity requirement as prescribed in Section 8.3.4 of the Bid
Documents considering that the capitalization of each member
company is so structured to meet the requirements and needs of their
current respective business undertaking/activities. In order to comply
with this equity requirement, Paircargo is requesting PBAC to just
allow each member of (sic) corporation of the Joint Venture to just
 execute an agreement that embodies a commitment to infuse the
required capital in case the project is awarded to the Joint Venture
instead of increasing each corporation's current authorized capital
stock just for prequalification purposes.
In prequalification, the agency is interested in one's financial capability
at the time of prequalification, not future or potential capability.
A commitment to put up equity once awarded the project is not
enough to establish that "present" financial capability. However, total
financial capability of all member companies of the Consortium, to be
established by submitting the respective companies' audited financial
statements, shall be acceptable.
2. At present, Paircargo is negotiating with banks and other institutions
for the extension of a Performance Security to the joint venture in the
event that the Concessions Agreement (sic) is awarded to them.
However, Paircargo is being required to submit a copy of the draft
concession as one of the documentary requirements. Therefore,
Paircargo is requesting that they'd (sic) be furnished copy of the
approved negotiated agreement between the PBAC and the AEDC at
the soonest possible time.
A copy of the draft Concession Agreement is included in the Bid
Documents. Any material changes would be made known to
prospective challengers through bid bulletins. However, a final version
will be issued before the award of contract.
The PBAC also stated that it would require AEDC to sign Supplement C of the
Bid Documents (Acceptance of Criteria and Waiver of Rights to Enjoin
Project) and to submit the same with the required Bid Security.
On September 20, 1996, the consortium composed of People's Air Cargo and
Warehousing Co., Inc. (Paircargo), Phil. Air and Grounds Services, Inc.
(PAGS) and Security Bank Corp. (Security Bank) (collectively, Paircargo
Consortium) submitted their competitive proposal to the PBAC. On September
23, 1996, the PBAC opened the first envelope containing the prequalification
documents of the Paircargo Consortium. On the following day, September 24,
1996, the PBAC prequalified the Paircargo Consortium.
On September 26, 1996, AEDC informed the PBAC in writing of its
reservations as regards the Paircargo Consortium, which include:
a. The lack of corporate approvals and financial capability of
PAIRCARGO;
b. The lack of corporate approvals and financial capability of PAGS;
c. The prohibition imposed by RA 337, as amended (the General
Banking Act) on the amount that Security Bank could legally invest in
the project;
d. The inclusion of Siemens as a contractor of the PAIRCARGO Joint
Venture, for prequalification purposes; and
e. The appointment of Lufthansa as the facility operator, in view of the
Philippine requirement in the operation of a public utility.
The PBAC gave its reply on October 2, 1996, informing AEDC that it had
considered the issues raised by the latter, and that based on the documents
submitted by Paircargo and the established prequalification criteria, the PBAC
had found that the challenger, Paircargo, had prequalified to undertake the
project. The Secretary of the DOTC approved the finding of the PBAC.
The PBAC then proceeded with the opening of the second envelope of the
Paircargo Consortium which contained its Technical Proposal.
On October 3, 1996, AEDC reiterated its objections, particularly with respect
to Paircargo's financial capability, in view of the restrictions imposed by
Section 21-B of the General Banking Act and Sections 1380 and 1381 of the
Manual Regulations for Banks and Other Financial Intermediaries. On
October 7, 1996, AEDC again manifested its objections and requested that it
be furnished with excerpts of the PBAC meeting and the accompanying
technical evaluation report where each of the issues they raised were
addressed.
On October 16, 1996, the PBAC opened the third envelope submitted by
AEDC and the Paircargo Consortium containing their respective financial
proposals. Both proponents offered to build the NAIA Passenger Terminal III
for at least $350 million at no cost to the government and to pay the
government: 5% share in gross revenues for the first five years of operation,
7.5% share in gross revenues for the next ten years of operation, and 10%
share in gross revenues for the last ten years of operation, in accordance with
the Bid Documents. However, in addition to the foregoing, AEDC offered to
pay the government a total of P135 million as guaranteed payment for 27
years while Paircargo Consortium offered to pay the government a total of
P17.75 billion for the same period.
Thus, the PBAC formally informed AEDC that it had accepted the price
proposal submitted by the Paircargo Consortium, and gave AEDC 30 working
days or until November 28, 1996 within which to match the said bid,
otherwise, the project would be awarded to Paircargo.
As AEDC failed to match the proposal within the 30-day period, then DOTC
Secretary Amado Lagdameo, on December 11, 1996, issued a notice to
Paircargo Consortium regarding AEDC's failure to match the proposal.
On February 27, 1997, Paircargo Consortium incorporated into Philippine
International Airport Terminals Co., Inc. (PIATCO).
AEDC subsequently protested the alleged undue preference given to PIATCO
and reiterated its objections as regards the prequalification of PIATCO.
On April 11, 1997, the DOTC submitted the concession agreement for the
second-pass approval of the NEDA-ICC.
On April 16, 1997, AEDC filed with the Regional Trial Court of Pasig a Petition
for Declaration of Nullity of the Proceedings, Mandamus and Injunction
against the Secretary of the DOTC, the Chairman of the PBAC, the voting
members of the PBAC and Pantaleon D. Alvarez, in his capacity as Chairman
of the PBAC Technical Committee.
On April 17, 1997, the NEDA-ICC conducted an ad referendum to facilitate the
approval, on a no-objection basis, of the BOT agreement between the DOTC
and PIATCO. As the ad referendum gathered only four (4) of the required six
(6) signatures, the NEDA merely noted the agreement.
On July 9, 1997, the DOTC issued the notice of award for the project to
PIATCO.
On July 12, 1997, the Government, through then DOTC Secretary Arturo T.
Enrile, and PIATCO, through its President, Henry T. Go, signed the
"Concession Agreement for the Build-Operate-and-Transfer Arrangement of
the Ninoy Aquino International Airport Passenger Terminal III" (1997
Concession Agreement). The Government granted PIATCO the franchise to
operate and maintain the said terminal during the concession period and to
collect the fees, rentals and other charges in accordance with the rates or
schedules stipulated in the 1997 Concession Agreement. The Agreement
provided that the concession period shall be for twenty-five (25) years
commencing from the in-service date, and may be renewed at the option of
the Government for a period not exceeding twenty-five (25) years. At the end
of the concession period, PIATCO shall transfer the development facility to
MIAA.
On November 26, 1998, the Government and PIATCO signed an Amended
and Restated Concession Agreement (ARCA). Among the provisions of the
1997 Concession Agreement that were amended by the ARCA were: Sec.
1.11 pertaining to the definition of "certificate of completion"; Sec. 2.05
pertaining to the Special Obligations of GRP; Sec. 3.02 (a) dealing with the
exclusivity of the franchise given to the Concessionaire; Sec. 4.04 concerning
the assignment by Concessionaire of its interest in the Development Facility;
Sec. 5.08 (c) dealing with the proceeds of Concessionaire's insurance; Sec.
5.10 with respect to the temporary take-over of operations by GRP; Sec. 5.16
pertaining to the taxes, duties and other imposts that may be levied on the
Concessionaire; Sec. 6.03 as regards the periodic adjustment of public utility
fees and charges; the entire Article VIII concerning the provisions on the
termination of the contract; and Sec. 10.02 providing for the venue of the
arbitration proceedings in case a dispute or controversy arises between the
parties to the agreement.
Subsequently, the Government and PIATCO signed three Supplements to the
ARCA. The First Supplement was signed on August 27, 1999; the Second
Supplement on September 4, 2000; and the Third Supplement on June 22,
2001 (collectively, Supplements).
The First Supplement to the ARCA amended Sec. 1.36 of the ARCA defining
"Revenues" or "Gross Revenues"; Sec. 2.05 (d) of the ARCA referring to the
obligation of MIAA to provide sufficient funds for the upkeep, maintenance,
repair and/or replacement of all airport facilities and equipment which are
owned or operated by MIAA; and further providing additional special
obligations on the part of GRP aside from those already enumerated in Sec.
2.05 of the ARCA. The First Supplement also provided a stipulation as
regards the construction of a surface road to connect NAIA Terminal II and
Terminal III in lieu of the proposed access tunnel crossing Runway 13/31; the
swapping of obligations between GRP and PIATCO regarding the
improvement of Sales Road; and the changes in the timetable. It also
amended Sec. 6.01 (c) of the ARCA pertaining to the Disposition of Terminal
Fees; Sec. 6.02 of the ARCA by inserting an introductory paragraph; and Sec.
6.02 (a) (iii) of the ARCA referring to the Payments of Percentage Share in
Gross Revenues.
The Second Supplement to the ARCA contained provisions concerning the
clearing, removal, demolition or disposal of subterranean structures
uncovered or discovered at the site of the construction of the terminal by the
Concessionaire. It defined the scope of works; it provided for the procedure
for the demolition of the said structures and the consideration for the same
which the GRP shall pay PIATCO; it provided for time extensions, incremental
and consequential costs and losses consequent to the existence of such
structures; and it provided for some additional obligations on the part of
PIATCO as regards the said structures.
Finally, the Third Supplement provided for the obligations of the
Concessionaire as regards the construction of the surface road connecting
Terminals II and III.
Meanwhile, the MIAA which is charged with the maintenance and operation of
the NAIA Terminals I and II, had existing concession contracts with various
service providers to offer international airline airport services, such as in-flight
catering, passenger handling, ramp and ground support, aircraft maintenance
and provisions, cargo handling and warehousing, and other services, to
several international airlines at the NAIA. Some of these service providers are
the Miascor Group, DNATA-Wings Aviation Systems Corp., and the
MacroAsia Group. Miascor, DNATA and MacroAsia, together with Philippine
Airlines (PAL), are the dominant players in the industry with an aggregate
market share of 70%.
On September 17, 2002, the workers of the international airline service
providers, claiming that they stand to lose their employment upon the
implementation of the questioned agreements, filed before this Court a
petition for prohibition to enjoin the enforcement of said agreements.2
On October 15, 2002, the service providers, joining the cause of the
petitioning workers, filed a motion for intervention and a petition-in-
intervention.
On October 24, 2002, Congressmen Salacnib Baterina, Clavel Martinez and
Constantino Jaraula filed a similar petition with this Court.3
On November 6, 2002, several employees of the MIAA likewise filed a petition
assailing the legality of the various agreements.4
On December 11, 2002. another group of Congressmen, Hon. Jacinto V.
Paras, Rafael P. Nantes, Eduardo C. Zialcita, Willie B. Villarama, Prospero C.
Nograles, Prospero A. Pichay, Jr., Harlin Cast Abayon and Benasing O.
Macaranbon, moved to intervene in the case as Respondents-Intervenors.
They filed their Comment-In-Intervention defending the validity of the assailed
agreements and praying for the dismissal of the petitions.
During the pendency of the case before this Court, President Gloria
Macapagal Arroyo, on November 29, 2002, in her speech at the 2002 Golden
Shell Export Awards at Malacaang Palace, stated that she will not "honor
(PIATCO) contracts which the Executive Branch's legal offices have
concluded (as) null and void."5
Respondent PIATCO filed its Comments to the present petitions on November
7 and 27, 2002. The Office of the Solicitor General and the Office of the
Government Corporate Counsel filed their respective Comments in behalf of
the public respondents.
On December 10, 2002, the Court heard the case on oral argument. After the
oral argument, the Court then resolved in open court to require the parties to
file simultaneously their respective Memoranda in amplification of the issues
heard in the oral arguments within 30 days and to explore the possibility of
arbitration or mediation as provided in the challenged contracts.
In their consolidated Memorandum, the Office of the Solicitor General and the
Office of the Government Corporate Counsel prayed that the present petitions
be given due course and that judgment be rendered declaring the 1997
Concession Agreement, the ARCA and the Supplements thereto void for
being contrary to the Constitution, the BOT Law and its Implementing Rules
and Regulations.
On March 6, 2003, respondent PIATCO informed the Court that on March 4,
2003 PIATCO commenced arbitration proceedings before the International
Chamber of Commerce, International Court of Arbitration (ICC) by filing a
Request for Arbitration with the Secretariat of the ICC against the Government
of the Republic of the Philippines acting through the DOTC and MIAA.
In the present cases, the Court is again faced with the task of resolving
complicated issues made difficult by their intersecting legal and economic
implications. The Court is aware of the far reaching fall out effects of the ruling
which it makes today. For more than a century and whenever the exigencies
of the times demand it, this Court has never shirked from its solemn duty to
dispense justice and resolve "actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of
jurisdiction."6 To be sure, this Court will not begin to do otherwise today.
We shall first dispose of the procedural issues raised by respondent
PIATCO which they allege will bar the resolution of the instant controversy.
Petitioners' Legal Standing to File
the present Petitions
a. G.R. Nos. 155001 and 155661
In G.R. No. 155001 individual petitioners are employees of various service
providers7 having separate concession contracts with MIAA and continuing
service agreements with various international airlines to provide in-flight
catering, passenger handling, ramp and ground support, aircraft maintenance
and provisions, cargo handling and warehousing and other services. Also
included as petitioners are labor unions MIASCOR Workers Union-National
Labor Union and Philippine Airlines Employees Association. These petitioners
filed the instant action for prohibition as taxpayers and as parties whose rights
and interests stand to be violated by the implementation of the PIATCO
Contracts.
Petitioners-Intervenors in the same case are all corporations organized and
existing under Philippine laws engaged in the business of providing in-flight
catering, passenger handling, ramp and ground support, aircraft maintenance
and provisions, cargo handling and warehousing and other services to several
international airlines at the Ninoy Aquino International Airport. Petitioners-
Intervenors allege that as tax-paying international airline and airport-related
service operators, each one of them stands to be irreparably injured by the
implementation of the PIATCO Contracts. Each of the petitioners-intervenors
have separate and subsisting concession agreements with MIAA and with
various international airlines which they allege are being interfered with and
violated by respondent PIATCO.
In G.R. No. 155661, petitioners constitute employees of MIAA and Samahang
Manggagawa sa Paliparan ng Pilipinas - a legitimate labor union and
accredited as the sole and exclusive bargaining agent of all the employees in
MIAA. Petitioners anchor their petition for prohibition on the nullity of the
contracts entered into by the Government and PIATCO regarding the build-
operate-and-transfer of the NAIA IPT III. They filed the petition as taxpayers
and persons who have a legitimate interest to protect in the implementation of
the PIATCO Contracts.
Petitioners in both cases raise the argument that the PIATCO Contracts
contain stipulations which directly contravene numerous provisions of the
Constitution, specific provisions of the BOT Law and its Implementing Rules
and Regulations, and public policy. Petitioners contend that the DOTC and the
MIAA, by entering into said contracts, have committed grave abuse of
discretion amounting to lack or excess of jurisdiction which can be remedied
only by a writ of prohibition, there being no plain, speedy or adequate remedy
in the ordinary course of law.
In particular, petitioners assail the provisions in the 1997 Concession
Agreement and the ARCA which grant PIATCO the exclusive right to operate
a commercial international passenger terminal within the Island of Luzon,
except those international airports already existing at the time of the execution
of the agreement. The contracts further provide that upon the commencement
of operations at the NAIA IPT III, the Government shall cause the closure of
Ninoy Aquino International Airport Passenger Terminals I and II as
international passenger terminals. With respect to existing concession
agreements between MIAA and international airport service providers
regarding certain services or operations, the 1997 Concession Agreement and
the ARCA uniformly provide that such services or operations will not be
carried over to the NAIA IPT III and PIATCO is under no obligation to permit
such carry over except through a separate agreement duly entered into with
PIATCO.8
With respect to the petitioning service providers and their employees, upon
the commencement of operations of the NAIA IPT III, they allege that they will
be effectively barred from providing international airline airport services at the
NAIA Terminals I and II as all international airlines and passengers will be
diverted to the NAIA IPT III. The petitioning service providers will thus be
compelled to contract with PIATCO alone for such services, with no
assurance that subsisting contracts with MIAA and other international airlines
will be respected. Petitioning service providers stress that despite the very
competitive market, the substantial capital investments required and the high
rate of fees, they entered into their respective contracts with the MIAA with the
understanding that the said contracts will be in force for the stipulated period,
and thereafter, renewed so as to allow each of the petitioning service
providers to recoup their investments and obtain a reasonable return thereon.
Petitioning employees of various service providers at the NAIA Terminals I
and II and of MIAA on the other hand allege that with the closure of the NAIA
Terminals I and II as international passenger terminals under the PIATCO
Contracts, they stand to lose employment.
The question on legal standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional
questions."9 Accordingly, it has been held that the interest of a person
assailing the constitutionality of a statute must be direct and personal. He
must be able to show, not only that the law or any government act is invalid,
but also that he sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has been or
is about to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by reason of the
statute or act complained of.10
We hold that petitioners have the requisite standing. In the above-mentioned
cases, petitioners have a direct and substantial interest to protect by reason of
the implementation of the PIATCO Contracts. They stand to lose their source
of livelihood, a property right which is zealously protected by the Constitution.
Moreover, subsisting concession agreements between MIAA and petitioners-
intervenors and service contracts between international airlines and
petitioners-intervenors stand to be nullified or terminated by the operation of
the NAIA IPT III under the PIATCO Contracts. The financial prejudice brought
about by the PIATCO Contracts on petitioners and petitioners-intervenors in
these cases are legitimate interests sufficient to confer on them the requisite
standing to file the instant petitions.
b. G.R. No. 155547
In G.R. No. 155547, petitioners filed the petition for prohibition as members of
the House of Representatives, citizens and taxpayers. They allege that as
members of the House of Representatives, they are especially interested in
the PIATCO Contracts, because the contracts compel the Government and/or
the House of Representatives to appropriate funds necessary to comply with
the provisions therein.11 They cite provisions of the PIATCO Contracts which
require disbursement of unappropriated amounts in compliance with the
contractual obligations of the Government. They allege that the Government
obligations in the PIATCO Contracts which compel government expenditure
without appropriation is a curtailment of their prerogatives as legislators,
contrary to the mandate of the Constitution that "[n]o money shall be paid out
of the treasury except in pursuance of an appropriation made by law."12
Standing is a peculiar concept in constitutional law because in some cases,
suits are not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public interest. Although we are
not unmindful of the cases of Imus Electric Co. v. Municipality of
Imus13 and Gonzales v. Raquiza14 wherein this Court held that appropriation
must be made only on amounts immediately demandable, public interest
demands that we take a more liberal view in determining whether the
petitioners suing as legislators, taxpayers and citizens have locus standi
to file the instant petition. In Kilosbayan, Inc. v. Guingona,15 this Court
held "[i]n line with the liberal policy of this Court onlocus standi, ordinary
taxpayers, members of Congress, and even association of planters, and non-
profit civic organizations were allowed to initiate and prosecute actions before
this Court to question the constitutionality or validity of laws, acts, decisions,
rulings, or orders of various government agencies or
instrumentalities."16 Further, "insofar as taxpayers' suits are concerned . . .
(this Court) is not devoid of discretion as to whether or not it should be
entertained."17 As such ". . . even if, strictly speaking, they [the petitioners] are
not covered by the definition, it is still within the wide discretion of the Court to
waive the requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised."18 In view of the serious
legal questions involved and their impact on public interest, we resolve to
grant standing to the petitioners.
Other Procedural Matters
Respondent PIATCO further alleges that this Court is without jurisdiction to
review the instant cases as factual issues are involved which this Court is ill-
equipped to resolve. Moreover, PIATCO alleges that submission of this
controversy to this Court at the first instance is a violation of the rule on
hierarchy of courts. They contend that trial courts have concurrent jurisdiction
with this Court with respect to a special civil action for prohibition and hence,
following the rule on hierarchy of courts, resort must first be had before the
trial courts.
After a thorough study and careful evaluation of the issues involved, this Court
is of the view that the crux of the instant controversy involves significant legal
questions. The facts necessary to resolve these legal questions are well
established and, hence, need not be determined by a trial court.
The rule on hierarchy of courts will not also prevent this Court from assuming
jurisdiction over the cases at bar. The said rule may be relaxed when the
redress desired cannot be obtained in the appropriate courts or where
exceptional and compelling circumstances justify availment of a remedy within
and calling for the exercise of this Court's primary jurisdiction.19
It is easy to discern that exceptional circumstances exist in the cases at bar
that call for the relaxation of the rule. Both petitioners and respondents agree
that these cases are of transcendental importance as they involve the
construction and operation of the country's premier international airport.
Moreover, the crucial issues submitted for resolution are of first impression
and they entail the proper legal interpretation of key provisions of the
Constitution, the BOT Law and its Implementing Rules and Regulations. Thus,
considering the nature of the controversy before the Court, procedural bars
may be lowered to give way for the speedy disposition of the instant cases.
Legal Effect of the Commencement
of Arbitration Proceedings by
PIATCO
There is one more procedural obstacle which must be overcome. The Court is
aware that arbitration proceedings pursuant to Section 10.02 of the ARCA
have been filed at the instance of respondent PIATCO. Again, we hold that
the arbitration step taken by PIATCO will not oust this Court of its jurisdiction
over the cases at bar.
In Del Monte Corporation-USA v. Court of Appeals,20 even after finding that
the arbitration clause in the Distributorship Agreement in question is valid and
the dispute between the parties is arbitrable, this Court affirmed the trial
court's decision denying petitioner's Motion to Suspend Proceedings pursuant
to the arbitration clause under the contract. In so ruling, this Court held that as
contracts produce legal effect between the parties, their assigns and heirs,
only the parties to the Distributorship Agreement are bound by its terms,
including the arbitration clause stipulated therein. This Court ruled that
arbitration proceedings could be called for but only with respect to the parties
to the contract in question. Considering that there are parties to the case who
are neither parties to the Distributorship Agreement nor heirs or assigns of the
parties thereto, this Court, citing its previous ruling in Salas, Jr. v. Laperal
Realty Corporation,21 held that to tolerate the splitting of proceedings by
allowing arbitration as to some of the parties on the one hand and trial for the
others on the other hand would, in effect, result in multiplicity of suits,
duplicitous procedure and unnecessary delay.22 Thus, we ruled that the
interest of justice would best be served if the trial court hears and adjudicates
the case in a single and complete proceeding.
It is established that petitioners in the present cases who have presented
legitimate interests in the resolution of the controversy are not parties to the
PIATCO Contracts. Accordingly, they cannot be bound by the arbitration
clause provided for in the ARCA and hence, cannot be compelled to submit to
arbitration proceedings. A speedy and decisive resolution of all the critical
issues in the present controversy, including those raised by petitioners,
cannot be made before an arbitral tribunal. The object of arbitration is
precisely to allow an expeditious determination of a dispute. This objective
would not be met if this Court were to allow the parties to settle the cases by
arbitration as there are certain issues involving non-parties to the PIATCO
Contracts which the arbitral tribunal will not be equipped to resolve.
Now, to the merits of the instant controversy.
I Section 5.4 Pre-qualification Requirements.
Is PIATCO a qualified bidder?
Public respondents argue that the Paircargo Consortium, PIATCO's
predecessor, was not a duly pre-qualified bidder on the unsolicited proposal
submitted by AEDC as the Paircargo Consortium failed to meet the financial
capability required under the BOT Law and the Bid Documents. They allege
that in computing the ability of the Paircargo Consortium to meet the minimum
equity requirements for the project, the entire net worth of Security Bank, a
member of the consortium, should not be considered.
PIATCO relies, on the other hand, on the strength of the Memorandum dated
October 14, 1996 issued by the DOTC Undersecretary Primitivo C. Cal stating
that the Paircargo Consortium is found to have a combined net worth of
P3,900,000,000.00, sufficient to meet the equity requirements of the project.
The said Memorandum was in response to a letter from Mr. Antonio Henson
of AEDC to President Fidel V. Ramos questioning the financial capability of
the Paircargo Consortium on the ground that it does not have the financial
resources to put up the required minimum equity of P2,700,000,000.00. This
contention is based on the restriction under R.A. No. 337, as amended or the
General Banking Act that a commercial bank cannot invest in any single
enterprise in an amount more than 15% of its net worth. In the said
Memorandum, Undersecretary Cal opined:
The Bid Documents, as clarified through Bid Bulletin Nos. 3 and 5,
require that financial capability will be evaluated based on total
financial capability of all the member companies of the [Paircargo]
Consortium. In this connection, the Challenger was found to have a
combined net worth of P3,926,421,242.00 that could support a project
costing approximately P13 Billion.
It is not a requirement that the net worth must be "unrestricted." To
impose that as a requirement now will be nothing less than unfair.
The financial statement or the net worth is not the sole basis in
establishing financial capability. As stated in Bid Bulletin No. 3,
financial capability may also be established by testimonial letters
issued by reputable banks. The Challenger has complied with this
requirement.
To recap, net worth reflected in the Financial Statement should not be
taken as the amount of the money to be used to answer the required
thirty percent (30%) equity of the challenger but rather to be used in
establishing if there is enough basis to believe that the challenger can
comply with the required 30% equity. In fact, proof of sufficient equity
is required as one of the conditions for award of contract (Section 12.1
IRR of the BOT Law) but not for pre-qualification (Section 5.4 of the
same document).23
Under the BOT Law, in case of a build-operate-and-transfer
arrangement, the contract shall be awarded to the bidder "who, having
satisfied the minimum financial, technical, organizational and legal
standards" required by the law, has submitted the lowest bid and
most favorable terms of the project.24 Further, the 1994 Implementing
Rules and Regulations of the BOT Law provide:
xxx xxx xxx
c. Financial Capability: The project proponent must have adequate
capability to sustain the financing requirements for the detailed
engineering design, construction and/or operation and maintenance
phases of the project, as the case may be. For purposes of pre-
qualification, this capability shall be measured in terms of (i) proof of
the ability of the project proponent and/or the consortium to
provide a minimum amount of equity to the project, and (ii) a
letter testimonial from reputable banks attesting that the project
proponent and/or members of the consortium are banking with
them, that they are in good financial standing, and that they have
adequate resources. The government agency/LGU concerned shall
determine on a project-to-project basis and before pre-qualification,
the minimum amount of equity needed. (emphasis supplied)
Pursuant to this provision, the PBAC issued PBAC Bulletin No. 3 dated
August 16, 1996 amending the financial capability requirements for pre-
qualification of the project proponent as follows:
6. Basis of Pre-qualification
The basis for the pre-qualification shall be on the compliance of the
proponent to the minimum technical and financial requirements
provided in the Bid Documents and in the IRR of the BOT Law, R.A.
No. 6957, as amended by R.A. 7718.
The minimum amount of equity to which the proponent's financial
capability will be based shall be thirty percent (30%) of the project
cost instead of the twenty percent (20%) specified in Section
3.6.4 of the Bid Documents. This is to correlate with the required
debt-to-equity ratio of 70:30 in Section 2.01a of the draft concession
agreement. The debt portion of the project financing should not
exceed 70% of the actual project cost.
Accordingly, based on the above provisions of law, the Paircargo Consortium
or any challenger to the unsolicited proposal of AEDC has to show that it
possesses the requisite financial capability to undertake the project in the
minimum amount of 30% of the project cost through (i) proof of the ability
to provide a minimum amount of equity to the project, and (ii) a letter
testimonial from reputable banks attesting that the project proponent or
members of the consortium are banking with them, that they are in good
financial standing, and that they have adequate resources.
As the minimum project cost was estimated to be US$350,000,000.00 or
roughly P9,183,650,000.00,25 the Paircargo Consortium had to show to the
satisfaction of the PBAC that it had the ability to provide the minimum equity
for the project in the amount of at least P2,755,095,000.00.
Paircargo's Audited Financial Statements as of 1993 and 1994 indicated that it
had a net worth of P2,783,592.00 and P3,123,515.00 respectively.26 PAGS'
Audited Financial Statements as of 1995 indicate that it has approximately
P26,735,700.00 to invest as its equity for the project.27 Security Bank's
Audited Financial Statements as of 1995 show that it has a net worth
equivalent to its capital funds in the amount of P3,523,504,377.00.28
We agree with public respondents that with respect to Security Bank,
the entire amount of its net worth could not be invested in a single
undertaking or enterprise, whether allied or non-allied in accordance with the
provisions of R.A. No. 337, as amended or the General Banking Act:
Sec. 21-B. The provisions in this or in any other Act to the contrary
notwithstanding, the Monetary Board, whenever it shall deem
appropriate and necessary to further national development objectives
or support national priority projects, may authorize a commercial
bank, a bank authorized to provide commercial banking services,
as well as a government-owned and controlled bank, to operate
under an expanded commercial banking authority and by virtue
thereof exercise, in addition to powers authorized for commercial
banks, the powers of an Investment House as provided in
Presidential Decree No. 129, invest in the equity of a non-allied
undertaking, or own a majority or all of the equity in a financial
intermediary other than a commercial bank or a bank authorized to
provide commercial banking services:Provided, That (a) the total
investment in equities shall not exceed fifty percent (50%) of the net
worth of the bank; (b) the equity investment in any one enterprise
whether allied or non-allied shall not exceed fifteen percent (15%)
of the net worth of the bank; (c) the equity investment of the bank,
or of its wholly or majority-owned subsidiary, in a single non-allied
undertaking shall not exceed thirty-five percent (35%) of the total
equity in the enterprise nor shall it exceed thirty-five percent (35%) of
the voting stock in that enterprise; and (d) the equity investment in
other banks shall be deducted from the investing bank's net worth for
purposes of computing the prescribed ratio of net worth to risk assets.
xxx xxx xxx
Further, the 1993 Manual of Regulations for Banks provides:
SECTION X383. Other Limitations and Restrictions. The following
limitations and restrictions shall also apply regarding equity
investments of banks.
a. In any single enterprise. The equity investments of banks in any
single enterprise shall not exceed at any time fifteen percent (15%) of
the net worth of the investing bank as defined in Sec. X106 and
Subsec. X121.5.
Thus, the maximum amount that Security Bank could validly invest in the
Paircargo Consortium is only P528,525,656.55, representing 15% of its entire
net worth. The total net worth therefore of the Paircargo Consortium, after
considering the maximum amounts that may be validly invested by each of
its members isP558,384,871.55 or only 6.08% of the project cost,29 an
amount substantially less than the prescribed minimum equity investment
required for the project in the amount of P2,755,095,000.00 or 30% of the
project cost.
The purpose of pre-qualification in any public bidding is to determine, at the
earliest opportunity, the ability of the bidder to undertake the project. Thus,
with respect to the bidder's financial capacity at the pre-qualification stage, the
law requires the government agency to examine and determine the ability of
the bidder to fund the entire cost of the project by considering the maximum
amounts that each bidder may invest in the project at the time of pre-
qualification.
The PBAC has determined that any prospective bidder for the construction,
operation and maintenance of the NAIA IPT III project should prove that it has
the ability to provide equity in the minimum amount of 30% of the project cost,
in accordance with the 70:30 debt-to-equity ratio prescribed in the Bid
Documents. Thus, in the case of Paircargo Consortium, the PBAC should
determine the maximum amounts that each member of the consortium may
commit for the construction, operation and maintenance of the NAIA IPT III
project at the time of pre-qualification. With respect to Security Bank,
the maximum amount which may be invested by it would only be 15% of its
net worth in view of the restrictions imposed by the General Banking Act.
Disregarding the investment ceilings provided by applicable law would not
result in a proper evaluation of whether or not a bidder is pre-qualified to
undertake the project as for all intents and purposes, such ceiling or legal
restriction determines the true maximum amount which a bidder may invest
in the project.
Further, the determination of whether or not a bidder is pre-qualified to
undertake the project requires an evaluation of the financial capacity of the
said bidder at the time the bid is submitted based on the required
documents presented by the bidder. The PBAC should not be allowed to
speculate on the future financial ability of the bidder to undertake the project
on the basis of documents submitted. This would open doors to abuse and
defeat the very purpose of a public bidding. This is especially true in the case
at bar which involves the investment of billions of pesos by the project
proponent. The relevant government authority is duty-bound to ensure that the
awardee of the contract possesses the minimum required financial capability
to complete the project. To allow the PBAC to estimate the bidder's future
financial capability would not secure the viability and integrity of the project. A
restrictive and conservative application of the rules and procedures of public
bidding is necessary not only to protect the impartiality and regularity of the
proceedings but also to ensure the financial and technical reliability of the
project. It has been held that:
The basic rule in public bidding is that bids should be evaluated based
on the required documents submitted before and not after the opening
of bids. Otherwise, the foundation of a fair and competitive public
bidding would be defeated. Strict observance of the rules,
regulations, and guidelines of the bidding process is the only
safeguard to a fair, honest and competitive public bidding.30
Thus, if the maximum amount of equity that a bidder may invest in the
project at the time the bids are submittedfalls short of the minimum
amounts required to be put up by the bidder, said bidder should be properly
disqualified. Considering that at the pre-qualification stage, the maximum
amounts which the Paircargo Consortium may invest in the project fell short of
the minimum amounts prescribed by the PBAC, we hold that Paircargo
Consortium was not a qualified bidder. Thus the award of the contract by the
PBAC to the Paircargo Consortium, a disqualified bidder, is null and void.
While it would be proper at this juncture to end the resolution of the instant
controversy, as the legal effects of the disqualification of respondent
PIATCO's predecessor would come into play and necessarily result in the
nullity of all the subsequent contracts entered by it in pursuance of the project,
the Court feels that it is necessary to discuss in full the pressing issues of the
present controversy for a complete resolution thereof.
II
Is the 1997 Concession Agreement valid?
Petitioners and public respondents contend that the 1997 Concession
Agreement is invalid as it contains provisions that substantially depart from
the draft Concession Agreement included in the Bid Documents. They
maintain that a substantial departure from the draft Concession Agreement is
a violation of public policy and renders the 1997 Concession Agreement null
and void.
PIATCO maintains, however, that the Concession Agreement attached to the
Bid Documents is intended to be adraft, i.e., subject to change, alteration or
modification, and that this intention was clear to all participants, including
AEDC, and DOTC/MIAA. It argued further that said intention is expressed in
Part C (6) of Bid Bulletin No. 3 issued by the PBAC which states:
6. Amendments to the Draft Concessions Agreement
Amendments to the Draft Concessions Agreement shall be issued
from time to time. Said amendments shall only cover items that would
not materially affect the preparation of the proponent's proposal.
By its very nature, public bidding aims to protect the public interest by giving
the public the best possible advantages through open competition. Thus:
Competition must be legitimate, fair and honest. In the field of
government contract law, competition requires, not only `bidding upon
a common standard, a common basis, upon the same thing, the same
subject matter, the same undertaking,' but also that it be legitimate,
fair and honest; and not designed to injure or defraud the
government.31
An essential element of a publicly bidded contract is that all bidders must be
on equal footing. Not simply in terms of application of the procedural rules and
regulations imposed by the relevant government agency, but more
importantly, on the contract bidded upon. Each bidder must be able to bid on
the same thing. The rationale is obvious. If the winning bidder is allowed to
later include or modify certain provisions in the contract awarded such that the
contract is altered in any material respect, then the essence of fair competition
in the public bidding is destroyed. A public bidding would indeed be a farce if
after the contract is awarded, the winning bidder may modify the contract and
include provisions which are favorable to it that were not previously made
available to the other bidders. Thus:
It is inherent in public biddings that there shall be a fair competition
among the bidders. The specifications in such biddings provide the
common ground or basis for the bidders. The specifications should,
accordingly, operate equally or indiscriminately upon all bidders.32
The same rule was restated by Chief Justice Stuart of the Supreme Court of
Minnesota:
The law is well settled that where, as in this case, municipal authorities
can only let a contract for public work to the lowest responsible bidder,
the proposals and specifications therefore must be so framed as to
permit free and full competition. Nor can they enter into a contract
with the best bidder containing substantial provisions beneficial
to him, not included or contemplated in the terms and
specifications upon which the bids were invited.33
In fact, in the PBAC Bid Bulletin No. 3 cited by PIATCO to support its
argument that the draft concession agreement is subject to amendment, the
pertinent portion of which was quoted above, the PBAC also clarified
that "[s]aid amendments shall only cover items that would not materially
affect the preparation of the proponent's proposal."
While we concede that a winning bidder is not precluded from modifying or
amending certain provisions of the contract bidded upon, such changes must
not constitute substantial or material amendments that would alter the
basic parameters of the contract and would constitute a denial to the
other bidders of the opportunity to bid on the same terms. Hence, the
determination of whether or not a modification or amendment of a contract
bidded out constitutes a substantial amendment rests on whether the contract,
when taken as a whole, would contain substantially different terms and
conditions that would have the effect of altering the technical and/or financial
proposals previously submitted by other bidders. The alterations and
modifications in the contract executed between the government and the
winning bidder must be such as to render such executed contract to be an
entirely different contract from the one that was bidded upon.
In the case of Caltex (Philippines), Inc. v. Delgado Brothers, Inc.,34 this
Court quoted with approval the ruling of the trial court that an amendment to a
contract awarded through public bidding, when such subsequent amendment
was made without a new public bidding, is null and void:
The Court agrees with the contention of counsel for the plaintiffs that
the due execution of a contract after public bidding is a limitation upon
the right of the contracting parties to alter or amend it without another
public bidding, for otherwise what would a public bidding be good
for if after the execution of a contract after public bidding, the
contracting parties may alter or amend the contract, or even
cancel it, at their will?Public biddings are held for the protection of
the public, and to give the public the best possible advantages by
means of open competition between the bidders. He who bids or
offers the best terms is awarded the contract subject of the bid, and it
is obvious that such protection and best possible advantages to the
public will disappear if the parties to a contract executed after public
bidding may alter or amend it without another previous public
bidding.35
Hence, the question that comes to fore is this: is the 1997 Concession
Agreement the same agreement that was offered for public bidding, i.e., the
draft Concession Agreement attached to the Bid Documents? A close
comparison of the draft Concession Agreement attached to the Bid
Documents and the 1997 Concession Agreement reveals that the documents
differ in at least two material respects:
a. Modification on the Public
Utility Revenues and Non-Public
Utility Revenues that may be
collected by PIATCO
The fees that may be imposed and collected by PIATCO under the draft
Concession Agreement and the 1997 Concession Agreement may be
classified into three distinct categories: (1) fees which are subject to periodic
adjustment of once every two years in accordance with a prescribed
parametric formula and adjustments are made effective only upon written
approval by MIAA; (2) fees other than those included in the first category
which maybe adjusted by PIATCO whenever it deems necessary without
need for consent of DOTC/MIAA; and (3) new fees and charges that may be
imposed by PIATCO which have not been previously imposed or collected at
the Ninoy Aquino International Airport Passenger Terminal I, pursuant to
Administrative Order No. 1, Series of 1993, as amended. The glaring
distinctions between the draft Concession Agreement and the 1997
Concession Agreement lie in the types of fees included in each category and
the extent of the supervision and regulation which MIAA is allowed to exercise
in relation thereto.
For fees under the first category, i.e., those which are subject to periodic
adjustment in accordance with a prescribed parametric formula and effective
only upon written approval by MIAA, the draft Concession
Agreementincludes the following:36
(1) aircraft parking fees;
(2) aircraft tacking fees;
(3) groundhandling fees;
(4) rentals and airline offices;
(5) check-in counter rentals; and
(6) porterage fees.
Under the 1997 Concession Agreement, fees which are subject to
adjustment and effective upon MIAA approval are classified as "Public Utility
Revenues" and include:37
(1) aircraft parking fees;
(2) aircraft tacking fees;
(3) check-in counter fees; and
(4) Terminal Fees.
The implication of the reduced number of fees that are subject to MIAA
approval is best appreciated in relation to fees included in the second
category identified above. Under the 1997 Concession Agreement, fees
which PIATCO may adjust whenever it deems necessary without need for
consent of DOTC/MIAA are "Non-Public Utility Revenues" and is defined as
"all other income not classified as Public Utility Revenues derived from
operations of the Terminal and the Terminal Complex."38 Thus, under the 1997
Concession Agreement, ground handling fees, rentals from airline offices and
porterage fees are no longer subject to MIAA regulation.
Further, under Section 6.03 of the draft Concession Agreement, MIAA
reserves the right to regulate (1) lobby and vehicular parking fees and (2)
other new fees and charges that may be imposed by PIATCO. Such
regulation may be made by periodic adjustment and is effective only upon
written approval of MIAA. The full text of said provision is quoted below:
Section 6.03. Periodic Adjustment in Fees and Charges. Adjustments
in the aircraft parking fees, aircraft tacking fees, groundhandling fees,
rentals and airline offices, check-in-counter rentals and porterage fees
shall be allowed only once every two years and in accordance with the
Parametric Formula attached hereto as Annex F. Provided that
adjustments shall be made effective only after the written express
approval of the MIAA. Provided, further, that such approval of the
MIAA, shall be contingent only on the conformity of the adjustments
with the above said parametric formula. The first adjustment shall be
made prior to the In-Service Date of the Terminal.
 The MIAA reserves the right to regulate under the foregoing
terms and conditions the lobby and vehicular parking fees and
other new fees and charges as contemplated in paragraph 2 of
Section 6.01 if in its judgment the users of the airport shall be
deprived of a free option for the services they cover.39
On the other hand, the equivalent provision under the 1997 Concession
Agreement reads:
Section 6.03 Periodic Adjustment in Fees and Charges.
xxx xxx xxx
(c) Concessionaire shall at all times be judicious in fixing fees and
charges constituting Non-Public Utility Revenues in order to ensure
that End Users are not unreasonably deprived of services. While the
vehicular parking fee, porterage fee and greeter/well wisher fee
constitute Non-Public Utility Revenues of Concessionaire, GRP
may intervene and require Concessionaire to explain and justify
the fee it may set from time to time, if in the reasonable opinion of
GRP the said fees have become exorbitant resulting in the
unreasonable deprivation of End Users of such services.40
Thus, under the 1997 Concession Agreement, with respect to (1) vehicular
parking fee, (2) porterage fee and (3) greeter/well wisher fee, all that MIAA
can do is to require PIATCO to explain and justify the fees set by PIATCO.
In the draft Concession Agreement, vehicular parking fee is subject to MIAA
regulation and approval under the second paragraph of Section 6.03 thereof
while porterage fee is covered by the first paragraph of the same provision.
There is an obvious relaxation of the extent of control and regulation by MIAA
with respect to the particular fees that may be charged by PIATCO.
Moreover, with respect to the third category of fees that may be imposed and
collected by PIATCO, i.e., new fees and charges that may be imposed by
PIATCO which have not been previously imposed or collected at the Ninoy
Aquino International Airport Passenger Terminal I, under Section 6.03 of
the draft Concession Agreement MIAA has reserved the right to regulate
the same under the same conditions that MIAA may regulate fees under the
first category, i.e., periodic adjustment of once every two years in accordance
with a prescribed parametric formula and effective only upon written approval
by MIAA. However, under the 1997 Concession Agreement, adjustment of
fees under the third category is not subject to MIAA regulation.
With respect to terminal fees that may be charged by PIATCO,41 as shown
earlier, this was included within the category of "Public Utility Revenues"
under the 1997 Concession Agreement. This classification is significant
because under the 1997 Concession Agreement, "Public Utility Revenues"
are subject to an "Interim Adjustment" of fees upon the occurrence of certain
extraordinary events specified in the agreement.42 However, under the draft
Concession Agreement, terminal fees are not included in the types of fees
that may be subject to "Interim Adjustment."43
Finally, under the 1997 Concession Agreement, "Public Utility Revenues,"
except terminal fees, are denominated in US Dollars44 while payments to the
Government are in Philippine Pesos. In the draft Concession Agreement,no
such stipulation was included. By stipulating that "Public Utility Revenues" will
be paid to PIATCO in US Dollars while payments by PIATCO to the
Government are in Philippine currency under the 1997 Concession
Agreement, PIATCO is able to enjoy the benefits of depreciations of the
Philippine Peso, while being effectively insulated from the detrimental effects
of exchange rate fluctuations.
When taken as a whole, the changes under the 1997 Concession Agreement
with respect to reduction in the types of fees that are subject to MIAA
regulation and the relaxation of such regulation with respect to other fees are
significant amendments that substantially distinguish the draft Concession
Agreement from the 1997 Concession Agreement. The 1997 Concession
Agreement, in this respect, clearly gives PIATCO more favorable terms
than what was available to other bidders at the time the contract was
bidded out. It is not very difficult to see that the changes in the 1997
Concession Agreement translate to direct and concrete financial
advantages for PIATCO which were not available at the time the contract
was offered for bidding. It cannot be denied that under the 1997 Concession
Agreement only "Public Utility Revenues" are subject to MIAA regulation.
Adjustments of all other fees imposed and collected by PIATCO are entirely
within its control. Moreover, with respect to terminal fees, under the 1997
Concession Agreement, the same is further subject to "Interim Adjustments"
not previously stipulated in the draft Concession Agreement. Finally, the
change in the currency stipulated for "Public Utility Revenues" under the 1997
Concession Agreement, except terminal fees, gives PIATCO an added benefit
which was not available at the time of bidding.
b. Assumption by the
Government of the liabilities of
PIATCO in the event of the latter's
default thereof
Under the draft Concession Agreement, default by PIATCO of any of its
obligations to creditors who have provided, loaned or advanced funds for the
NAIA IPT III project does not result in the assumption by the Government of
these liabilities. In fact, nowhere in the said contract does default of PIATCO's
loans figure in the agreement. Such default does not directly result in any
concomitant right or obligation in favor of the Government.
However, the 1997 Concession Agreement provides:
Section 4.04 Assignment.
xxx xxx xxx
(b) In the event Concessionaire should default in the payment of an
Attendant Liability, and the default has resulted in the acceleration of
the payment due date of the Attendant Liability prior to its stated date
of maturity, the Unpaid Creditors and Concessionaire shall
immediately inform GRP in writing of such default. GRP shall, within
one hundred eighty (180) Days from receipt of the joint written notice
of the Unpaid Creditors and Concessionaire, either (i) take over the
Development Facility and assume the Attendant Liabilities, or (ii) allow
the Unpaid Creditors, if qualified, to be substituted as concessionaire
and operator of the Development Facility in accordance with the terms
and conditions hereof, or designate a qualified operator acceptable to
 GRP to operate the Development Facility, likewise under the terms
and conditions of this Agreement; Provided that if at the end of the
180-day period GRP shall not have served the Unpaid Creditors and
Concessionaire written notice of its choice, GRP shall be deemed to
have elected to take over the Development Facility with the
concomitant assumption of Attendant Liabilities.
(c) If GRP should, by written notice, allow the Unpaid Creditors to be
substituted as concessionaire, the latter shall form and organize a
concession company qualified to take over the operation of the
Development Facility. If the concession company should elect to
designate an operator for the Development Facility, the concession
company shall in good faith identify and designate a qualified operator
acceptable to GRP within one hundred eighty (180) days from receipt
of GRP's written notice. If the concession company, acting in good
faith and with due diligence, is unable to designate a qualified operator
within the aforesaid period, then GRP shall at the end of the 180-day
period take over the Development Facility and assume Attendant
Liabilities.
The term "Attendant Liabilities" under the 1997 Concession Agreement is
defined as:
Attendant Liabilities refer to all amounts recorded and from time to
time outstanding in the books of the Concessionaire as owing to
Unpaid Creditors who have provided, loaned or advanced funds
actually used for the Project, including all interests, penalties,
associated fees, charges, surcharges, indemnities, reimbursements
and other related expenses, and further including amounts owed by
Concessionaire to its suppliers, contractors and sub-contractors.
Under the above quoted portions of Section 4.04 in relation to the definition of
"Attendant Liabilities," default by PIATCO of its loans used to finance the
NAIA IPT III project triggers the occurrence of certain events that leads
to the assumption by the Government of the liability for the loans. Only in
one instance may the Government escape the assumption of PIATCO's
liabilities, i.e., when the Government so elects and allows a qualified operator
to take over as Concessionaire. However, this circumstance is dependent
on the existence and availability of a qualified operator who is willing to
take over the rights and obligations of PIATCO under the contract, a
circumstance that is not entirely within the control of the Government.
Without going into the validity of this provision at this juncture, suffice it to
state that Section 4.04 of the 1997 Concession Agreement may be considered
a form of security for the loans PIATCO has obtained to finance the project,
an option that was not made available in the draft Concession Agreement.
Section 4.04 is an important amendment to the 1997 Concession Agreement
because it grants PIATCO a financial advantage or benefit which was not
previously made available during the bidding process. This financial
advantage is a significant modification that translates to better terms and
conditions for PIATCO.
PIATCO, however, argues that the parties to the bidding procedure
acknowledge that the draft Concession Agreement is subject to amendment
because the Bid Documents permit financing or borrowing. They claim that it
was the lenders who proposed the amendments to the draft Concession
Agreement which resulted in the 1997 Concession Agreement.
We agree that it is not inconsistent with the rationale and purpose of the BOT
Law to allow the project proponent or the winning bidder to obtain financing for
the project, especially in this case which involves the construction, operation
and maintenance of the NAIA IPT III. Expectedly, compliance by the project
proponent of its undertakings therein would involve a substantial amount of
investment. It is therefore inevitable for the awardee of the contract to seek
alternate sources of funds to support the project. Be that as it may, this Court
maintains that amendments to the contract bidded upon should always
conform to the general policy on public bidding if such procedure is to be
faithful to its real nature and purpose. By its very nature and characteristic,
competitive public bidding aims to protect the public interest by giving the
public the best possible advantages through open competition.45 It has been
held that the three principles in public bidding are (1) the offer to the public; (2)
opportunity for competition; and (3) a basis for the exact comparison of bids. A
regulation of the matter which excludes any of these factors destroys the
distinctive character of the system and thwarts the purpose of its
adoption.46 These are the basic parameters which every awardee of a contract
bidded out must conform to, requirements of financing and borrowing
notwithstanding. Thus, upon a concrete showing that, as in this case, the
contract signed by the government and the contract-awardee is an entirely
different contract from the contract bidded, courts should not hesitate to strike
down said contract in its entirety for violation of public policy on public bidding.
A strict adherence on the principles, rules and regulations on public bidding
must be sustained if only to preserve the integrity and the faith of the general
public on the procedure.
Public bidding is a standard practice for procuring government contracts for
public service and for furnishing supplies and other materials. It aims to
secure for the government the lowest possible price under the most favorable
terms and conditions, to curtail favoritism in the award of government
contracts and avoid suspicion of anomalies and it places all bidders in equal
footing.47 Any government action which permits any substantial variance
between the conditions under which the bids are invited and the
contract executed after the award thereof is a grave abuse of discretion
amounting to lack or excess of jurisdiction which warrants proper
judicial action.
In view of the above discussion, the fact that the foregoing substantial
amendments were made on the 1997 Concession Agreement renders the
same null and void for being contrary to public policy. These amendments
convert the 1997 Concession Agreement to an entirely different
agreement from the contract bidded out or the draft Concession Agreement.
It is not difficult to see that the amendments on (1) the types of fees or
charges that are subject to MIAA regulation or control and the extent thereof
and (2) the assumption by the Government, under certain conditions, of the
liabilities of PIATCO directly translates concrete financial advantages to
PIATCO that were previously not available during the bidding process.
These amendments cannot be taken as merely supplements to or
implementing provisions of those already existing in the draft Concession
Agreement. The amendments discussed above present new terms and
conditions which provide financial benefit to PIATCO which may have altered
the technical and financial parameters of other bidders had they known that
such terms were available.
III
Direct Government Guarantee
Article IV, Section 4.04(b) and (c), in relation to Article 1.06, of the 1997
Concession Agreement provides:
Section 4.04 Assignment
xxx xxx xxx
(b) In the event Concessionaire should default in the payment of an
Attendant Liability, and the default resulted in the acceleration of the
payment due date of the Attendant Liability prior to its stated date of
maturity, the Unpaid Creditors and Concessionaire shall immediately
inform GRP in writing of such default. GRP shall within one hundred
eighty (180) days from receipt of the joint written notice of the Unpaid
Creditors and Concessionaire, either (i) take over the Development
Facility and assume the Attendant Liabilities, or (ii) allow the Unpaid
Creditors, if qualified to be substituted as concessionaire and operator
of the Development facility in accordance with the terms and
conditions hereof, or designate a qualified operator acceptable to GRP
to operate the Development Facility, likewise under the terms and
conditions of this Agreement; Provided, that if at the end of the 180-
day period GRP shall not have served the Unpaid Creditors and
Concessionaire written notice of its choice, GRP shall be deemed to
have elected to take over the Development Facility with the
concomitant assumption of Attendant Liabilities.
(c) If GRP, by written notice, allow the Unpaid Creditors to be
substituted as concessionaire, the latter shall form and organize a
concession company qualified to takeover the operation of the
Development Facility. If the concession company should elect to
designate an operator for the Development Facility, the concession
company shall in good faith identify and designate a qualified operator
acceptable to GRP within one hundred eighty (180) days from receipt
of GRP's written notice. If the concession company, acting in good
faith and with due diligence, is unable to designate a qualified operator
within the aforesaid period, then GRP shall at the end of the 180-day
period take over the Development Facility and assume Attendant
Liabilities.
. project proponent in implementing the project in case of a loan
Section 1.06. Attendant Liabilities
Attendant Liabilities refer to all amounts recorded and from time to
time outstanding in the books of the Concessionaire as owing to
Unpaid Creditors who have provided, loaned or advanced funds
actually used for the Project, including all interests, penalties,
associated fees, charges, surcharges, indemnities, reimbursements
and other related expenses, and further including amounts owed by
Concessionaire to its suppliers, contractors and sub-contractors.48
It is clear from the above-quoted provisions that Government, in the event
that PIATCO defaults in its loan obligations, is obligated to pay "all
amounts recorded and from time to time outstanding from the books" of
PIATCO which the latter owes to its creditors.49 These amounts include "all
interests, penalties, associated fees, charges, surcharges, indemnities,
reimbursements and other related expenses."50 This obligation of the
Government to pay PIATCO's creditors upon PIATCO's default would arise if
the Government opts to take over NAIA IPT III. It should be noted, however,
that even if the Government chooses the second option, which is to allow
PIATCO's unpaid creditors operate NAIA IPT III, the Government is still at a
risk of being liable to PIATCO's creditors should the latter be unable to
designate a qualified operator within the prescribed period.51 In
effect,whatever option the Government chooses to take in the event of
PIATCO's failure to fulfill its loan obligations, the Government is still at a
risk of assuming PIATCO's outstanding loans. This is due to the fact that
the Government would only be free from assuming PIATCO's debts if the
unpaid creditors would be able to designate a qualified operator within the
period provided for in the contract. Thus, the Government's assumption of
liability is virtually out of its control. The Government under the
circumstances provided for in the 1997 Concession Agreement is at the mercy
of the existence, availability and willingness of a qualified operator. The above
contractual provisions constitute a direct government guarantee which is
prohibited by law.
One of the main impetus for the enactment of the BOT Law is the lack of
government funds to construct the infrastructure and development projects
necessary for economic growth and development. This is why private sector
resources are being tapped in order to finance these projects. The BOT law
allows the private sector to participate, and is in fact encouraged to do so by
way of incentives, such as minimizing the unstable flow of returns,52 provided
that the government would not have to unnecessarily expend scarcely
available funds for the project itself. As such, direct guarantee, subsidy and
equity by the government in these projects are strictly prohibited.53 This is but
logical for if the government would in the end still be at a risk of paying
the debts incurred by the private entity in the BOT projects, then the
purpose of the law is subverted.
Section 2(n) of the BOT Law defines direct guarantee as follows:
(n) Direct government guarantee An agreement whereby the
government or any of its agencies or local government units assume
responsibility for the repayment of debt directly incurred by the
default.
Clearly by providing that the Government "assumes" the attendant liabilities,
which consists of PIATCO's unpaid debts, the 1997 Concession Agreement
provided for a direct government guarantee for the debts incurred by PIATCO
in the implementation of the NAIA IPT III project. It is of no moment that the
relevant sections are subsumed under the title of "assignment". The
provisions providing for direct government guarantee which is prohibited by
law is clear from the terms thereof.
The fact that the ARCA superseded the 1997 Concession Agreement did not
cure this fatal defect. Article IV, Section 4.04(c), in relation to Article I, Section
1.06, of the ARCA provides:
Section 4.04 Security
xxx xxx xxx
(c) GRP agrees with Concessionaire (PIATCO) that it shall negotiate
in good faith and enter into direct agreement with the Senior
Lenders, or with an agent of such Senior Lenders (which agreement
shall be subject to the approval of the Bangko Sentral ng Pilipinas), in
such form as may be reasonably acceptable to both GRP and Senior
Lenders, with regard, inter alia, to the following parameters:
xxx xxx xxx
(iv) If the Concessionaire [PIATCO] is in default under a
payment obligation owed to the Senior Lenders, and as a
result thereof the Senior Lenders have become entitled to
accelerate the Senior Loans, the Senior Lenders shall have
the right to notify GRP of the same, and without prejudice to
any other rights of the Senior Lenders or any Senior Lenders'
agent may have (including without limitation under security
interests granted in favor of the Senior Lenders), to either in
good faith identify and designate a nominee which is qualified
under sub-clause (viii)(y) below to operate the Development
Facility [NAIA Terminal 3] or transfer the Concessionaire's
[PIATCO] rights and obligations under this Agreement to a
transferee which is qualified under sub-clause (viii) below;
xxx xxx xxx
(vi) if the Senior Lenders, acting in good faith and using
reasonable efforts, are unable to designate a nominee or
effect a transfer in terms and conditions satisfactory to the
Senior Lenders within one hundred eighty (180) days after
giving GRP notice as referred to respectively in (iv) or (v)
above, then GRP and the Senior Lenders shall endeavor in
good faith to enter into any other arrangement relating to the
Development Facility [NAIA Terminal 3] (other than a turnover
of the Development Facility [NAIA Terminal 3] to GRP) within
the following one hundred eighty (180) days. If no
agreement relating to the Development Facility [NAIA
Terminal 3] is arrived at by GRP and the Senior Lenders within
the said 180-day period, then at the end thereof
the Development Facility [NAIA Terminal 3] shall be
transferred by the Concessionaire [PIATCO] to GRP or its
designee and GRP shall make a termination payment to
Concessionaire [PIATCO] equal to the Appraised Value
(as hereinafter defined) of the Development Facility [NAIA
Terminal 3] or the sum of the Attendant Liabilities, if
greater. Notwithstanding Section 8.01(c) hereof, this
Agreement shall be deemed terminated upon the transfer of
the Development Facility [NAIA Terminal 3] to GRP pursuant
hereto;
xxx xxx xxx
Section 1.06. Attendant Liabilities
Attendant Liabilities refer to all amounts in each case supported by
verifiable evidence from time to timeowed or which may become
owing by Concessionaire [PIATCO] to Senior Lenders or any
other persons or entities who have provided, loaned, or advanced
funds or provided financial facilities to Concessionaire
[PIATCO] for the Project [NAIA Terminal 3], including, without
limitation, all principal, interest, associated fees, charges,
reimbursements, and other related expenses (including the fees,
charges and expenses of any agents or trustees of such persons or
entities), whether payable at maturity, by acceleration or otherwise,
and further including amounts owed by Concessionaire [PIATCO] to
its professional consultants and advisers, suppliers, contractors and
sub-contractors.54
It is clear from the foregoing contractual provisions that in the event that
PIATCO fails to fulfill its loan obligations to its Senior Lenders, the
Government is obligated to directly negotiate and enter into an agreement
relating to NAIA IPT III with the Senior Lenders, should the latter fail to appoint
a qualified nominee or transferee who will take the place of PIATCO. If the
Senior Lenders and the Government are unable to enter into an agreement
after the prescribed period, the Government must then pay PIATCO, upon
transfer of NAIA IPT III to the Government, termination payment equal to the
appraised value of the project or the value of the attendant liabilities
whichever is greater. Attendant liabilities as defined in the ARCA includes all
amounts owed or thereafter may be owed by PIATCO not only to the Senior
Lenders with whom PIATCO has defaulted in its loan obligations but to all
other persons who may have loaned, advanced funds or provided any other
type of financial facilities to PIATCO for NAIA IPT III. The amount of PIATCO's
debt that the Government would have to pay as a result of PIATCO's default
in its loan obligations -- in case no qualified nominee or transferee is
appointed by the Senior Lenders and no other agreement relating to NAIA IPT
III has been reached between the Government and the Senior Lenders --
includes, but is not limited to, "all principal, interest, associated fees, charges,
reimbursements, and other related expenses . . . whether payable at maturity,
by acceleration or otherwise."55
It is clear from the foregoing that the ARCA provides for a direct
guarantee by the government to pay PIATCO's loans not only to its
Senior Lenders but all other entities who provided PIATCO funds or
services upon PIATCO's default in its loan obligation with its Senior
Lenders. The fact that the Government's obligation to pay PIATCO's lenders
for the latter's obligation would only arise after the Senior Lenders fail to
appoint a qualified nominee or transferee does not detract from the fact that,
should the conditions as stated in the contract occur, the ARCA still obligates
the Government to pay any and all amounts owed by PIATCO to its lenders in
connection with NAIA IPT III. Worse, the conditions that would make the
Government liable for PIATCO's debts is triggered by PIATCO's own default
of its loan obligations to its Senior Lenders to which loan contracts the
Government was never a party to. The Government was not even given an
option as to what course of action it should take in case PIATCO defaulted in
the payment of its senior loans. The Government, upon PIATCO's default,
would be merely notified by the Senior Lenders of the same and it is the
Senior Lenders who are authorized to appoint a qualified nominee or
transferee. Should the Senior Lenders fail to make such an appointment, the
Government is then automatically obligated to "directly deal and negotiate"
with the Senior Lenders regarding NAIA IPT III. The only way the Government
would not be liable for PIATCO's debt is for a qualified nominee or transferee
to be appointed in place of PIATCO to continue the construction, operation
and maintenance of NAIA IPT III. This "pre-condition", however, will not take
the contract out of the ambit of a direct guarantee by the government as the
existence, availability and willingness of a qualified nominee or transferee is
totally out of the government's control. As suchthe Government is virtually
at the mercy of PIATCO (that it would not default on its loan obligations to its
Senior Lenders), the Senior Lenders (that they would appoint a qualified
nominee or transferee or agree to some other arrangement with the
Government) and the existence of a qualified nominee or transferee who is
able and willing to take the place of PIATCO in NAIA IPT III.
The proscription against government guarantee in any form is one of the
policy considerations behind the BOT Law. Clearly, in the present case,
the ARCA obligates the Government to pay for all loans, advances and
obligations arising out of financial facilities extended to PIATCO for the
implementation of the NAIA IPT III project should PIATCO default in its loan
obligations to its Senior Lenders and the latter fails to appoint a qualified
nominee or transferee. This in effect would make the Government liable for
PIATCO's loans should the conditions as set forth in the ARCA arise. This is a
form of direct government guarantee.
The BOT Law and its implementing rules provide that in order for an
unsolicited proposal for a BOT project may be accepted, the following
conditions must first be met: (1) the project involves a new concept in
technology and/or is not part of the list of priority projects, (2) no direct
government guarantee, subsidy or equity is required, and (3) the
government agency or local government unit has invited by publication other
interested parties to a public bidding and conducted the same.56 The failure to
meet any of the above conditions will result in the denial of the proposal. It is
further provided that the presence of direct government guarantee, subsidy or
equity will "necessarily disqualify a proposal from being treated and accepted
as an unsolicited proposal."57 The BOT Law clearly and strictly prohibits direct
government guarantee, subsidy and equity in unsolicited proposals that the
mere inclusion of a provision to that effect is fatal and is sufficient to deny the
proposal. It stands to reason therefore that if a proposal can be denied by
reason of the existence of direct government guarantee, then its inclusion in
the contract executed after the said proposal has been accepted is likewise
sufficient to invalidate the contract itself. A prohibited provision, the inclusion
of which would result in the denial of a proposal cannot, and should not, be
allowed to later on be inserted in the contract resulting from the said proposal.
The basic rules of justice and fair play alone militate against such an
occurrence and must not, therefore, be countenanced particularly in this
instance where the government is exposed to the risk of shouldering hundreds
of million of dollars in debt.
This Court has long and consistently adhered to the legal maxim that those
that cannot be done directly cannot be done indirectly.58 To declare the
PIATCO contracts valid despite the clear statutory prohibition against a
direct government guarantee would not only make a mockery of what
the BOT Law seeks to prevent -- which is to expose the government to
the risk of incurring a monetary obligation resulting from a contract of
loan between the project proponent and its lenders and to which the
Government is not a party to -- but would also render the BOT Law
useless for what it seeks to achieve - to make use of the resources of
the private sector in the "financing, operation and maintenance of
infrastructure and development projects"59which are necessary for
national growth and development but which the government,
unfortunately, could ill-afford to finance at this point in time.
IV
Temporary takeover of business affected with public interest
Article XII, Section 17 of the 1987 Constitution provides:
Section 17. In times of national emergency, when the public interest
so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected with
public interest.
The above provision pertains to the right of the State in times of national
emergency, and in the exercise of its police power, to temporarily take over
the operation of any business affected with public interest. In the 1986
Constitutional Commission, the term "national emergency" was defined to
include threat from external aggression, calamities or national disasters, but
not strikes "unless it is of such proportion that would paralyze government
service."60 The duration of the emergency itself is the determining factor as to
how long the temporary takeover by the government would last.61 The
temporary takeover by the government extends only to the operation of the
business and not to the ownership thereof. As such the government is not
required to compensate the private entity-owner of the said business as
there is no transfer of ownership, whether permanent or temporary. The
private entity-owner affected by the temporary takeover cannot, likewise,
claim just compensation for the use of the said business and its properties as
the temporary takeover by the government is in exercise of its police
power and not of its power of eminent domain.
Article V, Section 5.10 (c) of the 1997 Concession Agreement provides:
Section 5.10 Temporary Take-over of operations by GRP.
.
(c) In the event the development Facility or any part thereof and/or the
operations of Concessionaire or any part thereof, become the subject
 matter of or be included in any notice, notification, or declaration
concerning or relating to acquisition, seizure or appropriation by GRP
in times of war or national emergency, GRP shall, by written notice to
Concessionaire, immediately take over the operations of the Terminal
and/or the Terminal Complex. During such take over by GRP, the
Concession Period shall be suspended; provided, that upon
termination of war, hostilities or national emergency, the operations
shall be returned to Concessionaire, at which time, the Concession
period shall commence to run again. Concessionaire shall be
entitled to reasonable compensation for the duration of the
temporary take over by GRP, which compensation shall take into
account the reasonable cost for the use of the Terminal and/or
Terminal Complex, (which is in the amount at least equal to the
debt service requirements of Concessionaire, if the temporary take
over should occur at the time when Concessionaire is still servicing
debts owed to project lenders), any loss or damage to the
Development Facility, and other consequential damages. If the parties
cannot agree on the reasonable compensation of Concessionaire, or
on the liability of GRP as aforesaid, the matter shall be resolved in
accordance with Section 10.01 [Arbitration]. Any amount determined
to be payable by GRP to Concessionaire shall be offset from the
amount next payable by Concessionaire to GRP.62
PIATCO cannot, by mere contractual stipulation, contravene the
Constitutional provision on temporary government takeover and
obligate the government to pay "reasonable cost for the use of the
Terminal and/or Terminal Complex."63 Article XII, section 17 of the 1987
Constitution envisions a situation wherein the exigencies of the times
necessitate the government to "temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest." It is
the welfare and interest of the public which is the paramount consideration in
determining whether or not to temporarily take over a particular business.
Clearly, the State in effecting the temporary takeover is exercising its police
power. Police power is the "most essential, insistent, and illimitable of
powers."64 Its exercise therefore must not be unreasonably hampered nor its
exercise be a source of obligation by the government in the absence of
damage due to arbitrariness of its exercise.65 Thus, requiring the government
to pay reasonable compensation for the reasonable use of the property
pursuant to the operation of the business contravenes the Constitution.
V reasonable regulation and supervision by the Government through the MIAA,
Regulation of Monopolies
A monopoly is "a privilege or peculiar advantage vested in one or more
persons or companies, consisting in the exclusive right (or power) to carry on
a particular business or trade, manufacture a particular article, or control the
sale of a particular commodity."66 The 1987 Constitution strictly regulates
monopolies, whether private or public, and even provides for their prohibition
if public interest so requires. Article XII, Section 19 of the 1987 Constitution
states:
Sec. 19. The state shall regulate or prohibit monopolies when the
public interest so requires. No combinations in restraint of trade or
unfair competition shall be allowed.
Clearly, monopolies are not per se prohibited by the Constitution but may be
permitted to exist to aid the government in carrying on an enterprise or to aid
in the performance of various services and functions in the interest of the
public.67 Nonetheless, a determination must first be made as to whether
public interest requires a monopoly. As monopolies are subject to abuses that
can inflict severe prejudice to the public, they are subject to a higher level of
State regulation than an ordinary business undertaking.
In the cases at bar, PIATCO, under the 1997 Concession Agreement and the
ARCA, is granted the "exclusive rightto operate a commercial international
passenger terminal within the Island of Luzon" at the NAIA IPT III.68 This is
with the exception of already existing international airports in Luzon such as
those located in the Subic Bay Freeport Special Economic Zone ("SBFSEZ"),
Clark Special Economic Zone ("CSEZ") and in Laoag City.69 As such, upon
commencement of PIATCO's operation of NAIA IPT III, Terminals 1 and 2 of
NAIA would cease to function as international passenger terminals. This,
however, does not prevent MIAA to use Terminals 1 and 2 as domestic
passenger terminals or in any other manner as it may deem appropriate
except those activities that would compete with NAIA IPT III in the latter's
operation as an international passenger terminal.70 The right granted to
PIATCO toexclusively operate NAIA IPT III would be for a period of twenty-
five (25) years from the In-Service Date71 and renewable for another twenty-
five (25) years at the option of the government.72 Both the 1997 Concession
Agreement and the ARCA further provide that, in view of the exclusive
right granted to PIATCO, the concession contracts of the service
providers currently servicing Terminals 1 and 2 would no longer be
renewed and those concession contracts whose expiration are
subsequent to the In-Service Date would cease to be effective on the
said date.73
The operation of an international passenger airport terminal is no doubt an
undertaking imbued with public interest. In entering into a BuildOperate-and-
Transfer contract for the construction, operation and maintenance of NAIA IPT
III, the government has determined that public interest would be served better
if private sector resources were used in its construction and an exclusive right
to operate be granted to the private entity undertaking the said project, in this
case PIATCO. Nonetheless, the privilege given to PIATCO is subject to
which is the government agency authorized to operate the NAIA complex, as
well as DOTC, the department to which MIAA is attached.74
This is in accord with the Constitutional mandate that a monopoly which is not
prohibited must be regulated.75 While it is the declared policy of the BOT Law
to encourage private sector participation by "providing a climate of minimum
government regulations,"76 the same does not mean that Government must
completely surrender its sovereign power to protect public interest in the
operation of a public utility as a monopoly. The operation of said public utility
can not be done in an arbitrary manner to the detriment of the public which it
seeks to serve. The right granted to the public utility may be exclusive but the
exercise of the right cannot run riot. Thus, while PIATCO may be authorized to
exclusively operate NAIA IPT III as an international passenger terminal, the
Government, through the MIAA, has the right and the duty to ensure that it is
done in accord with public interest. PIATCO's right to operate NAIA IPT III
cannot also violate the rights of third parties.
Section 3.01(e) of the 1997 Concession Agreement and the ARCA provide:
3.01 Concession Period
xxx xxx xxx
(e) GRP confirms that certain concession agreements relative to
certain services and operations currently being undertaken at the
Ninoy Aquino International Airport passenger Terminal I have a
validity period extending beyond the In-Service Date. GRP
through DOTC/MIAA, confirms that these services and
operations shall not be carried over to the Terminal and the
Concessionaire is under no legal obligation to permit such carry-
over except through a separate agreement duly entered into with
Concessionaire. In the event Concessionaire becomes involved in any
litigation initiated by any such concessionaire or operator, GRP
undertakes and hereby holds Concessionaire free and harmless on
full indemnity basis from and against any loss and/or any liability
resulting from any such litigation, including the cost of litigation and the
reasonable fees paid or payable to Concessionaire's counsel of
choice, all such amounts shall be fully deductible by way of an offset
from any amount which the Concessionaire is bound to pay GRP
under this Agreement.
During the oral arguments on December 10, 2002, the counsel for the
petitioners-in-intervention for G.R. No. 155001 stated that there are
two service providers whose contracts are still existing and whose
validity extends beyond the In-Service Date. One contract remains
valid until 2008 and the other until 2010.77
We hold that while the service providers presently operating at NAIA Terminal
1 do not have an absolute right for the renewal or the extension of their
respective contracts, those contracts whose duration extends beyond NAIA
IPT III's In-Service-Date should not be unduly prejudiced. These contracts
must be respected not just by the parties thereto but also by third parties.
PIATCO cannot, by law and certainly not by contract, render a valid and
binding contract nugatory. PIATCO, by the mere expedient of claiming an
exclusive right to operate, cannot require the Government to break its
contractual obligations to the service providers. In contrast to the arrastre and
stevedoring service providers in the case of Anglo-Fil Trading Corporation
v. Lazaro78 whose contracts consist of temporary hold-over permits, the
affected service providers in the cases at bar, have a valid and binding
contract with the Government, through MIAA, whose period of effectivity, as
well as the other terms and conditions thereof, cannot be violated.
In fine, the efficient functioning of NAIA IPT III is imbued with public interest.
The provisions of the 1997 Concession Agreement and the ARCA did not strip
government, thru the MIAA, of its right to supervise the operation of the whole
NAIA complex, including NAIA IPT III. As the primary government agency
tasked with the job,79 it is MIAA's responsibility to ensure that whoever by
contract is given the right to operate NAIA IPT III will do so within the bounds
of the law and with due regard to the rights of third parties and above all, the
interest of the public.
VI
CONCLUSION
In sum, this Court rules that in view of the absence of the requisite financial
capacity of the Paircargo Consortium, predecessor of respondent PIATCO,
the award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that the
1997 Concession Agreement contains material and substantial amendments,
which amendments had the effect of converting the 1997 Concession
Agreement into an entirely different agreement from the contract bidded upon,
the 1997 Concession Agreement is similarly null and void for being contrary to
public policy. The provisions under Sections 4.04(b) and (c) in relation to
Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in
relation to Section 1.06 of the ARCA, which constitute a direct government
guarantee expressly prohibited by, among others, the BOT Law and its
Implementing Rules and Regulations are also null and void. The
Supplements, being accessory contracts to the ARCA, are likewise null and
void.
WHEREFORE, the 1997 Concession Agreement, the Amended and Restated
Concession Agreement and the Supplements thereto are set aside for being
null and void.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Ynares-Santiago, Sandoval-Gutierrez, Austria-
Martinez, Corona, and Carpio-Morales, JJ., concur.
Vitug, J., see separate (dissenting) opinion.
Panganiban, J., please see separate opinion.
Quisumbing, J., no jurisdiction, please see separate opinion of J. Vitug in
which he concurs.
Carpio, J., no part.
Callejo, Sr., J., also concur in the separate opinion of J. Panganiban.
Azcuna, J., joins the separate opinion of J. Vitug.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127685 July 23, 1998
BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA,
CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR
SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE
NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION
ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F.
Ople to prevent the shrinking of the right to privacy, which the revered Mr.
Justice Brandeis considered as "the most comprehensive of rights and the
right most valued by civilized men." 1 Petitioner Ople prays that we invalidate
Administrative Order No. 308 entitled "Adoption of a National Computerized
Identification Reference System" on two important constitutional grounds, viz:
one, it is a usurpation of the power of Congress to legislate, and two, it
impermissibly intrudes on our citizenry's protected zone of privacy. We grant the
petition for the rights sought to be vindicated by the petitioner need stronger
barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996
and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and
foreign residents with the facility to conveniently transact
business with basic service and social security providers and
other government instrumentalities;
WHEREAS, this will require a computerized system to properly
and efficiently identify persons seeking basic services on
social security and reduce, if not totally eradicate fraudulent
transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the
various basic services and social security providing agencies
and other government intrumentalities is required to achieve
such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by virtue of the powers vested in
me by law, do hereby direct the following:
Sec. 1. Establishment of a National Compoterized
Identification Reference System. A decentralized Identification
Reference System among the key basic services and social
security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-
Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the implementation of
the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC) is
hereby designated as secretariat to the IACC and as such
shall provide administrative and technical support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference
Number (PRN) generated by the NSO shall serve as the
common reference number to establish a linkage among
concerned agencies. The IACC Secretariat shall coordinate
with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology
and in computer application designs of their respective
systems.
Sec. 5. Conduct of Information Dissemination Campaign. The
Office of the Press Secretary, in coordination with the National
Statistics Office, the GSIS and SSS as lead agencies and
other concerned agencies shall undertake a massive tri-media
information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and
the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation
of the system shall be sourced from the respective budgets of
the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and
SSS shall submit regular reports to the Office of the President
through the IACC, on the status of implementation of this
undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect
immediately.
DONE in the City of Manila, this 12th day of December in the
year of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed
the instant petition against respondents, then Executive Secretary Ruben
Torres and the heads of the government agencies, who as members of the
Inter-Agency Coordinating Committee, are charged with the implementation of
A.O. No. 308. On April 8, 1997, we issued a temporary restraining order
enjoining its implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM
REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O.
NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL
 USURPATION OF THE LEGISLATIVE POWERS OF THE
CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE
PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308
IS AN UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE
PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY
LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL
VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE
CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE
AS WOULD WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE
EXECUTIVE AND ADMINISTRATIVE POWERS OF THE
PRESIDENT WITHOUT ENCROACHING ON THE
LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION
OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE
SOURCED FROM THE BUDGETS OF THE CONCERNED
AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S
INTEREST IN PRIVACY. 3
We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold issues
relating to the standing to sue of the petitioner and the justiciability of the case
at bar. More specifically, respondents aver that petitioner has no legal interest
to uphold and that the implementing rules of A.O. No. 308 have yet to be
promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed of
the requisite standing to bring suit raising the issue that the issuance of A.O.
No. 308 is a usurpation of legislative power. 4 As taxpayer and member of the
Government Service Insurance System (GSIS), petitioner can also impugn the
legality of the misalignment of public funds and the misuse of GSIS funds to
implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is not affected by the fact
that the implementing rules of A.O. No. 308 have yet to be promulgated.
Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its
face. His action is not premature for the rules yet to be promulgated cannot
cure its fatal defects. Moreover, the respondents themselves have started the
implementation of A.O. No. 308 without waiting for the rules. As early as
January 19, 1997, respondent Social Security System (SSS) caused the
publication of a notice to bid for the manufacture of the National Identification
(ID) card. 6 Respondent Executive Secretary Torres has publicly announced that
representatives from the GSIS and the SSS have completed the guidelines for the
national identification system. 7 All signals from the respondents show their
unswerving will to implement A.O. No. 308 and we need not wait for the formality
of the rules to pass judgment on its constitutionality. In this light, the dissenters
insistence that we tighten the rule on standing is not a commendable stance as its
result would be to throttle an important constitutional principle and a fundamental
right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a
mere administrative order but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of
every Filipino citizen and foreign resident, and more particularly, violates their
right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the
lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of
power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by
this Court.
The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws, and
to alter and repeal them." 8 The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the Congress
of the Philippines. 9 The grant of legislative power to Congress is broad, general
and comprehensive. 10 The legislative body possesses plenary power for all
purposes of civil government. 11 Any power, deemed to be legislative by usage
and tradition, is necessarily possessed by Congress, unless the Constitution has
lodged it elsewhere. 12 In fine, except as limited by the Constitution, either
expressly or impliedly, legislative power embraces all subjects and extends to
matters of general concern or common interest. 13
While Congress is vested with the power to enact laws, the President
executes the laws. 14 The executive power is vested in the Presidents. 15 It is
generally defined as the power to enforce and administer the laws. 16 It is the
power of carrying the laws into practical operation and enforcing their due
observance. 17
As head of the Executive Department, the President is the Chief Executive.
He represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. 18 He has control
over the executive department, bureaus and offices. This means that he has the
authority to assume directly the functions of the executive department, bureau and
office or interfere with the discretion of its officials. 19 Corollary to the power of
control, the President also has the duty of supervising the enforcement of laws for
the maintenance of general peace and public order. Thus, he is granted
administrative power over bureaus and offices under his control to enable him to
discharge his duties effectively. 20
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. 21 It enables
the President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents. 22 To this end, he can issue administrative orders,
rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject
that is not appropriate to be covered by an administrative order. An
administrative order is:
Sec. 3. Administrative Orders. Acts of the President which
relate to particular aspects of governmental operation in
pursuance of his duties as administrative head shall be
promulgated in administrative orders. 23
An administrative order is an ordinance issued by the President which
relates to specific aspects in the administrative operation of
government. It must be in harmony with the law and should be for the
sole purpose of implementing the law and carrying out the legislative
policy. 24 We reject the argument that A.O. No. 308 implements the
legislative policy of the Administrative Code of 1987. The Code is a
general law and "incorporates in a unified document the major structural,
functional and procedural principles of governance." 25 and "embodies
changes in administrative structure and procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with
Sovereignty and General Administration, Book II with the Distribution of
Powers of the three branches of Government, Book III on the Office of the
President, Book IV on the Executive Branch, Book V on Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII
on Administrative Procedure. These Books contain provisions on the
organization, powers and general administration of the executive,
legislative and judicial branches of government, the organization and
administration of departments, bureaus and offices under the executive
branch, the organization and functions of the Constitutional Commissions
and other constitutional bodies, the rules on the national government
budget, as well as guideline for the exercise by administrative agencies of
quasi-legislative and quasi-judicial powers. The Code covers both the
internal administration of government, i.e, internal organization, personnel
and recruitment, supervision and discipline, and the effects of the
functions performed by administrative officials on private individuals or
parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power
of Congress, it ought to be evident that it deals with a subject that should be
covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law
because it confers no right, imposes no duty, affords no proctection, and
creates no office. Under A.O. No. 308, a citizen cannot transact business with
government agencies delivering basic services to the people without the
contemplated identification card. No citizen will refuse to get this identification
card for no one can avoid dealing with government. It is thus clear as daylight
that without the ID, a citizen will have difficulty exercising his rights and
enjoying his privileges. Given this reality, the contention that A.O. No. 308
gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach defining
the traditional limits of administrative legislation. As well stated by Fisher: ". . .
Many regulations however, bear directly on the public. It is here that
administrative legislation must he restricted in its scope and application.
Regulations are not supposed to be a substitute for the general policy-making
that Congress enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it
cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to be
let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States
Supreme Court gave more substance to the right of privacy when it ruled that the
right has a constitutional foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth
Amendments, 31 viz:
Specific guarantees in the Bill of Rights have penumbras
formed by emanations from these guarantees that help give
them life and substance . . . various guarantees create zones
of privacy. The right of association contained in the penumbra
of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers
"in any house" in time of peace without the consent of the
owner is another facet of that privacy. The Fourth Amendment
explicitly affirms the ''right of the people to be secure in their
persons, houses and effects, against unreasonable searches
and seizures." The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment.
The Ninth Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling
that there is a constitutional right to privacy. Speaking thru Mr. Justice,
later Chief Justice, Enrique Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut statute which
made the use of contraceptives a criminal offence on the
 ground of its amounting to an unconstitutional invasion of the
right of privacy of married persons; rightfully it stressed "a
relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider
implications though. The constitutional right to privacy has
come into its own.
So it is likewise in our jurisdiction. The right to privacy as such
is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection.
The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the idea
that governmental powers stop short of certain intrusions into
the personal life of the citizen. This is indeed one of the basic
distinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute state. In contrast, a
system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this
private sector protection, in other words, of the dignity and
integrity of the individual has become increasingly important
as modern society has developed. All the forces of a
technological age industrialization, urbanization, and
organization operate to narrow the area of privacy and
facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. 33 It is
expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribed
by law.
Other facets of the right to privacy are protectad in various provisions
of the Bill of Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons,
houses papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within
the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public
safety, or public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in
the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be
abridged.
Sec. 17. No person shall be compelled to be a witness against
himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons" and punishes
as actionable torts several acts by a person of meddling and prying into the
privacy of another. 35 It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of another
person, 36 and recognizes the privacy of letters and other private
communications. 37 The Revised Penal Code makes a crime the violation of
secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and
trespass to dwelling. 40Invasion of privacy is an offense in special laws like the
Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the Intellectual
Property Code. 43 The Rules of Court on privileged communication likewise
recognize the privacy of certain information. 44
Unlike the dissenters, we prescind from the premise that the right to privacy is
a fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provides our citizens and foreigners with the
facility to conveniently transact business with basic service and social security
providers and other government instrumentalities and (2) the need to reduce,
if not totally eradicate, fraudulent transactions and misrepresentations by
persons seeking basic services. It is debatable whether these interests are
compelling enough to warrant the issuance of A.O. No. 308. But what is not
arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308
which if implemented will put our people's right to privacy in clear and present
danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a
linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical methods to
biological facts; a mathematical analysis of biological data." 45 The term
"biometrics" has evolved into a broad category of technologies which provide
precise confirmation of an individual's identity through the use of the individual's
own physiological and behavioral characteristics. 46 A physiological characteristic
is a relatively stable physical characteristic such as a fingerprint, retinal scan,
hand geometry or facial features. A behavioral characteristic is influenced by the
individual's personality and includes voice print, signature and keystroke. 47 Most
biometric idenfication systems use a card or personal identificatin number (PIN)
for initial identification. The biometric measurement is used to verify that the
individual holding the card or entering the PIN is the legitimate owner of the card
or PIN. 48
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in
computer data banks 49 and becomes a means of identifying an individual using a
service. This technology requires one's fingertip to be scanned every time service
or access is provided. 50 Another method is the retinal scan. Retinal scan
technology employs optical technology to map the capillary pattern of the retina of
the eye. This technology produces a unique print similar to a finger
print. 51 Another biometric method is known as the "artificial nose." This device
chemically analyzes the unique combination of substances excreted from the skin
of people. 52 The latest on the list of biometric achievements is the thermogram.
Scientists have found that by taking pictures of a face using infra-red cameras, a
unique heat distribution pattern is seen. The different densities of bone, skin, fat
and blood vessels all contribute to the individual's personal "heat signature." 53
In the last few decades, technology has progressed at a galloping rate. Some
science fictions are now science facts. Today, biometrics is no longer limited
to the use of fingerprint to identify an individual. It is a new science that uses
various technologies in encoding any and all biological characteristics of an
individual for identification. It is noteworthy that A.O. No. 308 does not state
what specific biological characteristics and what particular biometrics
technology shall be used to identify people who will seek its coverage.
Considering the banquest of options available to the implementors of A.O. No.
308, the fear that it threatens the right to privacy of our people is not
groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it
does not state whether encoding of data is limited to biological information
alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the
"generation of population data for development planning." 54 This is an
admission that the PRN will not be used solely for identification but the generation
of other data with remote relation to the avowed purposes of A.O. No. 308.
Clearly, the indefiniteness of A.O. No. 308 can give the government the roving
authority to store and retrieve information for a purpose other than the
identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot
be undarplayed as the dissenters do. Pursuant to said administrative order, an
individual must present his PRN everytime he deals with a government
agency to avail of basic services and security. His transactions with the
government agency will necessarily be recorded whether it be in the
computer or in the documentary file of the agency. The individual's file may
include his transactions for loan availments, income tax returns, statement of
assets and liabilities, reimbursements for medication, hospitalization, etc. The
more frequent the use of the PRN, the better the chance of building a huge
formidable informatin base through the electronic linkage of the files. 55 The
data may be gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a covert
invitation to misuse, a temptation that may be too great for some of our authorities
to resist. 56
We can even grant, arguendo, that the computer data file will be limited to the
name, address and other basic personal infomation about the
individual. 57 Even that hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell us in clear and categorical
terms how these information gathered shall he handled. It does not provide who
shall control and access the data, under what circumstances and for what
purpose. These factors are essential to safeguard the privacy and guaranty the
integrity of the information.58 Well to note, the computer linkage gives other
government agencies access to the information. Yet, there are no controls to
guard against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder, without fear of
sanction or penalty, can make use of the data for whatever purpose, or worse,
manipulate the data stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed for
unequivocally specified purposes. 60 The lack of proper safeguards in this regard
of A.O. No. 308 may interfere with the individual's liberty of abode and travel by
enabling authorities to track down his movement; it may also enable unscrupulous
persons to access confidential information and circumvent the right against self-
incrimination; it may pave the way for "fishing expeditions" by government
authorities and evade the right against unreasonable searches and
seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and
computer technology are accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much less verify the
correctness of the data encoded. 62 They threaten the very abuses that the Bill of
Rights seeks to prevent. 63
The ability of sophisticated data center to generate a comprehensive cradle-
to-grave dossier on an individual and transmit it over a national network is one
of the most graphic threats of the computer revolution. 64 The computer is
capable of producing a comprehensive dossier on individuals out of information
given at different times and for varied purposes. 65 It can continue adding to the
stored data and keeping the information up to date. Retrieval of stored date is
simple. When information of a privileged character finds its way into the computer,
it can be extracted together with other data on the subject. 66 Once extracted, the
information is putty in the hands of any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a laidback posture. The
Court will not be true to its role as the ultimate guardian of the people's liberty
if it would not immediately smother the sparks that endanger their rights but
would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the Natioal ID and the use of
biometrics technology as it stands on quicksand. The reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether by his
conduct, the individual has exhibited an expectation of privacy; and (2)
whether this expectation is one that society recognizes as reasonable. 67 The
factual circumstances of the case determines the reasonableness of the
expectation. 68However, other factors, such as customs, physical surroundings
and practices of a particular activity, may serve to create or diminish this
expectation. 69 The use of biometrics and computer technology in A.O. No. 308
does not assure the individual of a reasonable expectation of privacy. 70 As
technology advances, the level of reasonably expected privacy decreases. 71 The
measure of protection granted by the reasonable expectation diminishes as
relevant technology becomes more widely accepted. 72 The security of the
computer data file depends not only on the physical inaccessibility of the file but
also on the advances in hardware and software computer technology. A.O. No.
308 is so widely drawn that a minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be inferred from its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal defect.
Rules and regulations merely implement the policy of the law or order. On its
face, A.O. No. gives the IACC virtually infettered discretion to determine the
metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act. No. 591 penalizes the disclosure
by any person of data furnished by the individual to the NSO with
imprisonment and fine. 73 Republic Act. No. 1161 prohibits public disclosure of
SSS employment records and reports. 74 These laws, however, apply to records
and data with the NSO and the SSS. It is not clear whether they may be applied to
data with the other government agencies forming part of the National ID System.
The need to clarify the penal aspect of A.O. No. 308 is another reason why its
enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of
the right of privacy by using the rational relationship test. 75 He stressed that the
purposes of A.O. No. 308 are: (1) to streamline and speed up the implementation
of basic government services, (2) eradicate fraud by avoiding duplication of
services, and (3) generate population data for development planning. He cocludes
that these purposes justify the incursions into the right to privacy for the means
are rationally related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid
police power measure. We declared that the law, in compelling a public officer to
make an annual report disclosing his assets and liabilities, his sources of income
and expenses, did not infringe on the individual's right to privacy. The law was
enacted to promote morality in public administration by curtailing and minimizing
the opportunities for official corruption and maintaining a standard of honesty in
the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A. 3019
is a statute, not an administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. IN the case at bar,
A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot
pass constitutional scrutiny for it is not narrowly drawn. And we now hod that
when the integrity of a fundamental right is at stake, this court will give the
challenged law, administrative order, rule or regulation a stricter scrutiny. It will
not do for the authorities to invoke the presumption of regularity in the
performance of official duties. Nor is it enough for the authorities to prove that
their act is not irrational for a basic right can be diminished, if not defeated,
even when the government does not act irrationally. They must satisfactorily
show the presence of compelling state interests and that the law, rule or
regulation is narrowly drawn to preclude abuses. This approach is demanded
by the 1987 Constitution whose entire matrix is designed to protect human
rights and to prevent authoritarianism. In case of doubt, the least we can do is
to lean towards the stance that will not put in danger the rights protected by
the Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In
Whalen, the United States Supreme Court was presented with the question of
whether the State of New York could keep a centralized computer record of the
names and addresses of all persons who obtained certain drugs pursuant to a
doctor's prescription. The New York State Controlled Substance Act of 1972
required physicians to identify parties obtaining prescription drugs enumerated in
the statute, i.e., drugs with a recognized medical use but with a potential for
abuse, so that the names and addresses of the patients can be recorded in a
centralized computer file of the State Department of Health. The plaintiffs, who
were patients and doctors, claimed that some people might decline necessary
medication because of their fear that the computerized data may be readily
available and open to public disclosure; and that once disclosed, it may stigmatize
them as drug addicts. 80 The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e., the individual interest in avoiding
disclosure of personal matters, and the interest in independence in making certain
kinds of important decisions. The U.S. Supreme Court held that while an
individual's interest in avoiding disclosuer of personal matter is an aspect of the
right to privacy, the statute did not pose a grievous threat to establish a
constitutional violation. The Court found that the statute was necessary to aid in
the enforcement of laws designed to minimize the misuse of dangerous drugs.
The patient-identification requirement was a product of an orderly and rational
legislative decision made upon recommmendation by a specially appointed
commission which held extensive hearings on the matter. Moreover, the statute
was narrowly drawn and contained numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure and requirements for the
gathering, storage and retrieval of the informatin. It ebumerated who were
authorized to access the data. It also prohibited public disclosure of the data by
imposing penalties for its violation. In view of these safeguards, the infringement
of the patients' right to privacy was justified by a valid exercise of police power. As
we discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is
not per se agains the use of computers to accumulate, store, process,
retvieve and transmit data to improve our bureaucracy. Computers work
wonders to achieve the efficiency which both government and private industry
seek. Many information system in different countries make use of the
computer to facilitate important social objective, such as better law
enforcement, faster delivery of public services, more efficient management of
credit and insurance programs, improvement of telecommunications and
streamlining of financial activities. 81 Used wisely, data stored in the computer
could help good administration by making accurate and comprehensive
information for those who have to frame policy and make key decisions. 82 The
benefits of the computer has revolutionized information technology. It developed
the internet, 83 introduced the concept of cyberspace 84 and the information
superhighway where the individual, armed only with his personal computer, may
surf and search all kinds and classes of information from libraries and databases
connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not
bar all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and
the common good. It merely requires that the law be narrowly focused 85 and a
compelling interest justify such intrusions. 86 Intrusions into the right must be
accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades
individual privacy will be subjected by this Court to strict scrutiny. The reason for
this stance was laid down in Morfe v. Mutuc, to wit:
The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions
into the personal life of the citizen. This is indeed one of the
basic disctinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute state. In contrast, a
system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this
private sector protection, in other words, of the dignity and
integrity of the individual has become increasingly important
as modern society has developed. All the forces of a
technological age industrialization, urbanization, and
organization operate to narrow the area of privacy and
facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society. 87
IV
The right to privacy is one of the most threatened rights of man living in a
mass society. The threats emanate from various sources governments,
journalists, employers, social scientists, etc. 88 In th case at bar, the threat
comes from the executive branch of government which by issuing A.O. No. 308
pressures the people to surrender their privacy by giving information about
themselves on the pretext that it will facilitate delivery of basic services. Given the
record-keeping power of the computer, only the indifferent fail to perceive the
danger that A.O. No. 308 gives the government the power to compile a
devastating dossier against unsuspecting citizens. It is timely to take note of the
well-worded warning of Kalvin, Jr., "the disturbing result could be that everyone
will live burdened by an unerasable record of his past and his limitations. In a way,
the threat is that because of its record-keeping, the society will have lost its benign
capacity to forget." 89 Oblivious to this counsel, the dissents still say we should not
be too quick in labelling the right to privacy as a fundamental right. We close with
the statement that the right to privacy was not engraved in our Constitution for
flattery.
IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308
entitled "Adoption of a National Computerized Identification Reference
System" declared null and void for being unconstitutional.
SO ORDERED.
Bellosillo and Martinez, JJ., concur.
Narvasa, C.J., I join Justices Kapunan and Mendoza in their dissents.
Regalado, J., In the result.
Davide, Jr., In the result and I join Mr. Justice Panganiban in his separate
opinion.
Romero, J., Please see separate opinion.
Melo, J., I join the dissents of Justices Kapunan and Mendoza.
Vitug, J., See separate opinion.
Kapunan, J., See dissenting opinion.
Mendoza, J., Please see dissenting opinion.
Panganiban, J., Please see Separate Opinion.
Quisumbing, J., I join in dissenting opinion of JJ. Mendoza and Kapunan.
Purisima, J., I join in Justice Mendoza's dissenting.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 113105 August 19, 1994
PHILIPPINE CONSTITUTION ASSOCIATION, EXEQUIEL B. GARCIA and
A. GONZALES, petitioners,
vs.
HON. SALVADOR ENRIQUEZ, as Secretary of Budget and Management;
HON. VICENTE T. TAN, as National Treasurer and COMMISSION ON
AUDIT, respondents.
G.R. No. 113174 August 19, 1994
RAUL S. ROCO, as Member of the Philippine Senate, NEPTALI A.
GONZALES, Chairman of the Committee on Finance of the Philippine
Senate, and EDGARDO J. ANGARA, as President and Chief Executive of
the Philippine Senate, all of whom also sue as taxpayers, in their own
behalf and in representation of Senators HEHERSON ALVAREZ,
AGAPITO A. AQUINO, RODOLFO G. BIAZON, JOSE D. LINA, JR.,
ERNESTO F. HERRERA, BLAS F. OPLE, JOHN H. OSMENA, GLORIA
MACAPAGAL- ARROYO, VICENTE C. SOTTO III, ARTURO M.
TOLENTINO, FRANCISCO S. TATAD, WIGBERTO E. TAADA and
FREDDIE N. WEBB, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, and THE NATIONAL TREASURER, THE COMMISSION
ON AUDIT, impleaded herein as an unwilling
co-petitioner, respondents.
G.R. No. 113766 August 19, 1994
WIGBERTO E. TAADA and ALBERTO G. ROMULO, as Members of the
Senate and as taxpayers, and FREEDOM FROM DEBT
COALITION, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR. in his capacity as Executive
Secretary, HON. SALVADOR ENRIQUEZ, JR., in his capacity as
Secretary of the Department of Budget and Management, HON.
CARIDAD VALDEHUESA, in her capacity as National Treasurer, and THE
COMMISSION ON AUDIT, respondents.
G.R. No. 113888 August 19, 1994
WIGBERTO E. TAADA and ALBERTO G. ROMULO, as Members of the
Senate and as taxpayers, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive
Secretary, HON. SALVADOR ENRIQUEZ, JR., in his capacity as
Secretary of the Department of Budget and Management, HON.
CARIDAD VALDEHUESA, in her capacity as National Treasurer, and THE
COMMISSION ON AUDIT, respondents.
Ramon R. Gonzales for petitioners in G.R. No. 113105.
Eddie Tamondong for petitioners in G.R. Nos. 113766 & 113888.
Roco, Buag, Kapunan, Migallos & Jardeleza for petitioners Raul S. Roco,
Neptali A. Gonzales and Edgardo Angara.
Ceferino Padua Law Office fro intervenor Lawyers Against Monopoly and
Poverty (Lamp).
QUIASON, J.:
Once again this Court is called upon to rule on the conflicting claims of
authority between the Legislative and the Executive in the clash of the powers
of the purse and the sword. Providing the focus for the contest between the
President and the Congress over control of the national budget are the four
cases at bench. Judicial intervention is being sought by a group of concerned
taxpayers on the claim that Congress and the President have impermissibly
exceeded their respective authorities, and by several Senators on the claim
that the President has committed grave abuse of discretion or acted without
jurisdiction in the exercise of his veto power.
I Petitioners Taada and Romulo sued as members of the Philippine Senate
House Bill No. 10900, the General Appropriation Bill of 1994 (GAB of 1994),
was passed and approved by both houses of Congress on December 17,
1993. As passed, it imposed conditions and limitations on certain items of
appropriations in the proposed budget previously submitted by the President.
It also authorized members of Congress to propose and identify projects in the
"pork barrels" allotted to them and to realign their respective operating
budgets.
Pursuant to the procedure on the passage and enactment of bills as
prescribed by the Constitution, Congress presented the said bill to the
President for consideration and approval.
On December 30, 1993, the President signed the bill into law, and declared
the same to have become Republic Act No. 7663, entitled "AN ACT
APPROPRIATING FUNDS FOR THE OPERATION OF THE GOVERNMENT
OF THE PHILIPPINES FROM JANUARY ONE TO DECEMBER THIRTY
ONE, NINETEEN HUNDRED AND NINETY-FOUR, AND FOR OTHER
PURPOSES" (GAA of 1994). On the same day, the President delivered his
Presidential Veto Message, specifying the provisions of the bill he vetoed and
on which he imposed certain conditions.
No step was taken in either House of Congress to override the vetoes.
In G.R. No. 113105, the Philippine Constitution Association, Exequiel B.
Garcia and Ramon A. Gonzales as taxpayers, prayed for a writ of prohibition
to declare as unconstitutional and void: (a) Article XLI on the Countrywide
Development Fund, the special provision in Article I entitled Realignment of
Allocation for Operational Expenses, and Article XLVIII on the Appropriation
for Debt Service or the amount appropriated under said Article XLVIII in
excess of the P37.9 Billion allocated for the Department of Education, Culture
and Sports; and (b) the veto of the President of the Special Provision of
Article XLVIII of the GAA of 1994 (Rollo, pp. 88-90, 104-105)
In G.R. No. 113174, sixteen members of the Senate led by Senate President
Edgardo J. Angara, Senator Neptali A. Gonzales, the Chairman of the
Committee on Finance, and Senator Raul S. Roco, sought the issuance of the
writs of certiorari, prohibition and mandamus against the Executive Secretary,
the Secretary of the Department of Budget and Management, and the
National Treasurer.
Suing as members of the Senate and taxpayers, petitioners question: (1) the
constitutionality of the conditions imposed by the President in the items of the
GAA of 1994: (a) for the Supreme Court, (b) Commission on Audit (COA), (c)
Ombudsman, (d) Commission on Human Rights (CHR), (e) Citizen Armed
Forces Geographical Units (CAFGU'S) and (f) State Universities and Colleges
(SUC's); and (2) the constitutionality of the veto of the special provision in the
appropriation for debt service.
In G.R. No. 113766, Senators Alberto G. Romulo and Wigberto Taada (a co-
petitioner in G.R. No. 113174), together with the Freedom from Debt Coalition,
a non-stock domestic corporation, sought the issuance of the writs of
prohibition and mandamus against the Executive Secretary, the Secretary of
the Department of Budget and Management, the National Treasurer, and the
COA.
and taxpayers, while petitioner Freedom from Debt Coalition sued as a
taxpayer. They challenge the constitutionality of the Presidential veto of the
special provision in the appropriations for debt service and the automatic
appropriation of funds therefor.
In G.R. No. 11388, Senators Taada and Romulo sought the issuance of the
writs of prohibition and mandamus against the same respondents in G.R. No.
113766. In this petition, petitioners contest the constitutionality of: (1) the veto
on four special provision added to items in the GAA of 1994 for the Armed
Forces of the Philippines (AFP) and the Department of Public Works and
Highways (DPWH); and (2) the conditions imposed by the President in the
implementation of certain appropriations for the CAFGU's, the DPWH, and the
National Housing Authority (NHA).
Petitioners also sought the issuance of temporary restraining orders to enjoin
respondents Secretary of Budget and Management, National Treasurer and
COA from enforcing the questioned provisions of the GAA of 1994, but the
Court declined to grant said provisional reliefs on the time- honored principle
of according the presumption of validity to statutes and the presumption of
regularity to official acts.
In view of the importance and novelty of most of the issues raised in the four
petitions, the Court invited former Chief Justice Enrique M. Fernando and
former Associate Justice Irene Cortes to submit their respective memoranda
asAmicus curiae, which they graciously did.
II
Locus Standi
When issues of constitutionality are raised, the Court can exercise its power of
judicial review only if the following requisites are compresent: (1) the
existence of an actual and appropriate case; (2) a personal and substantial
interest of the party raising the constitutional question; (3) the exercise of
judicial review is pleaded at the earliest opportunity; and (4) the constitutional
question is the lis mota of the case (Luz Farms v. Secretary of the Department
of Agrarian Reform, 192 SCRA 51 [1990]; Dumlao v. Commission on
Elections, 95 SCRA 392 [1980]; People v. Vera, 65 Phil. 56 [1937]).
While the Solicitor General did not question the locus standi of petitioners in
G.R. No. 113105, he claimed that the remedy of the Senators in the other
petitions is political (i.e., to override the vetoes) in effect saying that they do
not have the requisite legal standing to bring the suits.
The legal standing of the Senate, as an institution, was recognized
in Gonzales v. Macaraig, Jr., 191 SCRA 452 (1990). In said case, 23
Senators, comprising the entire membership of the Upper House of Congress,
filed a petition to nullify the presidential veto of Section 55 of the GAA of 1989.
The filing of the suit was authorized by Senate Resolution No. 381, adopted
on February 2, 1989, and which reads as follows:
Authorizing and Directing the Committee on Finance to Bring
in the Name of the Senate of the Philippines the Proper Suit
with the Supreme Court of the Philippines contesting the
Constitutionality of the Veto by the President of Special and
General Provisions, particularly Section 55, of the General
Appropriation Bill of 1989 (H.B. No. 19186) and For Other
Purposes.
In the United States, the legal standing of a House of Congress to sue has
been recognized (United States v. American Tel. & Tel. Co., 551 F. 2d 384,
391 [1976]; Notes: Congressional Access To The Federal Courts, 90 Harvard
Law Review 1632 [1977]).
While the petition in G.R. No. 113174 was filed by 16 Senators, including the
Senate President and the Chairman of the Committee on Finance, the suit
was not authorized by the Senate itself. Likewise, the petitions in
G.R. Nos. 113766 and 113888 were filed without an enabling resolution for
the purpose.
Therefore, the question of the legal standing of petitioners in the three cases
becomes a preliminary issue before this Court can inquire into the validity of
the presidential veto and the conditions for the implementation of some items
in the GAA of 1994.
We rule that a member of the Senate, and of the House of Representatives for
that matter, has the legal standing to question the validity of a presidential
veto or a condition imposed on an item in an appropriation bill.
Where the veto is claimed to have been made without or in excess of the
authority vested on the President by the Constitution, the issue of an
impermissible intrusion of the Executive into the domain of the Legislature
arises (Notes: Congressional Standing To Challenge Executive Action, 122
University of Pennsylvania Law Review 1366 [1974]).
To the extent the power of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of
the powers of that institution (Coleman v. Miller, 307 U.S. 433 [1939];
Holtzman v. Schlesinger, 484 F. 2d 1307 [1973]).
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a
member of Congress (Kennedy v. Jones, 412 F. Supp. 353 [1976]). In such a
case, any member of Congress can have a resort to the courts.
Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted:
This is, then, the clearest case of the Senate as a whole or
individual Senators as such having a substantial interest in the
question at issue. It could likewise be said that there was the
requisite injury to their rights as Senators. It would then be
futile to raise any locus standi issue. Any intrusion into the
domain appertaining to the Senate is to be resisted. Similarly,
if the situation were reversed, and it is the Executive Branch
that could allege a transgression, its officials could likewise file
the corresponding action. What cannot be denied is that a
Senator has standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in his office
(Memorandum, p. 14).
It is true that the Constitution provides a mechanism for overriding a veto (Art.
VI, Sec. 27 [1]). Said remedy, however, is available only when the presidential
veto is based on policy or political considerations but not when the veto is
claimed to be ultra vires. In the latter case, it becomes the duty of the Court to
draw the dividing line where the exercise of executive power ends and the
bounds of legislative jurisdiction begin.
III
G.R. No. 113105
1. Countrywide Development Fund
Article XLI of the GAA of 1994 sets up a Countrywide Development Fund of
P2,977,000,000.00 to "be used for infrastructure, purchase of ambulances
and computers and other priority projects and activities and credit facilities to
qualified beneficiaries." Said Article provides:
COUNTRYWIDE DEVELOPMENT FUND
For Fund requirements of countrywide
development projects P 2,977,000,000
making of laws or the repeal and amendment thereof, the only function given
New Appropriations, by Purpose
Current Operating Expenditures
A. PURPOSE
Personal Maintenance Capital Total
Services and Other Outlays
Operating
Expenses
1. For Countrywide
Developments Projects P250,000,000 P2,727,000,000
P2,977,000,000
TOTAL NEW
APPROPRIATIONS P250,000,000 P2,727,000,000
P2,977,000,000
Special Provisions
1. Use and Release of Funds. The amount herein appropriated
shall be used for infrastructure, purchase of ambulances and
computers and other priority projects and activities, and credit
facilities to qualified beneficiaries as proposed and identified
by officials concerned according to the following allocations:
Representatives, P12,500,000 each; Senators, P18,000,000
each; Vice-President, P20,000,000; PROVIDED, That, the
said credit facilities shall be constituted as a revolving fund to
be administered by a government financial institution (GFI) as
a trust fund for lending operations. Prior years releases to local
government units and national government agencies for this
purpose shall be turned over to the government financial
institution which shall be the sole administrator of credit
facilities released from this fund.
The fund shall be automatically released quarterly by way of
Advice of Allotments and Notice of Cash Allocation directly to
the assigned implementing agency not later than five (5) days
after the beginning of each quarter upon submission of the list
of projects and activities by the officials concerned.
2. Submission of Quarterly Reports. The Department of
Budget and Management shall submit within thirty (30) days
after the end of each quarter a report to the Senate Committee
on Finance and the House Committee on Appropriations on
the releases made from this Fund. The report shall include the
listing of the projects, locations, implementing agencies and
the endorsing officials (GAA of 1994, p. 1245).
Petitioners claim that the power given to the members of Congress to propose
and identify the projects and activities to be funded by the Countrywide
Development Fund is an encroachment by the legislature on executive power,
since said power in an appropriation act in implementation of a law. They
argue that the proposal and identification of the projects do not involve the
to the Congress by the Constitution (Rollo, pp. 78- 86).
Under the Constitution, the spending power called by James Madison as "the
power of the purse," belongs to Congress, subject only to the veto power of
the President. The President may propose the budget, but still the final say on
the matter of appropriations is lodged in the Congress.
The power of appropriation carries with it the power to specify the project or
activity to be funded under the appropriation law. It can be as detailed and as
broad as Congress wants it to be.
The Countrywide Development Fund is explicit that it shall be used "for
infrastructure, purchase of ambulances and computers and other priority
projects and activities and credit facilities to qualified beneficiaries . . ." It was
Congress itself that determined the purposes for the appropriation.
Executive function under the Countrywide Development Fund involves
implementation of the priority projects specified in the law.
The authority given to the members of Congress is only to propose and
identify projects to be implemented by the President. Under Article XLI of the
GAA of 1994, the President must perforce examine whether the proposals
submitted by the members of Congress fall within the specific items of
expenditures for which the Fund was set up, and if qualified, he next
determines whether they are in line with other projects planned for the locality.
Thereafter, if the proposed projects qualify for funding under the Funds, it is
the President who shall implement them. In short, the proposals and
identifications made by the members of Congress are merely
recommendatory.
The procedure of proposing and identifying by members of Congress of
particular projects or activities under Article XLI of the GAA of 1994 is
imaginative as it is innovative.
The Constitution is a framework of a workable government and its
interpretation must take into account the complexities, realities and politics
attendant to the operation of the political branches of government. Prior to the
GAA of 1991, there was an uneven allocation of appropriations for the
constituents of the members of Congress, with the members close to the
Congressional leadership or who hold cards for "horse-trading," getting more
than their less favored colleagues. The members of Congress also had to
reckon with an unsympathetic President, who could exercise his veto power to
cancel from the appropriation bill a pet project of a Representative or Senator.
The Countrywide Development Fund attempts to make equal the unequal. It is
also a recognition that individual members of Congress, far more than the
President and their congressional colleagues are likely to be knowledgeable
about the needs of their respective constituents and the priority to be given
each project.
2. Realignment of Operating Expenses
Under the GAA of 1994, the appropriation for the Senate is P472,000,000.00 Total Current Operating Expenditures 464,447
of which P464,447,000.00 is appropriated for current operating expenditures, =======
while the appropriation for the House of Representatives is (GAA of 1994, pp. 3-4)
P1,171,924,000.00 of which P1,165,297,000.00 is appropriated for current The 1994 operating expenditures for the House of Representatives are as
operating expenditures (GAA of 1994, pp. 2, 4, 9, 12). follows:
The 1994 operating expenditures for the Senate are as follows: Personal Services
Personal Services Salaries, Permanent 261,557
Salaries, Permanent 153,347 Salaries/Wages, Contractual/Emergency 143,643
Salaries/Wage, Contractual/Emergency 6,870
Total Salaries and Wages 405,200
Total Salaries and Wages 160,217 =======
======= Other Compensation
Other Compensation Step Increments 4,312
Honoraria and Commutable
Step Increments 1,073 Allowances 4,764
Honoraria and Commutable Allowances 3,731 Compensation Insurance
Compensation Insurance Premiums 1,579 Premiums 1,159
Pag-I.B.I.G. Contributions 1,184 Pag-I.B.I.G. Contributions 5,231
Medicare Premiums 888 Medicare Premiums 2,281
Bonus and Cash Gift 14,791
Terminal Leave Benefits 2,000 Bonus and Cash Gift 35,669
Personnel Economic Relief Allowance 10,266 Terminal Leave Benefits 29
Additional Compensation of P500 under A.O. 53 11,130 Personnel Economic Relief
Others 57,173 Allowance 21,150
Additional Compensation of P500 under A.O. 53
Total Other Compensation 103,815 Others 106,140

01 Total Personal Services 264,032 Total Other Compensation 202,863
=======
Maintenance and Other Operating Expenses 01 Total Personal Services 608,063
02 Traveling Expenses 32,841 =======
03 Communication Services 7,666 Maintenance and Other Operating Expenses
04 Repair and Maintenance of Government Facilities 1,220 02 Traveling Expenses 139,611
05 Repair and Maintenance of Government Vehicles 318 03 Communication Services 22,514
06 Transportation Services 128 04 Repair and Maintenance of Government Facilities 5,116
07 Supplies and Materials 20,189 05 Repair and Maintenance of Government Vehicles 1,863
08 Rents 24,584 06 Transportation Services 178
14 Water/Illumination and Power 6,561 07 Supplies and Materials 55,248
15 Social Security Benefits and Other Claims 3,270 10 Grants/Subsidies/Contributions 940
17 Training and Seminars Expenses 2,225 14 Water/Illumination and Power 14,458
18 Extraordinary and Miscellaneous Expenses 9,360 15 Social Security Benefits and Other Claims 325
23 Advertising and Publication 17 Training and Seminars Expenses 7,236
24 Fidelity Bonds and Insurance Premiums 1,325 18 Extraordinary and Miscellaneous Expenses 14,474
29 Other Services 89,778 20 Anti-Insurgency/Contingency Emergency Expenses 9,400
23 Advertising and Publication 242
Total Maintenance and Other Operating Expenditures 200,415 24 Fidelity Bonds and Insurance Premiums 1,420
29 Other Services 284,209

 Total Maintenance and Other Operating Expenditures 557,234
the members of Congress only determine the necessity of the realignment of
Total Current Operating Expenditures 1,165,297
=======
(GAA of 1994, pp. 11-12)
The Special Provision Applicable to the Congress of the Philippines provides:
4. Realignment of Allocation for Operational Expenses. A
member of Congress may realign his allocation for operational
expenses to any other expenses category provide the total of
said allocation is not exceeded. (GAA of 1994, p. 14).
The appropriation for operating expenditures for each House is further divided
into expenditures for salaries, personal services, other compensation benefits,
maintenance expenses and other operating expenses. In turn, each member
of Congress is allotted for his own operating expenditure a proportionate
share of the appropriation for the House to which he belongs. If he does not
spend for one items of expense, the provision in question allows him to
transfer his allocation in said item to another item of expense.
Petitioners assail the special provision allowing a member of Congress to
realign his allocation for operational expenses to any other expense category
(Rollo, pp. 82-92), claiming that this practice is prohibited by Section 25(5),
Article VI of the Constitution. Said section provides:
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.
The proviso of said Article of the Constitution grants the President of the
Senate and the Speaker of the House of Representatives the power to
augment items in an appropriation act for their respective offices from savings
in other items of their appropriations, whenever there is a law authorizing such
augmentation.
The special provision on realignment of the operating expenses of members
of Congress is authorized by Section 16 of the General Provisions of the GAA
of 1994, which provides:
Expenditure Components. Except by act of the Congress of
the Philippines, no change or modification shall be made in the
expenditure items authorized in this Act and other
appropriation laws unless in cases
of augmentations from savings in appropriations as authorized
under Section 25(5) of Article VI of the Constitution (GAA of
1994, p. 1273).
Petitioners argue that the Senate President and the Speaker of the House of
Representatives, but not the individual members of Congress are the ones
authorized to realign the savings as appropriated.
Under the Special Provisions applicable to the Congress of the Philippines,
the savings in the allotments for their operating expenses. They are in the
best position to do so because they are the ones who know whether there are
savings available in some items and whether there are deficiencies in other
items of their operating expenses that need augmentation. However, it is the
Senate President and the Speaker of the House of Representatives, as the
case may be, who shall approve the realignment. Before giving their stamp of
approval, these two officials will have to see to it that:
(1) The funds to be realigned or transferred are actually savings in the items
of expenditures from which the same are to be taken; and
(2) The transfer or realignment is for the purposes of augmenting the items of
expenditure to which said transfer or realignment is to be made.
3. Highest Priority for Debt Service
While Congress appropriated P86,323,438,000.00 for debt service (Article
XLVII of the GAA of 1994), it appropriated only P37,780,450,000.00 for the
Department of Education Culture and Sports. Petitioners urged that Congress
cannot give debt service the highest priority in the GAA of 1994 (Rollo, pp. 93-
94) because under the Constitution it should be education that is entitled to
the highest funding. They invoke Section 5(5), Article XIV thereof, which
provides:
(5) The State shall assign the highest budgetary priority to
education and ensure that teaching will attract and retain its
rightful share of the best available talents through adequate
remuneration and other means of job satisfaction and
fulfillment.
This issue was raised in Guingona, Jr. v. Carague, 196 SCRA 221 (1991),
where this Court held that Section 5(5), Article XIV of the Constitution, is
merely directory, thus:
While it is true that under Section 5(5), Article XIV of the
Constitution, Congress is mandated to "assign the highest
budgetary priority to education" in order to "insure that
teaching will attract and retain its rightful share of the best
available talents through adequate remuneration and other
means of job satisfaction and fulfillment," it does not thereby
follow that the hands of Congress are so hamstrung as to
deprive it the power to respond to the imperatives of the
national interest and for the attainment of other state policies
or objectives.
As aptly observed by respondents, since 1985, the budget for
education has tripled to upgrade and improve the facility of the
public school system. The compensation of teachers has been
doubled. The amount of P29,740,611,000.00 set aside for the
Department of Education, Culture and Sports under the
General Appropriations Act (R.A. No. 6381), is the highest
budgetary allocation among all department budgets. This is a
clear compliance with the aforesaid constitutional mandate
according highest priority to education.
 Having faithfully complied therewith, Congress is certainly not
without any power, guided only by its good judgment, to
provide an appropriation, that can reasonably service our
enormous debt, the greater portion of which was inherited from
the previous administration. It is not only a matter of honor and
to protect the credit standing of the country. More especially,
the very survival of our economy is at stake. Thus, if in the
process Congress appropriated an amount for debt service
bigger than the share allocated to education, the Court finds
and so holds that said appropriation cannot be thereby
assailed as unconstitutional.
G.R. No. 113105
G.R. No. 113174
Veto of Provision on Debt Ceiling
The Congress added a Special Provision to Article XLVIII (Appropriations for
Debt Service) of the GAA of 1994 which provides:
Special Provisions
1. Use of the Fund. The appropriation authorized herein shall
be used for payment of principal and interest of foreign and
domestic indebtedness; PROVIDED, That any payment in
excess of the amount herein appropriated shall be subject to
the approval of the President of the Philippines with the
concurrence of the Congress of the
Philippines; PROVIDED, FURTHER, That in no case shall this
fund be used to pay for the liabilities of the Central Bank Board
of Liquidators.
2. Reporting Requirement. The Bangko Sentral ng Pilipinas
and the Department of Finance shall submit a quarterly report
of actual foreign and domestic debt service payments to the
House Committee on Appropriations and Senate Finance
Committee within one (1) month after each quarter (GAA of
1944, pp. 1266).
The President vetoed the first Special Provision, without vetoing the
P86,323,438,000.00 appropriation for debt service in said Article. According to
the President's Veto Message:
IV. APPROPRIATIONS FOR DEBT SERVICE
I would like to emphasize that I concur fully with the desire of
Congress to reduce the debt burden by decreasing the
appropriation for debt service as well as the inclusion of the
Special Provision quoted below. Nevertheless, I believe that
this debt reduction scheme cannot be validly done through the
1994 GAA. This must be addressed by revising our debt policy
by way of innovative and comprehensive debt reduction
programs conceptualized within the ambit of the Medium-Term
Philippine Development Plan.
Appropriations for payment of public debt, whether foreign or
domestic, are automatically appropriated pursuant to the
Foreign Borrowing Act and Section 31 of P.D. No. 1177 as
reiterated under Section 26, Chapter 4, Book VI of E.O. No.
292, the Administrative Code of 1987. I wish to emphasize that
the constitutionality of such automatic provisions on debt
servicing has been upheld by the Supreme Court in the case
of "Teofisto T. Guingona, Jr., and Aquilino Q. Pimentel, Jr. v.
Hon. Guillermo N. Carague, in his capacity as Secretary of
Budget and Management, et al.," G.R. No. 94571, dated April
22, 1991.
I am, therefore vetoing the following special provision for the
reason that the GAA is not the appropriate legislative measure
to amend the provisions of the Foreign Borrowing Act, P.D.
No. 1177 and E.O. No. 292:
Use of the Fund. The appropriation authorized
herein shall be used for payment of principal
and interest of foreign and domestic
indebtedness: PROVIDED, That any payment
in excess of the amount herein appropriated
shall be subject to the approval of the
President of the Philippines with the
concurrence of the Congress of the
Philippines:PROVIDED, FURTHER, That in no
case shall this fund be used to pay for the
liabilities of the Central Bank Board of
Liquidators (GAA of 1994, p. 1290).
Petitioners claim that the President cannot veto the Special Provision on the
appropriation for debt service without vetoing the entire amount of
P86,323,438.00 for said purpose (Rollo, G.R. No. 113105, pp. 93-98; Rollo,
G.R. No. 113174, pp. 16-18). The Solicitor General counterposed that the
Special Provision did not relate to the item of appropriation for debt service
and could therefore be the subject of an item veto (Rollo, G.R. No. 113105,
pp. 54-60;Rollo, G.R. No. 113174, pp. 72-82).
This issue is a mere rehash of the one put to rest in Gonzales v. Macaraig,
Jr., 191 SCRA 452 (1990). In that case, the issue was stated by the Court,
thus:
The fundamental issue raised is whether or not the veto by the
President of Section 55 of the 1989 Appropriations Bill
(Section 55
FY '89), and subsequently of its counterpart Section 16 of the
1990 Appropriations Bill (Section 16 FY '90), is
unconstitutional and without effect.
The Court re-stated the issue, just so there would not be any
misunderstanding about it, thus:
The focal issue for resolution is whether or not the President
exceeded the item-veto power accorded by the Constitution.
Or differently put, has the President the power to veto
"provisions" of an Appropriations Bill?
The bases of the petition in Gonzales, which are similar to those invoked in
the present case, are stated as follows:
 In essence, petitioners' cause is anchored on the following
grounds: (1) the President's line-veto power as regards
appropriation bills is limited to item/s and does not cover
provision/s; therefore, she exceeded her authority when she
vetoed Section 55 (FY '89) and Section 16 (FY '90) which are
provisions; (2) when the President objects to a provision of an
appropriation bill, she cannot exercise the item-veto power but
should veto the entire bill; (3) the item-veto power does not
carry with it the power to strike out conditions or restrictions for
that would be legislation, in violation of the doctrine of
separation of powers; and (4) the power of augmentation in
Article VI, Section 25 [5] of the 1987 Constitution, has to be
provided for by law and, therefore, Congress is also vested
with the prerogative to impose restrictions on the exercise of
that power.
The restrictive interpretation urged by petitioners that the
President may not veto a provision without vetoing the entire
bill not only disregards the basic principle that a distinct and
severable part of a bill may be the subject of a separate veto
but also overlooks the Constitutional mandate that any
provision in the general appropriations bill shall relate
specifically to some particular appropriation therein and that
any such provision shall be limited in its operation to the
appropriation to which it relates (1987 Constitution, Article VI,
Section 25 [2]). In other words, in the true sense of the term, a
provision in an Appropriations Bill is limited in its operation to
some particular appropriation to which it relates, and does not
relate to the entire bill.
The Court went one step further and ruled that even assuming arguendo that
"provisions" are beyond the executive power to veto, and Section 55
(FY '89) and Section 16 (FY '90) were not "provisions" in the budgetary sense
of the term, they are "inappropriate provisions" that should be treated as
"items" for the purpose of the President's veto power.
The Court, citing Henry v. Edwards, La., 346 So. 2d 153 (1977), said that
Congress cannot include in a general appropriations bill matters that should
be more properly enacted in separate legislation, and if it does that, the
inappropriate provisions inserted by it must be treated as "item", which can be
vetoed by the President in the exercise of his item-veto power.
It is readily apparent that the Special Provision applicable to the appropriation
for debt service insofar as it refers to funds in excess of the amount
appropriated in the bill, is an "inappropriate" provision referring to funds other
than the P86,323,438,000.00 appropriated in the General Appropriations Act
of 1991.
Likewise the vetoed provision is clearly an attempt to repeal Section 31 of
P.D. No. 1177 (Foreign Borrowing Act) and E.O. No. 292, and to reverse the
debt payment policy. As held by the Court in Gonzales, the repeal of these
laws should be done in a separate law, not in the appropriations law.
The Court will indulge every intendment in favor of the constitutionality of a
veto, the same as it will presume the constitutionality of an act of Congress
(Texas Co. v. State, 254 P. 1060; 31 Ariz, 485, 53 A.L.R. 258 [1927]).
The veto power, while exercisable by the President, is actually a part of the
legislative process (Memorandum of Justice Irene Cortes
as Amicus Curiae, pp. 3-7). That is why it is found in Article VI on the
Legislative Department rather than in Article VII on the Executive Department
in the Constitution. There is, therefore, sound basis to indulge in the
presumption of validity of a veto. The burden shifts on those questioning the
validity thereof to show that its use is a violation of the Constitution.
Under his general veto power, the President has to veto the entire bill, not
merely parts thereof (1987 Constitution, Art. VI, Sec. 27[1]). The exception to
the general veto power is the power given to the President to veto any
particular item or items in a general appropriations bill (1987 Constitution, Art.
VI,
Sec. 27[2]). In so doing, the President must veto the entire item.
A general appropriations bill is a special type of legislation, whose content is
limited to specified sums of money dedicated to a specific purpose or a
separate fiscal unit (Beckman, The Item Veto Power of the Executive,
31 Temple Law Quarterly 27 [1957]).
The item veto was first introduced by the Organic Act of the Philippines
passed by the U.S. Congress on August 29, 1916. The concept was adopted
from some State Constitutions.
Cognizant of the legislative practice of inserting provisions, including
conditions, restrictions and limitations, to items in appropriations bills, the
Constitutional Convention added the following sentence to Section 20(2),
Article VI of the 1935 Constitution:
. . . When a provision of an appropriation bill affect one or
more items of the same, the President cannot veto the
provision without at the same time vetoing the particular item
or items to which it relates . . . .
In short, under the 1935 Constitution, the President was empowered to veto
separately not only items in an appropriations bill but also "provisions".
While the 1987 Constitution did not retain the aforementioned sentence added
to Section 11(2) of Article VI of the 1935 Constitution, it included the following
provision:
No provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some
particular appropriation therein. Any such provision or
enactment shall be limited in its operation to the appropriation
to which it relates (Art. VI, Sec. 25[2]).
In Gonzales, we made it clear that the omission of that sentence of Section
16(2) of the 1935 Constitution in the 1987 Constitution should not be
interpreted to mean the disallowance of the power of the President to veto a
"provision".
As the Constitution is explicit that the provision which Congress can include in
an appropriations bill must "relate specifically to some particular appropriation
therein" and "be limited in its operation to the appropriation to which it relates,"
it follows that any provision which does not relate to any particular item, or
which extends in its operation beyond an item of appropriation, is considered
"an inappropriate provision" which can be vetoed separately from an item.
Also to be included in the category of "inappropriate provisions" are
unconstitutional provisions and provisions which are intended to amend other
laws, because clearly these kind of laws have no place in an appropriations
bill. These are matters of general legislation more appropriately dealt with in
separate enactments. Former Justice Irene Cortes, as Amicus Curiae,
commented that Congress cannot by law establish conditions for and regulate
the exercise of powers of the President given by the Constitution for that
would be an unconstitutional intrusion into executive prerogative.
The doctrine of "inappropriate provision" was well elucidated in Henry
v. Edwards, supra., thus:
Just as the President may not use his item-veto to usurp
constitutional powers conferred on the legislature, neither can
the legislature deprive the Governor of the constitutional
powers conferred on him as chief executive officer of the state
by including in a general appropriation bill matters more
properly enacted in separate legislation. The Governor's
constitutional power to veto bills of general legislation . . .
cannot be abridged by the careful placement of such
measures in a general appropriation bill, thereby forcing the
Governor to choose between approving unacceptable
substantive legislation or vetoing "items" of expenditures
essential to the operation of government. The legislature
cannot by location of a bill give it immunity from executive
veto. Nor can it circumvent the Governor's veto power over
substantive legislation by artfully drafting general law
measures so that they appear to be true conditions or
limitations on an item of appropriation. Otherwise, the
legislature would be permitted to impair the constitutional
responsibilities and functions of a co-equal branch of
government in contravention of the separation of powers
doctrine . . . We are no more willing to allow the legislature to
use its appropriation power to infringe on the Governor's
constitutional right to veto matters of substantive legislation
than we are to allow the Governor to encroach on the
Constitutional powers of the legislature. In order to avoid this
result, we hold that, when the legislature inserts inappropriate
provisions in a general appropriation bill, such provisions must
be treated as "items" for purposes of the Governor's item veto
power over general appropriation bills.
xxx xxx xxx
. . . Legislative control cannot be exercised in such a manner
as to encumber the general appropriation bill with veto-proof
"logrolling measures", special interest provisions which could
not succeed if separately enacted, or "riders", substantive
pieces of legislation incorporated in a bill to insure passage
without veto . . . (Emphasis supplied).
Petitioners contend that granting arguendo that the veto of the Special
Provision on the ceiling for debt payment is valid, the President cannot
automatically appropriate funds for debt payment without complying with the
conditions for automatic appropriation under the provisions of R.A. No. 4860
as amended by P.D. No. 81 and the provisions of P.D. No. 1177 as amended
by the Administrative Code of 1987 and P.D. No. 1967 (Rollo, G.R. No.
113766, pp. 9-15).
Petitioners cannot anticipate that the President will not faithfully execute the
laws. The writ of prohibition will not issue on the fear that official actions will
be done in contravention of the laws.
The President vetoed the entire paragraph one of the Special Provision of the
item on debt service, including the provisions that the appropriation authorized
in said item "shall be used for payment of the principal and interest of foreign
and domestic indebtedness" and that "in no case shall this fund be used to
pay for the liabilities of the Central Bank Board of Liquidators." These
provisions are germane to and have a direct connection with the item on debt
service. Inherent in the power of appropriation is the power to specify how the
money shall be spent (Henry v. Edwards, LA, 346 So., 2d., 153). The said
provisos, being appropriate provisions, cannot be vetoed separately. Hence
the item veto of said provisions is void.
We reiterate, in order to obviate any misunderstanding, that we are sustaining
the veto of the Special Provision of the item on debt service only with respect
to the proviso therein requiring that "any payment in excess of the amount
herein, appropriated shall be subject to the approval of the President of the
Philippines with the concurrence of the Congress of the Philippines . . ."
G.R. NO. 113174
G.R. NO. 113766
G.R. NO. 11388
1. Veto of provisions for revolving funds of SUC's.
In the appropriation for State Universities and Colleges (SUC's), the President
vetoed special provisions which authorize the use of income and the creation,
operation and maintenance of revolving funds. The Special Provisions vetoed
are the following:
(H. 7) West Visayas State University
Equal Sharing of Income. Income earned by the University
subject to Section 13 of the special provisions applicable to all
State Universities and Colleges shall be equally shared by the
University and the University Hospital (GAA of 1994, p. 395).
xxx xxx xxx
(J. 3) Leyte State College
Revolving Fund for the Operation of LSC House and Human
Resources Development Center (HRDC). The income of Leyte
State College derived from the operation of its LSC House and
HRDC shall be constituted into a Revolving Fund to be
deposited in an authorized government depository bank for the
operational expenses of these projects/services. The net
 income of the Revolving Fund at the end of the year shall be
remitted to the National Treasury and shall accrue to the
General Fund. The implementing guidelines shall be issued by
the Department of Budget and Management (GAA of 1994, p.
415).
The vetoed Special Provisions applicable to all SUC's are the following:
12. Use of Income from Extension Services. State Universities
and Colleges are authorized to use their income from their
extension services. Subject to the approval of the Board of
Regents and the approval of a special budget pursuant to Sec.
35, Chapter 5, Book VI of E.O.
No. 292, such income shall be utilized solely for faculty
development, instructional materials and work study program
(GAA of 1994, p. 490).
xxx xxx xxx
13. Income of State Universities and Colleges. The income of
State Universities and Colleges derived from tuition fees and
other sources as may be imposed by governing boards other
than those accruing to revolving funds created under LOI Nos.
872 and 1026 and those authorized to be recorded as trust
receipts pursuant to Section 40, Chapter 5, Book VI of E.O.
No. 292 shall be deposited with the National Treasury and
recorded as a Special Account in the General Fund pursuant
to P.D. No. 1234 and P.D. No. 1437 for the use of the
institution, subject to Section 35, Chapter 5, Book VI of E.O.
No. 292L PROVIDED, That disbursements from the Special
Account shall not exceed the amount actually earned and
deposited: PROVIDED, FURTHER, That a cash advance on
such income may be allowed State half of income actually
realized during the preceding year and this cash advance shall
be charged against income actually earned during the budget
year: AND PROVIDED, FINALLY, That in no case shall such
funds be used to create positions, nor for payment of salaries,
wages or allowances, except as may be specifically approved
by the Department of Budge and Management for income-
producing activities, or to purchase equipment or books,
without the prior approval of the President of the Philippines
pursuant to Letter of Implementation No. 29.
All collections of the State Universities and Colleges for fees,
charges and receipts intended for private recipient units,
including private foundations affiliated with these institutions
shall be duly acknowledged with official receipts and deposited
as a trust receipt before said income shall be subject to
Section 35, Chapter 5, Book VI of E.O. No. 292
(GAA of 1994, p. 490).
The President gave his reason for the veto thus:
Pursuant to Section 65 of the Government Auditing Code of
the Philippines, Section 44, Chapter 5, Book VI of E.O. No.
292, s. 1987 and Section 22, Article VII of the Constitution, all
income earned by all Government offices and agencies shall
accrue to the General Fund of the Government in line with the
One Fund Policy enunciated by Section 29 (1), Article VI and
Section 22, Article VII of the Constitution. Likewise, the
creation and establishment of revolving funds shall be
authorized by substantive law pursuant to Section 66 of the
Government Auditing Code of the Philippines and Section 45,
Chapter 5, Book VI of E.O. No. 292.
Notwithstanding the aforementioned provisions of the
Constitution and existing law, I have noted the proliferation of
special provisions authorizing the use of agency income as
well as the creation, operation and maintenance of revolving
funds.
I would like to underscore the facts that such income were
already considered as integral part of the revenue and
financing sources of the National Expenditure Program which I
previously submitted to Congress. Hence, the grant of new
special provisions authorizing the use of agency income and
the establishment of revolving funds over and above the
agency appropriations authorized in this Act shall effectively
reduce the financing sources of the 1994 GAA and, at the
same time, increase the level of expenditures of some
agencies beyond the well-coordinated, rationalized levels for
such agencies. This corresponding increases the overall deficit
of the National Government (Veto Message, p. 3).
Petitioners claim that the President acted with grave abuse of discretion when
he disallowed by his veto the "use of income" and the creation of "revolving
fund" by the Western Visayas State University and Leyte State Colleges when
he allowed other government offices, like the National Stud Farm, to use their
income for their operating expenses (Rollo, G.R. No. 113174, pp. 15-16).
There was no undue discrimination when the President vetoed said special
provisions while allowing similar provisions in other government agencies. If
some government agencies were allowed to use their income and maintain a
revolving fund for that purpose, it is because these agencies have been
enjoying such privilege before by virtue of the special laws authorizing such
practices as exceptions to the "one-fund policy" (e.g., R.A. No. 4618 for the
National Stud Farm, P.D. No. 902-A for the Securities and Exchange
Commission; E.O. No. 359 for the Department of Budget and Management's
Procurement Service).
2. Veto of provision on 70% (administrative)/30% (contract) ratio for
road maintenance.
In the appropriation for the Department of Public Works and Highways, the
President vetoed the second paragraph of Special Provision No. 2, specifying
the 30% maximum ration of works to be contracted for the maintenance of
national roads and bridges. The said paragraph reads as follows:
2. Release and Use of Road Maintenance Funds. Funds
allotted for the maintenance and repair of roads which are
 provided in this Act for the Department of Public Works and
Highways shall be released to the respective Engineering
District, subject to such rules and regulations as may be
prescribed by the Department of Budget and Management.
Maintenance funds for roads and bridges shall be exempt from
budgetary reserve.
Of the amount herein appropriated for the maintenance of
national roads and bridges, a maximum of thirty percent (30%)
shall be contracted out in accordance with guidelines to be
issued by the Department of Public Works and Highways. The
balance shall be used for maintenance by force account.
Five percent (5%) of the total road maintenance fund
appropriated herein to be applied across the board to the
allocation of each region shall be set aside for the
maintenance of roads which may be converted to or taken
over as national roads during the current year and the same
shall be released to the central office of the said department
for eventual
sub-allotment to the concerned region and
district: PROVIDED, That any balance of the said five percent
(5%) shall be restored to the regions on a pro-rata basis for
the maintenance of existing national roads.
No retention or deduction as reserves or overhead expenses
shall be made, except as authorized by law or upon direction
of the President
(GAA of 1994, pp. 785-786; Emphasis supplied).
The President gave the following reason for the veto:
While I am cognizant of the well-intended desire of Congress
to impose certain restrictions contained in some special
provisions, I am equally aware that many programs, projects
and activities of agencies would require some degree of
flexibility to ensure their successful implementation and
therefore risk their completion. Furthermore, not only could
these restrictions and limitations derail and impede program
implementation but they may also result in a breach of
contractual obligations.
D.1.a. A study conducted by the Infrastructure Agencies show
that for practical intent and purposes, maintenance by contract
could be undertaken to an optimum of seventy percent (70%)
and the remaining thirty percent (30%) by force account.
Moreover, the policy of maximizing implementation through
contract maintenance is a covenant of the Road and Road
Transport Program Loan from the Asian Development Bank
(ADB Loan No. 1047-PHI-1990) and Overseas Economic
Cooperation Fund (OECF Loan No. PH-C17-199). The same
is a covenant under the World Bank (IBRD) Loan for the
Highway Management Project (IBRD Loan
No. PH-3430) obtained in 1992.
In the light of the foregoing and considering the policy of the
government to encourage and maximize private sector
participation in the regular repair and maintenance of
infrastructure facilities, I am directly vetoing the underlined
second paragraph of Special Provision No. 2 of the
Department of Public Works and Highways (Veto Message, p.
11).
The second paragraph of Special Provision No. 2 brings to fore the
divergence in policy of Congress and the President. While Congress
expressly laid down the condition that only 30% of the total appropriation for
road maintenance should be contracted out, the President, on the basis of a
comprehensive study, believed that contracting out road maintenance projects
at an option of 70% would be more efficient, economical and practical.
The Special Provision in question is not an inappropriate provision which can
be the subject of a veto. It is not alien to the appropriation for road
maintenance, and on the other hand, it specified how the said item shall be
expended 70% by administrative and 30% by contract.
The 1987 Constitution allows the addition by Congress of special provisions,
conditions to items in an expenditure bill, which cannot be vetoed separately
from the items to which they relate so long as they are "appropriate" in the
budgetary sense (Art. VII, Sec. 25[2]).
The Solicitor General was hard put in justifying the veto of this special
provision. He merely argued that the provision is a complete turnabout from
an entrenched practice of the government to maximize contract maintenance
(Rollo, G.R. No. 113888, pp. 85-86). That is not a ground to veto a provision
separate from the item to which it refers.
The veto of the second paragraph of Special Provision No. 2 of the item for
the DPWH is therefore unconstitutional.
3. Veto of provision on purchase of medicines by AFP.
In the appropriation for the Armed Forces of the Philippines (AFP), the
President vetoed the special provision on the purchase by the AFP of
medicines in compliance with the Generics Drugs Law (R.A. No. 6675). The
vetoed provision reads:
12. Purchase of Medicines. The purchase of medicines by all
Armed Forces of the Philippines units, hospitals and clinics
shall strictly comply with the formulary embodied in the
National Drug Policy of the Department of Health (GAA of
1994, p. 748).
According to the President, while it is desirable to subject the purchase of
medicines to a standard formulary, "it is believed more prudent to provide for a
transition period for its adoption and smooth implementation in the Armed
Forces of the Philippines" (Veto Message, p. 12).
The Special Provision which requires that all purchases of medicines by the
AFP should strictly comply with the formulary embodied in the National Drug
Policy of the Department of Health is an "appropriate" provision. it is a mere
advertence by Congress to the fact that there is an existing law, the Generics
Act of 1988, that requires "the extensive use of drugs with generic names
through a rational system of procurement and distribution." The President
believes that it is more prudent to provide for a transition period for the smooth
implementation of the law in the case of purchases by the Armed Forces of
the Philippines, as implied by Section 11 (Education Drive) of the law itself.
This belief, however, cannot justify his veto of the provision on the purchase of
medicines by the AFP.
Being directly related to and inseparable from the appropriation item on
purchases of medicines by the AFP, the special provision cannot be vetoed by
the President without also vetoing the said item (Bolinao Electronics
Corporation v. Valencia, 11 SCRA 486 [1964]).
4. Veto of provision on prior approval of Congress for purchase of
military equipment.
In the appropriation for the modernization of the AFP, the President vetoed
the underlined proviso of Special Provision No. 2 on the "Use of Fund," which
requires the prior approval of Congress for the release of the corresponding
modernization funds, as well as the entire Special Provisions
No. 3 on the "Specific Prohibition":
2. Use of the Fund. Of the amount herein appropriated, priority
shall be given for the acquisition of AFP assets necessary for
protecting marine, mineral, forest and other resources within
Philippine territorial borders and its economic zone, detection,
prevention or deterrence of air or surface intrusions and to
support diplomatic moves aimed at preserving national dignity,
sovereignty and patrimony: PROVIDED, That the said
modernization fund shall not be released until a Table of
Organization and Equipment for FY 1994-2000 is submitted to
and approved by Congress.
3. Specific Prohibition. The said Modernization Fund shall not
be used for payment of six (6) additional S-211 Trainer planes,
18 SF-260 Trainer planes and 150 armored personnel carriers
(GAA of 1994, p. 747).
As reason for the veto, the President stated that the said condition and
prohibition violate the Constitutional mandate of non-impairment of contractual
obligations, and if allowed, "shall effectively alter the original intent of the AFP
Modernization Fund to cover all military equipment deemed necessary to
modernize the Armed Forces of the Philippines" (Veto Message, p. 12).
Petitioners claim that Special Provision No. 2 on the "Use of Fund" and
Special Provision No. 3 are conditions or limitations related to the item on the
AFP modernization plan.
The requirement in Special Provision No. 2 on the "Use of Fund" for the AFP
modernization program that the President must submit all purchases of
military equipment to Congress for its approval, is an exercise of the
"congressional or legislative veto." By way of definition, a congressional veto
is a means whereby the legislature can block or modify administrative action
taken under a statute. It is a form of legislative control in the implementation of
particular executive actions. The form may be either negative, that is requiring
disapproval of the executive action, or affirmative, requiring approval of the
executive action. This device represents a significant attempt by Congress to
move from oversight of the executive to shared administration (Dixon, The
Congressional Veto and Separation of Powers: The Executive on a Leash,
56 North Carolina Law Review, 423 [1978]).
A congressional veto is subject to serious questions involving the principle of
separation of powers.
However the case at bench is not the proper occasion to resolve the issues of
the validity of the legislative veto as provided in Special Provisions Nos. 2 and
3 because the issues at hand can be disposed of on other grounds. Any
provision blocking an administrative action in implementing a law or requiring
legislative approval of executive acts must be incorporated in a separate and
substantive bill. Therefore, being "inappropriate" provisions, Special
Provisions Nos. 2 and 3 were properly vetoed.
As commented by Justice Irene Cortes in her memorandum as Amicus
Curiae: "What Congress cannot do directly by law it cannot do indirectly by
attaching conditions to the exercise of that power (of the President as
Commander-in-Chief) through provisions in the appropriation law."
Furthermore, Special Provision No. 3, prohibiting the use of the Modernization
Funds for payment of the trainer planes and armored personnel carriers,
which have been contracted for by the AFP, is violative of the Constitutional
prohibition on the passage of laws that impair the obligation of contracts (Art.
III, Sec. 10), more so, contracts entered into by the Government itself.
The veto of said special provision is therefore valid.
5. Veto of provision on use of savings to augment AFP pension funds.
In the appropriation for the AFP Pension and Gratuity Fund, the President
vetoed the new provision authorizing the Chief of Staff to use savings in the
AFP to augment pension and gratuity funds. The vetoed provision reads:
2. Use of Savings. The Chief of Staff, AFP, is authorized,
subject to the approval of the Secretary of National Defense,
to use savings in the appropriations provided herein to
augment the pension fund being managed by the AFP
Retirement and Separation Benefits System as provided under
Sections 2(a) and 3 of P.D. No. 361 (GAA of 1994,
p. 746).
According to the President, the grant of retirement and separation benefits
should be covered by direct appropriations specifically approved for the
purpose pursuant to Section 29(1) of Article VI of the Constitution. Moreover,
he stated that the authority to use savings is lodged in the officials
enumerated in Section 25(5) of Article VI of the Constitution (Veto Message,
pp. 7-8).
Petitioners claim that the Special Provision on AFP Pension and Gratuity
Fund is a condition or limitation which is so intertwined with the item of
appropriation that it could not be separated therefrom.
The Special Provision, which allows the Chief of Staff to use savings to
augment the pension fund for the AFP being managed by the AFP Retirement
and Separation Benefits System is violative of Sections 25(5) and 29(1) of the
Article VI of the Constitution.
Under Section 25(5), no law shall be passed authorizing any transfer of
appropriations, and under Section 29(1), no money shall be paid out of
the Treasury except in pursuance of an appropriation made by law. While
Section 25(5) allows as an exception the realignment of savings to augment
items in the general appropriations law for the executive branch, such right
must and can be exercised only by the President pursuant to a specific law.
6. Condition on the deactivation of the CAFGU's.
Congress appropriated compensation for the CAFGU's, including the payment
of separation benefits but it added the following Special Provision:
1. CAFGU Compensation and Separation Benefit. The
appropriation authorized herein shall be used for the
compensation of CAFGU's including the payment of their
separation benefit not exceeding one (1) year subsistence
allowance for the 11,000 members who will be deactivated in
1994. The Chief of Staff, AFP, shall, subject to the approval of
the Secretary of National Defense, promulgate policies and
procedures for the payment of separation benefit (GAA of
1994, p. 740).
The President declared in his Veto Message that the implementation of this
Special Provision to the item on the CAFGU's shall be subject to prior
Presidential approval pursuant to P.D. No. 1597 and R.A.. No. 6758. He gave
the following reasons for imposing the condition:
I am well cognizant of the laudable intention of Congress in
proposing the amendment of Special Provision No. 1 of the
CAFGU. However, it is premature at this point in time of our
peace process to earmark and declare through special
provision the actual number of CAFGU members to be
deactivated in CY 1994. I understand that the number to be
deactivated would largely depend on the result or degree of
success of the on-going peace initiatives which are not yet
precisely determinable today. I have desisted, therefore, to
directly veto said provisions because this would mean the loss
of the entire special provision to the prejudice of its beneficient
provisions. I therefore declare that the actual implementation
of this special provision shall be subject to prior Presidential
approval pursuant to the provisions of P.D. No. 1597 and
R.A. No. 6758 (Veto Message, p. 13).
Petitioners claim that the Congress has required the deactivation of the
CAFGU's when it appropriated the money for payment of the separation pay
of the members of thereof. The President, however, directed that the
deactivation should be done in accordance to his timetable, taking into
consideration the peace and order situation in the affected localities.
Petitioners complain that the directive of the President was tantamount to an
administrative embargo of the congressional will to implement the
Constitution's command to dissolve the CAFGU's (Rollo, G.R. No. 113174,
p. 14; G.R. No. 113888, pp. 9, 14-16). They argue that the President cannot
impair or withhold expenditures authorized and appropriated by Congress
when neither the Appropriations Act nor other legislation authorize such
impounding (Rollo, G.R. No. 113888, pp. 15-16).
The Solicitor General contends that it is the President, as Commander-in-
Chief of the Armed Forces of the Philippines, who should determine when the
services of the CAFGU's are no longer needed (Rollo, G.R. No. 113888,
pp. 92-95.).
This is the first case before this Court where the power of the President to
impound is put in issue. Impoundment refers to a refusal by the President, for
whatever reason, to spend funds made available by Congress. It is the failure
to spend or obligate budget authority of any type (Notes: Impoundment of
Funds, 86 Harvard Law Review 1505 [1973]).
Those who deny to the President the power to impound argue that once
Congress has set aside the fund for a specific purpose in an appropriations
act, it becomes mandatory on the part of the President to implement the
project and to spend the money appropriated therefor. The President has no
discretion on the matter, for the Constitution imposes on him the duty to
faithfully execute the laws.
In refusing or deferring the implementation of an appropriation item, the
President in effect exercises a veto power that is not expressly granted by the
Constitution. As a matter of fact, the Constitution does not say anything about
impounding. The source of the Executive authority must be found elsewhere.
Proponents of impoundment have invoked at least three principal sources of
the authority of the President. Foremost is the authority to impound given to
him either expressly or impliedly by Congress. Second is the executive power
drawn from the President's role as Commander-in-Chief. Third is the Faithful
Execution Clause which ironically is the same provision invoked by petitioners
herein.
The proponents insist that a faithful execution of the laws requires that the
President desist from implementing the law if doing so would prejudice public
interest. An example given is when through efficient and prudent management
of a project, substantial savings are made. In such a case, it is sheer folly to
expect the President to spend the entire amount budgeted in the law
(Notes: Presidential Impoundment: Constitutional Theories and Political
Realities, 61 Georgetown Law Journal 1295 [1973]; Notes; Protecting the
Fisc: Executive Impoundment and Congressional Power, 82 Yale Law Journal
1686 [1973).
We do not find anything in the language used in the challenged Special
Provision that would imply that Congress intended to deny to the President
the right to defer or reduce the spending, much less to deactivate 11,000
CAFGU members all at once in 1994. But even if such is the intention, the
appropriation law is not the proper vehicle for such purpose. Such intention
must be embodied and manifested in another law considering that it abrades
the powers of the Commander-in-Chief and there are existing laws on the
creation of the CAFGU's to be amended. Again we state: a provision in an
appropriations act cannot
be used to repeal or amend other laws, in this case, P.D. No. 1597 and R.A.
No. 6758.
7. Condition on the appropriation for the Supreme Court, etc.
(a) In the appropriations for the Supreme Court, Ombudsman, COA, and
CHR, the Congress added the following provisions:
The Judiciary
xxx xxx xxx
Special Provisions
1. Augmentation of any Item in the Court's Appropriations. Any
savings in the appropriations for the Supreme Court and the
Lower Courts may be utilized by the Chief Justice of the
Supreme Court to augment any item of the Court's
appropriations for (a) printing of decisions and publication of
"Philippine Reports"; (b) Commutable terminal leaves of
Justices and other personnel of the Supreme Court and
payment of adjusted pension rates to retired Justices entitled
thereto pursuant to Administrative Matter No. 91-8-225-C.A.;
(c) repair, maintenance, improvement and other operating
expenses of the courts' libraries, including purchase of books
and periodicals; (d) purchase, maintenance and improvement
of printing equipment; (e) necessary expenses for the
employment of temporary employees, contractual and casual
employees, for judicial administration; (f) maintenance and
improvement of the Court's Electronic Data
Processing System; (g) extraordinary expenses of the Chief
Justice, attendance in international conferences and conduct
of training programs; (h) commutable transportation and
representation allowances and fringe benefits for Justices,
Clerks of Court, Court Administrator, Chiefs of Offices and
other Court personnel in accordance with the rates prescribed
by law; and (i) compensation of attorney-de-
officio: PROVIDED, That as mandated by LOI No. 489 any
increase in salary and allowances shall be subject to the usual
procedures and policies as provided for under
P.D. No. 985 and other pertinent laws (GAA of 1994, p. 1128;
Emphasis supplied).
xxx xxx xxx
Commission on Audit
xxx xxx xxx
5. Use of Savings. The Chairman of the Commission on Audit
is hereby authorized, subject to appropriate accounting and
auditing rules and regulations, to use savings for the payment
of fringe benefits as may be authorized by law for officials and
personnel of the Commission (GAA of 1994, p. 1161;
Emphasis supplied).
xxx xxx xxx
Office of the Ombudsman
xxx xxx xxx
6. Augmentation of Items in the appropriation of the Office of
the Ombudsman. The Ombudsman is hereby authorized,
subject to appropriate accounting and auditing rules and
regulations to augment items of appropriation in the Office of
the Ombudsman from savings in other items of appropriation
actually released, for: (a) printing and/or publication of
decisions, resolutions, training and information materials; (b)
repair, maintenance and improvement of OMB Central and
Area/Sectoral facilities; (c) purchase of books, journals,
periodicals and equipment;
(d) payment of commutable representation and transportation
allowances of officials and employees who by reason of their
positions are entitled thereto and fringe benefits as may be
authorized specifically by law for officials and personnel of
OMB pursuant to Section 8 of Article IX-B of the Constitution;
and (e) for other official purposes subject to accounting and
auditing rules and regulations (GAA of 1994, p. 1174;
Emphasis supplied).
xxx xxx xxx
Commission on Human Rights
xxx xxx xxx
1. Use of Savings. The Chairman of the Commission on
Human Rights (CHR) is hereby authorized, subject to
appropriate accounting and auditing rules and regulations, to
augment any item of appropriation in the office of the CHR
from savings in other items of appropriations actually released,
for: (a) printing and/or publication of decisions, resolutions,
training materials and educational publications; (b) repair,
maintenance and improvement of Commission's central and
regional facilities; (c) purchase of books, journals, periodicals
and equipment, (d) payment of commutable representation
and transportation allowances of officials and employees who
by reason of their positions are entitled thereto and fringe
benefits, as may be authorized by law for officials and
personnel of CHR, subject to accounting and auditing rules
and regulations (GAA of 1994, p. 1178; Emphasis supplied).
In his Veto Message, the President expressed his approval of the conditions
included in the GAA of 1994. He noted that:
The said condition is consistent with the Constitutional
injunction prescribed under Section 8, Article IX-B of the
Constitution which states that "no elective or appointive public
officer or employee shall receive additional, double, or indirect
compensation unless specifically authorized by law." I am,
therefore, confident that the heads of the said offices shall
maintain fidelity to the law and faithfully adhere to the well-
established principle on compensation standardization (Veto
Message, p. 10).
Petitioners claim that the conditions imposed by the President violated the
independence and fiscal autonomy of the Supreme Court, the Ombudsman,
the COA and the CHR.
In the first place, the conditions questioned by petitioners were placed in the
GAB by Congress itself, not by the President. The Veto Message merely
highlighted the Constitutional mandate that additional or indirect
compensation can only be given pursuant to law.
In the second place, such statements are mere reminders that the
disbursements of appropriations must be made in accordance with law. Such
statements may, at worse, be treated as superfluities.
(b) In the appropriation for the COA, the President imposed the condition that
the implementation of the budget of the COA be subject to "the guidelines to
be issued by the President."
The provisions subject to said condition reads:
xxx xxx xxx
3. Revolving Fund. The income of the Commission on Audit
derived from sources authorized by the Government Auditing
Code of the Philippines (P.D. No. 1445) not exceeding Ten
Million Pesos (P10,000,000) shall be constituted into a
revolving fund which shall be used for maintenance, operating
and other incidental expenses to enhance audit services and
audit-related activities. The fund shall be deposited in an
authorized government depository ban, and withdrawals
therefrom shall be made in accordance with the procedure
prescribed by law and implementing rules and
regulations: PROVIDED,That any interests earned on such
deposit shall be remitted at the end of each quarter to the
national Treasury and shall accrue to the General
Fund: PROVIDED FURTHER, That the Commission on Audit
shall submit to the Department of Budget and Management a
quarterly report of income and expenditures of said revolving
fund (GAA of 1994, pp. 1160-1161).
The President cited the "imperative need to rationalize" the implementation,
applicability and operation of use of income and revolving funds. The Veto
Message stated:
. . . I have observed that there are old and long existing special
provisions authorizing the use of income and the creation of
revolving funds. As a rule, such authorizations should be
discouraged. However, I take it that these authorizations have
legal/statutory basis aside from being already a vested right to
the agencies concerned which should not be jeopardized
through the Veto Message. There is, however, imperative
need to rationalize their implementation, applicability and
operation. Thus, in order to substantiate the purpose and
intention of said provisions, I hereby declare that the
operationalization of the following provisions during budget
implementation shall be subject to the guidelines to be issued
by the President pursuant to Section 35, Chapter 5, Book VI of
E.O. No. 292 and Sections 65 and 66 of P.D. No. 1445 in
relation to Sections 2 and 3 of the General Provisions of this
Act (Veto Message, p. 6; Emphasis Supplied.)
(c) In the appropriation for the DPWH, the President imposed the condition
that in the implementation of DPWH projects, the administrative and
engineering overhead of 5% and 3% "shall be subject to the necessary
administrative guidelines to be formulated by the Executive pursuant to
existing laws." The condition was imposed because the provision "needs
further study" according to the President.
The following provision was made subject to said condition:
9. Engineering and Administrative Overhead. Not more than
five percent (5%) of the amount for infrastructure project
released by the Department of Budget and Management shall
be deducted by DPWH for administrative overhead, detailed
engineering and construction supervision, testing and quality
control, and the like, thus insuring that at least ninety-five
percent (95%) of the released fund is available for direct
implementation of the project. PROVIDED, HOWEVER, That
for school buildings, health centers, day-care centers and
barangay halls, the deductible amount shall not exceed three
percent (3%).
Violation of, or non-compliance with, this provision shall
subject the government official or employee concerned to
administrative, civil and/or criminal sanction under Sections 43
and 80, Book VI of E.O.
No. 292 (GAA of 1994, p. 786).
(d) In the appropriation for the National Housing Authority (NHA), the
President imposed the condition that allocations for specific projects shall be
released and disbursed "in accordance with the housing program of the
government, subject to prior Executive approval."
The provision subject to the said condition reads:
3. Allocations for Specified Projects. The following allocations
for the specified projects shall be set aside for corollary works
and used exclusively for the repair, rehabilitation and
construction of buildings, roads, pathwalks, drainage,
waterworks systems, facilities and amenities in the
area: PROVIDED, That any road to be constructed or
rehabilitated shall conform with the specifications and
standards set by the Department of Public Works and
Highways for such kind of road: PROVIDED, FURTHER, That
savings that may be available in the future shall be used for
road repair, rehabilitation and construction:
(1) Maharlika Village Road
Not less than P5,000,000
(2) Tenement Housing Project
(Taguig) Not less than
P3,000,000
(3) Bagong Lipunan
Condominium Project (Taguig)
Not less than P2,000,000
4. Allocation of Funds. Out of the amount appropriated for the
implementation of various projects in resettlement areas,
Seven Million Five Hundred Thousand Pesos (P7,500,000)
shall be allocated to the Dasmarias Bagong Bayan
resettlement area, Eighteen Million Pesos (P18,000,000) to
 the Carmona Relocation Center Area (Gen. Mariano Alvarez)
and Three Million Pesos (P3,000,000) to the Bulihan Sites and
Services, all of which will be for the cementing of roads in
accordance with DPWH standards.
5. Allocation for Sapang Palay. An allocation of Eight Million
Pesos (P8,000,000) shall be set aside for the asphalting of
seven (7) kilometer main road of Sapang Palay, San Jose Del
Monte, Bulacan
(GAA of 1994, p. 1216).
The President imposed the conditions: (a) that the "operationalization" of the
special provision on revolving funds of the COA "shall be subject to guidelines
to be issued by the President pursuant to Section 35, Chapter 5,
Book VI of E.O. 292 and Sections 65 and 66 of P.D. No. 1445 in relation to
Sections 2 and 3 of the General Provisions of this Act" (Rollo, G.R.
No. 113174, pp. 5,7-8); (b) that the implementation of Special Provision No. 9
of the DPWH on the mandatory retention of 5% and 3% of the amounts
released by said Department "be subject to the necessary administrative
guidelines to be formulated by the Executive pursuant to existing law" (Rollo,
G.R. No. 113888; pp. 10, 14-16); and (c) that the appropriations authorized for
the NHA can be released only "in accordance with the housing program of the
government subject to prior Executive approval" (Rollo, G.R. No. 113888, pp.
10-11;
14-16).
The conditions objected to by petitioners are mere reminders that the
implementation of the items on which the said conditions were imposed,
should be done in accordance with existing laws, regulations or policies. They
did not add anything to what was already in place at the time of the approval
of the GAA of 1994.
There is less basis to complain when the President said that the expenditures
shall be subject to guidelines he will issue. Until the guidelines are issued, it
cannot be determined whether they are proper or inappropriate. The issuance
of administrative guidelines on the use of public funds authorized by Congress
is simply an exercise by the President of his constitutional duty to see that the
laws are faithfully executed (1987 Constitution, Art. VII, Sec. 17; Planas v. Gil
67 Phil. 62 [1939]). Under the Faithful Execution Clause, the President has
the power to take "necessary and proper steps" to carry into execution the law
(Schwartz, On Constitutional Law, p. 147 [1977]). These steps are the ones to
be embodied in the guidelines.
IV
Petitioners chose to avail of the special civil actions but those remedies can
be used only when respondents have acted "without or in excess" of
jurisdiction, or "with grave abuse of discretion," (Revised Rules of Court,
Rule 65, Section 2). How can we begrudge the President for vetoing the
Special Provision on the appropriation for debt payment when he merely
followed our decision in Gonzales? How can we say that Congress has
abused its discretion when it appropriated a bigger sum for debt payment than
the amount appropriated for education, when it merely followed our dictum
in Guingona?
Article 8 of the Civil Code of Philippines, provides:
Judicial decisions applying or interpreting the laws or the
constitution shall from a part of the legal system of the
Philippines.
The Court's interpretation of the law is part of that law as of the date of its
enactment since the court's interpretation merely establishes the
contemporary legislative intent that the construed law purports to carry into
effect (People v. Licera, 65 SCRA 270 [1975]). Decisions of the Supreme
Court assume the same authority as statutes (Floresca v. Philex Mining
Corporation, 136 SCRA 141 [1985]).
Even if Guingona and Gonzales are considered hard cases that make bad
laws and should be reversed, such reversal cannot nullify prior acts done in
reliance thereof.
WHEREFORE, the petitions are DISMISSED, except with respect to
(1) G.R. Nos. 113105 and 113766 only insofar as they pray for the annulment
of the veto of the special provision on debt service specifying that the fund
therein appropriated "shall be used for payment of the principal and interest of
foreign and domestic indebtedness" prohibiting the use of the said funds "to
pay for the liabilities of the Central Bank Board of Liquidators", and (2) G.R.
No. 113888 only insofar as it prays for the annulment of the veto of: (a) the
second paragraph of Special Provision No. 2 of the item of appropriation for
the Department of Public Works and Highways (GAA of 1994, pp. 785-786);
and (b) Special Provision No. 12 on the purchase of medicines by the Armed
Forces of the Philippines (GAA of 1994, p. 748), which is GRANTED.
SO ORDERED.
Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Puno, Kapunan and Mendoza, JJ., concur.
- Not proper parties
- Cutaran vs. DENR, GR No. 134958,
January 31, 2001
- Joya vs. PCGG, 225 SCRA 568
- Lacson vs. Perez, GR No. 147780,
May 10, 2001
- IBP vs. Zamora, GR No. 141284,
August 15, 2000
- Republic of the Philippines
SUPREME COURT
Manila
- THIRD DIVISION
- G.R. No. 134958 January 31, 2001
- PATRICIO CUTARAN, DAVID DANGWAS and
PACIO DOSIL, petitioners,
vs.
 DEPARTMENT OF ENVIRONMENT and NATURAL
RESOURCES, herein represented by SEC. VICTOR
O. RAMOS, OSCAR M. HAMADA and GUILLERMO
S. FIANZA, in his capacity as Chairman of
Community Special Task Force on Ancestral
Lands (CSTFAL), Baguio City, respondents.
- GONZAGA-REYES, J.:
- Before us is a petition for review of the decision
rendered by the Court of Appeals on March 25, 1998
and the order dated August 5, 1998 in CA-G.R. SP No.
43930, a petition for prohibition originally filed with the
appellate court to enjoin the respondent DENR from
implementing DENR Special Order Nos. 31, as
amended by 31-A and 31-B, series of 1990, Special
Order No. 25, series of 1993 and all other
administrative issuances relative thereto, for having
been issued without prior legislative authority.1w phi1.nt
- In 1990 the Assistant Secretary for Luzon Operations
of the DENR issued Special Order no. 311 entitled
"Creation of a Special Task force on acceptance,
identification, evaluation and delineation of ancestral
land claims in the Cordillera Administrative Region".
The special task force created thereunder was
authorized to accept and evaluate and delineate
ancestral and claims within the said area, and after
due evaluation of the claims, to issue appropriate land
titles (Certificate of Ancestral Land Claim) in
accordance with existing laws.2 On January 15, 1993
the Secretary of the DENR issued Special Order no.
253 entitled "Creation of Special Task Forces provincial
and community environment and natural resources
offices for the identification, delineation and recognition
of ancestral land claims nationwide" and Department
Administrative Order no. 02,4 containing the
Implementing Rules and Guidelines of Special Order
no. 25.
- In 1990, the same year Special Order no. 31 was
issued, the relatives of herein petitioners filed separate
applications for certificate of ancestral land claim
(CALC) over the land they, respectively occupy inside
the Camp John Hay Reservation. In 1996 the
applications were denied by the DENR Community
Special Task Force on Ancestral Lands on the ground
that the Bontoc and Applai tribes to which they belong
are not among the recognized tribes of Baguio City.
Also pursuant to the assailed administrative issuances
the Heirs of Apeng Carantes filed an application5 for
certification of ancestral land claim over a parcel of
land also within Camp John Hay and overlapping
some portions of the land occupied by the petitioners.
Petitioners claim that even if no certificate of ancestral
land claim has yet been issued by the DENR in favor
of the heirs of Carantes, the latter, on the strength of
certain documents issued by the DENR, tried to
acquire possession of the land they applied for,
including the portion occupied by herein petitioners.
Petitioners also allege that the heirs of Carantes
removed some of the improvements they introduced
within the area they actually occupy and if not for the
petitioner's timely resistance to such intrusions, the
petitioners would have been totally evicted therefrom.
- Hence, this petition for prohibition originally filed with
the Court of Appeals to enjoin the respondent DENR
from implementing the assailed administrative
issuances and from processing the application for
certificate of ancestral land claim (CALC) filed by the
heirs of Carantes on the ground that the said
administrative issuances are void for lack of legal
basis.
- The Court of Appeals6 held that the assailed DENR
Special Orders Nos. 31, 31-A, 31-B issued in 1990
prior to the effectivity of RA 7586 known as the
National Integrated Protected Areas Systems (NIPAS)
Act of 1992, are of no force and effect "for pre-empting
legislative prerogative" but sustained the validity of
DENR Special Order No. 25, and its implementing
rules (DAO No. 02, series of 1993) by the appellate
court on the ground that they were issued pursuant to
the powers delegated to the DENR under section 13 of
RA 7586, which reads:
- "Section 13. Ancestral Lands and Rights over Them.
Ancestral lands and customary rights and interest
arising therefrom shall be accorded due recognition.
The DENR shall prescribe rules and regulations to
govern ancestral lands within protected areas:
Provided, that the DENR shall have no power to evict
indigenous communities from their present occupancy
nor resettle them to another area without their consent:
Provided, however, that all rules and regulations,
whether adversely affecting said communities or not,
shall be subjected to notice and hearing to be
participated in by members of concerned indigenous
community."7
- The petitioners filed with this Court a petition for review
of the appellate court's decision on the ground that the
Court of Appeals erred in upholding the validity of
 Special Order No. 25 and its implementing rules. The
petitioners seek to enjoin the respondent DENR from
processing the application for certificate of ancestral
land claim filed by the Heirs of Carantes. Petitioners
contend that in addition to the failure of the DENR to
publish the assailed administrative issuances in a
newspaper of general circulation prior to its
implementation, RA 7586, which provides for the
creation of a National Integrated Protected Areas
System, does not contain the slightest implication of a
grant of authority to the DENR to adjudicate or confer
title over lands occupied by indigenous communities. It
is contended that the said law only grants DENR
administrative and managerial powers over designated
national and natural parks called "protected areas"
wherein rare and endangered species of plants and
animals inhabit.8 The petitioners further allege that the
subsequent passage of in 1997 of Republic Act 8371,
otherwise known as the Indigenous Peoples Rights
Act, wherein the power to evaluate and issue
certificates of ancestral land titles is vested in the
National Commission on Indigenous Cultural
Communities/Indigenous People (NCIP) is
unmistakable indication of the legislature's withholding
of authority from the DENR to confer title over lands
occupied by indigenous communities.9Finally, the
petitioners claim that the validity of the questioned
DENR special orders cannot be based on the
constitutional provisions regarding the protection of
cultural communities as the said provisions are policy
statements to guide the legislature in the exercise of
their law-making powers and by themselves are not
self-executory.
- The Solicitor-General filed memorandum in behalf of
the respondent DENR praying for the affirmance of the
appellate court's decision. The respondent argues that
the subject DENR special orders were issued pursuant
to the powers granted by RA 7586 to the DENR to
protect the socio-economic interests of indigenous
peoples. The land occupied by the petitioners is within
a "protected area" as defined by the said law and is
well within the jurisdiction of the DENR. The
respondent likewise claims that the petitioners are
estopped from contesting the validity of the DENR
administrative issuances considering that their
relatives applied for certificates of ancestral land claim
(CALC) under the said special orders which
applications were, however, denied. The petitioners
should not be allowed to challenge the same
administrative orders which they themselves
previously invoked.
- The respondents do not contest the ruling of the
appellate court as regards the nullity of Special Order
no. 31, as amended. The sole issue before us
concerns the validity of DENR Special Order no. 25,
series of 1993 and its implementing rules DAO no. 02.
The petitioners' main contention is that the assailed
administrative orders were issued beyond the
jurisdiction or power of the DENR secretary under the
NIPAS Act of 1992. They seek to enjoin the
respondents from processing the application for
ancestral land claim filed by the heirs of Carantes
because if approved, the petitioners may be evicted
from the portion of the land they occupy which
overlaps the land applied for by the Carantes heirs.
- From a reading of the records it appears to us that the
petition was prematurely filed. Under the undisputed
facts there is as yet no justiciable controversy for the
court to resolve and the petition should have been
dismissed by the appellate court on this ground.
- We gather from the allegations of the petition and that
of the petitioners' memorandum that the alleged
application for certificate of ancestral land claim
(CALC) filed by the heirs of Carantes under the
assailed DENR special orders has not been granted
nor the CALC applied for, issued. The DENR is still
processing the application of the heirs of Carantes for
a certificate of ancestral land claim, which the DENR
may or may not grant. It is evident that the adverse
legal interests involved in this case are the competing
claims of the petitioners and that of the heirs of
Carantes to possess a common portion of a piece of
land. As the undisputed facts stand there is no
justiciable controversy between the petitioners and the
respondents as there is no actual or imminent violation
of the petitioners' asserted right to possess the land by
reason by the implementation of the questioned
administrative issuances.
- A justiciable controversy has been defined as, "a
definite and concrete dispute touching on the legal
relations of parties having adverse legal
interest"10 which may be resolved by a court of law
through the application of a law.11Courts have no
judicial power to review cases involving political
questions and as a rule, will desist from taking
cognizance of speculative or hypothetical cases,
 advisory opinions and in cases that has become
moot.12 Subject to certain well-defined
exceptions13 courts will not touch an issue involving the
validity of a law unless there has been a governmental
act accomplished or performed that has a direct
adverse effect on the legal right of the person
contesting its validity.14 In the case of PACU vs.
Secretary of Education15 the petition contesting the
validity of a regulation issued by the Secretary of
Education requiring private schools to secure a permit
to operate was dismissed on the ground that all the
petitioners have permits and are actually operating
under the same. The petitioners questioned the
regulation because of the possibility that the permit
might be denied them in the future. This Court held
that there was no justiciable controversy because the
petitioners suffered no wrong by the implementation of
the questioned regulation and therefore, they are not
entitled to relief. A mere apprehension that the
Secretary of Education will withdraw the permit does
not amount to a justiciable controversy. The
questioned regulation in the PACU case may be
questioned by a private school whose permit to
operate has been revoked or one whose application
therefor has been denied.16
- This Court cannot rule on the basis of petitioners'
speculation that the DENR will approve the application
of the heirs of Carantes. There must be an actual
governmental act which directly causes or will
imminently cause injury to the alleged right of the
petitioner to possess the land before the jurisdiction of
this Court may be invoked. There is no showing that
the petitioners were being evicted from the land by the
heirs of Carantes under orders from the DENR. The
petitioners' allegation that certain documents from the
DENR were shown to them by the heirs of Carantes to
justify eviction is vague, and it would appear that the
petitioners did not verify if indeed the respondent
DENR or its officers authorized the attempted eviction.
Suffice it to say that by the petitioners own admission
that the respondents are still processing and have not
approved the application of the heirs of Carantes, the
petitioners alleged right to possess the land is not
violated nor is in imminent danger of being violated, as
the DENR may or may not approve Carantes'
application. Until such time, the petitioners are simply
speculating that they might be evicted from the
premises at some future time. Borrowing from the
pronouncements of this Court in the PACU case,
"They (the petitioners) have suffered no wrong under
the terms of the lawand, naturally need no relief in
the form they now seek to obtain."17 If indeed the heirs
of Carantes are trying to enter the land and disturbing
the petitioners possession thereof even without prior
approval by the DENR of the claim of the heirs of
Carantes, the case is simply one for forcible entry.
- Wherefore, for lack of justiciable controversy, the
decision of the appellate court is hereby set aside.
- SO ORDERED.
- Melo, Vitug, Panganiban, and Sandoval Gutierrez,
JJ., concur.
- Footnotes:
- 1 Subsequently amended by 31-A and 31-B.
- 2 Special Order no. 31, as amended, series of 1990 states:
- "In the interest of the service and consistent with the Constitutional mandate for
the recognition and protection of the rights of the indigenous cultural communities
to their ancestral lands to ensure their socio-economic and cultural well-being, a
Special Task Force that is responsible for acceptance, identification, evaluation,
and delineation of ancestral land claims in the Cordillera Administrative Region is
hereby created to be composed of the following:
- xxx xxx xxx xxxx
- The Special Task Force shall accept, identify, and evaluate all
applications/petitions of ancestral land claims in the CAR and if found valid,
delineate same by actual ground survey for plotting in a compilation map.
- 1. The Special Task Force shall coordinate with the Indigenous Community Affairs
Division, Special Concerns Office, Regional Secretariat on Townsite Sales
Applications and other actively involved concerned government agencies, private
and/or non-governmental organization on the verification of the authenticity of all
ancestral land claims by taking into consideration the indigenous customs and
practices regarding land use, ownership and management.
- 2. The compilation map of ancestral land claims prepared by the Survey Section,
CENRO Baguio City together with all the pertinent documents thereof shall be
turned over to the herein Special Task Force.
- 3. The Special Task Force shall prepare separate guidelines in the acceptance,
identification, evaluation and delineation of ancestral land claims in Baguio City
and the rest of the Cordillera Region. It shall classify the applications for ancestral
land claims based on the prepared guidelines.
- 4. Paragraph 6 of DENR Special Order No. 31, Series of 1990 is hereby amended
to read as follows:
- "The Special Task Force after evaluating and delineating all ancestral land claims
shall recommend en banc to the Secretary of the DENR through the Regional
Executive Director of CAR and the indigenous community Affairs Division, special
concerns Office, for the issuance of Certificates of Ancestral Domain/Land over
those areas determined to be ancestral." (CA Rollo, pp. 15-19).
- 3 Special Order no. 25, series of 1993 states:
- "In the interest of the service and consistent with the Constitutional mandate for - 10 Sinco, Philippine Political Law, 1962, ed., quoting from the U.S. Declaratory
the recognition and protection of the rights of the indigenous cultural communities Judgment Act of 1934, p. 360.
to their ancestral lands and domains to ensure their economic, social and cultural - 11 Macasiano vs. National Housing Authority, 224 SCRA 238; Bernas, The
well-being, a Provincial Special Task Force on Ancestral Domains and a Constitution of the Republic of the Philippines: A Commentary, vol. II, 1988 ed.,
Community Special Task Force on Ancestral Lands are hereby created in every pp. 274-275.
Provincial Environment and Natural Resources Office (PENRO) and Community - 12 Cruz, Philippine Political Law, 1998 ed., p. 257-259.
Environment and Natural Resources Office (CENRO), respectively, where there is - 13 Solicitor-General vs. MMA, December 11, 1991; Dumlao vs. Comelec, 95
known to exist a concentration of said communities. SCRA 392.
- Each Provincial Task Force on Ancestral Domains shall effect the identification, - 14 Tan vs. Macapagal, 43 SCRA 678.
delineation and recognition of ancestral domain claims of indigenous cultural - 15 97 Phil. 806.
communities in its area of jurisdiction as well as the formulation and execution of - 16 Bernas, supra.
strategies and plans for the sustainable development of the natural resources in - 17 PACU, supra., at p. 810.
these territories. Accordingly, it shall determine, undertake and/or coordinate all - 18 Id. at
activities necessary for the proper discharge of this function; provided, that the - 19 Id. at
actual survey of ancestral domain claims shall be planned and executed by the - 20 Id. at
Office of the Regional Executive Director concerned. -
1w phi 1.nt

- Likewise, each Community Special Task Force shall, on the basis of applications
filed by individual or indigenous corporate (families or clans) claimants, cause the
identification, delineation and recognition of ancestral land claims in its area of
responsibility. For this purpose, it shall undertake and/or coordinate all activities
Republic of the Philippines
necessary for the proper discharge of this function, including the investigation and
SUPREME COURT
ocular inspection of such claims. (CA Rollo, pp. 20-37).
Manila
- 4 "Pursuant to Section 22, Article II; Section 5, Article XII and Section 6, Article XIII
EN BANC
of the 1987 Constitution which provide for the recognition and protection of the
rights of the indigenous cultural communities to their ancestral lands to ensure
G.R. No. 96541 August 24, 1993
their economic, social and cultural well-being; Executive Order No. 192 which
DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION
empowers DENR to exercise exclusive jurisdiction on the management and
REYNA, PROF. RICARTE M. PURUGANAN, IRMA POTENCIANO, ADRIAN
disposition of all lands of the public domain; and R.A. No. 7586 which provides for
CRISTOBAL, INGRID SANTAMARIA, CORAZON FIEL, AMBASSADOR E.
the due recognition of ancestral domains and other customary rights in protected
AGUILAR CRUZ, FLORENCIO R. JACELA, JR., MAURO MALANG,
areas, the following rules and regulations are hereby promulgated for the guidance
FEDERICO AGUILAR ALCUAZ, LUCRECIA R. URTULA, SUSANO
of all concerned."
GONZALES, STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS,
- xxxxxx xxxxxxx xxxxxxx
ANG KIU KOK, KERIMA POLOTAN, LUCRECIA KASILAG, LIGAYA DAVID
- Sec. 9. Issuance of Certificates of Ancestral Land Claims. The Community
PEREZ, VIRGILIO ALMARIO, LIWAYWAY A. ARCEO, CHARITO PLANAS,
Special Task Force on Ancestral Lands shall prepare and submit to the Provincial
HELENA BENITEZ, ANNA MARIA L. HARPER, ROSALINDA OROSA,
Special Task Force on Ancestral Domains a report on each and every application
SUSAN CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ, NELSON
surveyed and delineated. Thereafter the PSTFAD, after evaluating the reports
NAVARRO, MANDY NAVASERO, ROMEO SALVADOR, JOSEPHINE
shall endorse valid ancestral land claims to the office of the Regional Executive
DARANG, and PAZ VETO PLANAS, petitioners,
Director for further review and evaluation. Should the office of the Executive
vs.
Regional Director find such claims meritorious, it shall endorse the same through
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG),
the Special concerns Office to the Secretary for the issuance of Certificates of
CATALINO MACARAIG, JR., in his official capacity, and/or the Executive
Ancestral Land Claims (CALC), declaring and certifying the claim of each
Secretary, and CHAIRMAN MATEO A.T. CAPARAS, respondents.
individual or corporate (family or clan) claimant over ancestral lands."
M.M. Lazaro & Associates for petitioners.
- 5 Application no. BG-J-319.
The Solicitor General for respondents.
- 6 Montoya, J., ponente, JJ. Vidallon-Magtolis and Cosico, concurring.
- 7 Court of Appeals decision, pp. 4-5.
BELLOSILLO, J.:
- 8 Sections 2 and 10, RA 7586. (1992).
All thirty-five (35) petitioners in this Special Civil Action for Prohibition and
- 9 Sections 38, 42 (e).
Mandamus with Prayer for Preliminary Injunction and/or Restraining Order
seek to enjoin the Presidential Commission on Good Government (PCGG)
from proceeding with the auction sale scheduled on 11 January 1991 by
Christie's of New York of the Old Masters Paintings and 18th and 19th century
silverware seized from Malacaang and the Metropolitan Museum of Manila
and placed in the custody of the Central Bank.
The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of
PCGG, wrote then President Corazon C. Aquino, requesting her for authority
to sign the proposed Consignment Agreement between the Republic of the
Philippines through PCGG and Christie, Manson and Woods International,
Inc. (Christie's of New York, or CHRISTIE'S) concerning the scheduled sale
on 11 January 1991 of eighty-two (82) Old Masters Paintings and antique
silverware seized from Malacaang and the Metropolitan Museum of Manila
alleged to be part of the ill-gotten wealth of the late President Marcos, his
relatives and cronies.
On 14 August 1990, then President Aquino, through former Executive
Secretary Catalino Macaraig, Jr., authorized Chairman Caparas to sign the
Consignment Agreement allowing Christie's of New York to auction off the
subject art pieces for and in behalf of the Republic of the Philippines.
On 15 August 1990, PCGG, through Chairman Caparas, representing the
Government of the Republic of the Philippines, signed the Consignment
Agreement with Christie's of New York. According to the agreement, PCGG
shall consign to CHRISTIE'S for sale at public auction the eighty-two (82) Old
Masters Paintings then found at the Metropolitan Museum of Manila as well as
the silverware contained in seventy-one (71) cartons in the custody of the
Central Bank of the Philippines, and such other property as may subsequently
be identified by PCGG and accepted by CHRISTIE'S to be subject to the
provisions of the agreement. 1
On 26 October 1990, the Commission on Audit (COA) through then Chairman
Eufemio C. Domingo submitted to President Aquino the audit findings and
observations of COA on the Consignment Agreement of 15 August 1990 to
the effect that: (a) the authority of former PCGG Chairman Caparas to enter
into the Consignment Agreement was of doubtful legality; (b) the contract was
highly disadvantageous to the government; (c) PCGG had a poor track record
in asset disposal by auction in the U.S.; and, (d) the assets subject of auction
were historical relics and had cultural significance, hence, their disposal was
prohibited by law. 2
On 15 November 1990, PCGG through its new Chairman David M. Castro,
wrote President Aquino defending the Consignment Agreement and refuting
the allegations of COA Chairman Domingo. 3 On the same date, Director of
National Museum Gabriel S. Casal issued a certification that the items subject of
the Consignment Agreement did not fall within the classification of protected
cultural properties and did not specifically qualify as part of the Filipino cultural
heritage. 4 Hence, this petition originally filed on 7 January 1991 by Dean Jose
Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M.
Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid Santamaria, Corazon Fiel,
Ambassador E. Aguilar Cruz, Florencio R. Jacela, Jr., Mauro Malang, Federico
Aguilar Alcuaz, Lucrecia R. Urtula, Susano Gonzales, Steve Santos, Ephraim
Samson, Soler Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia Kasilag, Ligaya
David Perez, Virgilio Almario and Liwayway A. Arceo.
After the oral arguments of the parties on 9 January 1991, we issued
immediately our resolution denying the application for preliminary injunction to
restrain the scheduled sale of the artworks on the ground that petitioners had
not presented a clear legal right to a restraining order and that proper parties
had not been impleaded.
On 11 January 1991, the sale at public auction proceeded as scheduled and
the proceeds of $13,302,604.86 were turned over to the Bureau of Treasury. 5
On 5 February 1991, on motion of petitioners, the following were joined as
additional petitioners: Charito Planas, Helena Benitez, Ana Maria L. Harper,
Rosalinda Orosa, Susan Carlo Medina, Patricia Ruiz, Bonnie Ruiz, Nelson
Navarro, Mandy Navasero, Romeo Salvador, Josephine Darang and Paz Veto
Planas.
On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive
Secretary, the incumbent Executive Secretary, and Chairman Mateo A.T.
Caparas were impleaded as additional respondents.
Petitioners raise the following issues: (a) whether petitioners have legal
standing to file the instant petition; (b) whether the Old Masters Paintings and
antique silverware are embraced in the phrase "cultural treasure of the nation"
which is under the protection of the state pursuant to the 1987 Constitution
and/or "cultural properties" contemplated under R.A. 4846, otherwise known
as "The Cultural Properties Preservation and Protection Act;" (c) whether the
paintings and silverware are properties of public dominion on which can be
disposed of through the joint concurrence of the President and Congress;
(d) whether respondent, PCGG has the jurisdiction and authority to enter into
an agreement with Christie's of New York for the sale of the artworks; (e)
whether, PCGG has complied with the due process clause and other statutory
requirements for the exportation and sale of the subject items; and, (f)
whether the petition has become moot and academic, and if so, whether the
above issues warrant resolution from this Court.
The issues being interrelated, they will be discussed jointly hereunder.
However, before proceeding, we wish to emphasize that we admire and
commend petitioners' zealous concern to keep and preserve within the
country great works of art by well-known old masters. Indeed, the value of art
cannot be gainsaid. For, by serving as a creative medium through which man
can express his innermost thoughts and unbridled emotions while, at the
same time, reflecting his deep-seated ideals, art has become a true
expression of beauty, joy, and life itself. Such artistic creations give us insights
into the artists' cultural heritage the historic past of the nation and the era to
which they belong in their triumphant, glorious, as well as troubled and
turbulent years. It must be for this reason that the framers of the 1987
Constitution mandated in Art. XIV, Sec. 14, that is the solemn duty of the state
to "foster the preservation, enrichment, and dynamic evolution of a Filipino
national culture based on the principle of unity in diversity in a climate of free
artistic and intellectual expression." And, in urging this Court to grant their
petition, petitioners invoke this policy of the state on the protection of the arts.
But, the altruistic and noble purpose of the petition notwithstanding, there is
that basic legal question which must first be resolved: whether the instant
petition complies with the legal requisites for this Court to exercise its power of
judicial review over this case.
The rule is settled that no question involving the constitutionality or validity of
a law or governmental act may be heard and decided by the court unless
there is compliance with the legal requisites for judicial inquiry, namely: that
the question must be raised by the proper party; that there must be an actual
case or controversy; that the question must be raised at the earliest possible
opportunity; and, that the decision on the constitutional or legal question must
be necessary to the determination of the case itself. 6 But the most important
are the first two (2) requisites.
On the first requisite, we have held that one having no right or interest to
protect cannot invoke the jurisdiction of the court as party-plaintiff in an
action. 7 This is premised on Sec. 2, Rule 3, of the Rules of Court which provides
that every action must be prosecuted and defended in the name of the real party-
in-interest, and that all persons having interest in the subject of the action and in
obtaining the relief demanded shall be joined as plaintiffs. The Court will exercise
its power of judicial review only if the case is brought before it by a party who has
the legal standing to raise the constitutional or legal question. "Legal standing"
means a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is
being challenged. The term "interest" is material interest, an interest in issue and
to be affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. 8 Moreover, the interest of the party plaintiff
must be personal and not one based on a desire to vindicate the constitutional
right of some third and related party. 9
There are certain instances however when this Court has allowed exceptions
to the rule on legal standing, as when a citizen brings a case for mandamus to
procure the enforcement of a public duty for the fulfillment of a public right
recognized by the Constitution, 10 and when a taxpayer questions the validity of
11
a governmental act authorizing the disbursement of public funds.
Petitioners claim that as Filipino citizens, taxpayers and artists deeply
concerned with the preservation and protection of the country's artistic wealth,
they have the legal personality to restrain respondents Executive Secretary
and PCGG from acting contrary to their public duty to conserve the artistic
creations as mandated by the 1987 Constitution, particularly Art. XIV, Secs.
14 to 18, on Arts and Culture, and R.A. 4846 known as "The Cultural
Properties Preservation and Protection Act," governing the preservation and
disposition of national and important cultural properties. Petitioners also
anchor their case on the premise that the paintings and silverware are public
properties collectively owned by them and by the people in general to view
and enjoy as great works of art. They allege that with the unauthorized act of
PCGG in selling the art pieces, petitioners have been deprived of their right to
public property without due process of law in violation of the Constitution. 12
Petitioners' arguments are devoid of merit. They lack basis in fact and in law.
They themselves allege that the paintings were donated by private persons
from different parts of the world to the Metropolitan Museum of Manila
Foundation, which is a non-profit and non-stock corporations established to
promote non-Philippine arts. The foundation's chairman was former First Lady
Imelda R. Marcos, while its president was Bienvenido R. Tantoco. On this
basis, the ownership of these paintings legally belongs to the foundation or
corporation or the members thereof, although the public has been given the
opportunity to view and appreciate these paintings when they were placed on
exhibit.
Similarly, as alleged in the petition, the pieces of antique silverware were
given to the Marcos couple as gifts from friends and dignitaries from foreign
countries on their silver wedding and anniversary, an occasion personal to
them. When the Marcos administration was toppled by the revolutionary
government, these paintings and silverware were taken from Malacaang and
the Metropolitan Museum of Manila and transferred to the Central Bank
Museum. The confiscation of these properties by the Aquino administration
however should not be understood to mean that the ownership of these
paintings has automatically passed on the government without complying with
constitutional and statutory requirements of due process and just
compensation. If these properties were already acquired by the government,
any constitutional or statutory defect in their acquisition and their subsequent
disposition must be raised only by the proper parties the true owners
thereof whose authority to recover emanates from their proprietary rights
which are protected by statutes and the Constitution. Having failed to show
that they are the legal owners of the artworks or that the valued pieces have
become publicly owned, petitioners do not possess any clear legal right
whatsoever to question their alleged unauthorized disposition.
Further, although this action is also one of mandamus filed by concerned
citizens, it does not fulfill the criteria for a mandamus suit. In Legaspi v. Civil
Service Commission, 13 this Court laid down the rule that a writ of mandamus
may be issued to a citizen only when the public right to be enforced and the
concomitant duty of the state are unequivocably set forth in the Constitution. In
the case at bar, petitioners are not after the fulfillment of a positive duty required
of respondent officials under the 1987 Constitution. What they seek is the
enjoining of an official act because it is constitutionally infirmed. Moreover,
petitioners' claim for the continued enjoyment and appreciation by the public of the
artworks is at most a privilege and is unenforceable as a constitutional right in this
action for mandamus.
Neither can this petition be allowed as a taxpayer's suit. Not every action filed
by a taxpayer can qualify to challenge the legality of official acts done by the
government. A taxpayer's suit can prosper only if the governmental acts being
questioned involve disbursement of public funds upon the theory that the
expenditure of public funds by an officer of the state for the purpose of
administering an unconstitutional act constitutes a misapplication of such
funds, which may be enjoined at the request of a taxpayer. 14 Obviously,
petitioners are not challenging any expenditure involving public funds but the
disposition of what they allege to be public properties. It is worthy to note that
petitioners admit that the paintings and antique silverware were acquired from
private sources and not with public money.
Anent the second requisite of actual controversy, petitioners argue that this
case should be resolved by this Court as an exception to the rule on moot and
academic cases; that although the sale of the paintings and silver has long
been consummated and the possibility of retrieving the treasure trove is nil,
yet the novelty and importance of the issues raised by the petition deserve
this Court's attention. They submit that the resolution by the Court of the
issues in this case will establish future guiding principles and doctrines on the
preservation of the nation's priceless artistic and cultural possessions for the
benefit of the public as a whole. 15
For a court to exercise its power of adjudication, there must be an actual case
of controversy one which involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial resolution; the case must not be
moot or academic or based on extra-legal or other similar considerations not
cognizable by a court of justice. 16 A case becomes moot and academic when its
purpose has become stale, 17 such as the case before us. Since the purpose of
this petition for prohibition is to enjoin respondent public officials from holding the
auction sale of the artworks on a particular date 11 January 1991 which is
long past, the issues raised in the petition have become moot and academic.
At this point, however, we need to emphasize that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirements
of an actual case or legal standing when paramount public interest is
involved. 18We find however that there is no such justification in the petition at bar
to warrant the relaxation of the rule.
Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy
of the state to preserve and protect the important cultural properties and
national cultural treasures of the nation and to safeguard their intrinsic value.
As to what kind of artistic and cultural properties are considered by the State
as involving public interest which should therefore be protected, the answer
can be gleaned from reading of the reasons behind the enactment of R.A.
4846:
WHEREAS, the National Museum has the difficult task, under
existing laws and regulations, of preserving and protecting the
cultural properties of the nation;
WHEREAS, inumerable sites all over the country have since
been excavated for cultural relics, which have passed on to
private hands, representing priceless cultural treasure that
properly belongs to the Filipino people as their heritage;
WHEREAS, it is perhaps impossible now to find an area in the
Philippines, whether government or private property, which
has not been disturbed by commercially-minded diggers and
collectors, literally destroying part of our historic past;
WHEREAS, because of this the Philippines has been charged
as incapable of preserving and protecting her cultural legacies;
WHEREAS, the commercialization of Philippine relics from the
contact period, the Neolithic Age, and the Paleolithic Age, has
reached a point perilously placing beyond reach of savants the
study and reconstruction of Philippine prehistory; and
WHEREAS, it is believed that more stringent regulation on
movement and a limited form of registration of important
cultural properties and of designated national cultural
treasures is necessary, and that regardless of the item, any
cultural property exported or sold locally must be registered
with the National Museum to control the deplorable situation
regarding our national cultural properties and to implement the
Cultural Properties Law (emphasis supplied).
Clearly, the cultural properties of the nation which shall be under the
protection of the state are classified as the "important cultural properties" and
the "national cultural treasures." "Important cultural properties" are cultural
properties which have been singled out from among the innumerable cultural
properties as having exceptional historical cultural significance to the
Philippines but are not sufficiently outstanding to merit the classification of
national cultural treasures. 19 On the other hand, a "national cultural treasures" is
a unique object found locally, possessing outstanding historical, cultural, artistic
and/or scientific value which is highly significant and important to this country and
nation. 20 This Court takes note of the certification issued by the Director of the
Museum that the Italian paintings and silverware subject of this petition do not
constitute protected cultural properties and are not among those listed in the
Cultural Properties Register of the National Museum.
We agree with the certification of the Director of the Museum. Under the law, it
is the Director of the Museum who is authorized to undertake the inventory,
registration, designation or classification, with the aid of competent experts, of
important cultural properties and national cultural treasures. 21 Findings of
administrative officials and agencies who have acquired expertise because their
jurisdiction is confined to specific matters are generally accorded not only respect
but at times even finality if such findings are supported by substantial evidence
and are controlling on the reviewing authorities because of their acknowledged
expertise in the fields of specialization to which they are assigned. 22
In view of the foregoing, this Court finds no compelling reason to grant the
petition. Petitioners have failed to show that respondents Executive Secretary
and PCGG exercised their functions with grave abuse of discretion or in
excess of their jurisdiction.
WHEREFORE, for lack of merit, the petition for prohibition and mandamus
is DISMISSED.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado,
Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 147780 May 10, 2001
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO,
petitioners,
vs.
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA,
and P/SR. SUPT. REYNALDO BERROYA, respondents.
----------------------------------------
G.R. No. 147781 May 10, 2001
MIRIAM DEFENSOR-SANTIAGO, petitioner,
vs.
ANGELO REYES, Secretary of National Defense, ET AL., respondents.
----------------------------------------
G.R. No. 147799 May 10, 2001
RONALDO A. LUMBAO, petitioner,
vs.
SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA,
P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
BERROYA, respondents.
----------------------------------------
G.R. No. 147810 May 10, 2001
THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,
vs.
THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE
ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO
VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
GENERAL LEANDRO MENDOZA, respondents.
RESOLUTION
MELO, J.:
On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent
mob armed with explosives, firearms, bladed weapons, clubs, stones and
other deadly weapons" assaulting and attempting to break into Malacaang,
issued Proclamation No. 38 declaring that there was a state of rebellion in the
National Capital Region. She likewise issued General Order No. 1 directing
the Armed Forces of the Philippines and the Philippine National Police to
suppress the rebellion in the National Capital Region. Warrantless arrests of
several alleged leaders and promoters of the "rebellion" were thereafter
effected.
Aggrieved by the warrantless arrests, and the declaration of a "state of
rebellion," which allegedly gave a semblance of legality to the arrests, the
following four related petitions were filed before the Court
(1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas
corpus (with an urgent application for the issuance of temporary restraining
order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael
Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781
for mandamus and/or review of the factual basis for the suspension of the
privilege of the writ of habeas corpus, with prayer for the suspension of the
privilege of the writ ofhabeas corpus, with prayer for a temporary restraining
order filed by Miriam Defensor-Santiago; (3) G. R. No. 147799 for prohibition
and injunction with prayer for a writ of preliminary injunction and/or restraining
order filed by Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and
prohibition filed by the political party Laban ng Demokratikong Pilipino.
All the foregoing petitions assail the declaration of a state of rebellion by
President Gloria Macapagal-Arroyo and the warrantless arrests allegedly
effected by virtue thereof, as having no basis both in fact and in law.
Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting
of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the
instant petitions have been rendered moot and academic. As to petitioners'
claim that the proclamation of a "state of rebellion" is being used by the
authorities to justify warrantless arrests, the Secretary of Justice denies that it
has issued a particular order to arrest specific persons in connection with the
"rebellion." He states that what is extant are general instructions to law
enforcement officers and military agencies to implement Proclamation No. 38.
Indeed, as stated in respondents' Joint Comments:
[I]t is already the declared intention of the Justice Department
and police authorities to obtain regular warrants of arrests from
the courts for all acts committed prior to and until May 1, 2001
which means that preliminary investigations will henceforth be
conducted.
(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18;
G.R. No. 147799, p. 16; G.R. No. 147810, p. 24)
With this declaration, petitioners' apprehensions as to warrantless arrests
should be laid to rest.
In quelling or suppressing the rebellion, the authorities may only resort to
warrantless arrests of persons suspected of rebellion, as provided under
Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant.
The warrantless arrest feared by petitioners is, thus, not based on the
declaration of a "state of rebellion."
Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition),
147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they
are under imminent danger of being arrested without warrant do not justify
their resort to the extraordinary remedies of mandamus and prohibition, since
an individual subjected to warrantless arrest is not without adequate remedies
in the ordinary course of law. Such an individual may ask for a preliminary
investigation under Rule 112 of the Rules of Court, where he may adduce
evidence in his defense, or he may submit himself to inquest proceedings to
determine whether or not he should remain under custody and
correspondingly be charged in court. Further, a person subject of a
warrantless arrest must be delivered to the proper judicial authorities within
the periods provided in Article 125 of the Revised Penal Code, otherwise the
arresting officer could be held liable for delay in the delivery of detained
persons. Should the detention be without legal ground, the person arrested
can charge the arresting officer with arbitrary detention. All this is without
prejudice to his filing an action for damages against the arresting officer under
Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies
which they can avail themselves of, thereby making the prayer for prohibition
and mandamus improper at this time (Section 2 and 3, Rule 65, Rules of
Court).1wphi1.nt
Aside from the foregoing reasons, several considerations likewise inevitably
call for the dismissal of the petitions at bar.
G.R. No. 147780
In connection with their alleged impending warrantless arrest, petitioners
Lacson, Aquino, and mancao pray that the "appropriate court before whom
the informations against petitioners are filed be directed to desist from
arraigning and proceeding with the trial of the case, until the instant petition is
finally resolved." This relief is clearly premature considering that as of this
date, no complaints or charges have been filed against any of the petitioners
for any crime. And in the event that the same are later filed, this Court cannot
enjoin criminal prosecution conducted in accordance with the Rules of Court,
for by that time any arrest would have been in pursuant of a duly issued
warrant.
As regards petitioners' prayer that the hold departure orders issued against
them be declared null and void ab initio, it is to be noted that petitioners are
not directly assailing the validity of the subject hold departure orders in their
petition. They are not even expressing intention to leave the country in the
near future. The prayer to set aside the same must be made in proper
proceedings initiated for that purpose.
Anent petitioners' allegations ex abundante ad cautelam in support of their
application for the issuance of a writ of habeas corpus, it is manifest that the
writ is not called for since its purpose is to relieve petitioners from unlawful
restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which
remains speculative up to this very day.
G.R. No. 147781
The petition herein is denominated by petitioner Defensor-Santiago as one
for mandamus. It is basic in matters relating to petitions for mandamus that
the legal right of the petitioner to the performance of a particular act which is
sought to be compelled must be clear and complete. Mandamus will not issue
unless the right to relief is clear at the time of the award (Palileo v. Ruiz
Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has
not shown that she is in imminent danger of being arrested without a warrant.
In point of fact, the authorities have categorically stated that petitioner will not
be arrested without a warrant.
G.R. No. 147799
Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP),
for his part, argues that the declaration of a "state of rebellion" is violative of
the doctrine of separation of powers, being an encroachment on the domain of
the judiciary which has the constitutional prerogative to "determine or
interpret" what took place on May 1, 2001, and that the declaration of a state
of rebellion cannot be an exception to the general rule on the allocation of the
governmental powers.
We disagree. To be sure, Section 18, Article VII of the Constitution expressly
provides that "[t]he President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion" Thus, we held in Integrated Bar of the Philippines v. Hon. Zamora,
(G.R. No. 141284, August 15, 2000):
x x x The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several factors
which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be
difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not
constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be
classified as highly confidential or affecting the security of the state. In
the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. x x x
(at pp.22-23)
The Court, in a proper case, may look into the sufficiency of the factual basis
of the exercise of this power. However, this is no longer feasible at this time,
Proclamation No. 38 having been lifted.
G.R. No. 147810
Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The
rule requires that a party must show a personal stake in the outcome of the
case or an injury to himself that can be redressed by a favorable decision so
as to warrant an invocation of the court's jurisdiction and to justify the exercise
of the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr.,
239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to
itself which would justify resort to the Court. Petitioner is a juridical person not
subject to arrest. Thus, it cannot claim to be threatened by a warrantless
arrest. Nor is it alleged that its leaders, members, and supporters are being
threatened with warrantless arrest and detention for the crime of rebellion.
Every action must be brought in the name of the party whose legal right has
been invaded or infringed, or whose legal right is under imminent threat of
invasion or infringement.
At best, the instant petition may be considered as an action for declaratory
relief, petitioner claiming that its right to freedom of expression and freedom of
assembly is affected by the declaration of a "state of rebellion" and that said
proclamation is invalid for being contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords little
comfort to petitioner, this Court not having jurisdiction in the first instance over
such a petition. Section 5[1], Article VIII of the Constitution limits the original
jurisdiction of the Court to cases affecting ambassadors, other public ministers
and consuls, and over petitions forcertiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
WHEREFORE, premises considered, the petitions are hereby DISMISSED.
However, in G.R. No. 147780, 147781, and 147799, respondents, consistent
and congruent with their undertaking earlier adverted to, together with their
agents, representatives, and all persons acting for and in their behalf, are
hereby enjoined from arresting petitioners therein without the required judicial
warrant for all acts committed in relation to or in connection with the may 1,
2001 siege of Malacaang.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes,
JJ., concur.
Vitug, separate opinion.
Kapunan, dissenting opinion.
Pardo, join the dissent of J. Kapunan.
Sandoval-Gutierrez, dissenting opinion.
Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 141284 August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR
B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for
issuance of a temporary restraining order seeking to nullify on constitutional
grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the "Marines") to join the Philippine
National Police (the "PNP") in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive,
ordered the PNP and the Marines to conduct joint visibility patrols for the
purpose of crime prevention and suppression. The Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines (the "AFP"),
the Chief of the PNP and the Secretary of the Interior and Local Government
were tasked to execute and implement the said order. In compliance with the
presidential mandate, the PNP Chief, through Police Chief Superintendent
Edgar B. Aglipay, formulated Letter of Instruction 02/20001 (the "LOI") which
detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.2 Task Force Tulunganwas placed under
the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the
deployment of the Marines in a Memorandum, dated 24 January 2000,
addressed to the Chief of Staff of the AFP and the PNP Chief.3 In the
Memorandum, the President expressed his desire to improve the peace and
order situation in Metro Manila through a more effective crime prevention
program including increased police patrols.4 The President further stated that
to heighten police visibility in the metropolis, augmentation from the AFP is
necessary.5 Invoking his powers as Commander-in-Chief under Section 18,
Article VII of the Constitution, the President directed the AFP Chief of Staff
and PNP Chief to coordinate with each other for the proper deployment and
utilization of the Marines to assist the PNP in preventing or suppressing
criminal or lawless violence.6 Finally, the President declared that the services
of the Marines in the anti-crime campaign are merely temporary in nature and
for a reasonable period only, until such time when the situation shall have
improved.7
The LOI explains the concept of the PNP-Philippine Marines joint visibility
patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and
the Philippine Marines partnership in the conduct of visibility patrols in Metro
Manila for the suppression of crime prevention and other serious threats to
national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and
former police/military personnel whose training, skill, discipline and firepower
prove well-above the present capability of the local police alone to handle.
The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of
police visibility patrol in urban areas will reduce the incidence of crimes
specially those perpetrated by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through
a sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose
members include those that are well-trained, disciplined and well-armed active
or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the
NCRPO [National Capital Regional Police Office] and the
Philippine Marines to curb criminality in Metro Manila and to
preserve the internal security of the state against insurgents
and other serious threat to national security, although the
primary responsibility over Internal Security Operations still
rests upon the AFP.
b. The principle of integration of efforts shall be applied to
eradicate all forms of high-profile crimes perpetrated by
organized crime syndicates operating in Metro Manila. This
concept requires the military and police to work cohesively and
unify efforts to ensure a focused, effective and holistic
approach in addressing crime prevention. Along this line, the
role of the military and police aside from neutralizing crime
syndicates is to bring a wholesome atmosphere wherein
delivery of basic services to the people and development is
achieved. Hand-in-hand with this joint NCRPO-Philippine
Marines visibility patrols, local Police Units are responsible for
the maintenance of peace and order in their locality.
 c. To ensure the effective implementation of this project, a
provisional Task Force "TULUNGAN" shall be organized to
provide the mechanism, structure, and procedures for the
integrated planning, coordinating, monitoring and assessing
the security situation.
xxx.8
The selected areas of deployment under the LOI are: Monumento Circle,
North Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall,
Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic
Airport.9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the
instant petition to annul LOI 02/2000 and to declare the deployment of the
Philippine Marines, null and void and unconstitutional, arguing that:
I the Constitution.
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS
VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO
MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY,
THE DEPLOYMENT OF SOLDIERS FOR LAW
ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE
CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS
INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION
OF GOVERNMENT (LAW ENFORCEMENT) IN
DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE
CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS
TENDENCY TO RELY ON THE MILITARY TO PERFORM
THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.10
Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions
the validity of the deployment and utilization of the Marines to assist the PNP
in law enforcement.
Without granting due course to the petition, the Court in a Resolution,11 dated
25 January 2000, required the Solicitor General to file his Comment on the
petition. On 8 February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner
has no legal standing; that the question of deployment of the Marines is not
proper for judicial scrutiny since the same involves a political question; that
the organization and conduct of police visibility patrols, which feature the
team-up of one police officer and one Philippine Marine soldier, does not
violate the civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has
legal standing; (2) Whether or not the Presidents factual determination of the
necessity of calling the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint
visibility patrols violates the constitutional provisions on civilian supremacy
over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the
requisites of standing to raise the issues in the petition. Second, the President
did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction nor did he commit a violation of the civilian supremacy clause of
The power of judicial review is set forth in Section 1, Article VIII of the
Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can
exercise its power of judicial review only if the following requisites are
complied with, namely: (1) the existence of an actual and appropriate case;
(2) a personal and substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the earliest
opportunity; and (4) the constitutional question is the lis mota of the case.12
The IBP has not sufficiently complied with the requisites of standing in this
case.
"Legal standing" or locus standi has been defined as a personal and
substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged.13 The term "interest" means a material interest, an interest in
issue affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest.14 The gist of the question of
standing is whether a party alleges "such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions."15
In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus
standi. The mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. Based on the standards above-stated, the IBP
has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the
Rules of Court, is to elevate the standards of the law profession and to
improve the administration of justice is alien to, and cannot be affected by the
deployment of the Marines. It should also be noted that the interest of the
National President of the IBP who signed the petition, is his alone, absent a
formal board resolution authorizing him to file the present action. To be sure,
members of the BAR, those in the judiciary included, have varying opinions on
the issue. Moreover, the IBP, assuming that it has duly authorized the
National President to file the petition, has not shown any specific injury which
it has suffered or may suffer by virtue of the questioned governmental act.
Indeed, none of its members, whom the IBP purportedly represents, has
sustained any form of injury as a result of the operation of the joint visibility
patrols. Neither is it alleged that any of its members has been arrested or that
their civil liberties have been violated by the deployment of the Marines. What
the IBP projects as injurious is the supposed "militarization" of law
enforcement which might threaten Philippine democratic institutions and may
cause more harm than good in the long run. Not only is the presumed "injury"
not personal in character, it is likewise too vague, highly speculative and
uncertain to satisfy the requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule
that the IBP has absolutely no standing to raise constitutional issues now or in
the future. The IBP must, by way of allegations and proof, satisfy this Court
that it has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement
of legal standing when paramount interest is involved.16 In not a few cases,
the Court has adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental significance to
the people.17 Thus, when the issues raised are of paramount importance to
the public, the Court may brush aside technicalities of procedure.18 In this
case, a reading of the petition shows that the IBP has advanced constitutional
issues which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in increasing tempo,
undoubtedly aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not go away. It will stare
us in the face again. It, therefore, behooves the Court to relax the rules on
standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the
Marines.
In the case at bar, the bone of contention concerns the factual determination
of the President of the necessity of calling the armed forces, particularly the
Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that
the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion. What the IBP questions, however, is
the basis for the calling of the Marines under the aforestated provision.
According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless
violence, invasion or rebellion exist to warrant the calling of the Marines. Thus,
the IBP prays that this Court "review the sufficiency of the factual basis for
said troop [Marine] deployment."19
The Solicitor General, on the other hand, contends that the issue pertaining to
the necessity of calling the armed forces is not proper for judicial scrutiny
since it involves a political question and the resolution of factual issues which
are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential
powers and limits, and the extent of judicial review. But, while this Court gives
considerable weight to the parties formulation of the issues, the resolution of
the controversy may warrant a creative approach that goes beyond the narrow
confines of the issues raised. Thus, while the parties are in agreement that the
power exercised by the President is the power to call out the armed forces,
the Court is of the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare.20 For
one, the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is
not brought upon the citizenry, a point discussed in the latter part of this
decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling presidential
duties in times of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot
be said to exclude the Presidents exercising as Commander-in-Chief powers
short of the calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.
xxx21
Nonetheless, even if it is conceded that the power involved is the Presidents
power to call out the armed forces to prevent or suppress lawless violence,
invasion or rebellion, the resolution of the controversy will reach a similar
result.
We now address the Solicitor Generals argument that the issue involved is
not susceptible to review by the judiciary because it involves a political
question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter
which is appropriate for court review.22 It pertains to issues which are
inherently susceptible of being decided on grounds recognized by law.
Nevertheless, the Court does not automatically assume jurisdiction over
actual constitutional cases brought before it even in instances that are ripe for
resolution. One class of cases wherein the Court hesitates to rule on are
"political questions." The reason is that political questions are concerned with
issues dependent upon the wisdom, not the legality, of a particular act or
measure being assailed. Moreover, the political question being a function of
the separation of powers, the courts will not normally interfere with the
workings of another co-equal branch unless the case shows a clear need for
the courts to step in to uphold the law and the Constitution.
As Taada v. Cuenco23 puts it, political questions refer "to those questions
which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government." Thus, if an
issue is clearly identified by the text of the Constitution as matters for
discretionary action by a particular branch of government or to the people
themselves then it is held to be a political question. In the classic formulation
of Justice Brennan in Baker v. Carr,24 "[p]rominent on the surface of any case
held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a courts undertaking
independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to
a political decision already made; or the potentiality of embarassment from
multifarious pronouncements by various departments on the one question."
The 1987 Constitution expands the concept of judicial review by providing that
"(T)he Judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law. Judicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government."25 Under this
definition, the Court cannot agree with the Solicitor General that the issue
involved is a political question beyond the jurisdiction of this Court to review.
When the grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have been met or
the limitations respected, is justiciable - the problem being one of legality or
validity, not its wisdom.26 Moreover, the jurisdiction to delimit constitutional
boundaries has been given to this Court.27 When political questions are
involved, the Constitution limits the determination as to whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned.28
By grave abuse of discretion is meant simply capricious or whimsical exercise
of judgment that is patent and gross as to amount to an evasion of positive
duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.29 Under this definition, a
court is without power to directly decide matters over which full discretionary
authority has been delegated. But while this Court has no power to substitute
its judgment for that of Congress or of the President, it may look into the
question of whether such exercise has been made in grave abuse of
discretion.30A showing that plenary power is granted either department of
government, may not be an obstacle to judicial inquiry, for the improvident
exercise or abuse thereof may give rise to justiciable controversy.31
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom. This is clear from the intent of the framers and
from the text of the Constitution itself. The Court, thus, cannot be called upon
to overrule the Presidents wisdom or substitute its own. However, this does
not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon the petitioner to show that
the Presidents decision is totally bereft of factual basis. The present petition
fails to discharge such heavy burden as there is no evidence to support the
assertion that there exist no justification for calling out the armed forces.
There is, likewise, no evidence to support the proposition that grave abuse
was committed because the power to call was exercised in such a manner as
to violate the constitutional provision on civilian supremacy over the military. In
the performance of this Courts duty of "purposeful hesitation"32 before
declaring an act of another branch as unconstitutional, only where such grave
abuse of discretion is clearly shown shall the Court interfere with the
Presidents judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to
determine the necessity for the exercise of such power. Section 18, Article VII
of the Constitution, which embodies the powers of the President as
Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus,
or place the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for
the exercise of the calling out power is also implied and further reinforced in
the rest of Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by
a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with
invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the
revocation or review of the Presidents action to call out the armed forces. The
distinction places the calling out power in a different category from the power
to declare martial law and the power to suspend the privilege of the writ
of habeas corpus, otherwise, the framers of the Constitution would have
simply lumped together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio alterius. Where
the terms are expressly limited to certain matters, it may not, by interpretation
or construction, be extended to other matters.33 That the intent of the
Constitution is exactly what its letter says, i.e., that the power to call is fully
discretionary to the President, is extant in the deliberation of the Constitutional
Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can call
out such Armed Forces as may be necessary to suppress lawless violence;
then he can suspend the privilege of the writ of habeas corpus, then he can
impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the
privilege of the writ of habeas corpus, his judgment is subject to review. We
are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is necessary, it is my
opinion that his judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: "The President may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion."
So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent
danger, the matter can be handled by the First Sentence: "The
President....may call out such Armed Forces to prevent or suppress lawless
violence, invasion or rebellion." So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?
MR. REGALADO. That does not require any concurrence by the legislature
nor is it subject to judicial review.34
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the power to call out because it is considered as the lesser
and more benign power compared to the power to suspend the privilege of the
writ of habeas corpus and the power to impose martial law, both of which
involve the curtailment and suppression of certain basic civil rights and
individual freedoms, and thus necessitating safeguards by Congress and
review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of
the power to suspend the privilege of the writ of habeas corpus or to impose
martial law, two conditions must concur: (1) there must be an actual invasion
or rebellion and, (2) public safety must require it. These conditions are not
required in the case of the power to call out the armed forces. The only
criterion is that "whenever it becomes necessary," the President may call the
armed forces "to prevent or suppress lawless violence, invasion or rebellion."
The implication is that the President is given full discretion and wide latitude in
the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the
President acted without factual basis, then this Court cannot undertake an
independent investigation beyond the pleadings. The factual necessity of
calling out the armed forces is not easily quantifiable and cannot be
objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts.
Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence
upon which the President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be classified as
highly confidential or affecting the security of the state. In the exercise of the
power to call, on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and mass destruction
of property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any
effect at all. Such a scenario is not farfetched when we consider the present
situation in Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling out
power if subjected to unfettered judicial scrutiny could be a veritable
prescription for disaster, as such power may be unduly straitjacketed by an
injunction or a temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President,
as Commander-in-Chief of the Armed Forces, full discretion to call forth the
military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can
show that the exercise of such discretion was gravely abused, the Presidents
exercise of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for
calling the armed forces. In his Memorandum, he categorically asserted that,
"[V]iolent crimes like bank/store robberies, holdups, kidnappings and
carnappings continue to occur in Metro Manila..."35 We do not doubt the
veracity of the Presidents assessment of the situation, especially in the light
of present developments. The Court takes judicial notice of the recent
bombings perpetrated by lawless elements in the shopping malls, public
utilities, and other public places. These are among the areas of deployment
described in the LOI 2000. Considering all these facts, we hold that the
President has sufficient factual basis to call for military aid in law enforcement
and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause
nor does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines,
the civilian task of law enforcement is "militarized" in violation of Section 3,
Article II36 of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of
the civilian supremacy clause. The calling of the Marines in this case
constitutes permissible use of military assets for civilian law enforcement. The
participation of the Marines in the conduct of joint visibility patrols is
appropriately circumscribed. The limited participation of the Marines is evident
in the provisions of the LOI itself, which sufficiently provides the metes and
bounds of the Marines authority. It is noteworthy that the local police forces
are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols.37 Under the LOI,
the police forces are tasked to brief or orient the soldiers on police patrol
procedures.38 It is their responsibility to direct and manage the deployment of
the Marines.39 It is, likewise, their duty to provide the necessary equipment to
the Marines and render logistical support to these soldiers.40 In view of the
foregoing, it cannot be properly argued that military authority is supreme over
civilian authority. Moreover, the deployment of the Marines to assist the PNP
does not unmake the civilian character of the police force. Neither does it
amount to an "insidious incursion" of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of the Constitution.41
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff
of the AFP, by his alleged involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the aforecited provision.
The real authority in these operations, as stated in the LOI, is lodged with the
head of a civilian institution, the PNP, and not with the military. Such being the
case, it does not matter whether the AFP Chief actually participates in the
Task Force Tulungan since he does not exercise any authority or control over
the same. Since none of the Marines was incorporated or enlisted as
members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols
does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no
"insidious incursion" of the military in civilian affairs nor can there be a
violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that
it is not averse to requesting the assistance of the military in the
implementation and execution of certain traditionally "civil" functions. As
correctly pointed out by the Solicitor General, some of the multifarious
activities wherein military aid has been rendered, exemplifying the activities
that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;42
2. Administration of the Philippine National Red Cross;43
3. Relief and rescue operations during calamities and disasters;44
4. Amateur sports promotion and development;45
5. Development of the culture and the arts;46
6. Conservation of natural resources;47
7. Implementation of the agrarian reform program;48
8. Enforcement of customs laws;49
9. Composite civilian-military law enforcement activities;50
10. Conduct of licensure examinations;51
11. Conduct of nationwide tests for elementary and high school
students;52
12. Anti-drug enforcement activities;53
13. Sanitary inspections;54
14. Conduct of census work;55
15. Administration of the Civil Aeronautics Board;56
16. Assistance in installation of weather forecasting devices;57
17. Peace and order policy formulation in local government units.58
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of
Congress and, yet, never before questioned.59 What we have here is mutual
support and cooperation between the military and civilian authorities, not
derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards
the use of military force for domestic purposes has persisted,60 and whose
Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act61 of the US, the use of the
military in civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army or the
Air Force as posse comitatus or otherwise to execute the laws shall be fined
not more than $10,000 or imprisoned not more than two years, or both.62
To determine whether there is a violation of the Posse Comitatus Act in the
use of military personnel, the US courts63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory64 George Washington Law Review, pp. 404-433
(1986), which discusses the four divergent standards for assessing
acceptable involvement of military personnel in civil law
enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL
AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale
Law Journal, pp. 130-152, 1973. 64 in nature, either presently or
prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the
Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those
claiming relief. A mere threat of some future injury would be
1wphi1
insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case
to determine whether there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A65 does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not
control or direct the operation. This is evident from Nos. 6,66 8(k)67 and
9(a)68 of Annex A. These soldiers, second, also have no power to prohibit or
condemn. In No. 9(d)69 of Annex A, all arrested persons are brought to the
nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No.
8(c)70 of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or
compulsory military power, the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for civilian law
enforcement.71
It appears that the present petition is anchored on fear that once the armed
forces are deployed, the military will gain ascendancy, and thus place in peril
our cherished liberties. Such apprehensions, however, are unfounded. The
power to call the armed forces is just that - calling out the armed forces.
Unless, petitioner IBP can show, which it has not, that in the deployment of
the Marines, the President has violated the fundamental law, exceeded his
authority or jeopardized the civil liberties of the people, this Court is not
inclined to overrule the Presidents determination of the factual basis for the
calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January,
2000, not a single citizen has complained that his political or civil rights have
been violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived. Freedom and democracy will be in full bloom
only when people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
- C. The constitutional question must be
raised at the earliest possible opportunity
Umali vs. Guingona, GR No. 131124, March 21, 1999
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 131124 March 29, 1999
OSMUNDO G. UMALI, petitioner,
vs.
EXECUTIVE SECRETARY TEOFISTO T. GUINGONA JR., CHAIRMAN,
PRESIDENTIAL COMMISSION AGAINST GRAFT AND CORRUPTION, THE
SECRETARY OF FINANCE, AND THE COMMISSIONER OF INTERNAL
REVENUE, respondents.
RESOLUTION
PURISIMA, J.:
At bar is a petition for review under Rule 45 of the Revised Rules of Court
assailing the decision of the Court of Appeals dated April 8, 1997, which set
aside the Amended Decision dated December 13, 1995 of the Regional Trial
Court of Makati in Civil Case No. 94-3078, and dismissed the petition
for Certiorari, Prohibition and Injunction brought by petitioner against the
respondents.
The antecedent facts leading to the filing of the present are as follows:
On October 27, 1993, petitioner Osmundo Umali was appointed Regional
Director of the Bureau of Internal Revenue by the then President Fidel V.
Ramos. He was assigned in Manila, from November 29, 1993 to March 15,
1994, and in Makati, from March 16, 1994 to August 4, 1994.
On August 1, 1994, President Ramos received a confidential memorandum
against the petitioner for alleged violations of internal revenue laws, rules and
regulations during his incumbency as Regional Director, more particularly the
following malfeasance, misfeasance and nonfeasance, to wit:
A. Issuance of Letters of Authority (LA's) to
investigate taxpayers despite the ban on
investigations as ordered in Revenue
Memorandum Order No. 31-93. In numerous
cases, revenue officers whose names
appeared in the LA's as investigating officers
were unaware that such LA's were issued to
them. He issued LA's to favored revenue
examiners such as his Secretary, Natividad
Feliciano;
B. Termination of tax cases without the
submission of the required investigation
reports, thus exempting the same from
examination and review;
C. Terminated cases with reports were
submitted directly to and approved by
respondent Umali without being reviewed by
the Assistant Division, thus eliminating the
check and balance mechanism designed to
guard against abuses or errors;
D. Unlawful issuance of LA's to taxpayers who
were thereafter convinced to avail of the BIR's
compromise and abatement program under
RMO's 45093 and 54-93, for which the
taxpayers were made, for a monetary
consideration, to pay smaller amounts in lieu of
being investigated;
E. Despite the devolution of the authority to
issue LA's from Regional Directors to the
Revenue District Officers under RMO 26-94,
dated April 14, 1994, respondent Umali
continued to issue antedated LA's in absolute
defiance of the aforesaid issuance, using old
LA's requisitioned by him when still Regional
Director of San Pablo Region. In one instance,
he issued a termination letter bearing the San
Pablo Region letterhead even when he was
already Makati Regional Director; and
F. In his attempt to cover up his tracks and to
muddle the real issue of his violations of the
ban in the issuance of LA's and basic revenue
rules and regulations, respondent enlisted the
support of other regional directors for the
purposes of questioning particularly the
devolution/centralization of the functions of the
Bureau. 1
On August 2, 1994, upon receipt of the said confidential memorandum, former
President Ramos authorized the issuance of an Order for the preventive
suspension of Umali and immediately referred the Complaint against the latter
to the Presidential Commission on Anti-Graft and Corruption (PCAGC), for
investigation.
Petitioner was duly informed of the charges against him. In its Order, dated
August 9, 1994, the PCAGC directed him to send in his answer, copies of his
Statement of Assets, and Liabilities for the past three years (3), and Personal
Data Sheet. Initial hearing was set on August 25, 1994, at 2:00 p.m., at the
PCAGC Office. On August 23, the petitioner filed his required Answer.
On August 25, 1994, petitioner appeared with his lawyer. Atty. Bienvenido
Santiago before the PCAGC. Counsel for the Commissioner of Internal
Revenue submitted a Progress Report, dated August 24, 1994, on the audit
conducted on the petitioner. As prayed for, petitioner and his lawyer were
granted five (5) days to file a supplemental answer.
The hearing was reset to August 30, 1994, during which the parties were
given a chance to ask clarificatory questions. Petitioner and his counsel did
not ask any question on the genuineness and authenticity of the documents
attached as annexes to the Complaint. Thereafter, the parties agreed to
submit the case for resolution upon the presentation of their respective
memoranda.
Petitioner filed his Memorandum on September 6, 1994 while the BIR sent in
its Memorandum on the following day.
After evaluating the evidence on record, the PCAGC issued its Resolution of
September 23, 1994, finding a prima facie evidence to support six (6) of the
twelve (12) charges against petitioner, to wit:
1. On the First Charge Respondent issued
176 Letters of Authority in gross disobedience
to and in violation of RMOs 31-93 and 27-94.
 xxx xxx xxx
3. On the Third Charge There is sufficient
evidence of a prima facie case of falsification of
official documents as defined in Art. 171, par. 2
and 4 of the Revised Penal Code, against the
respondent for the issuance of 9 LA's and who
did not investigate the tax cases, each LA
being a separate offense.
xxx xxx xxx
7. On the Seventh Charge There is
sufficient evidence of a prima facie case of
falsification of official documents against
respondent for antedating the four LA's cited in
the charge, each LA constituting a separate
offense, under Art. 171 (4) of the Revised
Penal Code.
8. On the Ninth (sic) Charge There is
sufficient evidence to support a prima
facie case of falsification of an official
document under Art. 171 (4) of the Revised
Penal Code against the respondent in the tax
case of Richfield International Corp., Inc. for
indicating a false date on the letter of
termination he issued to the company. There
is, however, insufficient evidence against
respondent in the other tax case of Jayson
Auto Supply Co.
9. On the Ninth Charge There is sufficient
evidence of a prima facie case of falsification of
official documents in each of the two cases
cited in his charge, under the provisions of Art.
171 (4) of the Revised Penal Code, as the
dates of Termination Letters were false.
10. On the Tenth Charge Respondent, by
his own admission, violated RMO 36-87
requiring turn over of all properties and forms
to his successor upon transfer as head of
office, and RMO 27-94 requiring the surrender
of all unused old forms of Letters of Authority.
The Commission noted the defiant attitude of
respondent, as expressed in his admission,
towards valid and legal orders of the BIR, and
his propensity to defy and ignore such orders
and regulations. 2
xxx xxx xxx
On October 6, 1994, acting upon the recommendation of the PCAGC, then
President Ramos issued Administrative Order No. 152 dismissing petitioner
from the service, with forfeiture of retirement and all benefits under the law.
On October 24, 1994, the petitioner moved for reconsideration of his dismissal
but the Office of the President denied the motion for reconsideration on
November 28, 1994.
On December 1, 1994, petitioner brought a Petition for Certiorari, Prohibition
and Injunction, docketed as Civil Case No. 94-3079 before the Regional Trial
Court of Makati, alleging, among others:
I. That the petitioner was suspended and
dismissed from the service in violation of his
constitutional right to due process of law; and
II. That the constitutional right of the petitioner
to security of tenure was violated by the
respondents.
The case was raffled off to Branch 133 of the Regional Trial Court in Makati,
which issued on December 2, 1994, a Temporary Restraining Order, enjoining
the respondents and/or their representatives from enforcing Administrative
Order No. 152, and directing the parties to observe the status quo until further
orders from the said Court.
On December 23, 1994, the said Regional Trial Court dismissed the petition.
On January 10, 1995, the petitioner presented a motion for reconsideration,
this time, theorizing that the Presidential Commission on Anti-Graft and
Corruption is an unconstitutional office without jurisdiction to conduct the
investigation against him.
Respondents submitted their Opposition/Comment to the Motion for
Reconsideration. Then, the petitioner filed a Motion to Inhibit Judge Inoturan
on the ground that the latter was formerly a Solicitor in the Office of the
Solicitor General and could not be expected to decide the case with utmost
impartiality.
The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr. who, on December
13, 1995, handed down an Amended Decision, granting the petition and
practically reversing the original Decision.
Not satisfied with the Amended Decision of Judge Guadiz, Jr., the
respondents appealed therefrom to the Court of Appeals.
On April 8, 1997, the Ninth Division of the Court of Appeals 3 promulgated its
decision, reversing the Amended Decision of the trial court of origin, and
dismissing Civil Case No. 94-3079. Petitioner's motion for reconsideration met the
same fate. It was denied on October 28, 1997.
Undaunted, petitioner found his way to this Court via the petition under
scrutiny.
In the interim that the administrative and civil cases against the petitioner were
pending, the criminal aspect of such cases was referred to the Office of the
Ombudsman for investigation.
On July 25, 1995, after conducting the investigation, Ombudsman
Investigators Merba Waga and Arnulfo Pelagio issued a Resolution finding a
probable cause and recommending the institution in the courts of proper
jurisdiction criminal cases for Falsification of Public Documents (13 counts)
and Open Disobedience (2 counts) against the petitioner.
However, acting upon petitioner's motion for reconsideration Special
Prosecution Officer II Lemuel M. De Guzman set aside the said Resolution of
July 25, 1995, and in lieu thereof, dismissed the charges against petitioner, in
the Order dated November 5, 1996, which was approved by Ombudsman
Aniano Desierto. Accordingly, all the Informations against the petitioner
previously sent to the Office of the City Prosecutor, were recalled.
On August 10, 1998, Commissioner Beethoven L. Rualo of the Bureau of
Internal Revenue sent a letter to the Solicitor General informing the latter that
"the Bureau of Internal Revenue is no longer interested in pursuing the case
against Atty. Osmundo Umali" on the basis of the comment and
recommendation submitted by the Legal Department of the BIR. 4
Petitioner raised the issues:
1. WHETHER ADMINISTRATIVE ORDER NO.
152 VIOLATED PETITIONER'S RIGHT TO
SECURITY OF TENURE;
2. WHETHER PETITIONER WAS DENIED
DUE PROCESS IN THE ISSUANCE OF
ADMINISTRATIVE ORDER NO. 152;
3. WHETHER THE PCAGC IS A VALIDLY
CONSTITUTED GOVERNMENT AGENCY
AND WHETHER PETITIONER CAN RAISE
THE ISSUE OF ITS CONSTITUTIONALITY
BELATEDLY IN ITS MOTION FOR
RECONSIDERATION OF THE TRIAL
COURT'S DECISION; AND
5. WHETHER IN THE LIGHT OF THE
OMBUDSMAN RESOLUTION DISMISSING
THE CHARGES AGAINST PETITIONER,
THERE IS STILL BASIS FOR PETITIONER'S
DISMISSAL WITH FORFEITURE OF
BENEFITS AS RULED IN ADMINISTRATIVE
ORDER NO. 152.
Petitioner contends that as Regional Director of the Bureau of Internal
Revenue he belongs to the Career Executive Service. Although a Presidential
appointee under the direct authority of the President to discipline, he is a
career executive service officer (CESO) with tenurial protection, who can only
be removed for cause. In support of this theory, petitioner cited the case
of Larin vs. Executive Secretary 5 where the Court held:
. . . petitioner is a presidential appointee who belongs to the
career service of the Civil Service. Being a presidential
appointee, he comes under the direct disciplining authority of
the President. This is in line with the settled principle that the
"power to remove is inherent in the power to appoint"
conferred to the President by Section 16, Article VII of the
Constitution. . . . This power of removal, however, is not an
absolute one which accepts no reservation. It must be pointed
out that petitioner is a career service officer. . . . Specifically,
Section 36 of P.D. No. 807, as amended, otherwise known as
Civil Service Decree of the Philippines, is emphatic that career
service officers and employees who enjoy security of tenure
may be removed only for any of the causes enumerated in
said law. In other words, the fact that petitioner is a
presidential appointee does not give the appointing authority
the license to remove him at will or at his pleasure for it is an
admitted fact that he is likewise a career service officer who
under the law is the recipient of tenurial protection, thus, may
only removed for cause and in accordance with procedural
due process.
Petitioner maintains that as a career executive service officer, he can only be
removed for cause and under the Administrative Code of 1987, 6 loss of
confidence is not one of the legal causes or grounds for removal. Consequently,
his dismissal from office on the ground of loss confidence violated his right to
security of tenure, petitioner theorized.
After a careful study, we are of the irresistible conclusion that the Court of
Appeals ruled correctly on the first three issues. To be sure, petitioner was not
denied the right to due process before the PCAGC. Records show that the
petitioner filed his answer and other pleadings with respect to his alleged
violation of internal revenue laws and regulations, and he attended the
hearings before the investigatory body. It is thus decisively clear that his
protestation of non-observance of due process is devoid of any factual or legal
basis.
Neither can it be said that there was a violation of what petitioner asserts as
his security of tenure. According to petitioner, as a Regional Director of
Bureau of Internal Revenue, he is CESO eligible entitled to security of tenure.
However, petitioner's claim of CESO eligibility is anemic of evidentiary
support. It was incumbent upon him to prove that he is a CESO eligible but
unfortunately, he failed to adduce sufficient evidence on the matter. His failure
to do so is fatal.
As regards the issue of constitutionality of the PCAGC, it was only posed by
petitioner in his motion for reconsideration before the Regional Trial Court of
Makati. It was certainly too late to raise for the first time at such late stage of
the proceedings below.
How about the fourth issue, whether in view of the Resolution of the
Ombudsman dismissing the charges against petitioner, there still remains a
basis for the latter's dismissal with forfeiture of benefits, as directed in
Administrative Order No. 152?
It is worthy to note that in the case under consideration, the administrative
action against the petitioner was taken prior to the institution of the criminal
case. The charges included in Administrative Order No. 152 were based on
the results of investigation conducted by the PCAGC and not on the criminal
charges before the Ombudsman.
In sum, the petition is dismissable on the ground that the issues posited by the
petitioner do not constitute a valid legal basis for overturning the finding and
conclusion arrived at by the Court of Appeals. However, taking into account
the antecedent facts and circumstances aforementioned, the Court, in the
exercise of its equity powers, has decided to consider the dismissal of the
charges against petitioner before the Ombudsman, the succinct and
unmistakable manifestation by the Commissioner of the Bureau of Internal
Revenue that his office is no longer interested in pursuing the case, and the
position taken by the Solicitor General, 7 that there is no more basis for FERNANDO, C.J.:
Administrative Order No. 152, as effective and substantive supervening events This Court, pursuant to its grave responsibility of passing upon the validity of
that cannot be overlooked. any executive or legislative act in an appropriate cases, has to resolve the
WHEREFORE, in light of the foregoing effective and substantive supervening crucial issue of the constitutionality of Batas Pambansa Blg. 129, entitled "An
events, and in the exercise of its equity powers, the Court hereby GRANTS act reorganizing the Judiciary, Appropriating Funds Therefor and for Other
the petition. Accordingly, Administrative Order No. 152 is considered LIFTED, Purposes." The task of judicial review, aptly characterized as exacting and
and petitioner can be allowed to retire with full benefits. No pronouncement as delicate, is never more so than when a conceded legislative power, that of
to costs. judicial reorganization, 1 may possibly collide with the time-honored principle of
SO ORDERED. the independence of the judiciary 2 as protected and safeguarded by this
Gonzaga-Reyes, J., concur. constitutional provision: "The Members of the Supreme Court and judges of
Romero, Vitug and Panganiban, JJ., in the result. inferior courts shall hold office during good behavior until they reach the age of
Footnotes seventy years or become incapacitated to discharge the duties of their office. The
1 Administrative Order No. 152, Rollo, pp. 141-142. Supreme Court shall have the power to discipline judges of inferior courts and, by
2 PCAGC Resolution, Rollo, pp. 186-189. a vote of at least eight Members, order their dismissal." 3 For the assailed
3 Associate Justice Ramon Mabutas Jr., ponente, Associate Justice legislation mandates that Justices and judges of inferior courts from the Court of
Jorge Imperial, Chairman; Associate Justice Portia Alio- Appeals to municipal circuit courts, except the occupants of the Sandiganbayan
Hormachuelos, member. and the Court of Tax Appeals, unless appointed to the inferior courts established
4 Rollo, p. 534. by such Act, would be considered separated from the judiciary. It is the
5 280 SCRA 713. termination of their incumbency that for petitioners justifies a suit of this character,
it being alleged that thereby the security of tenure provision of the Constitution
6 Sec. 46, Book V, Title I, Subtitle A, Revised Administrative Code.
has been ignored and disregarded,
7 Rollo, p. 409.
That is the fundamental issue raised in this proceeding, erroneously entitled
Petition for Declaratory Relief and/or for Prohibition 4 considered by this Court
as an action for prohibited petition, seeking to enjoin respondent Minister of the
- D. The decision of the constitutional Budget, respondent Chairman of the Commission on Audit, and respondent
question must be determinative of the case Minister of Justice from taking any action implementing Batas Pambansa Blg. 129.
Petitioners 5 sought to bolster their claim by imputing lack of good faith in its
itself. It is the Lis Mota of the case
enactment and characterizing as an undue delegation of legislative power to the
- De la Llana vs. Alba, 112 SCRA 294 President his authority to fix the compensation and allowances of the Justices and
Ty vs. Trampe, 250 SCRA 500 judges thereafter appointed and the determination of the date when the
reorganization shall be deemed completed. In the very comprehensive and
scholarly Answer of Solicitor General Estelito P. Mendoza, 6 it was pointed out that
there is no valid justification for the attack on the constitutionality of this statute, it
being a legitimate exercise of the power vested in the Batasang Pambansa to
Republic of the Philippines
reorganize the judiciary, the allegations of absence of good faith as well as the
SUPREME COURT attack on the independence of the judiciary being unwarranted and devoid of any
Manila support in law. A Supplemental Answer was likewise filed on October 8, 1981,
EN BANC followed by a Reply of petitioners on October 13. After the hearing in the morning
G.R. No. L-57883 March 12, 1982 and afternoon of October 15, in which not only petitioners and respondents were
GUALBERTO J. DE LA LLANA Presiding Judge, Branch II of the City heard through counsel but also the amici curiae, 7 and thereafter submission of the
Court of Olongapo, ESTANISLAO L. CESA, JR., FIDELA Y. VARGAS, minutes of the proceeding on the debate on Batas Pambansa Blg. 129, this
BENJAMIN C. ESCOLANGO, JUANITO C. ATIENZA, MANUEL REYES petition was deemed submitted for decision.
ROSAPAPAN, JR., VIRGILIO E. ACIERTO, and PORFIRIO AGUILLON The importance of the crucial question raised called for intensive and rigorous
AGUILA, petitioners, study of all the legal aspects of the case. After such exhaustive deliberation in
vs. several sessions, the exchange of views being supplemented by memoranda
MANUEL ALBA, Minister of Budget, FRANCISCO TANTUICO, Chairman, from the members of the Court, it is our opinion and so hold that Batas
Commission on Audit, and RICARDO PUNO, Minister of Pambansa Blg. 129 is not unconstitutional.
Justice, Respondents.
1. The argument as to the lack of standing of petitioners is easily resolved. As
far as Judge de la Llana is concerned, he certainly falls within the principle set
forth in Justice Laurel's opinion in People v. Vera. 8 Thus: "The unchallenged
rule is that the person who impugns the validity of a statute must have a personal
and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement." 9 The other petitioners as members of
the bar and officers of the court cannot be considered as devoid of "any personal
and substantial interest" on the matter. There is relevance to this excerpt from a
separate opinion inAquino, Jr. v. Commission on Elections: 10 "Then there is the
attack on the standing of petitioners, as vindicating at most what they consider a
public right and not protecting their rights as individuals. This is to conjure the
specter of the public right dogma as an inhibition to parties intent on keeping
public officials staying on the path of constitutionalism. As was so well put by
Jaffe: 'The protection of private rights is an essential constituent of public interest
and, conversely, without a well-ordered state there could be no enforcement of
private rights. Private and public interests are, both in substantive and procedural
sense, aspects of the totality of the legal order.' Moreover, petitioners have
convincingly shown that in their capacity as taxpayers, their standing to sue has
been amply demonstrated. There would be a retreat from the liberal approach
followed in Pascual v. Secretary of Public Works, foreshadowed by the very
decision of People v. Vera where the doctrine was first fully discussed, if we act
differently now. I do not think we are prepared to take that step. Respondents,
however, would hark back to the American Supreme Court doctrine inMellon v.
Frothingham with their claim that what petitioners possess 'is an interest which is
shared in common by other people and is comparatively so minute and
indeterminate as to afford any basis and assurance that the judicial process can
act on it.' That is to speak in the language of a bygone era even in the United
States. For as Chief Justice Warren clearly pointed out in the later case of Flast v.
Cohen, the barrier thus set up if not breached has definitely been lowered." 11
2. The imputation of arbitrariness to the legislative body in the enactment of
Batas Pambansa Blg. 129 to demonstrate lack of good faith does manifest
violence to the facts. Petitioners should have exercised greater care in
informing themselves as to its antecedents. They had laid themselves open to
the accusation of reckless disregard for the truth, On August 7, 1980, a
Presidential Committee on Judicial Reorganization was organized. 12 This
Executive Order was later amended by Executive Order No. 619-A., dated
September 5 of that year. It clearly specified the task assigned to it: "1. The
Committee shall formulate plans on the reorganization of the Judiciary which shall
be submitted within seventy (70) days from August 7, 1980 to provide the
President sufficient options for the reorganization of the entire Judiciary which
shall embrace all lower courts, including the Court of Appeals, the Courts of First
Instance, the City and Municipal Courts, and all Special Courts, but excluding the
Sandigan Bayan." 13 On October 17, 1980, a Report was submitted by such
Committee on Judicial Reorganization. It began with this paragraph: "The
Committee on Judicial Reorganization has the honor to submit the following
Report. It expresses at the outset its appreciation for the opportunity accorded it to
study ways and means for what today is a basic and urgent need, nothing less
than the restructuring of the judicial system. There are problems, both grave and
pressing, that call for remedial measures. The felt necessities of the time, to
borrow a phrase from Holmes, admit of no delay, for if no step be taken and at the
earliest opportunity, it is not too much to say that the people's faith in the
administration of justice could be shaken. It is imperative that there be a greater
efficiency in the disposition of cases and that litigants, especially those of modest
means much more so, the poorest and the humblest can vindicate their
rights in an expeditious and inexpensive manner. The rectitude and the fairness in
the way the courts operate must be manifest to all members of the community and
particularly to those whose interests are affected by the exercise of their functions.
It is to that task that the Committee addresses itself and hopes that the plans
submitted could be a starting point for an institutional reform in the Philippine
judiciary. The experience of the Supreme Court, which since 1973 has been
empowered to supervise inferior courts, from the Court of Appeals to the
municipal courts, has proven that reliance on improved court management as well
as training of judges for more efficient administration does not suffice. I hence, to
repeat, there is need for a major reform in the judicial so stem it is worth noting
that it will be the first of its kind since the Judiciary Act became effective on June
16, 1901." 14 I t went to say: "I t does not admit of doubt that the last two decades
of this century are likely to be attended with problems of even greater complexity
and delicacy. New social interests are pressing for recognition in the courts.
Groups long inarticulate, primarily those economically underprivileged, have found
legal spokesmen and are asserting grievances previously ignored. Fortunately,
the judicially has not proved inattentive. Its task has thus become even more
formidable. For so much grist is added to the mills of justice. Moreover, they are
likewise to be quite novel. The need for an innovative approach is thus apparent.
The national leadership, as is well-known, has been constantly on the search for
solutions that will prove to be both acceptable and satisfactory. Only thus may
there be continued national progress." 15 After which comes: "To be less abstract,
the thrust is on development. That has been repeatedly stressed and rightly so.
All efforts are geared to its realization. Nor, unlike in the past, was it to b
"considered as simply the movement towards economic progress and growth
measured in terms of sustained increases in per capita income and Gross
National Product (GNP). 16 For the New Society, its implication goes further than
economic advance, extending to "the sharing, or more appropriately, the
democratization of social and economic opportunities, the substantiation of the
true meaning of social justice."17 This process of modernization and change
compels the government to extend its field of activity and its scope of operations.
The efforts towards reducing the gap between the wealthy and the poor elements
in the nation call for more regulatory legislation. That way the social justice and
protection to labor mandates of the Constitution could be effectively
implemented." 18 There is likelihood then "that some measures deemed inimical by
interests adversely affected would be challenged in court on grounds of validity.
Even if the question does not go that far, suits may be filed concerning their
interpretation and application. ... There could be pleas for injunction or restraining
orders. Lack of success of such moves would not, even so, result in their prompt
final disposition. Thus delay in the execution of the policies embodied in law could
thus be reasonably expected. That is not conducive to progress in
development." 19 For, as mentioned in such Report, equally of vital concern is the
problem of clogged dockets, which "as is well known, is one of the utmost gravity.
Notwithstanding the most determined efforts exerted by the Supreme Court,
through the leadership of both retired Chief Justice Querube Makalintal and the
late Chief Justice Fred Ruiz Castro, from the time supervision of the courts was
vested in it under the 1973 Constitution, the trend towards more and more cases
has continued." 20 It is understandable why. With the accelerated economic
development, the growth of population, the increasing urbanization, and other
similar factors, the judiciary is called upon much oftener to resolve controversies.
Thus confronted with what appears to be a crisis situation that calls for a remedy,
the Batasang Pambansa had no choice. It had to act, before the ailment became
even worse. Time was of the essence, and yet it did not hesitate to be duly
mindful, as it ought to be, of the extent of its coverage before enacting Batas
Pambansa Blg. 129.
3. There is no denying, therefore, the need for "institutional reforms,"
characterized in the Report as "both pressing and urgent." 21 It is worth noting,
likewise, as therein pointed out, that a major reorganization of such scope, if it
were to take place, would be the most thorough after four generations. 22The
reference was to the basic Judiciary Act generations . enacted in June of
1901, 23amended in a significant way, only twice previous to the Commonwealth.
There was, of course, the creation of the Court of Appeals in 1935, originally
composed "of a Presiding Judge and ten appellate Judges, who shall be
appointed by the President of the Philippines, with the consent of the Commission
on Appointments of the National Assembly, 24 It could "sit en banc, but it may sit in
two divisions, one of six and another of five Judges, to transact business, and the
two divisions may sit at the same time." 25 Two years after the establishment of
independence of the Republic of the Philippines, the Judiciary Act of 1948 26 was
passed. It continued the existing system of regular inferior courts, namely, the
Court of Appeals, Courts of First Instance, 27 the Municipal Courts, at present the
City Courts, and the Justice of the Peace Courts, now the Municipal Circuit Courts
and Municipal Courts. The membership of the Court of Appeals has been
continuously increased. 28 Under a 1978 Presidential Decree, there would be forty-
five members, a Presiding Justice and forty-four Associate Justices, with fifteen
divisions. 29Special courts were likewise created. The first was the Court of Tax
Appeals in 1954, 30next came the Court of Agrarian Relations in 1955, 31 and then
in the same year a Court of the Juvenile and Domestic Relations for Manila in
1955, 32 subsequently followed by the creation of two other such courts for Iloilo
and Quezon City in 1966. 33 In 1967, Circuit Criminal Courts were established, with
the Judges having the same qualifications, rank, compensation, and privileges as
judges of Courts of First Instance. 34
4. After the submission of such Report, Cabinet Bill No. 42, which later
became the basis of Batas Pambansa Blg. 129, was introduced. After setting
forth the background as above narrated, its Explanatory Note continues:
"Pursuant to the President's instructions, this proposed legislation has been
drafted in accordance with the guidelines of that report with particular attention
to certain objectives of the reorganization, to wit, the attainment of more
efficiency in disposal of cases, a reallocation of jurisdiction, and a revision of
procedures which do not tend to the proper meeting out of justice. In
consultation with, and upon a consensus of, the governmental and
parliamentary leadership, however, it was felt that some options set forth in
the Report be not availed of. Instead of the proposal to confine the jurisdiction
of the intermediate appellate court merely to appellate adjudication, the
preference has been opted to increase rather than diminish its jurisdiction in
order to enable it to effectively assist the Supreme Court. This preference has
been translated into one of the innovations in the proposed Bill." 35 In
accordance with the parliamentary procedure, the Bill was sponsored by the
Chairman of the Committee on Justice, Human Rights and Good Government to
which it was referred. Thereafter, Committee Report No. 225 was submitted by
such Committee to the Batasang Pambansa recommending the approval with
some amendments. In the sponsorship speech of Minister Ricardo C. Puno, there
was reference to the Presidential Committee on Judicial Reorganization. Thus:
"On October 17, 1980, the Presidential Committee on Judicial Reorganization
submitted its report to the President which contained the 'Proposed Guidelines for
Judicial Reorganization.' Cabinet Bill No. 42 was drafted substantially in
accordance with the options presented by these guidelines. Some options set
forth in the aforesaid report were not availed of upon consultation with and upon
consensus of the government and parliamentary leadership. Moreover, some
amendments to the bill were adopted by the Committee on Justice, Human Rights
and Good Government, to which The bill was referred, following the public
hearings on the bill held in December of 1980. The hearings consisted of
dialogues with the distinguished members of the bench and the bar who had
submitted written proposals, suggestions, and position papers on the bill upon the
invitation of the Committee on Justice, Human Rights and Good
Government." 36 Stress was laid by the sponsor that the enactment of such
Cabinet Bill would, firstly, result in the attainment of more efficiency in the disposal
of cases. Secondly, the improvement in the quality of justice dispensed by the
courts is expected as a necessary consequence of the easing of the court's
dockets. Thirdly, the structural changes introduced in the bill, together with the
reallocation of jurisdiction and the revision of the rules of procedure, are
designated to suit the court system to the exigencies of the present day Philippine
society, and hopefully, of the foreseeable future." 37 it may be observed that the
volume containing the minutes of the proceedings of the Batasang Pambansa
show that 590 pages were devoted to its discussion. It is quite obvious that it took
considerable time and effort as well as exhaustive study before the act was signed
by the President on August 14, 1981. With such a background, it becomes quite
manifest how lacking in factual basis is the allegation that its enactment is tainted
by the vice of arbitrariness. What appears undoubted and undeniable is the good
faith that characterized its enactment from its inception to the affixing of the
Presidential signature.
5. Nothing is better settled in our law than that the abolition of an office within
the competence of a legitimate body if done in good faith suffers from no
infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias,
Jr. 38reiterated such a doctrine: "We find this point urged by respondents, to be
without merit. No removal or separation of petitioners from the service is here
involved, but the validity of the abolition of their offices. This is a legal issue that is
for the Courts to decide. It is well-known rule also that valid abolition of offices is
neither removal nor separation of the incumbents. ... And, of course, if the
abolition is void, the incumbent is deemed never to have ceased to hold office.
The preliminary question laid at rest, we pass to the merits of the case. As well-
settled as the rule that the abolition of an office does not amount to an illegal
removal of its incumbent is the principle that, in order to be valid, the abolition
must be made in good faith." 39 The above excerpt was quoted with approval
in Bendanillo, Sr. v. Provincial Governor, 40 two earlier cases enunciating a similar
doctrine having preceded it. 41 As with the offices in the other branches of the
government, so it is with the judiciary. The test remains whether the abolition is in
good faith. As that element is conspicuously present in the enactment of Batas
Pambansa Blg. 129, then the lack of merit of this petition becomes even more
apparent. The concurring opinion of Justice Laurel in Zandueta v. De la
Costa 42cannot be any clearer. This is a quo warranto proceeding filed by
petitioner, claiming that he, and not respondent, was entitled to he office of judge
of the Fifth Branch of the Court of First Instance of Manila. There was a Judicial
Reorganization Act in 1936, 43 a year after the inauguration of the Commonwealth,
amending the Administrative Code to organize courts of original jurisdiction known
as the Courts of First Instance Prior to such statute, petitioner was the incumbent
of such branch. Thereafter, he received an ad interim appointment, this time to the
Fourth Judicial District, under the new legislation. Unfortunately for him, the
Commission on Appointments of then National Assembly disapproved the same,
with respondent being appointed in his place. He contested the validity of the Act
insofar as it resulted in his being forced to vacate his position This Court did not
rule squarely on the matter. His petition was dismissed on the ground of estoppel.
Nonetheless, the separate concurrence of Justice Laurel in the result reached, to
repeat, reaffirms in no uncertain terms the standard of good faith to preclude any
doubt as to the abolition of an inferior court, with due recognition of the security of
tenure guarantee. Thus: " I am of the opinion that Commonwealth Act No. 145 in
so far as it reorganizes, among other judicial districts, the Ninth Judicial District,
and establishes an entirely new district comprising Manila and the provinces of
Rizal and Palawan, is valid and constitutional. This conclusion flows from the
fundamental proposition that the legislature may abolish courts inferior to the
Supreme Court and therefore may reorganize them territorially or otherwise
thereby necessitating new appointments and commissions. Section 2, Article VIII
of the Constitution vests in the National Assembly the power to define, prescribe
and apportion the jurisdiction of the various courts, subject to certain limitations in
the case of the Supreme Court. It is admitted that section 9 of the same article of
the Constitution provides for the security of tenure of all the judges. The principles
embodied in these two sections of the same article of the Constitution must be
coordinated and harmonized. A mere enunciation of a principle will not decide
actual cases and controversies of every sort. (Justice Holmes in Lochner vs. New
York, 198 U.S., 45; 49 Law. ed; 937)" 44 justice Laurel continued: "I am not
insensible to the argument that the National Assembly may abuse its power and
move deliberately to defeat the constitutional provision guaranteeing security of
tenure to all judges, But, is this the case? One need not share the view of Story,
Miller and Tucker on the one hand, or the opinion of Cooley, Watson and Baldwin
on the other, to realize that the application of a legal or constitutional principle is
necessarily factual and circumstantial and that fixity of principle is the rigidity of
the dead and the unprogressive. I do say, and emphatically, however, that cases
may arise where the violation of the constitutional provision regarding security of
tenure is palpable and plain, and that legislative power of reorganization may be
sought to cloak an unconstitutional and evil purpose. When a case of that kind
arises, it will be the time to make the hammer fall and heavily. But not until then. I
am satisfied that, as to the particular point here discussed, the purpose was the
fulfillment of what was considered a great public need by the legislative
department and that Commonwealth Act No. 145 was not enacted purposely to
affect adversely the tenure of judges or of any particular judge. Under these
circumstances, I am for sustaining the power of the legislative department under
the Constitution. To be sure, there was greater necessity for reorganization
consequent upon the establishment of the new government than at the time Acts
Nos. 2347 and 4007 were approved by the defunct Philippine Legislature, and
although in the case of these two Acts there was an express provision providing
for the vacation by the judges of their offices whereas in the case of
Commonwealth Act No. 145 doubt is engendered by its silence, this doubt should
be resolved in favor of the valid exercise of the legislative power." 45
6. A few more words on the question of abolition. In the above-cited opinion of
Justice Laurel in Zandueta, reference was made to Act No. 2347 46 on the
reorganization of the Courts of First Instance and to Act No. 4007 47 on the
reorganization of all branches of the government, including the courts of first
instance. In both of them, the then Courts of First Instance were replaced by new
courts with the same appellation. As Justice Laurel pointed out, there was no
question as to the fact of abolition. He was equally categorical as to
Commonwealth Act No. 145, where also the system of the courts of first instance
was provided for expressly. It was pointed out by Justice Laurel that the mere
creation of an entirely new district of the same court is valid and constitutional.
such conclusion flowing "from the fundamental proposition that the legislature may
abolish courts inferior to the Supreme Court and therefore may reorganize them
territorially or otherwise thereby necessitating new appointments and
commissions."48 The challenged statute creates an intermediate appellate
court, 49 regional trial courts, 50metropolitan trial courts of the national capital
region, 51 and other metropolitan trial courts,52 municipal trial courts in cities, 53 as
well as in municipalities, 54 and municipal circuit trial courts. 55 There is even less
reason then to doubt the fact that existing inferior courts were abolished. For the
Batasang Pambansa, the establishment of such new inferior courts was the
appropriate response to the grave and urgent problems that pressed for solution.
Certainly, there could be differences of opinion as to the appropriate remedy. The
choice, however, was for the Batasan to make, not for this Court, which deals only
with the question of power. It bears mentioning that in Brillo v. Eage 56 this Court,
in an unanimous opinion penned by the late Justice Diokno, citing Zandueta v. De
la Costa, ruled: "La segunda question que el recurrrido plantea es que la Carta de
Tacloban ha abolido el puesto. Si efectivamente ha sido abolido el cargo,
entonces ha quedado extinguido el derecho de recurente a ocuparlo y a cobrar el
salario correspodiente. Mc Culley vs. State, 46 LRA, 567. El derecho de un juez
de desempenarlo hasta los 70 aos de edad o se incapacite no priva al Congreso
de su facultad de abolir, fusionar o reorganizar juzgados no
constitucionales." 57 Nonetheless, such well-established principle was not held
applicable to the situation there obtaining, the Charter of Tacloban City creating a
city court in place of the former justice of the peace court. Thus: "Pero en el caso
de autos el Juzgado de Tacloban no ha sido abolido. Solo se le ha cambiado el
nombre con el cambio de forma del gobierno local." 58 The present case is
anything but that. Petitioners did not and could not prove that the challenged
statute was not within the bounds of legislative authority.
7. This opinion then could very well stop at this point. The implementation of
Batas Pambansa Blg. 129, concededly a task incumbent on the Executive,
may give rise, however, to questions affecting a judiciary that should be kept
independent. The all-embracing scope of the assailed legislation as far as all
inferior courts from the Courts of Appeals to municipal courts are concerned,
with the exception solely of the Sandiganbayan and the Court of Tax
Appeals 59 gave rise, and understandably so, to misgivings as to its effect on such
cherished Ideal. The first paragraph of the section on the transitory provision
reads: "The provisions of this Act shall be immediately carried out in accordance
with an Executive Order to be issued by the President. The Court of Appeals, the
Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic
Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal
Courts, and the Municipal Circuit Courts shall continue to function as presently
constituted and organized, until the completion of the reorganization provided in
this Act as declared by the President. Upon such declaration, the said courts shall
be deemed automatically abolished and the incumbents thereof shall cease to
hold the office." 60 There is all the more reason then why this Court has no choice
but to inquire further into the allegation by petitioners that the security of tenure
provision, an assurance of a judiciary free from extraneous influences, is thereby
reduced to a barren form of words. The amended Constitution adheres even more
clearly to the long-established tradition of a strong executive that antedated the
1935 Charter. As noted in the work of former Vice-Governor Hayden, a noted
political scientist, President Claro M. Recto of the 1934 Convention, in his closing
address, in stressing such a concept, categorically spoke of providing "an
executive power which, subject to the fiscalization of the Assembly, and of public
opinion, will not only know how to govern, but will actually govern, with a firm and
steady hand, unembarrassed by vexatious interferences by other departments, or
by unholy alliances with this and that social group." 61 The above excerpt was
cited with approval by Justice Laurel in Planas v. Gil. 62 Moreover, under the 1981
Amendments, it may be affirmed that once again the principle of separation of
powers, to quote from the same jurist as ponente in Angara v.
Electoral Commission, 63 "obtains not through express provision but by actual
division." 64 The president, under Article VII, shall be the head of state and chief
executive of the Republic of the Philippines." 65 Moreover, it is equally therein
expressly provided that all the powers he possessed under the 1935 Constitution
are once again vested in him unless the Batasang Pambansa provides
otherwise." 66Article VII of the 1935 Constitution speaks categorically: "The
Executive power shall be vested in a President of the Philippines." 67 As originally
framed, the 1973 Constitution created the position of President as the "symbolic
head of state." 68 In addition, there was a provision for a Prime Minister as the
head of government exercising the executive power with the assistance of the
Cabinet 69 Clearly, a modified parliamentary system was established. In the light of
the 1981 amendments though, this Court in Free Telephone Workers Union v.
Minister of Labor 70 could state: "The adoption of certain aspects of a
parliamentary system in the amended Constitution does not alter its essentially
presidential character." 71 The retention, however, of the position of the Prime
Minister with the Cabinet, a majority of the members of which shall come from the
regional representatives of the Batasang Pambansa and the creation of an
Executive Committee composed of the Prime Minister as Chairman and not more
than fourteen other members at least half of whom shall be members of the
Batasang Pambansa, clearly indicate the evolving nature of the system of
government that is now operative. 72 What is equally apparent is that the strongest
ties bind the executive and legislative departments. It is likewise undeniable that
the Batasang Pambansa retains its full authority to enact whatever legislation may
be necessary to carry out national policy as usually formulated in a caucus of the
majority party. It is understandable then why in Fortun v. Labang 73 it was stressed
that with the provision transferring to the Supreme Court administrative
supervision over the Judiciary, there is a greater need "to preserve unimpaired the
independence of the judiciary, especially so at present, where to all intents and
purposes, there is a fusion between the executive and the legislative branches." 74
8. To be more specific, petitioners contend that the abolition of the existing
inferior courts collides with the security of tenure enjoyed by incumbent
Justices and judges under Article X, Section 7 of the Constitution. There was
a similar provision in the 1935 Constitution. It did not, however, go as far as
conferring on this Tribunal the power to supervise administratively inferior
courts. 75 Moreover, this Court is em powered "to discipline judges of inferior
courts and, by a vote of at least eight members, order their dismissal." 76 Thus it
possesses the competence to remove judges. Under the Judiciary Act, it was the
President who was vested with such power. 77 Removal is, of course, to be
distinguished from termination by virtue of the abolition of the office. There can be
no tenure to a non-existent office. After the abolition, there is in law no occupant.
In case of removal, there is an office with an occupant who would thereby lose his
position. It is in that sense that from the standpoint of strict law, the question of
any impairment of security of tenure does not arise. Nonetheless, for the
incumbents of inferior courts abolished, the effect is one of separation. As to its
effect, no distinction exists between removal and the abolition of the office.
Realistically, it is devoid of significance. He ceases to be a member of the
judiciary. In the implementation of the assailed legislation, therefore, it would be in
accordance with accepted principles of constitutional construction that as far as
incumbent justices and judges are concerned, this Court be consulted and that its
view be accorded the fullest consideration. No fear need be entertained that there
is a failure to accord respect to the basic principle that this Court does not render
advisory opinions. No question of law is involved. If such were the case, certainly
this Court could not have its say prior to the action taken by either of the two
departments. Even then, it could do so but only by way of deciding a case where
the matter has been put in issue. Neither is there any intrusion into who shall be
appointed to the vacant positions created by the reorganization. That remains in
the hands of the Executive to whom it properly belongs. There is no departure
therefore from the tried and tested ways of judicial power, Rather what is sought
to be achieved by this liberal interpretation is to preclude any plausibility to the
charge that in the exercise of the conceded power of reorganizing tulle inferior
courts, the power of removal of the present incumbents vested in this Tribunal is
ignored or disregarded. The challenged Act would thus be free from any
unconstitutional taint, even one not readily discernidble except to those
predisposed to view it with distrust. Moreover, such a construction would be in
accordance with the basic principle that in the choice of alternatives between one
which would save and another which would invalidate a statute, the former is to be
preferred. 78There is an obvious way to do so. The principle that the Constitution
enters into and forms part of every act to avoid any constitutional taint must be
applied Nuez v. Sandiganbayan,79 promulgated last January, has this relevant
excerpt: "It is true that other Sections of the Decree could have been so worded
as to avoid any constitutional objection. As of now, however, no ruling is called for.
The view is given expression in the concurring and dissenting opinion of Justice
Makasiar that in such a case to save the Decree from the direct fate of invalidity,
they must be construed in such a way as to preclude any possible erosion on the
powers vested in this Court by the Constitution. That is a proposition too plain to
be committed. It commends itself for approval." 80 Nor would such a step be
unprecedented. The Presidential Decree constituting Municipal Courts into
Municipal Circuit Courts, specifically provides: "The Supreme Court shall carry out
the provisions of this Decree through implementing orders, on a province-to-
province basis." 81 It is true there is no such provision in this Act, but the spirit that
informs it should not be ignored in the Executive Order contemplated under its
Section 44. 82 Thus Batas Pambansa Blg. 129 could stand the most rigorous test
of constitutionality. 83
9. Nor is there anything novel in the concept that this Court is called upon to
reconcile or harmonize constitutional provisions. To be specific, the Batasang
Pambansa is expressly vested with the authority to reorganize inferior courts
and in the process to abolish existing ones. As noted in the preceding
paragraph, the termination of office of their occupants, as a necessary
consequence of such abolition, is hardly distinguishable from the practical
standpoint from removal, a power that is now vested in this Tribunal. It is of
the essence of constitutionalism to assure that neither agency is precluded
from acting within the boundaries of its conceded competence. That is why it
has long been well-settled under the constitutional system we have adopted
that this Court cannot, whenever appropriate, avoid the task of reconciliation.
As Justice Laurel put it so well in the previously cited Angara decision, while in
the main, "the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial
departments of the government, the overlapping and interlacing of functions
and duties between the several departments, however, sometimes makes it
hard to say just where the one leaves off and the other begins." 84 It is well to
recall another classic utterance from the same jurist, even more emphatic in its
affirmation of such a view, moreover buttressed by one of those insights for which
Holmes was so famous "The classical separation of government powers, whether
viewed in the light of the political philosophy of Aristotle, Locke, or Motesquieu or
of the postulations of Mabini, Madison, or Jefferson, is a relative theory of
government. There is more truism and actuality in interdependence than in
independence and separation of powers, for as observed by Justice Holmes in a
case of Philippine origin, we cannot lay down 'with mathematical precision and
divide the branches into water-tight compartments' not only because 'the great
ordinances of the Constitution do not establish and divide fields of black and white
but also because 'even the more specific of them are found to terminate in a
penumbra shading gradually from one extreme to the other.'" 85 This too from
Justice Tuazon, likewise expressing with force and clarity why the need for
reconciliation or balancing is well-nigh unavodiable under the fundamental
principle of separation of powers: "The constitutional structure is a complicated
system, and overlappings of governmental functions are recognized, unavoidable,
and inherent necessities of governmental coordination." 86 In the same way that
the academe has noted the existence in constitutional litigation of right versus
right, there are instances, and this is one of them, where, without this attempt at
harmonizing the provisions in question, there could be a case of power against
power. That we should avoid.
10. There are other objections raised but they pose no difficulty. Petitioners
would characterize as an undue delegation of legislative power to the
President the grant of authority to fix the compensation and the allowances of
the Justices and judges thereafter appointed. A more careful reading of the
challenged Batas Pambansa Blg. 129 ought to have cautioned them against
raising such an issue. The language of the statute is quite clear. The
questioned provisions reads as follows: "Intermediate Appellate Justices,
Regional Trial Judges, Metropolitan Trial Judges, municipal Trial Judges, and
Municipal Circuit Trial Judges shall receive such receive such compensation
and allowances as may be authorized by the President along the guidelines
set forth in Letter of Implementation No. 93 pursuant to Presidential Decree
No. 985, as amended by Presidential Decree No. 1597." 87 The existence of a
standard is thus clear. The basic postulate that underlies the doctrine of non-
delegation is that it is the legislative body which is entrusted with the competence
to make laws and to alter and repeal them, the test being the completeness of the
statue in all its terms and provisions when enacted. As pointed out in Edu v.
Ericta: 88 "To avoid the taint of unlawful delegation, there must be a standard,
which implies at the very least that the legislature itself determines matters of
principle and lays down fundamental policy. Otherwise, the charge of complete
abdication may be hard to repel. A standard thus defines legislative policy, marks
its limits, maps out its boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative command is to be
effected. It is the criterion by which legislative purpose may be carried out.
Thereafter, the executive or administrative office designated may in pursuance of
the above guidelines promulgate supplemental rules and regulations. The
standard may be either express or implied. If the former, the non-delegation
objection is easily met. The standard though does not have to be spelled out
specifically. It could be implied from the policy and purpose of the act considered
as a whole." 89 The undeniably strong links that bind the executive and legislative
departments under the amended Constitution assure that the framing of policies
as well as their implementation can be accomplished with unity, promptitude, and
efficiency. There is accuracy, therefore, to this observation in the Free Telephone
Workers Union decision: "There is accordingly more receptivity to laws leaving to
administrative and executive agencies the adoption of such means as may be
necessary to effectuate a valid legislative purpose. It is worth noting that a highly-
respected legal scholar, Professor Jaffe, as early as 1947, could speak of
delegation as the 'dynamo of modern government.'" 90 He warned against a
"restrictive approach" which could be "a deterrent factor to much-needed
legislation." 91 Further on this point from the same opinion" "The spectre of the
non-delegation concept need not haunt, therefore, party caucuses, cabinet
sessions or legislative chambers." 92 Another objection based on the absence in
the statue of what petitioners refer to as a "definite time frame limitation" is equally
bereft of merit. They ignore the categorical language of this provision: "The
Supreme Court shall submit to the President, within thirty (30) days from the date
of the effectivity of this act, a staffing pattern for all courts constituted pursuant to
this Act which shall be the basis of the implementing order to be issued by the
President in accordance with the immediately succeeding section." 93 The first
sentence of the next section is even more categorical: "The provisions of this Act
shall be immediately carried out in accordance with an Executive Order to be
issued by the President." 94 Certainly petitioners cannot be heard to argue that the
President is insensible to his constitutional duty to take care that the laws be
faithfully executed. 95 In the meanwhile, the existing inferior courts affected
continue functioning as before, "until the completion of the reorganization provided
in this Act as declared by the President. Upon such declaration, the said courts
shall be deemed automatically abolished and the incumbents thereof shall cease
to hold office." 96 There is no ambiguity. The incumbents of the courts thus
automatically abolished "shall cease to hold office." No fear need be entertained
by incumbents whose length of service, quality of performance, and clean record
justify their being named anew, 97 in legal contemplation without any interruption in
the continuity of their service. 98 It is equally reasonable to assume that from the
ranks of lawyers, either in the government service, private practice, or law
professors will come the new appointees. In the event that in certain cases a little
more time is necessary in the appraisal of whether or not certain incumbents
deserve reappointment, it is not from their standpoint undesirable. Rather, it would
be a reaffirmation of the good faith that will characterize its implementation by the
Executive. There is pertinence to this observation of Justice Holmes that even
acceptance of the generalization that courts ordinarily should not supply
omissions in a law, a generalization qualified as earlier shown by the principle that
to save a statute that could be done, "there is no canon against using common
sense in construing laws as saying what they obviously mean." 99 Where then is
the unconstitutional flaw
11. On the morning of the hearing of this petition on September 8, 1981,
petitioners sought to have the writer of this opinion and Justices Ramon C.
Aquino and Ameurfina Melencio-Herrera disqualified because the first-named
was the chairman and the other two, members of the Committee on Judicial
Reorganization. At the hearing, the motion was denied. It was made clear
then and there that not one of the three members of the Court had any hand
in the framing or in the discussion of Batas Pambansa Blg. 129. They were
not consulted. They did not testify. The challenged legislation is entirely the
product of the efforts of the legislative body. 100 Their work was limited, as set
forth in the Executive Order, to submitting alternative plan for reorganization. That
is more in the nature of scholarly studies. That the undertook. There could be no
possible objection to such activity. Ever since 1973, this Tribunal has had
administrative supervision over interior courts. It has had the opportunity to inform
itself as to the way judicial business is conducted and how it may be improved.
Even prior to the 1973 Constitution, it is the recollection of the writer of this opinion
that either the then Chairman or members of the Committee on Justice of the then
Senate of the Philippines 101 consulted members of the Court in drafting proposed
legislation affecting the judiciary. It is not inappropriate to cite this excerpt from an
article in the 1975 Supreme Court Review: "In the twentieth century the Chief
Justice of the United States has played a leading part in judicial reform. A variety
of conditions have been responsible for the development of this role, and foremost
among them has been the creation of explicit institutional structures designed to
facilitate reform."102 Also: "Thus the Chief Justice cannot avoid exposure to and
direct involvement in judicial reform at the federal level and, to the extent issues of
judicial federalism arise, at the state level as well." 103
12. It is a cardinal article of faith of our constitutional regime that it is the
people who are endowed with rights, to secure which a government is
instituted. Acting as it does through public officials, it has to grant them either
expressly or impliedly certain powers. Those they exercise not for their own
benefit but for the body politic. The Constitution does not speak in the
language of ambiguity: "A public office is a public trust." 104 That is more than a
moral adjuration It is a legal imperative. The law may vest in a public official
certain rights. It does so to enable them to perform his functions and fulfill his
responsibilities more efficiently. It is from that standpoint that the security of tenure
provision to assure judicial independence is to be viewed. It is an added
guarantee that justices and judges can administer justice undeterred by any fear
of reprisal or untoward consequence. Their judgments then are even more likely
to be inspired solely by their knowledge of the law and the dictates of their
conscience, free from the corrupting influence of base or unworthy motives. The
independence of which they are assured is impressed with a significance
transcending that of a purely personal right. As thus viewed, it is not solely for
their welfare. The challenged legislation Thus subject d to the most rigorous
scrutiny by this Tribunal, lest by lack of due care and circumspection, it allow the
erosion of that Ideal so firmly embedded in the national consciousness There is
this farther thought to consider. independence in thought and action necessarily is
rooted in one's mind and heart. As emphasized by former Chief Justice Paras
in Ocampo v. Secretary of Justice, 105 there is no surer guarantee of judicial
independence than the God-given character and fitness of those appointed to the
Bench. The judges may be guaranteed a fixed tenure of office during good
behavior, but if they are of such stuff as allows them to be subservient to one
administration after another, or to cater to the wishes of one litigant after another,
the independence of the judiciary will be nothing more than a myth or an empty
Ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless
or in spite of the power of Congress we do not say unlimited but as herein
exercised to reorganize inferior courts." 106 That is to recall one of the greatest
Common Law jurists, who at the cost of his office made clear that he would not
just blindly obey the King's order but "will do what becomes [him] as a judge." So
it was pointed out in the first leading case stressing the independence of the
judiciary, Borromeo v. Mariano, 107 The ponencia of Justice Malcolm Identified
good judges with "men who have a mastery of the principles of law, who
discharge their duties in accordance with law, who are permitted to perform the
duties of the office undeterred by outside influence, and who are independent and
self-respecting human units in a judicial system equal and coordinate to the other
two departments of government." 108 There is no reason to assume that the failure
of this suit to annul Batas Pambansa Blg. 129 would be attended with deleterious
consequences to the administration of justice. It does not follow that the abolition
in good faith of the existing inferior courts except the Sandiganbayan and the
Court of Tax Appeals and the creation of new ones will result in a judiciary unable
or unwilling to discharge with independence its solemn duty or one recreant to the
trust reposed in it. Nor should there be any fear that less than good faith will
attend the exercise be of the appointing power vested in the Executive. It cannot
be denied that an independent and efficient judiciary is something to the credit of
any administration. Well and truly has it been said that the fundamental principle
of separation of powers assumes, and justifiably so, that the three departments
are as one in their determination to pursue the Ideals and aspirations and to
fulfilling the hopes of the sovereign people as expressed in the Constitution. There
is wisdom as well as validity to this pronouncement of Justice Malcolm in Manila
Electric Co. v. Pasay Transportation Company, 109 a decision promulgated almost
half a century ago: "Just as the Supreme Court, as the guardian of constitutional
rights, should not sanction usurpations by any other department or the
government, so should it as strictly confine its own sphere of influence to the
powers expressly or by implication conferred on it by the Organic Act." 110 To that
basic postulate underlying our constitutional system, this Court remains
committed.
WHEREFORE, the unconstitutionality of Batas Pambansa Blg. 129 not having
been shown, this petition is dismissed. No costs.
Makasiar and Escolin, JJ., concur.
Concepcion, Jr., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 117577 December 1, 1995
ALEJANDRO B. TY AND MVR PICTURE TUBE, INC., petitioners,
vs.
THE HON. AURELIO C. TRAMPE, in his capacity as Judge of the
Regional Trial Court of Pasig, Metro Manila, THE HON. SECRETARY OF
FINANCE, THE MUNICIPAL ASSESSOR OF PASIG AND THE MUNICIPAL
TREASURER OF PASIG, respondents.
PANGANIBAN, J.:
ARE THE INCREASED REAL ESTATE TAXES imposed by and being
collected in the Municipality (now City) of Pasig, effective from the year 1994,
valid an legal? This is the question brought before this Court for resolution.
The Parties
Petitioner Alejandro B. Ty is a resident of and registered owner of lands and
buildings in the Municipality (now City) of Pasig, while petitioner MVR Picture
Tube, Inc. is a corporation duly organized and existing under Philippine laws
and is likewise a registered owner of lands and buildings in said Municipality 1 .
Respondent Aurelio C. Trampe is being sued in his capacity as presiding
judge of Branch 163. Regional Trial Court of the National Capital Judicial
Region, sitting in Pasig, whose Decision dated 14 July 1994 and Order dated
30 September 1994 in Special Civil Action No. 629 (entitled "Alejandro B. Ty
and MVR Picture Tube, Inc. vs. The Hon. Secretary of Finance. et al.") are
sought to be set aside. Respondent Secretary of Finance is impleaded as the
government officer who approved the Schedule of Market Values used as
basis for the new tax assessments being enforced by respondents Municipal
Assessor and Municipal Treasurer of Pasig and the legality of which is being
questioned in this petition 2 .
The Antecedent Facts
On 06 January 1994, respondent Assessor sent a notice of assessment
respecting certain real properties of petitioners located in Pasig, Metro Manila.
In a letter dated 18 March 1994, petitioners through counsel "request(ed) the
Municipal Assessor to reconsider the subject assessments" 3 .
Not satisfied, petitioners on 29 March 1994 filed with the Regional Trial Court
of the National Capital Judicial Region, Branch 163, presided over by
respondent Judge, a Petition for Prohibition with prayer for a restraining order
and/or writ of preliminary injunction to declare null and void the new tax
assessments and to enjoin the collection of real estate taxes based on said
assessments. In a Decision 4 dated 14 July 1994, respondent Judge denied the
petition "for lack of merit" in the following disposition.
WHEREFORE, foregoing premises considered, petitioners'
prayer to declare unconstitutional the schedule of market
values as prepared by the Municipal Assessor of Pasig, Metro
Manila, and to enjoin permanently the Municipal Treasurer of
Pasig, Metro Manila, from collecting the real property taxes
based thereof (sic) is hereby DENIED for lack of merit. Cost
(sic) de oficio.
Subsequently, petitioners' Motion for Reconsideration was also denied by
respondent Judge in an Order 5 dated 30 September 1994.
Rebuffed by said Decision and Order, petitioners filed this present Petition for
Review directly before this Court, raising pure questions of law and assigning
the following errors:
The Court a quo gravely erred in holding that Presidential
Decree No. 921 was expressly repealed by R.A. 7160 and that
said presidential decree including its Implementing Rules (P.D.
464) went down to the statutes' graveyard together with the
other decision(s) of the Supreme Court affecting the same.
The Court a quo while holding that the new tax assessments
have tremendously increased ranging from 418.8% to 570%,
gravely erred in blaming petitioners for their failure to exhaust
administrative remedies provided for by law.
The Court a quo blatantly erred in not declaring the
confiscatory and oppressive nature of the assessments as
illegal. void ab initio and unconstitutional constituting a
deprivation of property without due process of law. 6
In a resolution dated 21 November 1994, this Court, without giving due course
to the petition, required respondents to comment thereon. Respondents
Municipal Treasurer and Municipal Assessor, through counsel, filed their
Comment on 19 December 1994, and respondent Secretary of Finance,
through the Solicitor General, submitted his on 11 May 1995. Petitioners filed
their Reply to the Comment of respondent Assessor and Treasurer 06
January 1995, and their Reply to that of the respondent Secretary on 18 May
1995. After careful deliberation on the above pleadings, the Court resolved to
give due course to the petition, and, inasmuch as the issues are relatively
simple, the Court dispensed with requiring the parties to submit further
memoranda and instead decided to consider the respondents' respective
Comments as their answers and memoranda. Thus the case is now
considered submitted for resolution.
The Issues
The issues brought by the parties for decision by this Court are:
1. Whether Republic Act No. 7160, otherwise known as the
Local Government Code of 1991, repealed the provisions of
Presidential Decree No. 921;
 2. Whether petitioners are required to exhaust administrative
remedies prior to seeking judicial relief; and
3. Whether the new tax assessments are oppressive and
confiscatory, and therefore unconstitutional.
In disposing of the above issues against petitioners, the court a quo ruled that
the schedule of market values and the assessments based thereon
prepared solely by respondent assessor are valid and legal, they having been
prepared in accordance with the provisions of the Local Government Code of
1991 (R.A. 7160). It held also that said Code had effectively repealed the
previous law on the matter, P.D. 921, which required, in the preparation of
said schedule, joint action by all the city and municipal assessors in the
Metropolitan Manila area. The lower court also faulted petitioners with failure
to exhaust administrative remedies provided under Sections 226 and 252 of
R.A. 7160. Finally, it found the questioned assessments consistent with the
"tremendously increased . . . price of real estate anywhere in the country." 7
Stated the court:
This Court is inclined to agree with the view of defendants that
R.A. 7160 in its repealing clause provide (sic) that Presidential
Decree Nos. . . . 464 . . . are hereby repealed and rendered of
no force and effect. Hence said presidential decrees including
their implementing rules went down to the statutes' graveyard
together with the decisions of the Supreme Court on cases
effecting (sic) the same.
This Court is also in accord with respondents (sic) view that
petitioners failed to avail of either Section 226 of R.A. 7160,
that is by appealing the assessment of their properties to the
Board of Assessment Appeal within sixty 160) days from the
date of receipt of the written Notice of Assessment, and if it is
true that petitioner (sic) as alleged in their pleadings was not
afforded the opportunity to appeal to the board of assessment
appeal, then they could have availed of the provisions of
Section 252, of the same R.A. 7160 by paying the real estate
tax under protest. Because of petitioners (sic) failure to avail of
either Sections 226 or 252 of R.A. 7160, they failed to exhaust
administratives (sic) remedies provided for by law before
bringing the case to Court. (Buayan Cattle Co., Inc. vs.
Quintillan, 128 SCRA 276). Therefore the filing of this case
before this Court is premature, the same not falling under the
exception because the issue involved is not a question of law
but of fact (Valmonte vs. Belmonte, Jr., 170 SCRA 256).
Petitioners also alleged that the New Tax Assessments are not
only oppressive and confiscatory but also destructive in view
of the tremendous increase in its valuation, from P855,360.00
to P4,121,280.00 a marked increase of 418.8% of one of its
properties, while the other, from P857,600.00 to
P4,374,410.00, an increased (sic) of 510%. This Court agree
(sic) with petitioners (sic) observation, but the reality (sic) the
price of real property anywhere in the country tremendously
increased. This is shown in the Real Estate Monitor of
Economic Incorporated (copy attached with the memorandum
of respondents). For example real properties in Pasig in 1991
located at the Ortigas Commercial Complex command (sic) a
price of P42,000.00 per square meter which price is supported
by a case filed before this Court (civil case no. 64506, Jesus
Fajardo, et al. vs. Ortigas and Co.) for Recovery (sic) of agents
(sic) commission. The property subject of the sale which was
also located at the Ortigas Commercial Complex at Pasig,
Metro Manila was sold to a Taiwanese at P42,000.00 per
square meter. It is therefore not surprising that the assessment
of real properties in Pasig has increased tremendously. Had
petitioners first exhausted administrative remedies they would
have realized the fact that prices of real estate has (sic)
tremendously increased and would have known the
reason/reasons why. 8
In its Order dated 30 September 1994 denying the Motion for
Reconsideration, the court a quo ruled:
This Court despite petitioners' exhaustive and thorough
research and discussion of the point in issue, is still inclined to
sustain the view that P.D. 921 was impliedly repealed by R.A.
7160. P.D. 921 to the mind of this Court is an implementing
law of P.D. 464, Sections 3, 6, 9, 12 and 13 of said P.D.
provide how certain provisions of P.D. 464 shall be
implemented. Since P.D. 464 was expressly repealed by R.A.
7160. P.D. 921 must necessarily be considered repealed,
otherwise, what should Sections 3, 6, 9, 12 and 13 of P.D. 921
implement? And, had the law makers intended to have said
P.D. 921 remain valid and enforceable they would have
provided so in R.A. 7160. Since there is none, P.D. 921 must
be considered repealed. 9
Re: The First Issue:
Repeal of P.D. 921?
To resolve the first issue, it is necessary to revisit the following provisions of
law:
1. Section 15 of P.D. No. 464, promulgated on 20 May 1974, otherwise known
as the Peal Property Tax Code:
Sec. 15. Preparation of Schedule of Values. Before any
general revision of property assessments is made, as provided
in this Code, there shall be prepared for the province or city a
Schedule of Market Value for the different classes of real
property therein situated in such form and detail as shall be
prescribed by the Secretary of Finance.
Said schedule, together with an abstract of the data (on) which
it is based, shall be submitted to the Secretary of Finance for
review not later than the thirty-first day of December
immediately preceding the calendar year the general revision
of assessments shall be undertaken. The Secretary of Finance
 shall have ninety days from the date of receipt within which to
review said schedule to determine whether it conforms with
the provisions of this Code.
2. Subsequently, on 12 April 1976, P.D. 921 was promulgated, which in
Section 9 thereof, states:
Sec. 9. Preparation of Schedule of Values for Real Property
within the Metropolitan Area. The Schedule of Values that
will serve as the basis for the appraisal and assessment for
taxation purposes of real properties located within the
Metropolitan Area shall be prepared jointly by the City
Assessors of the Districts created under Section one hereof,
with the City Assessor of Manila acting as Chairman, in
accordance with the pertinent provisions of Presidential
Decree No. 464, as amended, otherwise known as the Real
Property Tax Code, and the implementing rules and
regulations thereof issued by the Secretary of Finance.
3. Section One of P.D. 921, referred to above, provides:
Sec. 1. Division of Metropolitan Manila into Local Treasury and
Assessment Districts. For purposes of effective fiscal
management, Metropolitan Manila is hereby divided into the
following Local Treasury and Assessment Districts:
First District Manila
Second District Quezon City, Pasig,
Marikina,
Mandaluyong and San Juan
Third District Caloocan City, Malabon,
Navotas and Valenzuela
Fourth District Pasay City, Makati,
Paranaque,
Muntinlupa, Las Pias, Pateros and
Taguig
Manila, Quezon City, Caloocan City and Pasay City shall be
the respective Centers of the aforesaid Treasury and
Assessment Districts.
4. On 01 January 1992, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, took effect. Section 212 of said law is quoted as
follows:
Sec. 212. Preparation of Schedule of Fair Market Values.
Before any general revision of property assessment is made
pursuant to the provisions of this Title, there shall be prepared
a schedule of fair market values by the provincial, city and the
municipal assessors of the municipalities within the
Metropolitan Manila Area for the different classes of real
property situated in their respective local government units for
enactment by ordinance of the sanggunian concerned. The
schedule of fair market values shall be published in a
newspaper of general circulation in the province, city or
municipality concerned, or in the absence thereof, shall be
posted in the provincial capitol, city or municipal hall and in two
other conspicuous public place therein.
5. The repealing clause of R.A. 7160 found in the Section 534 thereof is
hereby reproduced as follows:
Sec. 534. Repealing Clause.
(a) . . .
(b) . . .
(c) . . . ; and Presidential Decree Nos. 381, 436, 464, 477, 626,
632, 752, and 1136 are hereby repealed and rendered of no
force and effect.
xxx xxx xxx
(f) All general and special laws, acts, city charter, decrees,
executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with
any of the provisions of this Code are hereby repealed or
modified accordingly. (emphasis supplied)
It is obvious from the above provisions of R.A 7160, specifically Sec. 534, that
P.D. 921 was NOT EXPRESSLY repealed by said statute. Thus, the question
is: Was P.D. 921 IMPLIEDLY repealed by R.A. 7160?
Petitioners contend that, contrary to the aforequoted Decision of the lower
court, "whether the assessment is made before or after the effectivity of R.A.
7160, the observance of, and compliance with, the explicit requirement of P.D.
921 is strict and mandatory either" because P.D. 921 was not impliedly
repealed by R.A. 7160 and is therefore still the applicable statute, or because
the Supreme Court, in three related cases 10 promulgated on 16 December
1993 after the Local Government Code of 1991 already took effect ruled that
a schedule of market values and the corresponding assessments based thereon
"prepared solely by the city assessor . . . failed to comply with the explicit
requirement (of collegial and joint action by all the assessors in the Metropolitan
Manila area under P.D. 921) . . . and are on that account illegal and void."
On the other hand, respondents aver that Section 9 of P.D. 921 and Section
212 of R.A. 7160 are clearly and unequivocally incompatible because they
dwell on the same subject matter, namely, the preparation of a schedule of
values for real property within the Metropolitan Manila Area. Under P.D. 921,
the schedule shall be prepared jointlyby the city assessors of the District,
while, under R.A. 7160, such schedule shall be prepared "by the provincial,
city and municipal assessors of the municipalities within the Metropolitan
Manila area . . . ". Furthermore, they claim that "Section 9 (of P.D. 921) merely
supplement(ed) Section 15 of P.D. 464 in so far as the preparation of the
schedule of values in Metro Manila (is concerned)." Thus, "with the express
repeal of P.D. 464 . . . P.D. 921 . . .can not therefore exist independently on its
own." They also argue that although the aforecited Supreme Court decision
was promulgated after R.A. 7160 took effect, "the assessment of the
Municipal Assessors in those three (3) cited cases were assessed in 1990
prior to the effectivity of the Code." Hence, the doctrine in said cases cannot
be applied to those prepared in 1994 under R.A. 7160.
We rule for petitioners.
R.A. 7160 has a repealing provision (Section 534) and, if the intention of the
legislature was to abrogate P.D. 921, it would have included it in such
repealing clause, as it did in expressly rendering of no force and effect several
other presidential decrees. Hence, any repeal or modification of P.D. 921 can
only be possible under par. (f) of said Section 534, as follows:
(f) All general and special laws, acts, city charter, decrees,
executive orders, proclamations and administrative
regulations, part or parts thereof which are inconsistent with
any of the provisions of the Code are hereby repealed or
modified accordingly.
The foregoing partakes of the nature of a general repealing provision. It is a
basic rule of statutory construction that repeals by implication are not favored.
An implied repeal will not be allowed unless it is convincingly and
unambiguously demonstrated that the two laws are so clearly repugnant and
patently inconsistent that they cannot co-exist. This is based on the rationale
that the will of the legislature cannot be overturned by the judicial function of
construction and interpretation. Courts cannot take the place of Congress in
repealing statutes. Their function is to try to harmonize, as much as possible,
seeming conflicts in the laws and resolve doubts in favor of their validity and
co-existence.
In Villegas v. Subido, 11 the issue raised before the Court was whether the
Decentralization Act had the effect of repealing what was specifically ordained in
the Charter of the City of Manila. Under the Charter, it was provided in its Section
22 that "The President of the Philippines with the consent of the Commission on
Appointments shall appoint . . . the City Treasurer and his Assistant." Under the
Decentralization Act, it was provided that "All other employees, except teachers
paid out of provincial, city or municipal general funds and other local funds shall . .
. be appointed by the provincial governor, city or municipal mayor upon
recommendation of the head of office concerned."
The Court, in holding that there was no implied repeal in this
case 12 , said:
. . . It has been the constant holding of this Court that repeals
by implication are not favored and will not be so declared
unless it be manifest that the legislature so intended. Such a
doctrine goes as far back as United States v. Reyes, a 1908
decision (10 Phil. 423, Cf. U.S. v. Academia, 10 Phil. 431
[1908]). It is necessary then before such a repeal is deemed to
exist that it be shown that the statutes or statutory provisions
deal with the same subject matter and that the latter be
inconsistent with the former. (Cf. Calderon v. Provincia del
Santisimo Rosario, 28 Phil. 164 [1914]). There must be a
showing of repugnancy clear and convincing in character. The
language used in the latter statute must be such as to render it
irreconcilable with what has been formerly enacted. An
inconsistency that falls short of that standard does not suffice.
What is needed is a manifest indication of the legislative
purpose to repeal. [Citing numerous cases]
More specifically, a subsequent statute, general in character
as to its terms and application, is not to be construed as
repealing a special or specific enactment, unless the
legislative purpose to do so is manifest. This is so even if the
provisions of the latter are sufficiently comprehensive to
include what was set forth in the special act. This principle has
likewise been consistently applied in decisions of the Court
from Manila Railroad Co. v. Rafferty (40 Phil 224), decided as
far back as 1919. A citation from an opinion of Justice Tuason
is illuminating. Thus: "From another angle the presumption
against repeal is stronger. A special law is not regarded as
having been amended or repealed by a general law unless the
intent to repeal or alter is manifest. Generalia specialibus non
derogant. An this is true although the terms of the general act
are broad enough to include the matter in the special statute. .
. . At any rate, in the event harmony between provisions of this
type in the same law or in two laws is impossible, the specific
provision controls unless the statute, considered in its entirety,
indicates a contrary intention upon the part of the legislature. .
. . A general law is one which embraces a class of subjects or
places and does not omit any subject or place naturally
belonging to such class, while a special act is one which
relates to particular persons or things of a class." (citing Valera
v. Tuason, 80 Phil. 823, 827-828 [1948].)
In the relatively recent case of Mecano vs. Commission on Audit 13 , the
Court en banc had occasion to reiterate and to reinforce the rule against implied
repeals, as follows:
Repeal by implication proceeds on the premise that where a
statute of later date clearly reveals an intention on the part of
the legislature to abrogate a prior act on the subject, that
intention must be given effect. Hence, before there can be a
repeal, there must be a clear showing on the part of the law
maker that the intent in enacting the new law was to abrogate
the old one. The intention to repeal must be clear and
manifest; otherwise, at least, as a general rule, the later act is
to be construed as a continuation of, and not a substitute for,
the first act and will continue so far as the two acts are the
same from the time of the first enactment.
There are two categories of repeal by implication. The first is
where provisions in the two acts on the same subject matter
are in an irreconcilable conflict, the later act to the extent of the
conflict constitutes an implied repeal of the earlier one. The
second is if the later act covers the whole subject of the earlier
one and is clearly intended as a substitute, it will operate to
repeal the earlier law.
Implied repeal by irreconcilable inconsistency take place when
the two statutes cover the same subject matter; they are so
clearly inconsistent and incompatible with each other that they
 cannot be reconciled or harmonized; and both cannot be given
effect, that is that one law cannot be enforced without nullifying
the other.
In the same vein, but in different words, this Court ruled in Gordon
vs. Veridiano 14 :
Courts of justice, when confronted with apparently conflicting
statutes, should endeavor to reconcile the same instead of
declaring outright the invalidity of one as against the other.
Such alacrity should be avoided. The wise policy is for the
judge to harmonize them if this is possible, bearing in mind
that they are equally the handiwork of the same legislature,
and so give effect to both while at the same time also
according due respect to a coordinate department of the
government. It is this policy the Court will apply in arriving at
the interpretation of the laws above-cited and the conclusions
that should follow therefrom.
In the instant case, and using the Courts' standard for implied repeal
in Mecano, we compared the two laws.
Presidential Decree No. 921 was promulgated on 12 April 1976, with the aim
of, inter alia, evolving "a progressive revenue raising program that will not
unduly burden the tax payers . . . " 15 in Metropolitan Manila. Hence, it provided
for the "administration of local financial services in Metropolitan Manila" only, and
for this purpose, divided the area into four Local Treasury and Assessment
Districts, regulated the duties and functions of the treasurers and assessors in the
cities and municipalities in said area and spelled out the process of assessing,
imposing and distributing the proceeds of real estate taxes therein.
Upon the other hand, Republic Act No. 7160, otherwise "known and cited as
the Local 'Government Code of 1991'"16 took effect on 01 January 1992 17. It
declared "genuine and meaningful local autonomy" as a policy of the state. Such
policy was meant to decentralize government "powers, authority, responsibilities
and resources" from the national government to the local government units "to
enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals." 18In the
formulation and implementation of policies and measures on local autonomy,
''(l)ocal government units may group themselves, consolidate or coordinate their
efforts, services and resources for purposes commonly beneficial to them." 19
From the above, it is clear that the two laws are not co-extensive and mutually
inclusive in their scope and purpose. While R.A. 7160 covers almost all
governmental functions delegated to local government units all over the
country, P.D. 921 embraces only the Metropolitan Manila area and is limited
to the administration of financial services therein, especially the assessment
and collection of real estate (and some other local) taxes.
Coming down to specifics, Sec. 9 of P.D. 921 requires that the schedule of
values of real properties in the Metropolitan Manila area shall be
prepared jointly by the city assessors in the districts created therein: while
Sec. 212 of R.A. 7160 states that the schedule shall be prepared "by the
provincial, city and municipal assessors of the municipalities within the
Metropolitan Manila Area for the different classes of real property situated in
their respective local government units for enactment by ordinance of the
sanggunian concerned. . . ."
It is obvious that harmony in these provisions is not only possible, but in fact
desirable, necessary and consistent with the legislative intent and policy. By
reading together and harmonizing these two provisions, we arrive at the
following steps in the preparation of the said schedule, as follows:
1. The assessor in each municipality or city in the Metropolitan
Manila area shall prepare his/her proposed schedule of
values, in accordance with Sec. 212, R.A. 7160.
2. Then, the Local Treasury and Assessment District shall
meet, per Sec. 9, P.D. 921. In the instant case, that district
shall be composed of the assessors in Quezon City, Pasig,
Marikina, Mandaluyong and San Juan, pursuant to Sec. 1 of
said P.D. In this meeting, the different assessors shall
compare their individual assessments, discuss and thereafter
jointly agree and produce a schedule of values for their district,
taking into account the preamble of said P.D. that they should
evolve "a progressive revenue raising program that will not
unduly burden the taxpayers".
3. The schedule jointly agreed upon by the assessors shall
then be published in a newspaper of general circulation and
submitted to the sanggunian concerned for enactment by
ordinance, per Sec. 212, R.A. 7160.
By this harmonization, both the preamble of P.D. 921 decreeing that the real
estate taxes shall "not unduly burden the taxpayer" and the "operative
principle of decentralization" provided under Sec. 3, R.A. 7160 encouraging
local government units to "consolidate or coordinate their efforts, services and
resources" shall be fulfilled. Indeed the essence of joint local action for
common good so cherished in the Local Government Code finds concrete
expression in this harmonization.
How about respondents' claim that, with the express repeal of P.D. 464, P.D.
921 being merely a "supplement" of said P.D. cannot "exist
independently on its own"? Quite the contrary is true. By harmonizing P.D.
921 with R.A. 7160, we have just demonstrated that it can exist outside of
P.D. 464, as a support, supplement and extension of R.A. 7160, which for this
purpose, has replaced P.D. 464.
Since it is now clear that P.D. 921 is still good law, it is equally clear that this
Court's ruling in the Mathay/Javier/Puyat-Reyes cases (supra) is still the
prevailing and applicable doctrine. And, applying the said ruling in the present
case, it is likewise clear that the schedule of values prepared solely by the
respondent municipal assessor is illegal and void.
Re: The Second Issue:
Exhaustion of Administrative Remedies
We now come to the second issue. The provisions of Sections 226 and 252 of
R.A. 7160 being material to this issue, are set forth below:
Sec. 226. Local Board of Assessment Appeals. Any owner
or person having legal interest in the property who is not
satisfied with the action of the provincial, city or municipal
 assessor in the assessment of his property may, within sixty
(60) days from the date of receipt of the written notice of
assessment, appeal to the Board of Assessment Appeals of
the province or city by filing a petition under oath in the form
prescribed for the purpose, together with copies of the tax
declarations and such affidavits or documents submitted in
support of the appeal.
Sec. 252. Payment under Protest. (a) No protest shall be
entertained unless the taxpayer first pays the tax. There shall
be annotated on the tax receipts the words "paid under
protest". The protest in writing must be filed within thirty (30)
days from payment of the tax to the provincial, city treasurer or
municipal treasurer, in the case of a municipality within
Metropolitan Manila Area, who shall decide the protest within
sixty (60) days from receipt.
(b) The tax or a portion thereof paid under protest shall be held
in trust by the treasurer concerned.
(c) In the event that the protest is finally decided in favor of the
taxpayer, the amount or portion of the tax protested shall be
refunded to the protestant, or applied as tax credit against his
existing or future tax liability.
(d) In the event that the protest is denied or upon the lapse of
the sixty-day period prescribed in subparagraph (a), the
taxpayer may avail of the remedies as provided for in Chapter
3, Title Two, Book II of this Code.
Respondents argue that this case is premature because petitioners neither
appealed the questioned assessments on their properties to the Board of
Assessment Appeal, pursuant to Sec. 226, nor paid the taxes under protest,
per Sec. 252.
We do not agree. Although as a rule, administrative remedies must first be
exhausted before resort to judicial action can prosper, there is a well-settled
exception in cases where the controversy does not involve questions of fact
but only of law. 20 In the present case, the parties, even during the proceedings in
the lower court on 11 April 1994, already agreed "that the issues in the petition are
legal" 21 , and thus, no evidence was presented in said court.
In laying down the powers of the Local Board of Assessment Appeals, R.A.
7160 provides in Sec. 229 (b) that "(t)he proceedings of the Board shall be
conducted solely for the purpose of ascertaining the facts . . . ." It follows that
appeals to this Board may be fruitful only where questions of fact are involved.
Again, the protest contemplated under Sec. 252 of R.A. 7160 is needed where
there is a question as to the reasonableness of the amount assessed. Hence,
if a taxpayer disputes the reasonableness of an increase in a real estate tax
assessment, he is required to "first pay the tax" under protest. Otherwise, the
city or municipal treasurer will not act on his protest. In the case at bench
however, the petitioners are questioning the very authority and power of the
assessor, acting solely and independently, to impose the assessment and of
the treasurer to collect the tax. These are not questions merely of amounts of
the increase in the tax but attacks on the very validity of any increase.
Finally, it will be noted that in the consolidated cases of Mathay/Javier/Puyat-
Reyes cited earlier, the Supreme Court referred the petitions (which similarly
questioned the schedules of market values prepared solely by the respective
assessors in the local government units concerned) to the Board of
Assessment Appeal, not for the latter, to exercise its appellate jurisdiction, but
rather to act only as a fact-finding commission. Said the
Court 22 thru Chief Justice Andres R. Narvasa:
On November 5, 1991, the Court issued a Resolution clarifying
its earlier one of May 16, 1991. It pointed out that the authority
of the Central Board of Assessment Appeals "to take
cognizance of the factual issues raised in these two cases by
virtue of the referral by this Court in the exercise of its
extraordinary or certiorari jurisdiction should not be confused
with its appellate jurisdiction over appealed assessment cases
under Section 36 of P.D. 464 otherwise known as the Real
Property Tax Code. The Board is not acting in its appellate
jurisdiction in the instant cases but rather, it is acting as a
Court-appointed fact-finding commission to assist the Court in
resolving the factual issues raised in G.R. Nos. 97618 and
97760."
In other words, the Court gave due course to the petitions therein in spite of
the fact that the petitioners had not, apriori, exhausted administrative
remedies by filing an appeal before said Board. Because there were factual
issues raised in the Mathay, et al. cases, the Supreme Court constituted the
Central Board of Assessment Appeals as a fact-finding body to assist the
Court in resolving said factual issues. But in the instant proceedings, there are
no such factual issues. Therefore, there is no reason to require petitioners to
exhaust the administrative remedies provided in R.A. 7160, nor to mandate a
referral by this Court to said Board.
Re: The Third Issue:
Constitutionality of the Assessments
Having already definitively disposed of the case through the resolution of the
foregoing two issues, we find no more need to pass upon the third. It is
axiomatic that the constitutionality of a law, regulation, ordinance or act will
not be resolved by courts if the controversy can be, as in this case it has
been, settled on other grounds. In the recent case of Macasiano vs. National
Housing Authority 23 , this Court declared:
It is a rule firmly entrenched in our jurisprudence that the
constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly
raised and presented in appropriate cases and is necessary to
a determination of the case, i.e., the issue of constitutionality
must be the very lis mota presented. To reiterate, the essential
requisites for a successful judicial inquiry into the
constitutionality of a law are: (a) the existence of an actual
case or controversy involving a conflict of legal rights
susceptible of judicial determination, (b) the constitutional
question must be raised by a proper party, (c) the
 constitutional question must be raised at the earliest
opportunity, and (d) the resolution of the constitutional
question must be necessary to the decision of the case.
(emphasis supplied)
The aforequoted decision in Macasiano merely reiterated the ruling in Laurel
vs. Garcia 24, where this Court held:
The Court does not ordinarily pass upon constitutional
questions unless these questions are properly raised in
appropriate cases and their resolution is necessary for the
determination of the case (People v. Vera, 65 Phil. 56
[1937]). The Court will not pass upon a constitutional question
although properly presented by the record if the case can be
disposed of on some other ground such as the application of a
statute or general law (Siler v. Louisville and Nashville R. Co.,
213 U.S. 175, [1909], Railroad Commission v. Pullman Co.,
312 U.S. 496 [1941]). 25 (emphasis supplied)
In view of the foregoing ruling, the question may be asked: what happens to
real estate tax payments already made prior to its promulgation and finality?
Under the law 26 , "the taxpayer may file a written claim for refund or credit for
taxes and interests . . . ."
Finally, this Tribunal would be remiss in its duty as guardian of the judicial
branch if we let pass unnoticed the ease by which the respondent Judge
consigned "to the statutes' graveyard" a legislative enactment "together with
the (three) decisions of the Supreme Court" promulgated jointly and
unanimously en banc. An elementary regard for the sacredness of laws and
the stability of judicial doctrines laid down by superior authority should have
constrained him to be more circumspect in rendering his decision and to spell
out carefully and precisely the reasons for his decision to invalidate such acts,
instead of imperiously decreeing an implied repeal. He knows or should have
known the legal precedents against implied repeals. Respondent Judge, in his
decision, did not even make an attempt to try to reconcile or harmonize the
laws involved. Instead, he just unceremoniously swept them and this Court's
decisions into the dustbin of "judicial history." In his future acts and decisions,
he is admonished to be more judicious in setting aside established laws,
doctrines and precedents.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING
ASIDE the questioned Decision and Order of respondent Judge, DECLARING
as null and void the questioned Schedule of Market Values for properties in
Pasig City prepared by respondent Assessor, as well as the corresponding
assessments and real estate tax increases based thereon; and ENJOINING
the respondent Treasurer from collecting the real estate tax increases made
on the basis of said Schedule and assessments. No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Hermosisima, Jr., JJ.,
concur.
- Supreme Court is a constitutional
creation
- MMDA vs. Jancom, G.R. 147465,
April 10, 2002
- People vs. Gacott, G.R. No. 116049,
July 13, 1995
[G.R. No. 147465.April 10, 2002]
MMDA vs. JANCOM ENV'L. CORP., et al.
THIRD DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated APR 10
2002.
G.R. No. 147465(Metropolitan Manila Development Authority, petitioner, vs. Jancom
Environmental Corporation and Jancom International Development Projects Pty.
Limited of Australia, respondents.)
Before us is a motion for reconsideration of our decision dated January 30, 2002
affirming the judgment of the Court of Appeals, which in turn affirmed that of the
regional trial court, declaring that there is a valid and perfected waste management
contract between the Republic of the Philippines and JANCOM Environmental
Corporation, and dismissing the petition filed by petitioner Metropolitan Manila
Development Authority for lack of merit.Petitioner has likewise filed a motion that
the case at bar be heard and resolved by the Court en banc.
In its motion for reconsideration, petitioner reiterates its arguments that (1) resort
to a petition forcertiorari was proper; (2) that the waste management contract
never got through the negotiation stage; (3) that the signature of the President is
necessary for the perfection of the contract in question; and (4) that the contract
could be unilaterally cancelled by the Government since incineration is prohibited by
the Clean Air Act.
A cursory look at petitioner's arguments readily discloses that the same are a mere
rehash of the issues and arguments raised in the original petition.The first
procedural issue raised, which parenthetically, was resolved by us in our January
30, 2002 decision, is whether or not it was proper for petitioner to resort to a
petition for certiorari, instead of appealing the decision of the trial court.
In justifying its resort to certiorari, petitioner claims that a garbage crisis was
imminent due to the trial court's decision to prohibit and enjoin MMDA from
conducting a bidding for the establishment and operation of a new sanitary
landfill.Petitioner contends that this prohibition - and the specter of garbage lying
open in the streets - impelled it to file a petition for certiorari rather than a regular
appeal.As we stated in our decision, "[t]he existence and availability of the right of
appeal proscribes a resort tocertiorari, because one of the requirements for
availment of the latter remedy is precisely that 'there should be no appeal' (Mercado
vs. CA, 162 SCRA 75 [1988])." The special civil action for certiorari is available only
when there is no appeal or any plain, speedy and adequate remedy in the ordinary
course of law (Sec. 1, Rule 65, id.).Well-settled is the rule that the special civil
action for certiorari may not be invoked as a substitute for the remedy of appeal (BF
Corporation vs. Court of Appeals, 288 SCRA 267 [1998]).
Petitioner claims, however, that while appeal was available, the same was an
inadequate remedy under the circumstances, stating that "the availability of appeal
is not sufficient to preclude a petition forcertiorari where appeal is not an adequate,
equally beneficial, speedy and efficient remedy.For it is theinadequacy and not the
mere absence of other legal remedies which determines the propriety
ofcertiorari."This argument was previously confuted by the Court of Appeals in the
following disquisition, which we quote with approval:
[T]he RTC decision is not immediately executory.Only
judgments in actions for injunction, receivership, accounting and
support and such other judgments as are now or may hereafter be
declared to be immediately executory shall be enforced after their
rendition and shall not be stayed by an appeal therefrom, unless
otherwise ordered by the trial court (Sec. 4, Rule 39, id.)
Since the RTC decision is not immediately executory, appeal
would have stayed its execution.Consequently, the adverse effects of
said decision will not visit upon petitioners during the appeal.In other
words, appeal is a plain, speedy and adequate remedy in the ordinary
course of law.
But no appeal was taken within the reglementary period, the
RTC decision had become final and executory.
(CA
Decision, p. 9.)
Thus, it cannot be gainsaid that petitioner's failure to appeal the decision of the trial
court is a fatal defect which, standing by itself, already fully justifies the dismissal of
its petition.
Petitioner also moves to have the instant case referred to the Court en banc on the
ground that novel questions of law have been raised which merit review by the
Court en banc.The motion is not meritorious.
Firstly, Circular No. 2-89 governing referral of cases to the Court en banc states that
"[t]he Court en banc is not an Appellate Court to which decisions or resolutions of a
Division may be appealed."A decision of a Division of the Court is a decision of the
Supreme Court.That much is clear.Secondly, the question as to whether or not a
perfected contract exists between the parties can hardly be characterized as
novel.Thirdly, when this case was passed on to Mr. Justice Antonio T. Carpio upon
the retirement of Mme. Justice Minerva Gonzaga-Reyes to whom the case had been
initially assigned, the Division thought it wise to refer the case en consulta to the
Court en banc, suggesting or inquiring if the Court en banc should take over and
whether the case should be re-raffled courtwide due to the inhibition of Justice
Carpio.The Court en banc, however, declined to take over the case and returned it
to the Third Division with instructions that it be re-raffled among the other members
of the Division.Fourthly, Circular 2-89 further pertinently provides that "[n]o motion
for reconsideration of the action of the Courten banc declining to take cognizance of
a referral by a Division, shall be entertained."Verily, to refer the instant case to the
Court en banc anew would be equivalent to allowing a motion for reconsideration of
the previous denial of the referral.This notwithstanding, the Third Division acting on
petitioner's motion for referral of the motion for reconsideration to the Court en
banc, once again consulted the Court en banc, inquiring if the banc desired to take
over the resolution of petitioner's motion for reconsideration.The Court en
banc declined, and again instructed the Third Division to accordingly act on the
motion for reconsideration.Withal, the Court en banc has denied petitioner's motion
that its motion for reconsideration be resolved by the Court en banc.
Incidentally, it ahs been claimed that the Third Division violated SC Administrative
Circular No. 1294-A when it did not re-raffle the case to the two other divisions of
the Court, given the circumstance that Mr. Justice Carpio, a member of the Division,
was formerly counsel of Vivendi, JANCOM's partner, and was Chief Presidential Legal
counsel when the contract was finalized.
The claim is without basis.Circular 12-94-A provides:
2.Whenever a Member of a Division was counsel or member of a
law firmwhich was counsel in a case before the Division... or a former
official of a government agency or private entity which is a party to a
case before the Division, said member shall inhibit himself from the
case, and the same shall be raffled among members of the two other
Divisions of the Court.
A painstaking scrutiny of the record would show that Mr. Justice Carpio and his
former law firm have never been counsel for any party in the case, whether in the
Third Division, the Court of Appeals, or the regional trial court where the case
originated.Moreover, Mr. Justice Carpio resigned as Chief PresidentialLegal counsel
on February 15, 1996, while the bidding for the waste management project was
held almost a year later, on February 12, 1997.The contract itself was signed only
on December 19, 1997.Clearly, Circular 12-94-A finds no application in the case at
bar.
Having disposed of the procedural issues, we again consider the substantive issues
raised by petitioner, not only to put petitioner's mind to rest, but to expose the
speciousness of its arguments.
Petitioner claims that the waste management contract never got through the
negotiation stage since the notice sent by then MMDA Chairman Prospero Oreta
informing JANCOM that it was the winning bidder specifically provided that the same
was "subject to negotiation and mutual approval of the terms and conditions of the
contract of award."The argument is misleading since it deceivingly overlooks the
fact that after said letter was sent, a contract was prepared and signed by JANCOM
and the Philippine Government.The signing and execution of the contract by the
parties clearly show that, as between the parties, there was a concurrence of offer
and acceptance with respect to the material details of the contract, thereby giving
rise to the perfection of the contract.The execution and signing of the contract are
not disputed by the parties.
Next, petitioner reiterates its claim that the signature of the President is necessary
for the validity of the contract.It points out that Memorandum Order No. 202
(Memorandum Order Creating an Executive Committee to Oversee the BOT
Implementation of Solid Waste Management Projects for Waste Disposal Sites in
Carmona and San Mateo) only gives the Executive Committee recommendatory
authority, not the authority to approve or disapprove a waste management
contract.Petitioner argues that the Secretary of Environment and Natural Resources
signed the contract in his capacity as member of the Executive Committee and that,
therefore, the same is not valid since the Executive Committee has no power to
approve or disapprove the contract.Again, the argument is specious as it glosses
over the fact - stated in the contract itself - that the Secretary of Environment and
Natural Resources signed, not as a member of the Executive Committee, but in
representation of the Presidential Task Force on Solid Waste of which he was the
Chairman (Contract, p. 1).Nor can it be gainsaid that the Department of
Environment and Natural Resources, of which the Secretary is the head, is the
primary government agency responsible for the conservation, management,
development, and proper use of the country's environment and natural resources
(Whereas clause, Memorandum Circular No 88 - Circular Reconstituting the
Presidential Task force on Waste Management).
As to the contention that the contract is worth billions of pesos, thereby requiring
Presidential approval for validity, this is a mere rehash of the issues already
answered in our January 30, 2002 decision.Again, we quote the Court of Appeals:
As regards the President's approval of infrastructure projects required under Section
59 of Executive Order No. 292, said section does not apply to the BOT contract in
question.Sec. 59 should be correlated with Sec. 58 of Exec. Order No. 292.Said
sections read:
 SECTION 58.Ceiling for Infrastructure
Contracts.-The following shall be the ceilings for all
civil works, construction and other contracts for
infrastructure projects, including supply contracts for
said projects, awarded through public bidding or
through negotiation, which may be approved by the
Secretaries of Public Works and Highways,
Transportation and Communications, Local
Government with respect to Rural road improvement
Project and governing boards of government-owned
or controlled corporations:
xxx xxx xxx
Save as provided for above, the approval
ceilings assigned to the departments/agencies involved
in national infrastructure and construction projects
shall remain at the levels provided in existing laws,
rules and regulations.
Contrary to petitioner's claim that all infrastructure contracts
require the President's approval (Petition, p. 16), Sec. 59 provides that
such approval is required only in infrastructure contracts involving
amounts exceeding the ceilings set in Sec. 58.Significantly, the
infrastructure contracts treated in Sec. 58 pertain only to those which
may be approved by the Secretaries of Public Works and Highways,
Transportation and communications, Local Government (with respect to
Rural Road Improvement Project) and the governing boards of certain
government-owned or controlled corporations.Consequently, the BOT
contract in question, which was approved by the DENR Secretary and
the EXCOM Chairman and Co-Chairman, is not covered by Exec. Order
No. 292.
(Rollo, p. 51-52.)
Petitioner also claims that even if the Secretary of Environment and Natural
Resources had the authority to enter into the contract, the approval of the National
Economic and Development Authority must first be secured for the contract to be
valid, citing the second paragraph of Section 4 of Republic Act No. 6957 (the Build-
Operate-Transfer Law), as amended by Republic Act No. 7718.Said Section
provides:
x x x publicly bidded contract but a negotiated one, that the signatories therein
The list of all such national projects must be part of the
development programs of the agencies concerned.The list of projects
costing up to Three hundred million pesos (P300,000,000) shall be
submitted to the ICC of the NEDA for its approval and to the NEDA
Board for projects costing more than Three hundred million pesos
(P300,000,000).The list of projects submitted to the ICC of the NEDA
Board shall be acted upon within thirty (30) working days.
x x x We, therefore, hold that petitioner has failed to bring out any matter which could
Petitioner's argument is not in point.A perusal of Republic Act No. 6957, as
amended, readily shows that the required approval of NEDA refers to the list of
priority projects which must be included in the development program of the
agencies concerned.In other words, under Section 4, what NEDA must approve is
the proposal by an agency that a certain project be considered for financing,
construction, operation, or maintenance by the private sector, not the contract
itself.This conclusion is bolstered by Section 5 of the same law which provides that
after NEDA approval, the head of the agency concerned shall then publish a notice
inviting prospective bidders to bid for the project so approved.
Lastly, petitioner argues that the incineration technology provided in the contract is
prohibited by law, citing the Clean Air Act in support thereof.This matter was hardly
treated by the two courts below, rendering it almost a non-issue.The Court of
Appeals, in its 20-page decision, devoted two short paragraphs comprising all of
three sentences to this matter (Rollo, p. 54).The regional trial court, for its part,
said that the issues "which should be addressed are the following: (1) Is there a
perfected contract between the parties? and (2) Does certiorari and/or prohibition
lie in the case at bar?" (Rollo, p. 157).We need but repeat now that, as pointed out
by the appellate court, Section 20, which provides:
SECTION 20.Ban on Incineration.- Incinertion, hereby defined
aas the burning of municipal, bio-chemical and hazardous wastes, which
process emits poisonous and toxic fumes, is hereby prohibited: xxx."
does not absolutely prohibit incineration as a mode of waste disposal; rather, only
those burning processes which emit poisonous and toxic fumes are banned.
The rule that a statute should be given effect as a whole requires that the statute be
so construed as to make no part or provision thereof a surplusage.Each and every
part of the statute should be given its due effect and meaning in relationto the
rest.It is well settled that, whenever possible, a legal provision must not beso
construed as to be a useless surplusage and, accordingly, meaningless in the sense
of adding nothing to the law or having no effect whatsoever therein(Uytengsu vs.
Republic, 95 Phil 890 [1954]).To consider Section 20 of the Clean Air Act as
prohibiting all forms of incineration would render the phrase "which process emits
poisonous and toxic fumes" a useless surplusage, which could not have been the
intention of legislature, seeing that our learned legislators even took pains to define,
in Section 5, Article II of the Clean Air Act what poisonous andtoxic fumes are, viz:
Section 5. Definitions.- As used in this Act:
t) "Poisonous and toxic fumes" means any emissions and fumes
which are beyond internationally-accepted standards, including but not
limited to World Health Organization (WHO) guideline values;
It may not, thus, be argued that the Clean Air Act prohibits all forms of incineration
as to make the contract in question violative of the Clean Air Act.This is not to say,
of course, that the contract involved does not in fact run afoul with the Clean Air
Act.That issue may still be raised by the proper party in a proper action.
Prescinding from the issues at hand, several motions for leave to intervene, with the
corresponding petitions-in-intervention, were filed in this case.These motions for
intervention were not granted by the Court.Moreover, the issues raised by these
would-be petitions-in-intervention - such as the claim that the contract was not a
committed violations of the Anti-Graft and Corrupt Practices act, that the decision
contravenes public policy to promote the constitutional rights to health and healthful
ecology - were not raised during the trial.The rule is well-settled that points of law,
theories, issues and arguments not adequately brought to the attention of the trial
court need not be, and ordinarily will not be considered by a reviewing court as they
cannot be raised for the first time on appeal because this would be offensive to the
basic rules of fair play, justice, and due process (PAL vs. NLRC, 259 SCRA 459
[1996]).
justify a reversal.It bears emphasizing, however, that the Court, in deciding the
instant case, is not making any pronouncement as to whether or not the contract in
question is advantageous or disadvantageous to the government.The only question
before the Court is whether or not there is a valid and perfected contract between
the parties.As to the necessity, expediency, and wisdom of the contract, these are
outside the realm of judicial adjudication.These considerations are primarily and
 exclusively a matter for the President to decide.While the Court recognizes that the 1965 1966 1967 1968 1969 1970 1971 1972
garbage problem is a matter of grave public concern, it can only declare that the
1973 1974 1975 1976 1977 1978 1979 1980
contract in question is a valid and perfected one between the parties, but the same
is still ineffective or unimplementable until and unless it is approved by the 1981 1982 1983 1984 1985 1986 1987 1988
President, the contract itself providing that such approval by the President is 1989 1990 1991 1992 1993 1994 1995 1996
necessary for its effectivity.
1997 1998 1999 2000 2001 2002 2003 2004
ACCORDINGLY, petitioner's Motion for Reconsideration is hereby DENIED and this
denial is FINAL. 2005 2006 2007 2008 2009 2010 2011
SO ORDERED.(Carpio, J. - No part.)
Very truly yours,
(Sgd.) JULIETA Y.
CARREON
Clerk of Court
Republic of the Philippines
SUPREME COURT
Manila
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EN BANC

G.R. No. 116049 July 13, 1995

CLICK HERE FOR THE LATEST SUPREME COURT JURISPRUDENCE
PEOPLE OF THE PHILIPPINES, petitioner,
1901 1902 1903 1904 1905 1906 1907 1908
vs.
HON. EUSTAQUIO Z. GACOTT, JR., Presiding Judge, RTC, Branch 47,
1909 1910 1911 1912 1913 1914 1915 1916
Puerto Princesa City, ARNE STROM and GRACE REYES, respondents.
1917 1918 1919 1920 1921 1922 1923 1924
RESOLUTION
1925 1926 1927 1928 1929 1930 1931 1932
1933 1934 1935 1936 1937 1938 1939 1940 REGALADO, J.:
1941 1942 1943 1944 1945 1946 1947 1948 Rebuffed by this Court through the annulment of his order dismissing Criminal
1949 1950 1951 1952 1953 1954 1955 1956 Case No. 11529 of the court a quo, complemented with a reprimand and a
1957 1958 1959 1960 1961 1962 1963 1964 fine of P10,000.00 for gross ignorance of the law, respondent Judge
1965 1966 1967 1968 1969 1970 1971 1972
Eustaquio Z. Gacott, Jr. has filed a motion for reconsideration dated April 1,
1995, and a supplemental motion for reconsideration dated April 26, 1995.
1973 1974 1975 1976 1977 1978 1979 1980
For reasons of his own but the purposes of which can easily be deduced,
1981 1982 1983 1984 1985 1986 1987 1988
separate copies of the basic motion were furnished the Chief Justice, Judicial
1989 1990 1991 1992 1993 1994 1995 1996 and Bar Council, Solicitor General, Bar Confidant, Integrated Bar of the
1997 1998 1999 2000 2001 2002 2003 2004 Philippines, Court Administrator and his deputies, Secretary of Justice, and
2005 2006 2007 2008 2009 2010 2011 2012 Ombudsman. Copies of the supplemental motion were also furnished by him
2013 to the same officials or entities and, additionally, to the individual members of
PHILIPPINE SUPREME COURT DECISIONS this Court.
QUICK SEARCH In the judgment now sought to be reconsidered, the Second Division of the
Court, speaking through Mr. Justice Abdulwahid A. Bidin, specified that the
1901 1902 1903 1904 1905 1906 1907 1908 only issue to be resolved in this case was whether or not respondent judge
1909 1910 1911 1912 1913 1914 1915 1916
gravely abused his discretion in granting the motion to quash the
aforementioned criminal case. We quote the pertinent portions of
1917 1918 1919 1920 1921 1922 1923 1924
his ponencia not only for easy reference but to serve as a basis for
1925 1926 1927 1928 1929 1930 1931 1932
determining whether the sanctions imposed were commensurate to the
1933 1934 1935 1936 1937 1938 1939 1940 administrative offense, to wit:
1941 1942 1943 1944 1945 1946 1947 1948 The error committed by respondent judge in dismissing the
1949 1950 1951 1952 1953 1954 1955 1956 case is quite obvious in the light of P.D. No. 1, LOI No. 2 and
1957 1958 1959 1960 1961 1962 1963 1964 P.D. No. 1275 aforementioned. The intent to abolish the Anti-
Dummy Board could not have been expressed more clearly
than in the aforequoted LOI. Even assuming that the City
Fiscal of Puerto Princesa failed to cite P.D. No. 1 in his
opposition to the Motion to Quash, a mere perusal of the text
of LOI No. 2 would have immediately apprised the respondent
judge of the fact that LOI No. 2 was issued in implementation
of P.D. No. 1. . . .
xxx xxx xxx
Obviously, respondent judge did not even bother to read the
text of the cited LOI; otherwise, he would have readily
acknowledged the validity of the argument advanced by the
prosecution. As correctly observed by the Solicitor General,
Presidential Decrees, such as P.D. No. 1, issued by the former
President Marcos under his martial law powers have the same
force and effect as the laws enacted by Congress. As held by
the Supreme Court in the case of Aquino vs. Comelec (62
SCRA 275 [1975]), all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the
former President are part of the law of the land, and shall
remain valid, legal, binding, and effective, unless modified,
revoked or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the President. LOI No. 2
is one such legal order issued by former President Marcos in
the exercise of his martial law powers to implement P.D. No. 1.
Inasmuch as neither P.D. No. 1 nor LOI No. 2 has been
expressly or impliedly revoked or repealed, both continue to
have the force and effect of law (Rollo, pp. 7-8).
xxx xxx xxx
But even more glaring than respondent judge's utter
inexcusable neglect to check the citations of the prosecution is
the mistaken belief that the duty to inform the court on the
applicable law to a particular case devolves solely upon the
prosecution or whoever may be the advocate before the court.
Respondent judge should be reminded that courts are duty
bound to take judicial notice of all the laws of the land (Sec. 1,
Rule 129, Rules of Court). Being the trier of facts, judges are
presumed to be well-informed of the existing laws, recent
enactments and jurisprudence, in keeping with their sworn
duty as members of the bar (and bench) to keep abreast of
legal developments. . . .
xxx xxx xxx
The court is fully aware that not every error or mistake of a
judge in the performance of his duties is subject to censure.
But where, as in the present case, the error could have been
entirely avoided were it not for the public respondent's
irresponsibility in the performance of his duties, it is but proper
that respondent judge be reprimanded and his order of
dismissal set aside for grave ignorance of the law. For,
respondent judge's error is not a simple error in judgment but
one amounting to gross ignorance of the law which could
easily undermine the public's perception of the court's
competence.
We could stop here, since the rehashed arguments raised by respondent
judge in his aforesaid original and supplemental motions are completely
refuted by the foregoing discussion demonstrative not only of his adjudicatory
error but also of judicial incompetence. In fact, just to cite a few representative
cases, it may be worthwhile for respondent judge to ponder upon the Court's
observations in Aducayan vs. Flores, etc., et al., 1 Ajeno vs.Inserto, 2 Libarios
vs. Dabalos, 3 and Estoya, et al. vs. Singson, etc., 4 which would put his
asseverations at rest.
Respondent judge, however, would want this Court to pass upon his other
supplications, arguments, and even his insinuations for that matter, which
although born more of fecundity in formulation and less of bases in law, we
have decided to anatomize even with some expense of prolixity.
Respondent judge prefaces his remedial approach with the assurance that
"(t)he only purpose of (h)is motion is to plead with bended knees and with all
humility for the kind reconsideration" of the decision in this case, specifically
the findings that he is "grossly ignorant of the law and as such, (he) was
reprimanded and fined in the amount of P10,000.00; and that the aforesaid
decision is to be spread on (his) personal records." 5
He adverts to his good conduct as a person and as a judge, reiterates that the
error primarily stemmed from the shortcomings of the public prosecutor and,
on a personal note, he expresses this concern: ". . . I am again begging with
humility that the spreading of the aforesaid Decision on my personal records
be reconsidered because doing so will foreclose any chance for me to aspire
for promotion in the judiciary in the future. This is very painful. I will agonize up
to my last day and my last breath in life." 6
The Court assures respondent judge that it has taken all the aforesaid matters
into consideration and is not insensitive thereto, including his argumentum ad
misericordiam. It feels, however, that there is more than ample substantiation
for the findings of the ponente in the main case, and compelling legal warrant
for the administrative penalties imposed which are even milder than those
meted by it under similar and comparable situations.
The spreading of the decision on the personal record of a respondent is an
official procedure and requirement which, incredibly, respondent judge would
want this very Court to violate and forego, in suppression of facts which must
appear in official documents. His further argument that
The spreading of such decision on my personal records will
not only open criticisms on my private qualifications as a
minister in the temple of justice but will open more comments
on my official acts, competence and credibility as a judge that
might undermine the people's faith in the judicial system in the
Province of Palawan, in Puerto Princesa City and in the entire
country because it is always difficult to disassociate my private
credential from that of my public qualifications. 7
is, to put it mildly, a mite too exaggerated and a tad too melodramatic. The
Court regrets that respondent judge appears unaware that he is actually the
recipient of uncommon sympathetic consideration in this case.
Administrative penalties do not play the final strains of the valkyrian chant to a
public career, judicial or otherwise. It is for respondent judge, by subsequently
demonstrating his true worth through observance of judicial standards, to
vindicate himself from a misjudgment which is the heritage of the heedless
and to rise to higher levels which is the destiny of the deserving. Besides, it is
a curious fact that assuming as valid his meticulosity on the confidential
nature of disciplinary cases, he nevertheless sent copies of his motions to all
the persons enumerated at the start of this resolution. It is elementary that
copies of such motions are merely filed with the court and furnished only to
the adverse party. Here, he wants us to keep sub rosa what he himself
publicizes.
From his initial exhibition of humility and penitential pose, respondent judge
then goes into a critical second gear by rhetorically wondering aloud in this
fashion:
On July 27, 1994, the Third Division of the Honorable
Supreme Court required me to comment on the above-entitled
petition. On August 23, 1994 I filed my comment thereto and
on October 24, 1994, in a Resolution the Third Division of the
Supreme Court resolved to note my Comment. When the Third
Division of the Honorable Court required me to comment in
G.R. No. 116049, the supposition is that a valid raffle of said
case to that Division had already been made. That was my
thinking and impression for, why would the case go to that
Division except thru a valid raffle. I am now in quandary,
however, as to why all of a sudden, G.R. No. 116049 was
transferred to the Second Division of the Supreme Court
without us or any party being informed by the Honorable
Supreme Court about it. In our level at the Regional Trial Court
in Palawan, we observe the raffle of cases with solemnity and
abide by the result of the raffle faithfully. And the said Second
Division meted me out excessive penalties when it was the
Third Division that required me to comment. Why did this
happen? (Emphasis supplied.) 8
Since this was obviously spoken with the ascriptive courage of the
uninformed, we assure His Honor that the Supreme Court also conducts "a
valid raffle," observes such raffle of its cases "with solemnity," and abides by
the result thereof "faithfully." This case was validly and solemnly raffled to Mr.
Justice Bidin who was then with the Third Division of the Court. On January
23, 1995, he was transferred to the Second Division where he served as
working chairman until his retirement on April 7, 1995. In accordance with the
internal rules of the Court, this case remained with him as the
original ponente and he accordingly penned the decision therein for and as a
member of the Second Division. There is no rule in the Court that the parties
be informed that a case has been transferred to another division, as
respondent judge would want or expect. To do so would easily be revelatory
of the identity of theponente which is precisely what some litigants used to,
and still, watch for and speculate upon.
In anticipation of a similar insinuendo, respondent judge is further informed
that because of the retirement of Mr. Justice Bidin and the uncertainty of the
date when his replacement could act upon his unfinished cases and the
subsequent proceedings therein, after its summer session and working recess
the Court en banc, after due deliberation on respondent judge's successive
motions, decided to assign the preparation of this resolution to the present
writer thereof, he having been and still is with the Second Division.
Respondent judge, with his claim of extensive magisterial experience, should
have verified all the foregoing facts from the records of this Court, instead of
proceeding upon speculations.
Finally, shifting to what he obviously fancies to be high gear on a
constitutional basis, respondent judge questions the competence of the
Second Division of this Court to administratively discipline him. Exordially, a
mere allegatio nudus does not create a constitutional issue as to require the
referral of this case, or at least the disciplinary aspect thereof, to the Court en
banc. The disposition of that matter merely involves a clarification of the
misconception of respondent judge thereon, presumably because of his
unfamiliarity with circulars adopted and followed by this Court, some of them
being on internal procedure. Be that as it may, since all the members of this
Court are aware of the submissions of respondent judge on this point through
the copies of the motions which he furnished them, and he insistently harps
on constitutional grounds therein, the Court en banc resolved to accept this
aspect of the case from the Second Division.
His Honor relies on the second sentence of Section 11, Article VIII of the
present Constitution which reads: "The Supreme Court en banc shall have the
power to discipline judges of lower courts, or order their dismissal by a vote of
a majority of the Members who actually took part in the deliberations on the
issues in the case and voted thereon." This provision is an expansion of and
was taken from the second sentence of Section 7, Article X of the 1973
Constitution which provided: "The Supreme Court shall have the power to
discipline judges of inferior courts and, by a vote of at least eight Members,
order their dismissal."
Stress is apparently laid by respondent judge on the inclusion of the adverbial
phrase "en banc" in referring to this Court in the quoted provision of the 1987
Constitution and, from this, he argues that it is only the full Court, not a
division thereof, that can administratively punish him.
Fortuitously, the writer of this resolution, as a member of the Committee on
the Judiciary of the 1986 Constitutional Commission, had the opportunity to
take up that precise matter with the committee chairman, retired Chief Justice
Roberto Concepcion, by pointing out the equivalent provision in the 1973
Constitution, hereinbefore quoted, which merely referred to the "Court,"
without qualification. It was accordingly explained and agreed that insofar as
the power to discipline is concerned, the qualification was not intended to
make a difference, as a reference to the Court by itself necessarily means the
Court en banc. It was only decided to state "en banc" there because all
internal procedural and administrative matters, as well as ceremonial
functions, are always decided by or conducted in the Court en banc. On the
other hand, where the reference is to the Court acting through its divisions, it
would necessarily be so specified. For lack of transcription of the proceedings
of the committees of said Commission, the writer has perforce to rely on his
recollection and notes, but he assures this Court of the foregoing facts as they
transpired.
At any rate, the very text of the present Section 11 of Article VIII clearly shows
that there are actually two situations envisaged therein. The first clause which
states that "the Supreme Court en banc shall have the power to discipline
judges of lower courts," is a declaration of the grant of that disciplinary power
to, and the determination of the procedure in the exercise thereof by, the
Court en banc. It was not therein intended that all administrative disciplinary
cases should be heard and decided by the whole Court since it would result in
an absurdity, as will hereafter be explained.
The second clause, which refers to the second situation contemplated therein
and is intentionally separated from the first by a comma, declares on the other
hand that the Court en banc can "order their dismissal by a vote of a majority
of the Members who actually took part in the deliberations on the issues in the
case and voted therein." Evidently, in this instance, the administrative case
must be deliberated upon and decided by the full Court itself.
Pursuant to the first clause which confers administrative disciplinary power to
the Court en banc, on February 9, 1993 a Court En Banc resolution was
adopted, entitled "Bar Matter No. 209. In the Matter of the Amendment
and/or Clarification of Various Supreme Court Rules and Resolutions," and
providing inter alia:
For said purpose, the following are considered en banc cases:
xxx xxx xxx
6. Cases where the penalty to be imposed is the dismissal of a
judge, officer or employee of the Judiciary, disbarment of a
lawyer, or either the suspension of any of them for a period of
more than one (1) year or a fine exceeding P10,000.00, or
both.
xxx xxx xxx
This resolution was amended on March 16, 1993 and November 23, 1993, but
the aforequoted provision was maintained.
Indeed, to require the entire Court to deliberate upon and participate in all
administrative matters or cases regardless of the sanctions, imposable or
imposed, would result in a congested docket and undue delay in the
adjudication of cases in the Court, especially in administrative matters, since
even cases involving the penalty of reprimand would require action by the
Court en banc. This would subvert the constitutional injunction for the Court to
adopt a systematic plan to expedite the decision or resolution of cases or
matters pending in the Supreme Court or the lower courts, 9 and the very
purpose of authorizing the Court to sit en banc or in divisions of three, five, or
seven members. 10
Yet, although as thus demonstrated, only cases involving dismissal of judges
of lower courts are specifically required to be decided by the Court en banc, in
cognizance of the need for a thorough and judicious evaluation of serious
charges against members of the judiciary, it is only when the penalty imposed
does not exceed suspension of more than one year or a fine of P10,000.00, or
both, that the administrative matter may be decided in division.
It must not also be overlooked that as early as February 7, 1989, the Court
promulgated Circular No. 2-89 which clarifies that:
xxx xxx xxx
2. A decision or resolution of a Division of the Court, when
concurred in by a majority of its members who actually took
part in the deliberations on the issues in a case and voted
thereon, and in no case without the concurrence of at least
three of such Members, is a decision or resolution of the
Supreme Court (Section 4[3], Article VIII, 1987 Constitution).
That guideline or rule in the referral to the Court en banc of cases assigned to
a division thereof rests on the same rationale and applies with equal force to
confute the antithetical theory of respondent Judge Eustaquio Z. Gacott, Jr.
Apropos thereto, it would indeed be desirable for said respondent to hereafter
deal with situations like the one subject of this resolution with more
perspicacity and circumspection.
WHEREFORE, the basic and supplemental motions for reconsideration of the
judgment in the case at bar are hereby DENIED. This resolution is
immediately final and executory.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
- Instances when SC may sit en banc
- 1) When there is a need to overturn the
decision of the division;
- 2) When there is a need to overturn a
doctrine or principle of law laid down by
the court;
- 3) When a division cant reach a decision
- 4) All cases involving the constitutionality of
a treaty, international or executive
agreement, or law, which shall be heard
by the Supreme Court en banc, and all
other cases which under the Rules of
Court are required to be heard en banc,
including those involving the
constitutionality, application, or operation
of presidential decrees, proclamations,
orders, instructions, ordinances, and other
regulations, shall be decided with the
concurrence of a majority of the Members
who actually took part in the deliberations
 on the issues in the case and voted
thereon.
Cases vs. matters Fortich vs. Corona, GR No. 131457, August 19,
1999
Republic of the Philippines
SUPREME COURT
Baguio City
SECOND DIVISION
G.R. No. 131457 April 24, 1998
HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF BUKIDNON,
HON. REY B. BAULA, MUNICIPAL MAYOR OF SUMILAO, BUKIDNON,
NQSR MANAGEMENT AND DEVELOPMENT CORPORATION, petitioners,
vs.
HON. RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY, HON.
ERNESTO D. GARILAO, SECRETARY OF THE DEPARTMENT OF
AGRARIAN REFORM, respondents.
MARTINEZ, J.:
The dramatic and well-publicized hunger strike staged by some alleged
farmer-beneficiaries in front of the Department of Agrarian Reform compound
in Quezon City on October 9, 1997 commanded nationwide attention that
even church leaders and some presidential candidates tried to intervene for
the strikers' "cause."
The strikers protested the March 29, 1996 Decision 1 of the Office of the President (OP),
issued through then Executive Secretary Ruben D. Torres in OP Case No. 96-C-6424, which approved the
conversion of a one hundred forty-four (144)-hectare land from agricultural to agro-industrial/institutional area.
This led the Office of the President, through then Deputy Executive Secretary Renato C. Corona, to issue the
so-called "Win-Win" Resolution 2 on November 7, 1997, substantially modifying its earlier Decision after it
had already become final and executory. The said Resolution modified the approval of the land conversion to
agro-industrial area only to the extent of forty-four (44) hectares, and ordered the remaining one hundred
(100) hectares to be distributed to qualified farmer-beneficiaries.
But, did the "Win-Win" Resolution culminate in victory for all the contending
parties?
The above-named petitioners cried foul. They have come to this Court urging
us to annul and set aside the "Win-Win" Resolution and to enjoin respondent
Secretary Ernesto D. Garilao of the Department of Agrarian Reform from
implementing the said Resolution.
Thus, the crucial issue to be resolved in this case is: What is the legal effect of
the "Win-Win" Resolution issued by the Office of the President on its earlier
Decision involving the same subject matter, which had already become final
and executory?
The antecedent facts of this controversy, as culled from the pleadings, may be
stated as follows:
1. This case involves a 144-hectare land located at San Vicente, Sumilao,
Bukidnon, owned by the Norberto Quisumbing, Sr. Management and
Development Corporation (NQSRMDC), one of the petitioners. The property is
covered by a Transfer Certificate of Title No. 14371 3 of the Registry of Deeds of the
Province of Bukidnon.
2. In 1984, the land was leased as a pineapple plantation to the Philippine
Packing Corporation, now Del Monte Philippines, Inc. (DMPI), a multinational
corporation, for a period of ten (10) years under the Crop Producer and
Grower's Agreement duly annotated in the certificate of title. The lease
expired in April, 1994.
3. In October, 1991, during the existence of the lease, the Department of
Agrarian Reform (DAR) placed the entire 144-hectare property under
compulsory acquisition and assessed the land value at P2.38 million. 4
4. NQSRMDC resisted the DAR's action. In February, 1992, it sought and was
granted by the DAR Adjudication Board (DARAB), through its Provincial
Agrarian Reform Adjudicator (PARAD) in DARAB Case No. X-576, a writ of
prohibition with preliminary injunction which ordered the DAR Region X
Director, the Provincial Agrarian Reform Officer (PARO) of Bukidnon, the
Municipal Agrarian Reform Office (MARO) of Sumilao, Bukidnon, the Land
Bank of the Philippines (Land Bank), and their authorized representatives "to
desist from pursuing any activity or activities" concerning the subject land
"until further orders." 5
5. Despite the DARAB order of March 31, 1992, the DAR Regional Director
issued a memorandum, dated May 21, 1992, directing the Land Bank to open
a trust account for P2.38 million in the name of NQSRMDC and to conduct
summary proceedings to determine the just compensation of the subject
property. NQSRMDC objected to these moves and filed on June 9, 1992 an
Omnibus Motion to enforce the DARAB order of March 31, 1992 and to nullify
the summary proceedings undertaken by the DAR Regional Director and Land
Bank on the valuation of the subject property.
6. The DARAB, on October 22, 1992, acted favorably on the Omnibus Motion
by (a) ordering the DAR Regional Director and Land Bank "to seriously
comply with the terms of the order dated March 31, 1992;" (b) nullifying the
DAR Regional Director's memorandum, dated May 21, 1992, and the
summary proceedings conducted pursuant thereto; and (c) directing the Land
Bank "to return the claim folder of Petitioner NQSRMDC's subject Property to
the DAR until further orders." 6
7. The Land Bank complied with the DARAB order and cancelled the trust
account it opened in the name of petitioner NQSRMDC. 7
8. In the meantime, the Provincial Development Council (PDC) of Bukidnon,
headed by Governor Carlos O. Fortich, passed Resolution No. 6, 8 dated January
7, 1993, designating certain areas along Bukidnon-Sayre Highway as part of the Bukidnon Agro-Industrial
Zones where the subject property is situated.
9. What happened thereafter is well-narrated in the OP (TORRES) Decision of
March 29, 1996, pertinent portions of which we quote:
Pursuant to Section 20 of R.A. No. 7160, otherwise known as
the Local Government Code, the Sangguniang Bayan of
Sumilao, Bukidnon, on March 4, 1993, enacted Ordinance No.
24 converting or re-classifying 144 hectares of land in Bgy.
San Vicente, said Municipality, from agricultural to
industrial/institutional with a view of providing an opportunity to
attract investors who can inject new economic vitality, provide
more jobs and raise the income of its people.
Parenthetically, under said section, 4th to 5th class
municipalities may authorize the classification of five percent
(5%) of their agricultural land area and provide for the manner
of their utilization or disposition.
On 12 October 1993, the Bukidnon Provincial Land Use
Committee approved the said Ordinance. Accordingly, on 11
December 1993, the instant application for conversion was
filed by Mr. Gaudencio Beduya in behalf of NQSRMDC/BAIDA
(Bukidnon Agro-Industrial Development Association).
Expressing support for the proposed project, the Bukidnon
Provincial Board, on the basis of a Joint Committee Report
submitted by its Committee on Laws, Committee on Agrarian
Reform and Socio-Economic Committee approved, on 1
February 1994, the said Ordinance now docketed as
Resolution No. 94-95. The said industrial area, as conceived
by NQSRMDC (project proponent) is supposed to have the
following components:
1. Development Academy of Mindanao which constitutes
following: Institute for Continuing Higher Education; Institute
for Livelihood Science (Vocational and Technical School);
Institute for Agribusiness Research; Museum, Library, Cultural
Center, and Mindanao Sports Development Complex which
covers an area of 24 hectares;
2. Bukidnon Agro-Industrial Park which consists of corn
processing for corn oil, corn starch, various corn products; rice
processing for wine, rice-based snacks, exportable rice;
cassava processing for starch, alcohol and food delicacies;
processing plants, fruits and fruit products such as juices;
processing plants for vegetables processed and prepared for
market; cold storage and ice plant; cannery system;
commercial stores; public market; and abattoir needing about
67 hectares;
3. Forest development which includes open spaces and parks
for recreation, horse-back riding, memorial and mini-zoo
estimated to cover 33 hectares; and
4. Support facilities which comprise the construction of a 360-
room hotel, restaurants, dormitories and a housing project
covering an area of 20 hectares.
The said NQSRMDC Proposal was, per Certification dated
January 4, 1995, adopted by the Department of Trade and
Industry, Bukidnon Provincial Office, as one of its flagship
projects. The same was likewise favorably recommended by
the Provincial Development Council of Bukidnon; the
municipal, provincial and regional office of the DAR; the
Regional Office (Region X) of the DENR (which issued an
Environmental Compliance Certificate on June 5, 1995); the
Executive Director, signing "By Authority of PAUL G.
DOMINGUEZ," Office of the President Mindanao; the
Secretary of DILG; and Undersecretary of DECS Wilfredo D.
Clemente.
In the same vein, the National Irrigation Administration,
Provincial Irrigation Office, Bagontaas Valencia, Bukidnon,
thru Mr. Julius S. Maquiling, Chief, Provincial Irrigation Office,
interposed NO. OBJECTION to the proposed conversion "as
long as the development cost of the irrigation systems thereat
which is P2,377.00 per hectare be replenished by the
developer . . . ." Also, the Kisolon-San Vicente Irrigators Multi
Purpose Cooperative, San Vicente, Sumilao, Bukidnon,
interposed no objection to the proposed conversion of the land
in question "as it will provide more economic benefits to the
community in terms of outside investments that will come and
employment opportunities that will be generated by the
projects to be put up . . . .
On the same score, it is represented that during the public
consultation held at the Kisolan Elementary School on 18
March 1995 with Director Jose Macalindong of DAR Central
Office and DECS Undersecretary Clemente, the people of the
affected barangay rallied behind their respective officials in
endorsing the project.
Notwithstanding the foregoing favorable recommendation,
however, on November 14, 1994, the DAR, thru Secretary
Garilao, invoking its powers to approve conversion of lands
under Section 65 of R.A. No. 6657, issued an Order denying
the instant application for the conversion of the subject land
from agricultural to agro-industrial and, instead, placed the
same under the compulsory coverage of CARP and directed
the distribution thereof to all qualified beneficiaries on the
following grounds:
1. The area is considered as a prime agricultural land with
irrigation facility;
2. The land has long been covered by a Notice of Compulsory
Acquisition (NCA);
3. The existing policy on withdrawal or lifting on areas covered
by NCA is not applicable;
4. There is no clear and tangible compensation package
arrangements for the beneficiaries;
5. The procedures on how the area was identified and
reclassified for agro-industrial project has no reference to
Memo Circular No. 54, Series of 1993, E.O. No. 72, Series of
1993, and E.O. No. 124, Series of 1993.
A Motion for Reconsideration of the aforesaid Order was filed
on January 9, 1995 by applicant but the same was denied (in
an Order dated June 7, 1995). 9
10. Thus, the DAR Secretary ordered the DAR Regional Director "to proceed
with the compulsory acquisition and distribution of the property." 10
11. Governor Carlos O. Fortich of Bukidnon appealed" the order of denial to
the Office of the President and prayed for the conversion/reclassification of
the subject land as the same would be more beneficial to the people of
Bukidnon.
12. To prevent the enforcement of the DAR Secretary's order, NQSRMDC, on
June 29, 1995, filed with the Court of Appeals a petition for certiorari,
prohibition with preliminary injunction, 12 docketed as CA-G.R. SP No. 37614.
13. Meanwhile, on July 25, 1995, the Honorable Paul G. Dominguez, then
Presidential Assistant for Mindanao, after conducting an evaluation of the
proposed project, sent a memorandum 13 to the President favorably endorsing the project
with a recommendation that the DAR Secretary reconsider his decision in denying the application of the
province for the conversion of the land.
14. Also, in a memorandum 14 to the President dated August 23, 1995, the Honorable Rafael
Alunan III, then Secretary of the Department of the Interior and Local Government (DILG), recommended the
conversion of the subject land to industrial/institutional use with a request that the President "hold the
implementation of the DAR order to distribute the land in question."
15. On October 23, 1995, the Court of Appeals, in CA-G.R. SP No. 37614,
issued a Resolution 15 ordering the parties to observe status quo pending resolution of the petition.
At the hearing held in said case on October 5, 1995, the DAR, through the Solicitor General, manifested
before the said court that the DAR was merely "in the processing stage of the applications of farmers-
claimants" and has agreed to respect status quo pending the resolution of the petition. 16
16. In resolving the appeal, the Office of the President, through then Executive
Secretary Ruben D. Torres, issued a Decision in OP Case No. 96-C-6424,
dated March 29, 1996, reversing the DAR Secretary's decision, the pertinent
portions of which read:
After a careful evaluation of the petition vis-a-vis the grounds
upon which the denial thereof by Secretary Garilao was based,
we find that the instant application for conversion by the
Municipality of Sumilao, Bukidnon is impressed with merit. To
be sure, converting the land in question from agricultural to
agro-industrial would open great opportunities for employment
and bring about real development in the area towards a
sustained economic growth of the municipality. On the other
hand, distributing the land to would-be beneficiaries (who are
not even tenants, as there are none) does not guarantee such
benefits.
Nevertheless, on the issue that the land is considered a prime
agricultural land with irrigation facility it maybe appropriate to
mention that, as claimed by petitioner, while it is true that there
is, indeed, an irrigation facility in the area, the same merely
passes thru the property (as a right of way) to provide water to
the ricelands located on the lower portion thereof. The land
itself, subject of the instant petition, is not irrigated as the
same was, for several years, planted with pineapple by the
Philippine Packing Corporation.
On the issue that the land has long been covered by a Notice
of Compulsory Acquisition (NCA) and that the existing policy
on withdrawal or lifting on areas covered by NCA is not
applicable, suffice it to state that the said NCA was declared
null and void by the Department of Agrarian Reform
Adjudication Board (DARAB) as early as March 1, 1992.
Deciding in favor of NQSRMDC, the DARAB correctly pointed
out that under Section 8 of R.A. No. 6657, the subject property
could not validly be the subject of compulsory acquisition until
after the expiration of the lease contract with Del Monte
Philippines, a Multi-National Company, or until April 1994, and
ordered the DAR Regional Office and the Land Bank of the
Philippines, both in Butuan City, to "desist from pursuing any
activity or activities covering petitioner's land.
On this score, we take special notice of the fact that the
Quisumbing family has already contributed substantially to the
land reform program of the government, as follows: 300
hectares of rice land in Nueva Ecija in the 70's and another
400 hectares in the nearby Municipality of Impasugong,
Bukidnon, ten(10) years ago, for which they have not received
"just compensation" up to this time.
Neither can the assertion that "there is no clear and tangible
compensation package arrangements for the beneficiaries'
hold water as, in the first place, there are no beneficiaries to
speak about, for the land is not tenanted as already stated.
Nor can procedural lapses in the manner of
identifying/reclassifying the subject property for agro-industrial
purposes be allowed to defeat the very purpose of the law
granting autonomy to local government units in the
management of their local affairs. Stated more simply, the
language of Section 20 of R.A. No. 7160, supra, is clear and
affords no room for any other interpretation. By unequivocal
legal mandate, it grants local government units autonomy in
their local affairs including the power to convert portions of
their agricultural lands and provide for the manner of their
utilization and disposition to enable them to attain their fullest
development as self-reliant communities.
WHEREFORE, in pursuance of the spirit and intent of the said
legal mandate and in view of the favorable recommendations
of the various government agencies abovementioned, the
subject Order, dated November 14, 1994 of the Hon.
Secretary, Department of Agrarian Reform, is hereby SET
ASIDE and the instant application of NQSRMDC/BAIDA is
hereby APPROVED. 17
17. On May 20, 1996, DAR filed a motion for reconsideration of the OP
decision.
18. On September 11, 1996, in compliance with the OP decision of March 29,
1996, NQSRMDC and the Department of Education, Culture and Sports
(DECS) executed a Memorandum of Agreement whereby the former donated
four (4) hectares from the subject land to DECS for the establishment of the
NQSR High School. 18
When NQSRMDC was about to transfer the title over the 4-hectare donated to
DECS, it discovered that the title over the subject property was no longer in its
name. It soon found out that during the pendency of both the Petition
for Certiorari, Prohibition, with Preliminary Injunction it filed against DAR in the
Court of Appeals and the appeal to the President filed by Governor Carlos O.
Fortich, the DAR, without giving just compensation, caused the cancellation of
NQSRMDC's title on August 11, 1995 and had it transferred in the name of
the Republic of the Philippines under TCT No. T-50264 19 of the Registry of Deeds of
Bukidnon. Thereafter, on September 25, 1995, DAR caused the issuance of Certificates of Land Ownership
Award (CLOA) No. 00240227 and had it registered in the name of 137 farmer-beneficiaries under TCT No.
AT-3536 20 of the Registry of Deeds of Bukidnon.
19. Thus, on April 10, 1997, NQSRMDC filed a complaint 21 with the Regional Trial
Court (RTC) of Malaybalay, Bukidnon (Branch 9), docketed as Civil Case No. 2687-97, for annulment and
cancellation of title, damages and injunction against DAR and 141 others. The RTC then issued a Temporary
Restraining Order on April 30, 1997 22 and a Writ of Preliminary Injunction on May 19, 1997, 23 restraining
the DAR and 141 others from entering, occupying and/or wresting from NQSRMDC the possession of the
subject land.
20. Meanwhile, on June 23, 1997, an Order 24 was issued by then Executive Secretary
Ruben D. Torres denying DAR's motion for reconsideration for having been filed beyond the reglementary
period of fifteen (15) days. The said order further declared that the March 29, 1996 OP decision had already
become final and executory.
21. The DAR filed on July 11, 1997 a second motion for reconsideration of the
June 23, 1997 Order of the President.
22. On August 12, 1997, the said writ of preliminary injunction issued by the
RTC was challenged by some alleged farmers before the Court of Appeals
through a petition for certiorari and prohibition, docketed as CA-G.R. SP No.
44905, praying for the lifting of the injunction and for the issuance of a writ of
prohibition from further trying the RTC case.
23. On October 9, 1997, some alleged farmer-beneficiaries began their
hunger strike in front of the DAR Compound in Quezon City to protest the OP
Decision of March 29, 1996. On October 10, 1997, some persons claiming to
be farmer-beneficiaries of the NQSRMDC property filed a motion for
intervention (styled as Memorandum In Intervention) in O.P. Case No. 96-C-
6424, asking that the OP Decision allowing the conversion of the entire 144-
hectare property be set aside. 25
24. President Fidel V. Ramos then held a dialogue with the strikers and
promised to resolve their grievance within the framework of the law. He
created an eight (8)-man Fact Finding Task Force (FFTF) chaired by
Agriculture Secretary Salvador Escudero to look into the controversy and
recommend possible solutions to the problem. 26
25. On November 7, 1997, the Office of the President resolved the strikers'
protest by issuing the so-called "Win/Win" Resolution penned by then Deputy
Executive Secretary Renato C. Corona, the dispositive portion of which reads:
WHEREFORE, premises considered, the decision of the
Office of the President, through Executive Secretary Ruben
Torres, dated March 29, 1996, is hereby MODIFIED as
follows:
1. NQSRMDC's application for conversion is APPROVED only
with respect to the approximately forty-four (44) hectare
portion of the land adjacent to the highway, as recommended
by the Department of Agriculture.
2. The remaining approximately one hundred (100) hectares
traversed by an irrigation canal and found to be suitable for
agriculture shall be distributed to qualified farmer-beneficiaries
in accordance with RA 6657 or the Comprehensive Agrarian
Reform Law with a right of way to said portion from the
highway provided in the portion fronting the highway. For this
purpose, the DAR and other concerned government agencies
are directed to immediately conduct the segregation survey of
the area, valuation of the property and generation of titles in
the name of the identified farmer-beneficiaries.
3. The Department of Agrarian Reform is hereby directed to
carefully and meticulously determine who among the claimants
are qualified farmer-beneficiaries.
4. The Department of Agrarian Reform is hereby further
directed to expedite payment of just compensation to
NQSRMDC for the portion of the land to be covered by the
CARP, including other lands previously surrendered by
NQSRMDC for CARP coverage.
5. The Philippine National Police is hereby directed to render
full assistance to the Department of Agrarian Reform in the
implementation of this Order.
We take note of the Memorandum in Intervention filed by 113
farmers on October 10, 1997 without ruling on the propriety or
merits thereof since it is unnecessary to pass upon it at this
time.
SO ORDERED. 27
A copy of the "Win-Win" Resolution was received by Governor Carlos O.
Fortich of Bukidnon, Mayor Rey B. Baula of Sumilao, Bukidnon, and
NQSRMDC on November 24, 1997 28 and, on December 4, 1997, they filed the present
petition for certiorari, prohibition (under Rule 65 of the Revised Rules of Court) and injunction with urgent
prayer for a temporary restraining order and/or writ of preliminary injunction (under Rule 58, ibid.), against
then Deputy Executive Secretary Renato C. Corona and DAR Secretary Ernesto D. Garilao.
On December 12, 1997, a Motion For Leave To Intervene 29 was filed by alleged
farmer-beneficiaries, through counsel, claiming that they are real parties in interest as they were "previously
identified by respondent DAR as agrarian reform beneficiaries on the 144-hectare" property subject of this
case. The motion was vehemently opposed 30 by the petitioners.
In seeking the nullification of the "Win-Win" Resolution, the petitioners claim
that the Office of the President was prompted to issue the said resolution
"after a very well-managed hunger strike led by fake farmer-beneficiary Linda
Ligmon succeeded in pressuring and/or politically blackmailing the Office of
the President to come up with this purely political decision to appease the
'farmers,' by reviving and modifying the Decision of 29 March 1996 which has
been declared final and executory in an Order of 23 June 1997. . . ." 31 Thus,
petitioners further allege, respondent then Deputy Executive Secretary Renato C. Corona "committed grave
abuse of discretion and acted beyond his jurisdiction when he issued the questioned Resolution of 7
November 1997. . . ." 32 They availed of this extraordinary writ of certiorari "because there is no other plain,
speedy and adequate remedy in the ordinary course of law." 33 They never filed a motion for reconsideration
of the subject Resolution "because (it) is patently illegal or contrary to law and it would be a futile exercise to
seek a reconsideration. . . ." 34
The respondents, through the Solicitor General, opposed the petition and
prayed that it be dismissed outright on the following grounds:
(1) The proper remedy of petitioners should have been to file a petition for
review directly with the Court of Appeals in accordance with Rule 43 of the
Revised Rules of Court;
(2) The petitioners failed to file a motion for reconsideration of the assailed
"Win-Win" Resolution before filing the present petition; and
(3) Petitioner NQSRMDC is guilty of forum-shopping.
These are the preliminary issues which must first be resolved, including the
incident on the motion for intervention filed by the alleged farmer-
beneficiaries.
Anent the first issue, in order to determine whether the recourse of petitioners
is proper or not, it is necessary to draw a line between an error of judgment
and an error of jurisdiction. An error of judgment is one which the court may
commit in the exercise of its jurisdiction, and which error is reviewable only by
an appeal. 35 On the other hand, an error of jurisdiction is one where the act complained of was issued
by the court, officer or a quasi-judicial body without or in excess of jurisdiction, or with grave abuse of
discretion which is tantamount to lack or in excess of jurisdiction. 36 This error is correctable only by the
extraordinary writ of certiorari. 37
It is true that under Rule 43, appeals from awards, judgments, final orders or
resolutions of any quasi-judicial agency exercising quasi-judicial
functions, 38 including the Office of the President, 39 may be taken to the Court of Appeals by filing a
verified petition for review 40 within fifteen (15) days from notice of the said judgment, final order or
resolution, 41 whether the appeal involves questions of fact, of law, or mixed questions of fact and law. 42
However, we hold that, in this particular case, the remedy prescribed in Rule
43 is inapplicable considering that the present petition contains an allegation
that the challenged resolution is "patently illegal" 43 and was issued with "grave abuse of
discretion" and "beyond his (respondent Secretary Renato C. Corona's) jurisdiction" 44when said resolution
substantially modified the earlier OP Decision of March 29, 1996 which had long become final and executory.
In other words, the crucial issue raised here involves an error of jurisdiction, not an error of judgment which is
reviewable by an appeal under Rule 43. Thus, the appropriate remedy to annul and set aside the assailed
resolution is an original special civil action for certiorari under Rule 65, as what the petitioners have correctly
done. The pertinent portion of Section 1 thereof provides:
Sec. 1. Petition for certiorari. When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board
or officer, and granting such incidental reliefs as law and
justice may require.
xxx xxx xxx
The office of a writ of certiorari is restricted to truly extraordinary cases
cases in which the act of the lower court or quasi-judicial body is
wholly void. 45
The aforequoted Section 1 of Rule 65 mandates that the person aggrieved by
the assailed illegal act "may file a verified petition (for certiorari) in the proper
court." The proper court where the petition must be filed is stated in Section 4
of the same Rule 65 which reads:
Sec. 4. Where petition filed. The petition may be filed not
later than sixty (60) days from notice of the judgment, order or
resolution sought to be assailed in the Supreme Court or, if it
relates to the acts or omissions of a lower court or of a
corporation, board, officer or person, in the Regional Trial
Court exercising jurisdiction over the territorial area as defined
by the Supreme Court. It may also be filed in the Court of
Appeals whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its
jurisdiction. If it involves the acts or omissions of a quasi-
judicial agency, and unless otherwise provided by law or these
Rules, the petition shall be filed in and cognizable only by the
Court of Appeals. (4a)
Under the above-qouted Section 4, the Supreme Court, Court of Appeals and
Regional Trial Court have original concurrent jurisdiction to issue a writ
of certiorari, 46 prohibition 47 and mandamus. 48 But the jurisdiction of these three (3) courts are also
delineated in that, if the challenged act relates to acts or omissions of a lower court or of a corporation, board,
officer or person, the petition must be filed with the Regional Trial Court which exercises jurisdiction over the
territorial area as defined by the Supreme Court. And if it involves the act or omission of a quasi-judicial
agency, the petition shall be filed only with the Court of Appeals, unless otherwise provided by law or the
Rules of Court. We have clearly discussed this matter of concurrence of jurisdiction in People
vs. Cuaresma, et. al., 49 through now Chief Justice Andres R. Narvasa, thus:
. . . . This Court's original jurisdiction to issue writs
of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive. It is
shared by this Court with Regional Trial Courts (formerly
Courts of First Instance), which may issue the writ,
enforceable in any part of their respective regions. It is also
shared by this Court, and by the Regional Trial Court, with the
Court of Appeals (formerly, Intermediate Appellate Court),
although prior to the effectivity of Batas Pambansa Bilang 129
on August 14, 1981, the latter's competence to issue the
extraordinary writs was restricted to those "in aid of its
appellate jurisdiction." This concurrence of jurisdiction is not,
however, to be taken as according to parties seeking any of
the writs an absolute, unrestrained freedom of choice of the
court to which application therefor will be directed. There is
after all a hierarchy of courts. That hierarchy is determinative
of the venue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. (Citations omitted)
But the Supreme Court has the full discretionary power to take cognizance of
the petition filed directly to it if compelling reasons, or the nature and
importance of the issues raised, warrant. This has been the judicial policy to
be observed and which has been reiterated in subsequent cases, namely: 50 Uy
vs. Contreras, et. al., 51 Torres vs. Arranz, 52 Bercero vs. De Guzman, 53 and Advincula vs. Legaspi,
et. al. 54 As we have further stated in Cuaresma:
. . . . A direct invocation of the Supreme Court's original
jurisdiction to issue these writs should be allowed only when
there are special and important reasons therefor, clearly and
specifically set out in the petition. This is established policy. It
is a policy that is necessary to prevent inordinate demands
upon the Court's time and attention which are better devoted
to those matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Court's docket.
Pursuant to said judicial policy, we resolve to take primary jurisdiction over the
present petition in the interest of speedy justice 55 and to avoid future litigations so as to
promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked
national interest because of the magnitude of the problem created by the issuance of the assailed resolution.
Moreover, as will be discussed later, we find the assailed resolution wholly void and requiring the petitioners
to file their petition first with the Court of Appeals would only result in a waste of time and money.
That the Court has the power to set aside its own rules in the higher interests
of justice is well-entrenched, in our jurisprudence. We reiterate what we said
in Piczon vs. Court of Appeals: 56
Be it remembered that rules of procedure are but mere tools
designed to facilitate the attainment of justice. Their strict and
rigid application, which would result in technicalities that tend
to frustrate rather than promote substantial justice, must
always be avoided. Time and again, this Court has suspended
its own rules and excepted a particular case from their
operation whenever the higher interests of justice so require.
In the instant petition, we forego a lengthy disquisition of the
proper procedure that should have been taken by the parties
involved and proceed directly to the merits of the case.
As to the second issue of whether the petitioners committed a fatal procedural
lapse when they failed to file a motion for reconsideration of the assailed
resolution before seeking judicial recourse, suffice it to state that the said
motion is not necessary when the questioned resolution is a patent nullity, 57 as
will be taken up later.
With respect to the third issue, the respondents claim that the filing by the
petitioners of: (a) a petition for certiorari, prohibition with preliminary injunction
(CA-G.R. SP No. 37614) with the Court of Appeals; (b) a complaint for
annulment and cancellation of title, damages and injunction against DAR and
141 others (Civil Case No. 2687-97) with the Regional Trial Court of
Malaybalay, Bukidnon; and (c) the present petition, constitute forum shopping.
We disagree.
The rule is that:
There is forum-shopping whenever, as a result of an adverse
opinion in one forum, a party seeks a favorable opinion (other
than by appeal or certiorari) in another. The principle applies
not only with respect to suits filed in the courts but also in
connection with litigation commenced in the courts while an
administrative proceeding is pending, as in this case, in order
to defeat administrative processes and in anticipation of an
unfavorable administrative ruling and a favorable court ruling.
This specially so, as in this case, where the court in which the
second suit was brought, has no jurisdiction (citations omitted).
The test for determining whether a party violated the rule
against forum shopping has been laid down in the 1986 case
of Buan vs. Lopez (145 SCRA 34), . . . and that is, forum
shopping exists where the elements of litis pendentia are
present or where a final judgment in one case will amount
to res judicatain the other, as follows:
There thus exists between the action before
this Court and RTC Case No. 86-36563 identity
of parties, or at least such parties as represent
the same interests in both actions, as well as
identity of rights asserted and relief prayed for,
the relief being founded on the same facts, and
the identity on the two preceding particulars is
such that any judgment rendered in the other
action, will, regardless of which party is
successful, amount to res adjudicata in the
action under consideration: all the requisites, in
fine, of auter action pendant. 58
It is clear from the above-quoted rule that the petitioners are not guilty of
forum shopping. The test for determining whether a party has violated the rule
against forum shopping is where a final judgment in one case will amount
tores adjudicata in the action under consideration. A cursory examination of
the cases filed by the petitioners does not show that the said cases are similar
with each other. The petition for certiorari in the Court of Appeals sought the
nullification of the DAR Secretary's order to proceed with the compulsory
acquisition and distribution of the subject property. On the other hand, the civil
case in RTC of Malaybalay, Bukidnon for the annulment and cancellation of
title issued in the name of the Republic of the Philippines, with damages, was
based on the following grounds: (1) the DAR, in applying for cancellation of
petitioner NQSRMDC's title, used documents which were earlier declared null
and void by the DARAB; (2) the cancellation of NQSRMDC's title was made
without payment of just compensation; and (3) without notice to NQSRMDC
for the surrender of its title. The present petition is entirely different from the
said two cases as it seeks the nullification of the assailed "Win-Win"
Resolution of the Office of the President dated November 7, 1997, which
resolution was issued long after the previous two cases were instituted.
The fourth and final preliminary issue to be resolved is the motion for
intervention filed by alleged farmer-beneficiaries, which we have to deny for
lack of merit. In their motion, movants contend that they are the farmer-
beneficiaries of the land in question, hence, are real parties in interest. To
prove this, they attached as Annex "I" in their motion a Master List of Farmer-
Beneficiaries. Apparently, the alleged master list was made pursuant to the
directive in the dispositive portion of the assailed "Win-Win" Resolution which
directs the DAR "to carefully and meticulously determine who among the
claimants are qualified farmer-beneficiaries." However, a perusal of the said
document reveals that movants are those purportedly "Found Qualified and
Recommended for Approval." In other words, movants are
merely recommendee farmer-beneficiaries.
The rule in this jurisdiction is that a real party in interest is a party who would
be benefited or injured by the judgment or is the party entitled to the avails of
the suit. Real interest means a present substantial interest, as distinguished
from a mere expectancy or a future, contingent, subordinate or consequential
interest. 59 Undoubtedly, movants' interest over the land in question is a mere expectancy. Ergo, they are
not real parties in interest.
Furthermore, the challenged resolution upon which movants based their
motion is, as intimated earlier, null and void. Hence, their motion for
intervention has no leg to stand on.
Now to the main issue of whether the final and executory Decision dated
March 29, 1996 can still be substantially modified by the "Win-Win"
Resolution.
We rule in the negative.
The rules and regulations governing appeals to the Office of the President of
the Philippines are embodied in Administrative Order No. 18. Section 7
thereof provides:
Sec. 7. Decisions/resolutions/orders of the Office of the
President shall, except as otherwise provided for by special
laws, become final after the lapse of fifteen (15) days from
receipt of a copy thereof by the parties, unless a motion for
reconsideration thereof is filed within such period.
Only one motion for reconsideration by any one party shall be
allowed and entertained, save in exceptionally meritorious
cases. (Emphasis ours).
It is further provided for in Section 9 that "The Rules of Court shall
apply in a suppletory character whenever practicable.
When the Office of the President issued the Order dated June 23, 1997
declaring the Decision of March 29, 1996 final and executory, as no one has
seasonably filed a motion for reconsideration thereto, the said Office had lost
its jurisdiction to re-open the case, more so modify its Decision. Having lost its
jurisdiction, the Office of the President has no more authority to entertain the
second motion for reconsideration filed by respondent DAR Secretary, which
second motion became the basis of the assailed "Win-Win" Resolution.
Section 7 of Administrative Order No. 18 and Section 4, Rule 43 of the
Revised Rules of Court mandate that only one (1) motion for reconsideration
is allowed to be taken from the Decision of March 29, 1996. And even if a
second motion for reconsideration was permitted to be filed in "exceptionally
meritorious cases," as provided in the second paragraph of Section 7 of AO
18, still the said motion should not have been entertained considering that the
first motion for reconsideration was not seasonably filed, thereby allowing the
Decision of March 29, 1996 to lapse into finality. Thus, the act of the Office of
the President in re-opening the case and substantially modifying its March 29,
1996 Decision which had already become final and executory, was in gross
disregard of the rules and basic legal precept that accord finalityto
administrative determinations.
In San Luis, et al. vs. Court of Appeals, et al. 60 we held:
Since the decisions of both the Civil Service Commission and
the Office of the President had long become final and
executory, the same can no longer be reviewed by the courts.
It is well-established in our jurisprudence that the decisions
and orders of administrative agencies, rendered pursuant to
their quasi-judicial authority, have upon their finality, the force
and binding effect of a final judgment within the purview of the
doctrine of res judicata [Brillantes v. Castro, 99 Phil. 497
(1956), Ipekdijna Merchandizing Co., Inc. v. Court of Tax
Appeals, G.R. No. L-15430, September 30, 1963, 9 SCRA 72.]
The rule of res judicata which forbids the reopening of a matter
once judicially determined by competent authority applies as
well to the judicial and quasi-judicial acts of public, executive
or administrative officers and boards acting within their
jurisdiction as to the judgments of courts having general
judicial powers [Brillantes v. Castro, supra at 503].
The orderly administration of justice requires that the judgments/resolutions of
a court or quasi-judicial body must reach a point of finality set by the law, rules
and regulations. The noble purpose is to write finis to disputes once and for
all. 61 This is a fundamental principle in our justice system, without which there would no end to litigations.
Utmost respect and adherence to this principle must always be maintained by those who wield the power of
adjudication. Any act which violates such principle must immediately be struck down.
Therefore, the assailed "Win-Win" Resolution which substantially modified the
Decision of March 29, 1996 after it has attained finality, is utterly void. Such
void resolution, as aptly stressed by Justice Thomas A. Street 62 in a 1918
case, 63 is "a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and
whenever it exhibits its head." 64
WHEREFORE, the present petition is hereby GRANTED. The challenged
Resolution dated November 7, 1997, issued by the Office of the President in
OP Case No. 96-C-6424, is hereby NULLIFIED and SET ASIDE. The Motion
For Leave To Intervene filed by alleged farmer-beneficiaries is hereby
DENIED.
No pronouncement as to costs.
SO ORDERED.
Regalado, Melo, Puno and Mendoza, JJ., concur.
- Appointments and qualifications
- Article VIII, Section 7(1)
- Article VIII, Section 8(5)
- Article VIII, Section 9
- No non-judicial work for judges - Article VIII,
Section 12
- Meralco vs. Pasay Trans Co., 57 Phil. 600
(1933)
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-37878 November 25, 1932
MANILA ELECTRIC COMPANY, petitioner,
vs.
PASAY TRANSPORTATION COMPANY, INC., ET AL., respondents.
Ross, Lawrence & Selph for petitioner.
Rivera & Francisco for respondent Pasay Transportation Co.
P. A. Remigio for respondent E. B. Gutierrez. A. M. Zarate for respondent
Raymundo Transportation Co.
Vicente Ampil for respondent J. Ampil.
MALCOLM, J.:
The preliminary and basic question presented by the petition of the Manila
Electric Company, requesting the members of the Supreme Court, sitting as a
board of arbitrators, to fix the terms upon which certain transportation
companies shall be permitted to use the Pasig bridge of the Manila Electric
Company and the compensation to be paid to the Manila Electric Company by
such transportation companies, relates to the validity of section 11 of Act No.
1446 and to the legal right of the members of the Supreme Court, sitting as a
board of arbitrators, to act on the petition. Act No. 1446 above referred to is
entitled. "An Act granting a franchise to Charles M. Swift to construct,
maintain, and operate an electric railway, and to construct, maintain, and
operate an electric light, heat, and power system from a point in the City of
Manila in an easterly direction to the town of Pasig, in the Province of Rizal."
Section 11 of the Act provides: "Whenever any franchise or right of way is
granted to any other person or corporation, now or hereafter in existence, over
portions of the lines and tracks of the grantee herein, the terms on which said
other person or corporation shall use such right of way, and the compensation
to be paid to the grantee herein by such other person or corporation for said
use, shall be fixed by the members of the Supreme Court, sitting as a board of
arbitrators, the decision of a majority of whom shall be final."
When the petition of the Manila Electric Company was filed in this court, it was
ordered that the petitioner be required to serve copies on the Attorney-
General and the transportation companies affected by the petition. Thereafter,
the Attorney-General disclaimed any interest in the proceedings, and
opposition was entered to the petition by a number of public utility operators.
On the submission of memoranda after an oral hearing, the petition was made
ready for resolution.
Examining the statutory provision which is here invoked, it is first noted that
power is attempted to be granted to the members of the Supreme Court sitting
as a board of arbitrators and to the Supreme Court as an entity. It is next seen
that the decision of a majority of the members of the Supreme Court is made
final. And it is finally observed that the franchise granted the Manila Electric
Company by the Government of the Philippine Islands, although only a
contract between the parties to it, is now made to effect the rights of persons
not signatories to the covenant.
The law calls for arbitration which represents a method of the parties' own
choice. A submission to arbitration is a contract. The parties to an arbitration
agreement may not oust the courts of jurisdiction of the matters submitted to
arbitration. These are familiar rules which find support in articles 1820 and
1821 of the Civil Code. Citation of authority is hardly necessary, except that it
should be recalled that in the Philippines, and in the United States for that
matter, it has been held that a clause in a contract, providing that all matters in
dispute between the parties shall be referred to arbitrators and to them alone,
is contrary to public policy and cannot oust the courts of jurisdiction (Wahl and
Wahl vs. Donaldson, Sims & Co. [1903], 2 Phil., 301; Puentebella vs. Negros
Coal Co. [1927], 50 Phil., 69; Vega vs. San Carlos Milling Co. [1924], 51 Phil.,
908; District of Columbia vs. Bailey [1897], 171 U. S., 161.)
We would not be understood as extending the principles governing arbitration
and award too far. Unless the arbitration agreement is such as absolutely to
close the doors of the courts against the parties, the courts should look with
favor upon such amicable arrangements. We can also perceive a distinction
between a private contract for submission to arbitration and agreements to
arbitrate falling within the terms of a statute enacted for such purpose and
affecting others than the parties to a particular franchise. Here, however,
whatever else may be said in extenuation, it remains true that the decision of
the board of arbitrators is made final, which if literally enforced would leave a
public utility, not a party to the contract authorized by Act No. 1446, without
recourse to the courts for a judicial determination of the question in dispute.
Counsel for the petitioner rely principally on the case of Tallassee Falls Mfg.
Co. vs. Commissioner's Court [1908], 158 Ala., 263. It was there held that an
Act of a state legislature authorizing the commissioners' court of a certain
county to regulate and fix the rate of toll to be charged by the owners of a
bridge is not unconstitutional as delegating legislative power to the courts. But
that is not the question before us. Here the question is not one of whether or
not there has been a delegation of legislative authority to a court. More
precisely, the issue concerns the legal right of the members of the Supreme
Court, sitting as a board of arbitrators the decision of a majority of whom shall
be final, to act in that capacity.
We run counter to this dilemma. Either the members of the Supreme Court,
sitting as a board of arbitrators, exercise judicial functions, or the members of
the Supreme Court, sitting as board of arbitrators, exercise administrative
orquasi judicial functions. The first case would appear not to fall within the
jurisdiction granted the Supreme Court. Even conceding that it does, it would
presuppose the right to bring the matter in dispute before the courts, for any
other construction would tend to oust the courts of jurisdiction and render the
award a nullity. But if this be the proper construction, we would then have the
anomaly of a decision by the members of the Supreme Court, sitting as a
board of arbitrators, taken therefrom to the courts and eventually coming
before the Supreme Court, where the Supreme Court would review the
decision of its members acting as arbitrators. Or in the second case, if the
functions performed by the members of the Supreme Court, sitting as a board
of arbitrators, be considered as administrative or quasi judicial in nature, that
would result in the performance of duties which the members of the Supreme
Court could not lawfully take it upon themselves to perform. The present
petition also furnishes an apt illustration of another anomaly, for we find the
Supreme Court as a court asked to determine if the members of the court may
be constituted a board of arbitrators, which is not a court at all.lawphil.net
The Supreme Court of the Philippine Islands represents one of the three
divisions of power in our government. It is judicial power and judicial power
only which is exercised by the Supreme Court. Just as the Supreme Court, as
the guardian of constitutional rights, should not sanction usurpations by any
other department of the government, so should it as strictly confine its own
sphere of influence to the powers expressly or by implication conferred on it
by the Organic Act. The Supreme Court and its members should not and
cannot be required to exercise any power or to perform any trust or to assume
any duty not pertaining to or connected with the administering of judicial
functions.
The Organic Act provides that the Supreme Court of the Philippine Islands
shall possess and exercise jurisdiction as heretofore provided and such
additional jurisdiction as shall hereafter be prescribed by law (sec. 26). When
the Organic Act speaks of the exercise of "jurisdiction" by the Supreme Court,
it could not only mean the exercise of "jurisdiction" by the Supreme Court
acting as a court, and could hardly mean the exercise of "jurisdiction" by the
members of the Supreme Court, sitting as a board of arbitrators. There is an
important distinction between the Supreme Court as an entity and the
members of the Supreme Court. A board of arbitrators is not a "court" in any
proper sense of the term, and possesses none of the jurisdiction which the
Organic Act contemplates shall be exercised by the Supreme Court.
Constitution. . . . (Gordon vs. United States [1864], 2 Wall., 561; 117
U. S., 697 Appendix.)
Confirming the decision to the basic question at issue, the Supreme Court
holds that section 11 of Act No. 1446 contravenes the maxims which guide
the operation of a democratic government constitutionally established, and
that it would be improper and illegal for the members of the Supreme Court,
sitting as a board of arbitrators, the decision of a majority of whom shall be
final, to act on the petition of the Manila Electric Company. As a result, the
members of the Supreme Court decline to proceed further in the matter.
Avancea, C.J., Street, Villamor, Ostrand, Villa-Real, Abad Santos, Hull,
Vickers, Imperial and Butte, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 198-J May 31, 1971
PAZ M. GARCIA, complainant,
vs.
HON. CATALINO MACARAIG, JR., respondent.
RESOLUTION
BARREDO, J.:
Administrative complaint filed by one Paz M. Garcia against the Honorable
Catalino Macaraig, Jr., formerly Judge of the Court of First Instance of
lawph!l.net

Laguna, Branch VI, now Undersecretary of Justice, in his former capacity as

In the last judicial paper from the pen of Chief Justice Taney, it was said:
The power conferred on this court is exclusively judicial, and it cannot
be required or authorized to exercise any other. . . . Its jurisdiction and
powers and duties being defined in the organic law of the government,
and being all strictly judicial, Congress cannot require or authorize the
court to exercise any other jurisdiction or power, or perform any other
duty. . . . The award of execution is a part, and an essential part of
every judgment passed by a court exercising judicial power. It is no
judgment, in the legal sense of the term, without it. Without such an
award the judgment would be inoperative and nugatory, leaving the
aggrieved party without a remedy. It would be merely an opinion,
which would remain a dead letter, and without any operation upon the
rights of the parties, unless Congress should at some future time
sanction it, and pass a law authorizing the court to carry its opinion
into effect. Such is not the judicial power confided to this court, in the
exercise of its appellate jurisdiction; yet it is the whole power that the
court is allowed to exercise under this act of Congress. . . . And while
it executes firmly all the judicial powers entrusted to it, the court will
carefully abstain from exercising any power that is not strictly judicial
in its character, and which is not clearly confided to it by the
judge, for alleged "dishonesty, violation of his oath of office as judge ... gross
incompetence, violation of Republic Act 296 or the Judiciary Act of 1948, as
amended, (particularly) Sections 5, 55 and 58 thereof, committed (allegedly)
as follows:
2. That from July 1, 1970 up to February 28, 1971 inclusive, as
such incumbent Judge, respondent herein, has not submitted
his monthly reports containing the number of cases filed,
disposed of, decided and/or resolved, the number of cases
pending decisions for one month, two months to over three
months, together with the title, number, number of hours of
court session held a day, etc., as evidenced by the certificate
issued by Hon. Eulalio D. Pichay, Judicial Superintendent,
Dept. of Justice, copy of which is hereto attached as Annex
"A", Item No. 1, in violation of Circular No. 10 of the Dept. of
Justice dated February 6, 1952, copy of which is hereto
attached as Annex "B";
3. That he has not submitted his certificate of service (New
Judicial Form No. 86, Revised 1966) from July to December,
1970 and from January to February, 1971 inclusive as
evidenced by the certificate issued by Judge Pichay, Judicial
Superintendent, Dept. of Justice Annex "A", Item No. 2
thereof;
4. That as incumbent Judge of Branch VI, Court of First
Instance of Laguna and San Pablo and knowing fully well that
he has never performed his official duties or discharged the
duties appertaining to his office, he has collected and was paid
his salaries from July to December, 1970 and from January to
February 1971 as evidenced by the certificate issued by the
cashier Mrs. Santos of the Department of Justice hereto
attached as Annex "C" and the certificate of Mr. Pichay Annex
"A", last paragraph thereof, aggravated by his repeated failure
to submit the certificate of service in flagrant violation of action
5 of the Judiciary Act of 1948 as amended which provides as
follows:
... District judges, judges of City Courts, and
municipal Judges shall certify on their
application for leave, and upon salary vouchers
presented by them for payment, or upon the
payrolls upon which their salaries are paid, that
all special proceedings, applications, petitions,
motions, and all civil and criminal cases which
have been under submission for decision or
determination for a period of ninety days or
more have been determined and decided on or
before the date of making the certificate and
... no salary shall be paid without such
certificate' (Emphasis supplied).
5. That his deliberate failure to submit the monthly reports from
July to December, 1970 and from January, 1971 to February,
1971 stating therein the number of hours of session that the
Court holds daily, the accomplishments of the Court
constitutes a clear violation of Sections 55 and 58 of the
Judiciary Act of 1948, as amended.
6. That by his deliberate violation of his Oath of Office as a
District Judge of the Court of First Instance of Laguna and San
Pablo, Branch VI he has manifested such moral bankruptcy as
to deny his fitness to perform or discharge official duties in the
administration of justice.
7. That on June 29, 1970, respondent Judge wrote to the
Honorable Secretary of Justice informing him that he was
entering upon the performance of his duties, which letter of his
reads in full:
'I have the honor to inform you that I am
entering upon the performance of the duties of
the office of Judge of the Court of First
Instance of Laguna and San Pablo City
(Branch VI) today, June 29, 1970.'
That such actuation of deliberately telling a deliberate
falsehood aggravates his moral bankruptcy incompatible to the
requirements of the highest degree of honesty, integrity and
good moral character appertaining to holding the position of
Judge in the administration of justice.
Upon being so required, in due time, respondent filed an answer alleging
pertinently that:
THE FACTS
Respondent took his oath as Judge of the Court of First
Instance of Laguna and San Pablo City with station at
Calamba on June 29, 1970. The court, being one of the 112
newly created CFI branches, had to be organized from
scratch. After consultations with the officials of the province of
Laguna, the municipality of Calamba and the Department of
Justice, respondent decided to accept the offer of the Calamba
Municipal Government to supply the space for the courtroom
and offices of the court; to utilize the financial assistance
promised by the Laguna provincial government for the
purchase of the necessary supplies and materials; and to rely
on the national government for the equipment needed by the
court (Under Section 190 of the Revised Administrative Code,
all these items must be furnished by the provincial
government. The provincial officials of Laguna, however,
informed the respondent that the province was not in a
position to do so).
As to the space requirements of the court, the Municipal Mayor
of Calamba assured the respondent that the court could be
accommodated in the west wing of the Calamba municipal
building as soon as the office of the municipal treasurer and
his personnel are transferred to another location. When the
projected transfer of the municipal treasurer's office was about
to be effected, the treasurer and several municipal councilors
objected. The municipal mayor then requested the respondent
to look over some of the office spaces for rent in Calamba,
with the commitment that the municipal government will
shoulder the payment of the rentals. Respondent's first choice
was the second floor of the Republic Bank branch in Calamba,
but the negotiations failed when the owner of the building
refused to reduce the rent to P300 a month. The next suitable
space selected by respondent was the second floor of the
Laguna Development Bank. After a month's negotiations, the
municipality finally signed a lease agreement with the owner
on October 26, 1970. Another month passed before the
municipal government could release the amount necessary for
the improvements to convert the space that was rented, which
was a big hall without partitions, into a courtroom and offices
for the personnel of the court and for the assistant provincial
fiscal. Thereafter, upon respondent's representations, the
 provincial government appropriated the amount of P5,000 for
the purchase of the supplies and materials needed by the
court. Early in December, 1970 respondent also placed his
order for the necessary equipment with the Property Officer of
the Department of Justice but, unfortunately, the appropriation
for the equipment of courts of first instance was released only
on December 23, 1970 and the procurement of the equipment
chargeable against this allotment is still under way (please see
enclosed certification of the Financial Officer of the
Department of Justice marked Annex "A").
"When respondent realized that it would be sometime before he could actually
preside over his court, he applied for an extended leave (during the 16 years
he had worked in the Department of Justice, respondent had, due to pressure
of duties, never gone on extended leave, resulting in his forfeiting all the leave
benefits he had earned beyond the maximum ten months allowed by the law).
The Secretary of Justice, however, prevailed upon respondent to forego his
leave and instead to assist him, without being extended a formal detail,
whenever respondent was not busy attending to the needs of his court.
"Charges Have No Basis -- .
"Complainant has charged respondent with dishonesty, violation of his oath of
office, grave incompetence and violation of Sections 5, 55 and 58 of the
Judiciary Act.
"It is respectfully submitted that -- .
"A. Respondent's inability to perform his judicial duties under the
circumstances mentioned above does not constitute incompetence.
Respondent was like every lawyer who gets his first appointment to the
bench, eager to assume his judicial duties and rid himself of the stigma of
being 'a judge without a sala', but forces and circumstances beyond his
control prevented him from discharging his judicial duties.
"B. Respondent's collection of salaries as judge does not constitute
dishonesty because aside from the time, effort and money he spent in
organizing the CFI at Calamba, he worked in the Department of Justice
(please see enclosed certification of Undersecretary of Justice Guillermo S.
Santos marked Annex 'B'). Indeed, even if respondent did no more than exert
efforts to organize his court, he could, as other judges have done, have
collected his salaries as judge without being guilty of dishonesty.
"Incidentally, when respondent took his oath as CFI judge which position then
carried a salary of P19,000 per annum, he automatically ceased to be Chief of
the Technical Staff of the Department of Justice and Member of the Board of
Pardons and Parole, positions from which he was receiving P16,200 and
P8,000 per annum, respectively. Also, in anticipation of the judicial duties
which he was about to assume, respondent took a leave of absence from his
professorial lecturer's duties in the U.P. College of Law where he was
receiving approximately P600 a month.
"C. Sections 5, 55 and 58 of the Judiciary Act and Circular No. 10 dated
February 6, 1952 of the Department of Justice are not applicable to a Judge
not actually discharging his judicial duties.
"The Department of Justice has never required judges who have not actually
started, to perform their judicial duties to comply with the abovementioned
statutory-provisions and circular (please see enclosed certification of Judge
Eulalio D. Pichay, Judicial Superintendent, marked Annex 'C').
"Moreover, a reading of these sections and circular makes evident the folly of
requiring a judge who has not entered into the Performance of his judicial
duties to comply with them. Taking Section 5, how could a judge who has not
started to discharge his judicial duties certify that 'all special proceedings,
applications, petitions, motions, and all civil and criminal cases, which have
been under submission for decision or determination for a period of ninety
days or more have been determined and decided on or before the date of
making the certificate.' And bow could such a judge hold court in his place of
permanent station as required by Section 55; observe the hours of daily
sessions of the court as prescribed by Section 58; and render the reports
required by Circular No. 10 when his court is not yet in physical existence
Clearly, therefore, Sections 5, 55 and 58 of the Judiciary Act and Circular No.
10 cannot apply to such a judge." .
In view of the nature of the allegations of complainant and respondent in their
respective complaint and answer and considering, in the light thereof, that the
material facts are more or less undisputed, the Court feels that this case can
be disposed of without any further proceeding.
After mature study and deliberation, the Court is convinced that the complaint
must be dismissed. To begin with, We cannot discern any tinge of dishonesty
in the actuations for the respondent complained of. As We see it, the situation
is not exactly as complainant has attempted to portray it. Complainant's theory
is that respondent collected or received salaries as judge when in fact he has
never acted as such, since the date he took his oath up to the filing of the
complaint. In the sense that respondent has not yet performed any judicial
function, it may be admitted that respondent has not really performed the
duties of judge. What is lost sight of, however, is that after taking his oath and
formally assuming this position as judge, respondent had a perfect right to
earn the salary of a judge even in the extreme supposition that he did not
perform any judicial function for he could, while preparing himself for his new
job or for any good reason, take a leave, as in fact, he had planned to do,
were it not for the request of the Secretary of Justice for him to forego the idea
and, instead, help the Department in whatever way possible which would not,
it must be presumed, impair his position as a judge. This is more so, when, as
in this case, the government officials or officers in duty bound to furnish him
the necessary place and facilities for his court and the performance of his
functions have failed to provide him therewith without any fault on his part.
That respondent took it upon himself to personally work for early action on the
part of the corresponding officials in this direction and, in his spare time, made
himself available to the Department of Justice to assist the Secretary, what
with his vast experience, having worked therein for sixteen years, is, far from
being dishonesty, to his credit. In the circumstances, it was certainly not
improper that he rendered some kind of service to the government, since he
was receiving salaries, while being unable to perform his regular duties as
judge without any fault on, his part. As to whether or not in doing so he,
placed in jeopardy the independence of the judiciary and failed to act
according to the correct norm of conduct which a judge should observe vis-a-
vis service to the other departments of the government will be discussed a
non. At this juncture, the only point We settle is that complainant's theory of
dishonesty cannot hold water.
Admittedly respondent has not prepared and submitted any of the reports of
accomplishments and status of cases in his sala which are usually required of
judges under existing laws as well as the corresponding circulars of the
Department of Justice. The reason is simple. He has not yet started
performing any judicial functions. None of those laws and circulars apply to
him for all of them contemplate judges who are actually holding trials and
hearings and making decisions and others. On the other hand, respondent
Could not be blamed for taking his oath as he did, for he had a valid confirmed
appointment in his favor. In other words, he simply made himself available for
the purpose for which he was appointed. That he could not actually hold office
in the court to which he was appointed was not of his making. The other
officials in charge of providing him therewith seem to have been caught
unprepared and have not had enough time to have it read. Conceivably, under
the law, with the permission of this Court, respondent could have been
assigned to another court pending all these preparations, but that is
something within the initiative control of the Secretary of Justice and nor of the
respondent.
Of course, none of these is to be taken as meaning that this Court looks with
favor at the practice of long standing to be sure, of judges being detailed in
the Department of Justice to assist the Secretary even if it were only in
connection with his work of exercising administrative authority over the courts.
The line between what a judge may do and what he may not do in
collaborating or working with other offices or officers under the other great
departments of the government must always be kept clear and jealously
observed, least the principle of separation of powers on which our government
rests by mandate of the people thru the Constitution be gradually eroded by
practices purportedly motivated by good intentions in the interest of the public
service. The fundamental advantages and the necessity of the independence
of said three departments from each other, limited only by the specific
constitutional precepts a check and balance between and among them, have
long been acknowledged as more paramount than the serving of any
temporary or passing governmental conveniences or exigencies. It is thus of
grave importance to the judiciary under our present constitutional scheme of
government that no judge or even the lowest court in this Republic should
place himself in a position where his actuations on matters submitted to him
for action or resolution would be subject to review and prior approval and,
worst still, reversal, before they can have legal effect, by any authority other
than the Court of Appeals or this Supreme Court, as the case may be.
Needless to say, this Court feels very strongly that, it is best that this practice
is discontinued.
WHEREFORE, the herein administrative complaint is hereby dismissed. Let a
copy of this resolution be furnished the Secretary of Justice.
Concepcion, Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Villamor, JJ.,
concur.
Castro and Teekankee, JJ., took no part.
Fernando, J., concurs fully and in addition submits a brief separate opinion.
Makasiar, J., concurs with the opinion Mr. Justice Fernando.
FERNANDO, J., concurring: .
I join the rest of my brethren in yielding concurrence to the ably-written opinion
of Justice Barredo. Respondent Judge clearly should be exculpated of the
charge filed against him. What is more the opinion of the Court possesses the
merit of setting forth in forthright and unequivocal language the disapproval of
the practice hitherto followed of having members of the judiciary perform non-
judicial functions. There is no doubt to my mind of its repugnancy to the
fundamental concept of separation of power. It is to that aspect of the
question as well as what, to my mind, is the doubtful constitutionality of
allowing the Secretary of Justice to exercise supervisory authority over lower
court judges that this brief concurring opinion addresses itself.
1. The doctrine of separation of powers, a basic concept under our
Constitution, 1 embodies the principle of a tripartite division of governmental
authority entrusted to Congress, the President, and the Supreme Court as
well as such inferior courts as may be created by law. Three departments of
government are thus provided for, the legislative vested with the lawmaking
function, the executive with the enforcement of what has been thus enacted,
and the judiciary with the administration of justice, deciding cases according to
law. 2 The reason for such a doctrine is to assure liberty, no one branch being
enabled to arrogate unto itself the whole power to govern and thus in a
position to impose its unfettered will. If it were so, the rights of the individual
could with impunity be disregarded; he could be placed at its mercy. The three
departments are coordinate and co-equal, each having exclusive cognizance
of matters within its jurisdiction and supreme in its own sphere. That is to
guarantee independence, no interference being allowed on matters left to the
exclusive concern of each. Much less is control by only one of the three
departments of any or both of the others permissible. 3 .
It is to be admitted that the realities of government preclude the independence
of each of the departments from the other being absolute. This is so especially
as between the legislative and executive departments. What the former
enacts, the latter implements. To paraphrase Roosevelt, the letter of the
Constitution requires a separation, but the impulse of a common purpose
compels cooperation. It could be carried to the extent of such powers being
blended, without undue danger to liberty as proved by countries having the
parliamentary forms of government. This is especially so in England and in
Switzerland, where the tradition of freedom possesses strength and durability.
It does not admit of doubt, however, that of the three branches, the judiciary is
entrusted with a function the most sensitive and delicate. It passes upon
controversies and disputes not only between citizens but between citizens and
government, the limits of whose authority must be respected. In a system like
ours, every exercise of governmental competence, whether coming from the
President or from the lowest official, may be challenged in court in an
appropriate legal proceeding. This is an aspect of the theory of cheeks and
balance likewise provided for in the Constitution. 4 It is thus indispensable that
judicial independence should, by all means, be made secure. Not only that.
The feeling that judges are not in any way subject to the influence of the
executive and legislative branches must be pervasive; otherwise, there would
be loss of confidence in the administration of justice. With that gone, the rule
of law is placed in dire peril.
Nor is the force, to my mind, of the preceeding observation blunted by the
recognition that there could be no precise delineation of the respective
competence alloted the legislative, the executive and the judicial departments
under the Constitution. Necessarily, overlapping and interlacing of functions
could not entirely be avoided. For as observed by Justice Holmes in his
famous dissent in a case of Philippine origin, "The great ordinances of the
Constitution do not establish and divide fields of black and white. Even the
more specific of them are found to terminate in a penumbra shading gradually
from one extreme to the other... When we come to the fundamental
distinctions it is still more obvious that they must be received with a certain
latitude or our government could not go on." 6 Further on, he added: "It does
not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between
legislative and executive action with mathematical precision and divide the
branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires." 7 .
2. While the doctrine of separation of powers is a relative theory not to be
enforced with pedantic rigor, the practical demands of government precluding
its doctrine application, it cannot justify a member of the judiciary being
requited to assume a position or perform a duty non-judicial in character. That
is implicit in the principle. Otherwise there is a plain departure from its
command. The essence of the trust reposed in him is to decide. Only a higher
court, as was emphasized by Justice Barredo, can pass on his actuation. He
is not a subordinate of an executive or legislative official, however eminent. It
is indispensable that there be no exception to the rigidity of such a norm if he
is, as expected, to be confined to the task of adjudication. Fidelity to his sworn
responsibility no less than the maintenance of respect for the judiciary can be
satisfied with nothing less.
It is opposite to quote from an opinion of Justice Cardozo, as Chief Judge of
"the New York Court of Appeals," when that Court nullified a section of a New
York statute that would vest in a justice of its Supreme Court the power to
investigate at the instance of its governor. His opinion explained why: "He is
made the delegate Of the Governor in aid of an executive act, the removal of
a public officer... At the word of command he is give over the work of judging,
and set himself to other work, the work of probing and advising. His findings
when made will have none of the authority of a judgment. To borrow Bacon's
phrase, they will not 'give the rule or sentence.' They will not be preliminary or
ancillary to any rule or sentence to be pronounced by the judiciary in any of its
branches. They will be mere advice to the Governor, who may adopt them, or
modify them, or reject them altogether. From the beginnings of our history, the
Principle has been enforced that there is no inherent power in Executive or
Legislature to charge the judiciary with administrative functions except when
reasonably incidental to the fulfillment of judicial duties... The exigencies of
government have made it necessary to relax as merely doctrinaire adherence
to a principle so flexible and practical, so largely a matter of sensible
approximation, as that of the separation of powers. Elasticity has not meant
that what is of the essence of the judicial function may be destroyed by turning
the power to decide into a pallid opportunity to consult and recommend ..." 9.
Our holding today has been foreshadowed in Noblejas v. Teehankee," 10 a
1968 decision, Justice J.B.L. Reyes, who penned the opinion, first referred to
the above Richardson decision as well as to Federal Radio Commission v.
General Electric Co.",. It went on to state: "In this spirit, it has been held that
the Supreme Court of the Philippines and its members should not and cannot
be required to exercise any power or to perform any trust or to assume any
duty not pertaining to or connected with the administration of judicial functions;
and a law requiring the Supreme Court to arbitrate disputes between public
utilities was pronounced void in Manila Electric Co. vs. Pasay Transportation
Co. (57 Phil. 600)." 12 It is clear from the above Noblejas decision that even
prior to the motion there was a commitment to the principle that a member of
the judiciary cannot be asked non-judicial functions. For in Manila Electric Co.
vs. Pasay Transportation Co., 13 mentioned therein, Justice Malcolm ,
speaking for this Court, was quite explicit. Thus Supreme Court and its
members cannot be required to exercise any power any trust or to assume
any duty not pertaining to or connected with the administering of judicial
functions." 14 .
3. Nonetheless, as now decided, respondent Judge Macaraig should not be
held in any wise accountable. No taint of bad faith can be attached to his
conduct. What he was required to do was in accordance with the practice
herefore followed by the Department of Justice. He is, under the statute in
force, under the administrative supervision of its head. Nor can the good faith
of Secretary of Justice Abad Santos be impugned. What was done by him
was likewise in accordance with what previous secretaries of justice were
accustomed to do. The root of the evil then is the statutory authority of the
Department of Justice over Court of first instance and other inferior courts.15
While a distinction could be made between the performance of judicial
functions which in no way could be interfered with by the Department and the
task of administration which is executive in character, still the conferment of
such competence to a department head, an alter ego of the President, is, to
my mind, only unwise but of doubtful constitutionality. For in issuing
administrative rules and regulations over matters deemed non-judicial, they
may trench upon the discretion of judges which should be exercised according
to their conscience alone. What is more, the influence that the Secretary has
over them, is magnified. It is already unavoidable under our scheme of
government that they court his goodwill; their promotion may at times depend
on it. With this grant of authority, the assertion of independence becomes
even more difficult. It is thus objectionable in principle and pernicious in
operation. That certainly is not the way to reduce to the minimum any
participation of the executive in judicial affairs arising from the power to
appoint. As it is, even when the government as the adverse party in criminal
cases, tax suits, and other litigations is in the right, a favorable decision from
the lower courts could be looked upon with suspicion. The judiciary must not
only be independent; it must appear to be so.
The presence in the statute books of such power of administrative oversight
then, is, to my mind, anomalous. More specifically, were it not for such power
granted the department head, respondent Judge in this case could not have
been called upon to assist the Secretary of Justice. Considering that the
Constitutional Convention is about to meet, it is to be hoped that it be made
clear that the judiciary is to be totally freed from any supervisory authority of
an executive department.
- Salary
- Article VIII, Section 10
- Nitafan vs. CIR, 152 SCRA 284 (1987)
- Republic of the Philippines
SUPREME COURT
Manila
- EN BANC
- G.R. No. 78780 July 23, 1987
- DAVID G. NITAFAN, WENCESLAO M. POLO, and
MAXIMO A. SAVELLANO, JR., petitioners,
vs.
COMMISSIONER OF INTERNAL REVENUE and THE
FINANCIAL OFFICER, SUPREME COURT OF THE
PHILIPPINES, respondents.
- RESOLUTION
- MELENCIO-HERRERA, J.:
- Petitioners, the duly appointed and qualified Judges
presiding over Branches 52, 19 and 53, respectively,
of the Regional Trial Court, National Capital Judicial
Region, all with stations in Manila, seek to prohibit
and/or perpetually enjoin respondents, the
Commissioner of Internal Revenue and the Financial
Officer of the Supreme Court, from making any
deduction of withholding taxes from their salaries.
- In a nutshell, they submit that "any tax withheld from
their emoluments or compensation as judicial officers
constitutes a decrease or diminution of their salaries,
contrary to the provision of Section 10, Article VIII of
the 1987 Constitution mandating that "(d)uring their
continuance in office, their salary shall not be
decreased," even as it is anathema to the Ideal of an
independent judiciary envisioned in and by said
Constitution."
- It may be pointed out that, early on, the Court had
dealt with the matter administratively in response to
representations that the Court direct its Finance Officer
to discontinue the withholding of taxes from salaries of
members of the Bench. Thus, on June 4, 1987, the
Court en banc had reaffirmed the Chief Justice's
directive as follows:
- RE: Question of exemption from income taxation.
The Court REAFFIRMED the Chief Justice's previous
and standing directive to the Fiscal Management and
Budget Office of this Court to continue with the
deduction of the withholding taxes from the salaries of
the Justices of the Supreme Court as well as from the
salaries of all other members of the judiciary.
- That should have resolved the question. However, with
the filing of this petition, the Court has deemed it best
to settle the legal issue raised through this judicial
pronouncement. As will be shown hereinafter, the clear
intent of the Constitutional Commission was to delete
the proposed express grant of exemption from
payment of income tax to members of the Judiciary, so
as to "give substance to equality among the three
branches of Government" in the words of
Commissioner Rigos. In the course of the
deliberations, it was further expressly made clear,
specially with regard to Commissioner Joaquin F.
Bernas' accepted amendment to the amendment of
Commissioner Rigos, that the salaries of members of
the Judiciary would be subject to the general income
tax applied to all taxpayers.
- This intent was somehow and inadvertently not clearly
set forth in the final text of the Constitution as
approved and ratified in February, 1987 (infra, pp. 7-8).
Although the intent may have been obscured by the
failure to include in the General Provisions a
proscription against exemption of any public officer or
employee, including constitutional officers, from
payment of income tax, the Court since then has
authorized the continuation of the deduction of the
withholding tax from the salaries of the members of the
Supreme Court, as well as from the salaries of all other
members of the Judiciary. The Court hereby makes of
record that it had then discarded the ruling
in Perfecto vs. Meer and Endencia vs. David,
infra, that declared the salaries of members of the
Judiciary exempt from payment of the income tax and
considered such payment as a diminution of their
salaries during their continuance in office. The Court
hereby reiterates that the salaries of Justices and
Judges are properly subject to a general income tax
law applicable to all income earners and that the
payment of such income tax by Justices and Judges
 does not fall within the constitutional protection against
decrease of their salaries during their continuance in
office.
- A comparison of the Constitutional provisions involved
is called for. The 1935 Constitution provided:
- ... (The members of the Supreme Court and all judges
of inferior courts) shall receive such compensation as
may be fixed by law, which shall not
be diminished during their continuance in office
... 1 (Emphasis supplied).
- Under the 1973 Constitution, the same provision read:
- The salary of the Chief Justice and of the Associate
Justices of the Supreme court, and of judges of inferior
courts shall be fixed by law, which shall not
be decreased during their continuance in office.
... 2 (Emphasis ours).
- And in respect of income tax exemption, another
provision in the same 1973 Constitution specifically
stipulated:
- No salary or any form of emolument of any public
officer or employee, including constitutional officers,
shall be exempt from payment of income tax. 3
- The provision in the 1987 Constitution, which
petitioners rely on, reads:
- The salary of the Chief Justice and of the Associate
Justices of the Supreme Court, and of judges of lower
courts shall be fixed by law. During their continuance
in office, their salary shall not
be decreased. 4(Emphasis supplied).
- The 1987 Constitution does not contain a provision
similar to Section 6, Article XV of the 1973
Constitution, for which reason, petitioners claim that
the intent of the framers is to revert to the original
concept of "non-diminution "of salaries of judicial
officers.
- The deliberations of the 1986 Constitutional
Commission relevant to Section 10, Article VIII, negate
such contention.
- The draft proposal of Section 10, Article VIII, of the
1987 Constitution read:
- Section 13. The salary of the Chief Justice and the
Associate Justices of the Supreme Court and of judges
of the lower courts shall be fixed by law. During their
continuance in office, their salary shall not be
diminished nor subjected to income tax. Until the
National Assembly shall provide otherwise, the Chief
Justice shall receive an annual salary of
_____________ and each Associate Justice
______________ pesos. 5(Emphasis ours)
- During the debates on the draft Article (Committee
Report No. 18), two Commissioners presented their
objections to the provision on tax exemption, thus:
- MS. AQUINO. Finally, on the matter of exemption from
tax of the salary of justices, does this not violate the
principle of the uniformity of taxation and the principle
of equal protection of the law? After all, tax is levied
not on the salary but on the combined income, such
that when the judge receives a salary and it is
comingled with the other income, we tax the income,
not the salary. Why do we have to give special
privileges to the salary of justices?
- MR. CONCEPCION. It is the independence of the
judiciary. We prohibit the increase or decrease of their
salary during their term. This is an indirect way of
decreasing their salary and affecting the independence
of the judges.
- MS. AQUINO. I appreciate that to be in the nature of a
clause to respect tenure, but the special privilege on
taxation might, in effect, be a violation of the principle
of uniformity in taxation and the equal protection
clause.6
- xxx xxx xxx
- MR. OPLE. x x x
- Of course, we share deeply the concern expressed by
the sponsor, Commissioner Roberto Concepcion, for
whom we have the highest respect, to surround the
Supreme Court and the judicial system as a whole with
the whole armor of defense against the executive and
legislative invasion of their independence. But in so
doing, some of the citizens outside, especially the
humble government employees, might say that in
trying to erect a bastion of justice, we might end up
with the fortress of privileges, an island of extra
territoriality under the Republic of the Philippines,
because a good number of powers and rights
accorded to the Judiciary here may not be enjoyed in
the remotest degree by other employees of the
government.
- An example is the exception from income tax, which is
a kind of economic immunity, which is, of course,
denied to the entire executive department and the
legislative. 7
- And during the period of amendments on the draft
Article, on July 14, 1986, Commissioner Cirilo A. Rigos
proposed that the term "diminished" be changed to
 "decreased" and that the words "nor subjected to
income tax" be deleted so as to "give substance to
equality among the three branches in the government.
- Commissioner Florenz D. Regalado, on behalf of the
Committee on the Judiciary, defended the original draft
and referred to the ruling of this Court in Perfecto vs.
Meer 8 that "the independence of the judges is of far
greater importance than any revenue that could come
from taxing their salaries." Commissioner Rigos then
moved that the matter be put to a vote. Commissioner
Joaquin G. Bernas stood up "in support of an
amendment to the amendment with the request for a
modification of the amendment," as follows:
- FR. BERNAS. Yes. I am going to propose an
amendment to the amendment saying that it is not
enough to drop the phrase "shall not be subjected to
income tax," because if that is all that the Gentleman
will do, then he will just fall back on the decision
in Perfecto vs. Meer and in Dencia vs. David [should
be Endencia and Jugo vs. David, etc., 93 Phil. 696[
which excludes them from income tax, but rather I
would propose that the statement will read: "During
their continuance in office, their salary shall not be
diminished BUT MAY BE SUBJECT TO GENERAL
INCOME TAX."IN support of this position, I would say
that the argument seems to be that the justice and
judges should not be subjected to income tax because
they already gave up the income from their practice.
That is true also of Cabinet members and all other
employees. And I know right now, for instance, there
are many people who have accepted employment in
the government involving a reduction of income and
yet are still subject to income tax. So, they are not the
only citizens whose income is reduced by accepting
service in government.
- Commissioner Rigos accepted the proposed
amendment to the amendment. Commissioner Rustico
F. de los Reyes, Jr. then moved for a suspension of
the session. Upon resumption, Commissioner Bernas
announced:
- During the suspension, we came to an understanding
with the original proponent, Commissioner Rigos, that
his amendment on page 6,. line 4 would read: "During
their continuance in office, their salary shall not be
DECREASED."But this is on the understanding that
there will be a provision in the Constitution similar to
Section 6 of Article XV, the General Provisions of the
1973 Constitution, which says:
- No salary or any form of emolument of any public
officer or employee, including constitutional officers,
shall be exempt from payment of income tax.
- So, we put a period (.) after "DECREASED" on the
understanding that the salary of justices is subject to
tax.
- When queried about the specific Article in the General
Provisions on non-exemption from tax of salaries of
public officers, Commissioner Bernas replied:
- FR BERNAS. Yes, I do not know if such an article will
be found in the General Provisions. But at any rate,
when we put a period (.) after "DECREASED," it is on
the understanding that the doctrine in Perfecto vs.
Meer and Dencia vs. David will not apply anymore.
- The amendment to the original draft, as discussed and
understood, was finally approved without objection.
- THE PRESIDING OFFICER (Mr. Bengzon). The
understanding, therefore, is that there will be a
provision under the Article on General Provisions.
Could Commissioner Rosario Braid kindly take note
that the salaries of officials of the government including
constitutional officers shall not be exempt from income
tax? The amendment proposed herein and accepted
by the Committee now reads as follows: "During their
continuance in office, their salary shall not be
DECREASED"; and the phrase "nor subjected to
income tax" is deleted.9
- The debates, interpellations and opinions expressed
regarding the constitutional provision in question until it
was finally approved by the Commission disclosed that
the true intent of the framers of the 1987 Constitution,
in adopting it, was to make the salaries of members of
the Judiciary taxable. The ascertainment of that intent
is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers
of the organic law and of the people adopting it should
be given effect.10 The primary task in constitutional
construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the
people in the adoption of the Constitution.11 it may also
be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation
offered by the framers.121avvphi1
- Besides, construing Section 10, Articles VIII, of the
1987 Constitution, which, for clarity, is again
reproduced hereunder:
- The salary of the Chief Justice and of the Associate
Justices of the Supreme Court, and of judges of lower
 courts shall be fixed by law. During their continuance
in office, their salary shall not be decreased.
(Emphasis supplied).
- it is plain that the Constitution authorizes Congress to
pass a law fixing another rate of compensation of
Justices and Judges but such rate must be higher than
that which they are receiving at the time of enactment,
or if lower, it would be applicable only to those
appointed after its approval. It would be a strained
construction to read into the provision an exemption
from taxation in the light of the discussion in the
Constitutional Commission.
- With the foregoing interpretation, and as stated
heretofore, the ruling that "the imposition of income tax
upon the salary of judges is a dimunition thereof, and
so violates the Constitution" in Perfecto vs. Meer,13 as
affirmed inEndencia vs. David 14 must be declared
discarded. The framers of the fundamental law, as
the alter ego of the people, have expressed in clear
and unmistakable terms the meaning and import of
Section 10, Article VIII, of the 1987 Constitution that
they have adopted
- Stated otherwise, we accord due respect to the intent
of the people, through the discussions and
deliberations of their representatives, in the spirit that
all citizens should bear their aliquot part of the cost of
maintaining the government and should share the
burden of general income taxation equitably.
- WHEREFORE, the instant petition for Prohibition is
hereby dismissed.
- Teehankee, C.J., Fernan, Narvasa, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Yap, J., is on leave.
- merit. In the same Resolution, the Court Resolved to require complainant
- Tenure
- Article VIII, Section 11
- Article VIII, Section 2 par. 2
- Removal
- Article XI, Section 2
- In Re Gonzales, 160 SCRA 771 (1988)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 88-4-5433 April 15, 1988
IN RE FIRST INDORSEMET FROM HONORABLE RAUL M. GONZALEZ
DATED 16 MARCH 1988 REQUESTING HONORABLE JUSTICE
MARCELO B. FERNAN TO COMMENT ON AN ANONYMOUS LETTER-
COMPLAINT.
RESOLUTION
PER CURIAM:
The Court CONSIDERED the 1st Indorsement dated 16 March 1988 from Mr.
Raul M. Gonzalez, "Tanodbayan/Special; Prosecutor" forwarding to Mr.
Justice Marcelo B. Fernan a "letter-complaint, dated 14 December 1987 with
enclosure of the Concerned Employees of the Supreme Court," together with
a telegram of Miguel Cuenco, for "comment within ten (10) days from receipt
hereof." Mr. Justice Fernan had brought this 1st Indorsement to the attention
of the Court en banc in view of the important implications of policy raised by
said 1st Indorsement.
The mentioned 1st Indorsement has two (2) attachments. First, an
anonymous letter by "Concerned Employees of the Supreme Court"
addressed to Hon. Raul M. Gonzalez referring to charges for disbarment
brought by Mr. Miguel Cuenco against Mr. Justice Marcelo B. Fernan and
asking Mr. Gonzalez "to do something about this." The second attachment is a
copy of a telegram from Mr. Miguel Cuenco addressed to Hon. Raul M.
Gonzalez, where Mr. Cuenco refers to pleadings he apparently filed on 29
February 1988 with the Supreme Court in Administrative Case No. 3135,
which, in the opinion of Mr. Cuenco, made improper any "intervention" by Mr.
Raul Gonzalez. Mr. Cuenco, nonetheless, encourages Mr. Gonzalez "to file
responsive pleading Supreme Court en banc to comply with Petition
Concerned Employees Supreme Court asking Tanodbayan's intervention.
The Court DIRECTED the Clerk of Court to FURNISH Mr. Raul M Gonzales a
copy of the per curiam Resolution, dated 17 February 1988 of the Court in
Administrative Case No. 3135 entitled "Miguel Cuenco v. Honorable Marcelo
B. Fernan" in which Resolution, the Court Resolved to dismiss the charges
made by complaint Cuenco against Mr.Justice Fernan for utter lack of
Cuenco to show cause why he should not be administratively dealt with for
making unfounded serious accusations against Mr. Justice Fernan. Upon
request of Mr. Cueco, the Court had granted him an extension of up to 30
March 1988, Mr. Cuenco filed a pleading which appears to be an omnibus
pleading relating to, inter alia, Administrative Case No. 3135. Insofar as
Administrative Case No. 3135 is concerned, the Court treated this pleading as
a Motion for Reconsideration. By a per curiam Resolution dated 15 April 1988,
the Court denied with finality Mr Cuenco's Motion for Reconsideration.
It is important to underscore the rule of constitution law here involved. This
principle may be succinctly formulated in the following terms. A public officer
who under the Constitution is required to be a Member of the Philippine Bar
as a qualification for the office held by him and who may be removed from
office only by impeachment, cannot be charged with disbarment during the
incumbency of such public officer. Further, such public officer, during his
incumbency, cannot be charged criminally before the Sandiganbayan or any
other court with any offence which carries with it the penalty of removal from
office, or any penalty service of which would amount to removal from office.
The Court dealt with this matter in its Resolution of 17 February 1988 in
Administrative Case No. 3135 in the following terms:
There is another reason why the complaining for disbarment
here must be dismissed. Members of the Supreme Court
must, under Article VIII (7) (1) of the Constitution, be members
of the Philippine Bar and may be removed from office only by
impeachment (Article XI [2], Constitution). To grant a
complaint for disbarment of a Member of the Court during the
Member's incumbency, would in effect be to circumbent and
hence to run afoul of the constitutional mandate theat
Members of the Court may be removed from office only by
impeachment for and conviction of certain offenses listed in
Article XI (2) of the Constitution. Precisely the same situation
exists in respect of the Ombudsman and his deputies (Article
XI [8] in relation to Article XI [2], Id.), a majority of the
members of the Commission on Elections (Article IX [C] [1] [1]
in relation to Article XI [2], Id. and the members of the
Commission on Audit who are not certified public accountants
(Article XI [D] [1][1], Id.), all of whom are constitutionally
required to be members of the Philippine Bar. (Emphasis
supplied)
This is not the first time the Court has had occasion to rule on this matter.
In Lecaroz v. Sandiganbayan, 1 the Court said:
The broad power of the New Constitution vests the respondent
court with jurisdiction over "public officers and employees,
including those in government-owned or controlled
corporations." There are exceptions, however, like
constitutional officers, particularly those declared to be
removed by impeachment. Section 2, Article XIII of the 1973
Constitution provides:
Sec. 2 The President, the Members of the
Supreme Court, and the Members of the
Constitutional Commissions shall be removed
from office on impeachment for, and conviction
of, culpable violation of the Constitution,
treason, bribery, other high crimes, or graft and
corruption."
Thus, the above provision proscribes removal from office of
the aforementioned constitutional officers by any other
method; otherwise, to allow a public officer who may be
removed solely by impeachment to be charged criminally while
holding his office, would be violative of the clear mandate of
the fundamental law.
Chief Justice Enrique M. Fernando, in his authoritative
dissertation on the New Constitution, states that "judgement in
cases of impeachment shall be limited to removal from office
and disqualification to hold any office of honor, trust, or profit
under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution trial,
and punishment, in accordance with law. The above provision
is a reproduction of what was found in the 1935 Constitution. It
is quite apparent from the explicit character of the above
provision that the effect of impeachment is limited to the loss
of position and disqualification to hold any office of honor, trust
or profit under the Republic. It is equally manifest that the party
this convicted may be proceeded against, tried and thereafter
punished in accordance with law. There can be no clearer
expression of the constitutional intent as to the scope of the
impeachment process (The Constitution f the Philippines, pp.
465-466)." The clear implication is,the party convicted in the
impeachment proceeding shall nevertheless be liable and
subject of prosecution, trial and punishment according to law;
and that if the same does not result in a conviction and the
official is not thereby removed, the filing of a criminal action "in
accordance with law" may not prosper. 2
The provisions of the 1973 Constitution we referred to above in Lecaroz v.
Sandiganbayan are substantially reproduced in Article XI of the 1987
Constitution:
Sec. 2 The President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from
office as provided by law, but not by impeachment.
Sec. 3 xxx xxx xxx
(7) Judgment in cases of impeachment shall not extend further
than removal from office and disqualification to hold any office
under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial
and punishment according to law.
It is important to make clear that the Court is not here saying that it Members
or the other constitutional officers we referred to above are entitled to
immunity from liability for possibly criminal acts or for alleged violation of the
Canons of Judicial Ethics or other supposed misbehavior. What the Court is
saying is that there is a fundamental procedural requirements that must be
observed before such liability may be determined and enforced. A Member of
the Supreme Court must first be removed from office via the constitutional
route of impeachment under Sections 2 and 3 of Article XI of the 1987
Constitution. Should the tenure of the Supreme Court Justice be thus
terminated by impeachment, he may then be held to answer either criminally
or administratively (by disbarment proceedings) for any wrong or misbehavior PER CURIAM:
that may be proven against him in appropriate proceedings. Acting on the "Petition for Redress and Exoneration and for Voluntary
The above rule rests on the fundamental principles of judicial independence Inhibition" filed by respondent Benjamin M. Grecia himself, dated February 8,
and separation of powers. The rule is important because judicial 1988, praying that the decision of November 12,1987, and the resolution of
independence is important. Without the protection of this rule, Members of the the denial of the motion for reconsideration of the said decision be set aside
Supreme Court would be brought against them by unsuccessful litigants or and a new one entered by this Court dismissing the administrative complaint
their lawyers or by other parties who, for any number of reasons might seek to and exonerating the respondent, the Court RESOLVED (1) the EXPUNGE
affect the exercise of judicial authority by the Court. said Petition, it being in the nature of a second motion for reconsideration filed
It follows from the foregoing that a fiscal or other prosecuting officer should without leave of Court, besides the fact that the first motion for reconsideration
forthwith and motu proprio dismiss any charges brought against a Member of filed by the same respondent had already been denied with finality on January
this Court. The remedy of a person with a legitimate grievance is to file 12, 1988; (2) to STRIKE OUT Annex "1" of the Petition and its exclosures,
impeachment proceedings. Annex "1" being a xerox copy of a letter dated 04 August 1986 written by
The Clerk of Court is hereby DIRECTED to serve a copy of this Resolution Judge Dionisio N. Capistrano to an unknown addressee, for being immaterial
upon Hon. Raul M. Gonzales and Mr Miguel Cuenco. and impertinent to this case for disbarment (Sec. 5, Rule 9, Rules of Court).
Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, The Court will not allow the filing of such kinds of Petitions/Annexes that are
Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur. not only irrelevant to the issue and presented out of time as hereinafter
Fernan, J., took no part. explained, but are also scurrilous and defamatory.
Guetierrez, J., J., is on leave. Certain points raised in the Petition, however, call for separate treatment and
Footnotes determination.
1 128 SCRA 324 [1984]. 1) The "Petition for Voluntary Inhibition" of Chief Justice Claudio Teehankee
2 Id., at 330-331; Emphasis supplied. and Justice Teodoro R. Padilla is DENIED there being no legal nor factual
- Fiscal autonomy basis therefor. It is settled jurisprudence that after a member has given an
- Article VIII, Section 3 opinion on the merits of the case, a motion to disqualify a member of the
Supreme Court cannot be considered because litigant cannot be permitted to
speculate upon the action of the Court and raise an objection of this sort after
- Jurisdiction decision has been rendered (Araneta vs. Dinglasan, 84 Phil. 368, citing
- Article VIII, Section 1 Government of the Philippine Islands vs. Heirs of Abelia, 49 Phil. 374).
- Article VIII, Section 2 par. 1 The decision to disbar respondent lawyer was the collective judgment of the
- Article VIII, Section 5 Court, with the exception of Justice Sarmiento who had inhibited himself, with
- Article VI, Section 30 no member in the least bit attempting to influence one or the other. In fairness
- Article VII, Section 18 to the Chief Justice, and to disabuse the fears and suspicions of respondent
Grecia, it should be made of record that at no time during the deliberations on
the case did the Chief Justice show any ill will nor any signs of
- Deliberations "vindictiveness" much less any attempt to "exact vengeance for past affront"
- Prudential Bank vs. Castro. 158 SCRA 646 against respondent lawyer. All discussions were characterized by judicial
(1988) objectivity dictated only by the highest interests of the profession and public
welfare.
Republic of the Philippines Similarly, the plea for the inhibition of Justice Padilla has to be DENIED for
SUPREME COURT being devoid of any valid reason. Justice Padilla was counsel for Cityland
Manila Development Corporation in the case of Manchester Development
EN BANC Corporation, et al. vs. Court of Appeals, Cityland Development Corporation, et
A.M. No. 2756 March 15, 1988 al. (G.R. No. 75919, May 7,1987,149 SCRA 562), for which reason he took no
PRUDENTIAL BANK complainant, part in the said suit. Cityland, however, is not a party in this administrative
vs. case.
JUDGE JOSE P. CASTRO and ATTY. BENJAMIN M. 2) The challenge hurled against this Court's decision as violative of the 1987
GRECIA, respondents. Constitution due to lack of certification by the Chief Justice that the
RESOLUTION conclusions of the Court were reached in consultation before the case was
assigned to a member for the writing of the opinion of the Court, is bereft of
basis. The certification requirement refers to decisions in judicial, not
administrative cases. From the very beginning, resolutions/decisions of the
Court in administrative cases have not been accompanied by. any formal
certification. In fact, such a certification would be a superfluity in administrative
cases, which by their very nature, have to be deliberated upon considering the
collegiate composition of this Court. The certification in AM No. R-510-P
entitled "Apolinario de Sarigumba vs. Deputy Sheriff Pasok," cited in the
Petition, is but an oversight.
But even if such a certification were required, it is beyond doubt that the
conclusions of the Court in its decision were arrived at after consultation and
deliberation. The signatures of the members who actually took part in the
deliberations and voted attest to that. Besides, being a per curiam decision, or
an opinion of the Court as a whole, there is no ponente although any member
of the Court may be assigned to write the draft. In such cases, a formal
certification is obviously not required.
3) No constitutional provision has been disregarded either in the Court's
Minute Resolution, dated January 12,1988, denying the motion for
reconsideration "for lack of merit, the issues raised therein having been
previously duly considered and passed upon." It bears repeating that this is an
administrative case so that the Constitutional mandate that "no ... motion for
reconsideration of a decision of the court shall be ... denied without stating the
legal basis therefor" is inapplicable. And even if it were, said Resolution stated
the legal basis for the denial and, therefore, adhered faithfully to the
Constitutional requirement. "Lack of merit," which was one of the grounds for
denial, is a legal basis (see Sec. 3, Rule 45).
SO ORDERED.
Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Bidin, Cortes and Grio-Aquino, JJ., concur.
Sarmiento, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 78272 August 29, 1989
DR. and MRS. MERLIN CONSING, petitioners,
vs.
THE COURT OF APPEALS and CARIDAD SANTOS, respondents.
Sumulong Law Offices for petitioners.
Edgardo B. Arellano for private respondent,
CORTES, J.:
Petitioner Merlin Consing is the registered owner of a 9,643 sq. m. parcel of
land covered by Transfer Certificate of Title (TCT) No. 312970 located in
barrio Bayanbayanan, Marikina, Rizal. Sometime in 1971, Consing caused the
subdivision of said parcel of land into thirty-eight (38) lots and submitted a
subdivision plan to the Land Registration Commission (LRC) which was
approved on January 25, 1971 as a simple subdivision plan. Subsequently,
Consing filed a petition for segregation of title and the issuance of separate
certificates of title for the 38 lots. In the same petition, Consing likewise
informed the Register of Deeds that he voluntarily grants the right of way in
lots 2, 7, 8, 13, 14, 19, 20, 25, 26, 31, 32, 35, 36, and 37 [Exh. "3"]. The
petition for segregation was granted and thereafter, doing business under the
name Mearle Homes, the spouses Consing engaged in the sale of these 38
lots.
On October 4, 1971 private respondent Caridad Santos and the Consings
entered into an agreement denominated as a "Contract of Sale" whereby the
latter agreed to sell, transfer and convey to the former a house and lot more
particularly described as follows:
A newly constructed 4 bedrooms, two bathrooms, complete
with light and water connections bungalow, fenced on two
parcels of land (Lot No. 26 of subdivision plan (LRC) Psd
134075 and Lot No. 25 of subdivision plan (LRC) Psd 134075,
all being a portion of Lot B (LRC) Psd 133634, LRC Rec No.
7672 containing an area of TWO HUNDRED NINETY FOUR
(294) SQUARE METERS & TWO HUNDRED NINETY FIVE
(295) SQUARE METERS, respectively more or less including
the voluntary right of way, covered by TCT No. 313386 and
TCT 313385, respectively; located at Barrio Bayanbayanan,
Municipality of Marikina, Rizal [Exh."11"].
It is stipulated in said "Contract of Sale" that in consideration of the agreement
to sell the buyer will pay the seller P 110,000.00 with interest at 12% per
annum, payable as follows: P25,000.00 upon the signing of the contract and a
monthly installment of P 1,020.14 payable on or before the fifth day of each
month beginning December 1971 without necessity of demand until the
amount of the purchase price and interest shall have been fully paid after
which ownership would be transferred to the buyer.
Santos paid her monthly installments to the Consings. Starting May 1972,
however, she defaulted in her payments. Consing sent her several letters of
demand to which she did not reply. On June 28, 1974, counsel for the
Consings sent a final demand letter to Santos asking her to settle her
obligations which by then have accrued to Pl 2,818.61, otherwise, they shall
be constrained to resort to court litigation. [Record, p. 12].
Santos, represented by a lawyer, manifested her willingness to settle her
obligations on the condition that the Consings comply with all the laws and
regulations on subdivisions and after payment to her of damages as a
consequence of the use of a portion of her lot, more or less 168 sq.m., as a
subdivision road [Record, p. 13].
Subsequently, on July 26, 1974, the Consings filed an ejectment case against
Santos. After trial, on November 4, 1974, judgment was rendered by Judge
Gregorio de la Paz of the Municipal Court of Marikina in favor of the Consings.
It appears, however, that on August 22, 1974, with the ejectment case still
pending, Santos filed with the then Court of First Instance (CFI) a complaint
for specific performance with damages against the Consings. On March 17,
1975, the CFI issued a restraining order enjoining the Municipal Court of
Marikina from resolving the motion for execution filed by the Consings in the
ejectment case and from taking further action in said case until further orders
from the CFI [Record, p. 69].
Also borne out by the record is the criminal complaint filed by Santos against
Merlin Consing charging him with the crime of Violation of Municipal
Ordinance No. 7, Series of 1964 of Marikina for contracting to sell to her the
two lots in question without first securing the approval of the Municipal Council
of Marikina for his subdivision plan [Exh. "1"]. On May 21, 1975 this complaint
was dismissed by the fiscal on the grounds of lack of a prima facie case and
prescription [Exh. "1-b"].
At about the same time, Consing submitted his subdivision plan to the
Municipal Council of Marikina for approval. The council, in turn, referred the
same to the Department of Local Government and Community Development
(DLGCD) in compliance with its Memorandum Circular No. 73-41 of
September 7, 1973. The DLGCD in its second endorsement dated March 13,
1975, noted that the "subdivision plan meets in general the requirements in
the subdivision regulations of this Office with respect to lot areas and lot
frontages except the street widths which are not indicated as road lots and
which are below the 10 m. minimum requirement. It is therefore recommended
that the existing roads should be indicated on the plan as road lots and the
corresponding areas along the sides of the said roads as corrected, be
reserved for future road widening and annotated in the title as such and
should be excluded from the sale of the corresponding affected lots. . . ." [Exh.
"D"]
On August 28, 1981, the CFI rendered judgment finding that although the
Consings may have "corrected the irregularities and/or [have] complied with
the legal requirements for the operation of their subdivision, they cannot
escape their liability to [Santos] for having sold to her portions of the roads or
streets denominated as right-of-way. On this ground alone, this Court believes
that [Santos] was fully justified in refusing to pay further her monthly
amortizations. In the interest of justice, fair play and equity, this Court believes
that there shall be a proportionate reduction of the purchase price of the two
lots corresponding to the area of 168 square meters, more or less, used as a
[right] of way." [Record, p. 485]. The dispositive portion of the CFI decision
reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff (Santos), ordering the defendants Consings to allow
the plaintiff to continue paying her monthly amortizations of the
two lots in question of the reduced purchase price of P
78,375.68, after deducting whatever amounts were already
paid by her.
Defendants are further ordered to pay the plaintiff the amount
of P 10,000.00 as and for attorney's fees.
The restraining order issued against Municipal Judge Gregorio
C. de la Paz is made permanent.
Plaintiffs other prayers for relief, as well as defendants'
counterclaim, are dismissed, for lack of merit.
With costs against the defendants.
SO ORDERED [Record, p. 486].
The Consings interposed an appeal to the Court of Appeals which affirmed
the decision of the CFI with modification as to the computation of the amount
to be deducted from the purchase price. The decretal portion of the CA
decision 1 is as follows:
WHEREFORE, the appealed decision is hereby affirmed with
the modification that the reduced purchase price of the
property in question should be, as it is hereby fixed, at P
94,312.16 instead of P 78,375.68. Costs against appellants.
SO ORDERED [CA Decision, pp. 12-13].
From the decision of the Court of Appeals, petitioner-spouses filed this petition
for review citing the following reasons why the decision of respondent court
should be reviewed and their petition allowed:
1. The decision rendered by the respondent Court of Appeals
in this case does not comply with the requirements of Article
VIII, section 13, of the New Constitution;
2. It is arbitrary and there is no law to support Judge Pineda
and the respondent Court of Appeals in holding that when the
Consings constituted a voluntary right of way on Lots 25 and
26, the portions subject to the right of way ceased to be owned
by the Consings and became streets or road lots which the
Consings have no right to sell;
3. It is arbitrary and contrary to the documented facts for the
respondent Court of Appeals to say that the portions of Lots 25
and 26 subject to a voluntary right of way are actually used as
streets or roads even though it is clearly stated in the lot titles,
in the location plans, and in the contract of sale, that said
portions are not streets or roads, but are portions subject to
voluntary right of way, and in spite of the fact that the
subdivision was approved by the Land Registration
Commissioner as a simple subdivision plan which clearly
shows that there are no streets or road lots in the subdivision.
4. It is arbitrary for Judge Pineda and the respondent Court of
Appeals to suppose that the portions of Lots 25 and 26 subject
to right of way are streets or road lots and then compute the
value of the said portions in a careless and erroneous manner,
deducting afterwards the value so computed from the P
110,000 purchase price; and
5. There is no legal or factual basis in ordering the Consings to
pay P 10,000 attorney's fee to Caridad [Rollo, pp. 24-25].
Thereafter, private respondent, as required by the Court, filed her
Answer/Comment to which petitioners filed their Reply. On May 2, 1988 the
Court, after considering the allegations contained, the issues raised and the
arguments adduced in the pleadings submitted by the parties, gave due
course to the petition [Rollo, p. 84].
Petitioners first raise the issue of the Court of Appeals' non-compliance with
the certification requirement under Art. VIII, Sec. 13 of the 1987 Constitution.
Art. VIII, Sec. 13 of the 1987 Constitution provides that:
 Sec. 13. The conclusions of the Supreme Court in any case
submitted to it for decision en banc or in division shall be
reached in consultation before the case is assigned to a
Member for the writing of the opinion of the Court. A
certification to this effect signed by the Chief Justice shall be
issued and a copy thereof attached to the record of the case
and served upon the parties. Any Member who took no part, or
dissented, or abstained from a decision or resolution must
state the reason therefor. The same requirements shall be
observed by all lower collegiate courts. [Emphasis supplied].
The first sentence of this provision outlining the decision-making process of
the Supreme Court is adopted from both the 1935 2 and 1973 3 Constitutions.
The latter Constitution further broadened the application of the requirement on the
decision-making process by mandating that this "shall be observed by all inferior
collegiate courts."
The certification 4 requirement, however, is a new provision introduced by the
framers of the 1987 Constitution. Its purpose is to ensure the implementation of
the constitutional requirement that decisions of the Supreme Court and lower
collegiate courts, such as the Court of Appeals, Sandiganbayan and Court of Tax
Appeals, are reached after consultation with the members of the court sitting en
banc or in a division before the case is assigned to a member thereof for decision-
writing. The decision is thus rendered by the court as a body and not merely by a
member thereof [I Record of the Constitutional Commission 498-500], This is in
keeping with the very nature of a collegial body which arrives at its decisions only
after deliberation, the exchange of views and ideas, and the concurrence of the
required majority vote.
The absence, however, of the certification would not necessarily mean that
the case submitted for decision had not been reached in consultation before
being assigned to one member for the writing of the opinion of the Court since
the regular performance of official duty is presumed [Sec. 5 (m) of Rule 131,
Rules of Court]. The lack of certification at the end of the decision would only
serve as evidence of failure to observe the certification requirement and may
be basis for holding the official responsible for the omission to account
therefor [See I Record of the Constitutional Commission 460]. Such absence
of certification would not have the effect of invalidating the decision.
The second and third assigned errors of petitioners assail the decision of the
Court of Appeals finding that a portion of Lots 25 and 26, although called a
voluntary right of way, is a subdivision road which they have no right to sell.
The Consings argue that it is a voluntary easement which they have a right to
constitute by virtue of Art. 619 of the New Civil Code and "[b]y constituting and
establishing a voluntary right of way in said two lots, the portions subject to
the voluntary right of way did not become streets or roads as held by Judge
Pineda and the respondent Court of Appeals; they continue to be the property
of the Consings but subject to an encumbrance, i.e. subject to an easement of
right of way." [Petition, p. 22; Rollo, p. 27]. Further, the Consings contend that
"the portions of Lots 25 and 26 subject to voluntary right of way can never be
used as streets or road lots because [their] subdivision plan was approved by
the Land Registration Commissioner as a simple subdivision plan which
means that there are no streets or road lots in the subdivision, otherwise it
would not have been approved as [such]." [Petition, p. 24; Rollo, p. 29]. In
fine, the Consings are alleging that there is no basis for the reduction in the
purchase price of the two lots.
Private respondent Santos on the other hand, avers that the alleged right of
way is actually a subdivision road. This road is included in the two lots sold to
her and she is deprived of the use and enjoyment thereof, hence, a reduction
in the purchase price of said lots is in order.
Petitioners' contentions are devoid of merit. The evidence on record negates
the Consings' assertion that the portions subject to the voluntary easement of
right of way are not roads. It is undisputed that the Consings' subdivision plan
was approved by the LRC as a simple subdivision which indicated no streets
or roads. However, this does not preclude the need for them within the
subdivision. An examination of the Consings' subdivision plan reveals that the
land is subdivided into 38 lots with the so-called voluntary right of way cutting
across lots 2 and 3, 7 and 6, 8 and 9,13 and 12,14 and 15, 19 and 18, 20 and
21, 25 and 24, 26 and 27, 31 and 30, 32 and 33. The relative position of this
"right of way" vis-a-vis the lots shows that it is in fact a road without which the
subdivision lot buyers would have no means of access to and from the
subdivision.
Moreover, as heretofore stated, when the Municipal Council referred the
Consings subdivision plan to the DLGCD the latter recommended that the
existing roads within the subdivision should be indicated on the plan as road
lots. In turn, the Municipal Council of Marikina passed Resolution No. 70
approving the subdivision plan of Mearle Homes, Inc. subject, however, to
several conditions one of which is the subdivision owner's compliance with the
recommendation of the DLGCD. On May 19, 1975, Merlin Consing wrote a
letter addressed to the Municipal Mayor and Municipal Council of Marikina
wherein he admitted that "the road lots as shown in the plan originally
approved by the Land Registration Commission are the Right-of-way which
are annotated in the corresponding transfer Certificate of Titles, copies of
which were supplied or forwarded to your office. These are the road lots
mentioned. ..."[Exh."24"].
In this same letter, Merlin Consing stated that "the road lots annotated in their
corresponding titles ARE NOT INCLUDED in the sale of the property."
However, the transfer certificates of title covering lot 25 and lot 26 clearly state
the boundaries thereof and when compared to the Consings' subdivision plan
would reveal that the seller sold that portion covered by the right of way to the
buyer. Further, the "Contract of Sale" between the parties is specific that the
property sold to Santos includes the voluntary right of way [See Exh. "11"
pertinent portion quoted in p. 2 of this decision].
In Lim v. De los Santos [G.R. No. L-18137, August 31, 1963, 8 SCRA 798] the
Court had occasion to state one duty of a subdivision lot seller. In said case
the subdivision lot buyers instituted an action for specific performance with
damages to compel the sellers to construct the necessary roads in the
subdivision that would serve as outlets. The sellers' motion to dismiss on the
ground of lack of cause of action was sustained by the trial court because the
contract to sell between the parties mentioned no obligation on the part of the
defendants to construct roads. The case reached this Tribunal and in
resolving the issue of whether or not the complaint stated a cause of action,
the Court, speaking through Mr. Justice JBL Reyes, declared that "[t]he
allegations in the complaint that defendant-vendor made representations that
'she would have constructed (i.e., would cause to be built) adequate outlets'
for the lots sold do not strike us to be so improbable as to justify their being
disbelieved de plano. After all, a seller's duty is to deliver the thing sold in a
condition suitable for its enjoyment by the buyer for the purposes
contemplated (Sent. Trib. Supreme of Spain, 17 Nov. 1930), and proper
access to a residence is essential to its enjoyment. . . ." [at 802; Emphasis
supplied].
In the case at bar, in including as part of Santos' purchase price the value of
the subdivision road, petitioners have shifted to her the burden of providing for
an access to and from the subdivision. The Consings have thus failed in their
duty as subdivision lot sellers and for such failure and consequent unfairness
and injustice to Santos, the latter should be entitled to a proportionate
reduction in her purchase price of the two lots.
Petitioner-spouses also allege that the CA erred in its computation of the
amount to be deducted from the purchase price of the lots. They contend that
respondent court had no basis when it made its computation and it
merelyassumed the price to be deducted.
The CFI's computation deducted from the total purchase price of P
110,000.00 the price per square meter of the lots multiplied by the total area
covered by the right of way which is 168 sq.m. In arriving at the price per
square meter of the two lots, the trial court divided the total purchase price by
the total area of the two lots, which is 589 sq.m.
On appeal to the Court of Appeals, the Consings took exception to this
method of computation alleging that the trial court failed to take into account
the value of the bungalow constructed on the lots and which is part of the
contract. The Court of Appeals found merit in this allegation and re-computed
the price per square meter of the two lots in the following manner:
... There is, however, no evidence showing the price of the
land sold, separately from that of the house erected thereon.
Be that as it may, it may be reasonably assumed under the
circumstances of the case, that one-half (1/2) of the price of
the property corresponds to the house and the other half to the
lot. Upon this assumption, the price per square meter of the
land (with a total area of 589 square meters) may be placed at
P 93.38, and the price of 168 square meters of right of way at
P 15,687.84 (instead of P31,375.68 stated in the appealed
decision) which is logically and reasonably deductible from the
total purchase price due from the appellee. In consequence,
the total reduced purchase price of the subject property may
be fixed at P 94,312.16 (or P l10,000.00 minus P l5,687.84).
[CA Decision, p. 11].
Indeed, the record is bereft of any evidence as regards the price of the two
lots sold to Santos separately from the price of the bungalow constructed
thereon. The exhibits presented by the parties and their testimonies do not
reveal separate valuations of the bungalow and the two lots. Evident therefore
is the fact that the purchase price of P110,000.00 is for both the
bungalow and the two lots sold as one property. Further, to require the parties
to adduce their respective evidence as to the separate valuations of the
properties in question would only serve to unduly delay the disposition of the
case. Under these circumstances, the Court of Appeals' computation that one-
half of the purchase price of P 110,000.00 corresponds to the value of the
bungalow and the other half to the two lots is both just and fair. Accordingly,
the Court will not disturb the same.
Finally, petitioners allege that "there is no basis for awarding attorney's fees to
(private respondent] in this case because the Consings have not 'acted in
gross and evident bad faith in refusing to satisfy [Santos'] plainly valid, just
and demandable claim' (Art. 2208, para. 5 of the Civil Code of the
Philippines)" [Petition, p. 26; Rollo, p. 31]. The evidence on record, however,
proves otherwise. While the Consings have secured the necessary licenses to
operate a subdivision from the Municipal Council of Marikina and the National
Housing Authority they, however, exerted the effort to obtain them only after
private respondent filed a complaint for specific performance against them.
Moreover, as heretofore mentioned, petitioner-spouses constituted an alleged
"right of way" over the two lots sold to private respondent which as the
evidence on record reveals was intended to be a subdivision road occupying
168 sq. m. of the total 589 sq. m. of the lots sold. This conduct on the part of
the petitioners clearly shows gross and evident bad faith, not to mention lack
of fairness, for which reason affirmance of the award of P 10,000.00 attorney's
fees in favor of private respondent is in order.
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals
is AFFIRMED.
SO ORDERED.
Fernan, (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
- Voting
- Cruz vs. DENR, G.R. No. 135385,
December 6, 2000
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 135385 December 6, 2000
ISAGANI CRUZ and CESAR EUROPA, petitioners,
vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES,
SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN and
COMMISSIONERS OF THE NATIONAL COMMISSION ON INDIGENOUS
PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI
ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO WANDAG, EVELYN
DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GABIN,
MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE
SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-
ANTONIO D. LUMANDONG, DATU MANTUMUKAW TEOFISTO
SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU
RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D.
SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG MALANAW
VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY
INAY DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T.
PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY, DATU
MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS,
GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA
GRACE L. GIRON, ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE
CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR
S. BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO
ABUGAN, VIRGILIO CAYETANO, CONCHITA G. DESCAGA, LEVY
ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO
VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO,
WALTER N. TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY, RICO O.
SULATAN, RAFFY MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB,
MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO A.
LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G.
SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY,
JIMMY UGYUB, SALVADOR TIONGSON, VENANCIO APANG, MADION
MALID, SUKIM MALID, NENENG MALID, MANGKATADONG AUGUSTO
DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL,
FELAY DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY
SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO
SALIGA, SR., JERSON P. GERADA, RENATO T. BAGON, JR., SARING
MASALONG, SOLEDAD M. GERARDA, ELIZABETH L. MENDI, MORANTE
S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID,
represented by her father CORNELIO MALID, MARCELINO M. LADRA,
represented by her father MONICO D. LADRA, JENNYLYN MALID,
represented by her father TONY MALID, ARIEL M. EVANGELISTA,
represented by her mother LINAY BALBUENA, EDWARD M. EMUY, SR.,
SUSAN BOLANIO, OND, PULA BATO B'LAAN TRIBAL FARMER'S
ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and GREEN FORUM-
WESTERN VISAYAS,intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR
THE CONSERVATION OF NATURAL RESOURCES, INC., intervenor.
RESOLUTION
PER CURIAM:
Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and
mandamus as citizens and taxpayers, assailing the constitutionality of certain
provisions of Republic Act No. 8371 (R.A. 8371), otherwise known as the
Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules
and Regulations (Implementing Rules).
In its resolution of September 29, 1998, the Court required respondents to
comment.1 In compliance, respondents Chairperson and Commissioners of
the National Commission on Indigenous Peoples (NCIP), the government
agency created under the IPRA to implement its provisions, filed on October
13, 1998 their Comment to the Petition, in which they defend the
constitutionality of the IPRA and pray that the petition be dismissed for lack of
merit.
On October 19, 1998, respondents Secretary of the Department of
Environment and Natural Resources (DENR) and Secretary of the
Department of Budget and Management (DBM) filed through the Solicitor
General a consolidated Comment. The Solicitor General is of the view that the
IPRA is partly unconstitutional on the ground that it grants ownership over
natural resources to indigenous peoples and prays that the petition be granted
in part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan
Flavier, one of the authors of the IPRA, Mr. Ponciano Bennagen, a member of
the 1986 Constitutional Commission, and the leaders and members of 112
groups of indigenous peoples (Flavier, et. al), filed their Motion for Leave to
Intervene. They join the NCIP in defending the constitutionality of IPRA and
praying for the dismissal of the petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a
Motion to Intervene and/or to Appear as Amicus Curiae. The CHR asserts that
IPRA is an expression of the principle of parens patriae and that the State has
the responsibility to protect and guarantee the rights of those who are at a
serious disadvantage like indigenous peoples. For this reason it prays that the
petition be dismissed.
On March 23, 1999, another group, composed of the Ikalahan Indigenous
People and the Haribon Foundation for the Conservation of Natural
Resources, Inc. (Haribon, et al.), filed a motion to Intervene with attached
Comment-in-Intervention. They agree with the NCIP and Flavier, et al. that
IPRA is consistent with the Constitution and pray that the petition for
prohibition and mandamus be dismissed.
The motions for intervention of the aforesaid groups and organizations were
granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and
intervenors filed their respective memoranda in which they reiterate the
arguments adduced in their earlier pleadings and during the hearing.
Petitioners assail the constitutionality of the following provisions of the IPRA
and its Implementing Rules on the ground that they amount to an unlawful
deprivation of the States ownership over lands of the public domain as well as
minerals and other natural resources therein, in violation of the regalian
doctrine embodied in Section 2, Article XII of the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains,
and Section 3(b) which, in turn, defines ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that ancestral
domains including inalienable public lands, bodies of water, mineral and other
resources found within ancestral domains are private but community property
of the indigenous peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the
composition of ancestral domains and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the indigenous
peoples over the ancestral domains;
(5) Section 8 which recognizes and enumerates the rights of the indigenous
peoples over the ancestral lands;
"(6) Section 57 which provides for priority rights of the indigenous peoples in
the harvesting, extraction, development or exploration of minerals and other
natural resources within the areas claimed to be their ancestral domains, and
the right to enter into agreements with nonindigenous peoples for the
development and utilization of natural resources therein for a period not
exceeding 25 years, renewable for not more than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility to
maintain, develop, protect and conserve the ancestral domains and portions
thereof which are found to be necessary for critical watersheds, mangroves,
wildlife sanctuaries, wilderness, protected areas, forest cover or
reforestation."2
Petitioners also content that, by providing for an all-encompassing definition of
"ancestral domains" and "ancestral lands" which might even include private
lands found within said areas, Sections 3(a) and 3(b) violate the rights of
private landowners.3
In addition, petitioners question the provisions of the IPRA defining the powers
and jurisdiction of the NCIP and making customary law applicable to the
settlement of disputes involving ancestral domains and ancestral lands on the
ground that these provisions violate the due process clause of the
Constitution.4
These provisions are:
"(1) sections 51 to 53 and 59 which detail the process of delineation
and recognition of ancestral domains and which vest on the NCIP the
sole authority to delineate ancestral domains and ancestral lands;
"(2) Section 52[i] which provides that upon certification by the NCIP
that a particular area is an ancestral domain and upon notification to
the following officials, namely, the Secretary of Environment and
Natural Resources, Secretary of Interior and Local Governments,
Secretary of Justice and Commissioner of the National Development
Corporation, the jurisdiction of said officials over said area terminates;
"(3) Section 63 which provides the customary law, traditions and
practices of indigenous peoples shall be applied first with respect to
property rights, claims of ownership, hereditary succession and
settlement of land disputes, and that any doubt or ambiguity in the
interpretation thereof shall be resolved in favor of the indigenous
peoples;
"(4) Section 65 which states that customary laws and practices shall
be used to resolve disputes involving indigenous peoples; and
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims
and disputes involving rights of the indigenous peoples."5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP
Administrative Order No. 1, series of 1998, which provides that "the
administrative relationship of the NCIP to the Office of the President is
characterized as a lateral but autonomous relationship for purposes of policy
and program coordination." They contend that said Rule infringes upon the
Presidents power of control over executive departments under Section 17,
Article VII of the Constitution.6
Petitioners pray for the following:
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65
and 66 and other related provisions of R.A. 8371 are unconstitutional
and invalid;
"(2) The issuance of a writ of prohibition directing the Chairperson and
Commissioners of the NCIP to cease and desist from implementing
the assailed provisions of R.A. 8371 and its Implementing Rules;
"(3) The issuance of a writ of prohibition directing the Secretary of the
Department of Environment and Natural Resources to cease and
desist from implementing Department of Environment and Natural
Resources Circular No. 2, series of 1998;
"(4) The issuance of a writ of prohibition directing the Secretary of
Budget and Management to cease and desist from disbursing public
funds for the implementation of the assailed provisions of R.A. 8371;
and
"(5) The issuance of a writ of mandamus commanding the Secretary
of Environment and Natural Resources to comply with his duty of
carrying out the States constitutional mandate to control and
supervise the exploration, development, utilization and conservation of
Philippine natural resources."7
After due deliberation on the petition, the members of the Court voted as
follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion,
which the Chief Justice and Justices Bellosillo, Quisumbing, and Santiago
join, sustaining the validity of the challenged provisions of R.A. 8371. Justice
Puno also filed a separate opinion sustaining all challenged provisions of the
law with the exception of Section 1, Part II, Rule III of NCIP Administrative
Order No. 1, series of 1998, the Rules and Regulations Implementing the
IPRA, and Section 57 of the IPRA which he contends should be interpreted as
dealing with the large-scale exploitation of natural resources and should be
read in conjunction with Section 2, Article XII of the 1987 Constitution. On the
other hand, Justice Mendoza voted to dismiss the petition solely on the
ground that it does not raise a justiciable controversy and petitioners do not
have standing to question the constitutionality of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice
Panganiban filed a separate opinion expressing the view that Sections 3
(a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are
unconstitutional. He reserves judgment on the constitutionality of Sections 58,
59, 65, and 66 of the law, which he believes must await the filing of specific
cases by those whose rights may have been violated by the IPRA. Justice
Vitug also filed a separate opinion expressing the view that Sections 3(a), 7,
and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena,
Gonzaga-Reyes, and De Leon join in the separate opinions of Justices FERNANDO, J.:
Panganiban and Vitug. Our resolution of January 26, 1973 dismissing these petitions for habeas
As the votes were equally divided (7 to 7) and the necessary majority was not corpus, certiorari and mandamus for lack of merit is sought to be
obtained, the case was redeliberated upon. However, after redeliberation, the reconsidered. It was our ruling that petitioner failed to sustain the burden of
voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the showing that his confinement was marked by illegality or that the order
Rules of Civil Procedure, the petition is DISMISSED. cancelling the bail previously issued was tainted with grave abuse of
Attached hereto and made integral parts thereof are the separate opinions of discretion. It is to credit of his able counsel, former Senator Estanislao
Justices Puno, Vitug, Kapunan, Mendoza, and Panganiban. Fernandez, that his fight for provisional liberty is carried on with a further
SO ORDERED. manifestation of skilled scholarly effort, but such valiant attempt to secure his
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga- release is doomed to fail. The law, as will hereafter be set forth, points to the
Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. contrary. Deference to its command precludes a reconsideration. This
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion resolution will likewise briefly touch upon the question of why the issuance of
a brief dismissal order does not in any wise offend against the constitutional
provision requiring that no decision "shall be rendered by any court of record
Footnotes without on which it is based." 1
1 Rollo, p. 114.
1. Habeas corpus could be invoked by petitioner if he were able to show the
2 Petition, Rollo, pp. 16-23.
illegality of his detention. There is aptness and accuracy in the
3 Id. at 23-25.
characterization of the writ of habeas corpus as the writ of liberty. Rightfully it
4 Section 1, Article III of the Constitution states: "No person shall be
is latitudinarian in scope. It is wide-ranging and all embracing in its reach. It
deprived of life, liberty or property without due process of law, nor shall can dig deep into the facts to assure that there be no toleration of illegal
any person be denied the equal protection of the laws." restraint. Detention must be for a cause recognized by law. The writ imposes
5 Rollo, pp. 25-27.
on the judiciary the grave responsibility of ascertaining whether a deprivation
6 Id. at 27-28.
of physical freedom is warranted. This it has to discharge without loss of time.
7 Transcript of Stenographic Notes of the hearing held on April 13,
The party who is keeping a person in custody has to produce him in court as
1999, pp. 5-6. soon as possible. What is more, he must justify the action taken. Only if it can
be demonstrated that there has been no violation of one's right to liberty will
- Requirements as to decisions he be absolved from responsibility. Unless there be such a showing, the
- Article VIII, Sections 13-14 confinement must thereby cease.
The above formulation of what is settled law finds no application to the
- Mendoza vs. CFI, 66 SCRA 96). present situation. Petitioner's deprivation of liberty is in accordance with a
warrant of arrest properly issued after a determination by the judge in
Republic of the Philippines compliance with the constitutional provision requiring the examination under
SUPREME COURT oath or affirmation of the complainant and the witnesses produced. 2 No
Manila allegation to the contrary may be entertained. It cannot be denied that petitioner's
EN BANC co-accused, Nelso Unal, Hermogenes Lumanglas and Leopoldo Trinidad, had
previously come to this court to challenge the filing of one information where there
G.R. No. L-35612-14 June 27, 1973 were three victims. Accordingly, this Court, in Unal v. People, 3 required three
NORBERTO MENDOZA, petitioner, separate amended informations. There was no question, however, as to the
vs. legality of the warrants of arrest previously issued, not only in the case of the
COURT OF FIRST INSTANCE OF QUEZON, NINTH JUDICIAL DISTRICT, parties in such petition, but likewise of petitioner. Habeas corpus, under the
GUMACA BRANCH, PRESIDED OVER BY THE HONORABLE JUAN circumstances, would not therefore lie." 4
MONTECILLO, and THE PROVINCIAL WARDEN OF QUEZON 2. Even if it be granted that petitioner may not be released on a habeas
PROVINCE,respondents. corpus proceeding, is he, however, entitled to bail? Precisely that is the
Estanislao A. Fernandez and Feliciano Landicho for petitioner. remedy by which, notwithstanding the absence of any flaw in one's
Office of the Solicitor General Estelito P. Mendoza and Assistant Solicitor confinement, provisional liberty may still be had. Such a remedy, as a matter
General Hugo E. Gutierrez, Jr. for respondents. of fact, was granted him in accordance with an order of the municipal court of
RESOLUTION Mulanay. Thereafter, however, the bail was revoked by the Court of First
Instance in the order now challenged. Such actuation he would now condemn
as a grave abuse of discretion. In the landmark decision of Chief Justice
Concepcion, People v. Hernandez, 5 the right to bail was rightfully stress as an
aspect of the protection accorded individual freedom which, in his eloquent
language," is too basic, too transcendental and vital in a republican state, like
ours, ...." 6 To be more matter of fact about it, there is this excerpt from de la
Camara v. Enage 7 "Before conviction, every person is bailable except if charged with capital offense
when the evidence of guilt is strong. Such a right flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt. Thereby a regime of liberty is honored in the observance
and not in the breach. It is not beyond the realm of probability, however, that a person charged with a crime,
especially so where his defense is weak, would just simply make himself scarce and thus frustrate the
hearing of his cage. A bail is intended as a guarantee that such an intent would be thwarted. It is, in the
language of Cooley, a mode short of confinement which would, with reasonable certainty, insure the
attendance of the accused for the subsequent trial. Nor is there anything unreasonable in denying this right to
one charged with a capital offense when evidence of guilt is strong, as the likelihood is, rather than await the
outcome of the proceeding against him with a death sentence, an ever-present threat, temptation to flee the
jurisdiction would be too great to be resisted." 8
The precise question however, is whether once the provisional liberty has
been thus obtained, it could be terminated by the cancellation of the bail. In
the answer filed on behalf of respondent Court, Solicitor General Estelito
Mendoza did stress the absence of authority on the part of special counselor
Antonio R. Robles who was not authorized to intervene in this case on behalf
of the state but did so, his failure to object being the basis of the bail granted
by the municipal court of Mulanay, Quezon. Such an allegation was denied by
petitioner. We are not called upon to rule definitely on this aspect as
independently thereof, there are two other basic objections. One was that
petitioner, when the bail was granted, was still at large. The municipal court,
therefore, could not have granted bail in accordance with our ruling
in Feliciano v. Pasicolan. 9 Thus: "'The constitutional mandate that all persons
shall before conviction be bailable except those charged with capital offenses
when evidence of guilt is strong, is subject to the limitation that the person
applying for bail should be in custody of the law, or otherwise deprived of his
liberty. The purpose of bail is to secure one's release and it would be incongruous
as to grant bail to one who is free.'" 10Secondly, and what is worse, the
prosecution was never given a chance to present its evidence. The authoritative
doctrine in People v. San Diego 11 is thus squarely in point: "Whether the motion
for bail of a defendant who is in custody for a capital offense be resolved in
summary proceeding or in the course of a regular trial, the prosecution must be
given an opportunity to present, within a reasonable time, all the evidence that it
may desire to introduce before the Court should resolve the motion for bail. If, as
in the criminal case involved in the instant special civil action, the prosecution
should be denied such an opportunity, there would be a violation of procedural
due process, and order of the Court granting bail should be considered void." 12
Nor is the San Diego ruling novel. As far back as 1958, in People v. Raba, 13 it
was held: "Considering that Talantor did not serve notice of his motion to reduce
bail on the provincial fiscal at least three days before the hearing thereof and the
court failed to require that a reasonable notice thereof be given to said fiscal, it is
evident that the court acted improperly in reducing the bail without giving the fiscal
an opportunity to be heard" 14 Just after San Diego, this Court had occasion to
stress anew such a principle in People v. Bocar. 15 As set forth in the opinion of
Justice J.B.L. Reyes: "It cannot be denied that, under our regime of laws, and
concomitant with the legal presumption of innocence before conviction, an
accused is entitled to provisional liberty on bail, the only exception being when he
is charged with a capital offense and the evidence of his guilt is strong. But even
in the latter instance, the high regard reserved by the law for personal freedom is
underscored by the provision placing upon the prosecution, not on the defense,
the burden of proving that the accused is not entitled to bail. This protective
attitude towards the sanctity of the liberty of a person notwithstanding, due
process also demands that in the matter of bail the prosecution should be
afforded full opportunity to present proof of the guilt of the accused. Thus, if it
were true that the prosecution in this case was deprived of the right to present its
evidence against the bail petition, or that the order granting such petition was
issued upon incomplete evidence, then the issuance of the order would really
constitute grave abuse of discretion that would call for the remedy of certiorari." 16
The last sentence in the above excerpt finds application in the matter before
us. No grave abuse of discretion yo justify the grant of the
writ certiorari prayed for has been shown. That is why our resolution sought to
be reconsidered should stand.
3. That brings us to the point raised in the motion for reconsideration objecting
to our dismissing the petition through a minute resolution. It is his contention
that there should be an extended decision. As noted at the outset, reliance is
had on the constitutional provision requiring a decision by a court of record to
contain "clearly and distinctly the facts and the law on which it is based."
According to a recent decision, Jose v. Santos, 17 what is expected of the
judiciary "is that the decision rendered makes clear why either party prevailed
under the applicable law to the facts as established. Nor is there any regid formula
as to the language to be employed to satisfy the requirement of clarity and
distinctness. The discretion of the particular judge in this respect, while not
unlimited, is necessarily broad. There is no sacramental form of words which he
must use upon pain of being considered as having failed to abide by what the
Constitution directs." 18 What must then be stressed is that under such a provision
as held in the early case of Soncuya v. National Investment Board,19 the decision
spoken of is the judgment rendered after the previous presentation of the proof in
an ordinary civil or criminal case upon a stipulation of facts upon which its
disposition is to be based. In Bacolod Murcia Milling Co., Inc. v. Henares, 20 the
above decision was cited with approval, with the opinion of Justice J.B.L. Reyes
containing the following. "Plaintiff-appellant assigns as another error that the order
appealed from does not contain any statement of the facts and the law on which it
is based. Obviously, this is based on Section 1, Rule 35 of the Rules of Court, and
Section 12, Article VIII of the Constitution. The contention is untenable, since
these provisions have been held to refer only to decisions of the merit and not to
orders of the trial court resolving incidental matters such as the one at bar." 21
It is thus not self-evident that petitioner could justly lay claim to a grievance.
For if the situation is subjected, to searching analysis, it cannot be denied that
what is really involved is just a mere incident in the prosecution of petitioner
Had he prevailed, he would have been entitled to provisionary liberty. Under
the circumstances, as the facts of the clearly demonstrate, with the plea for
habeas corpus be unavailing, we felt that a minute resolution which certainly
would require less time than a full-blown decision, was not inappropriate.
Precisely, the leniency shown the parties dwell at length on their respective
contentions should disprove any suspicion that the decision arrived at was
reached without according the parties the fundamental fairness to which they
are entitled under the Constitution. Since, at the most, the relief sought by
petitioner will not, in any way, foreclose the ultimate outcome of the cases
against him one way or the other, we deemed that the constitutional provision
invoked did not strictly call for application. In that sense, a minimum resolution
certainly cannot be stigmatized as in any wise failing to abide by a
constitutional command.
WHEREFORE, the motion for reconsideration is denied, our resolution of
January 26, 1973 dismissing the petitions for of merit reiterated and the
temporary restraining order issue by us on October 16, 1973 lifted so that the
case against petitioner can be duly heard forthwith. Without pronouncement
as to costs.
Makalintal, Zaldivar, Castro, Teehankee, Makasiar, Antonio and Esguerra, JJ.,
concur.
- Sin perjuicio judgment judgment consisting
only of the dispositive portion is not valid.
- Valladolid vs. Inciong, 121 SCRA 205 (1992)
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-52364 March 25, 1983
RICARDO VALLADOLID, petitioner,
vs.
HON. AMADO G. INCIONG, Deputy Minister of Labor, and COPACABANA
APARTMENT-HOTEL, respondents.
G.R. No.L-53349 March 25, 1983
J.R.M. & CO., INC. as owner and operator of Copacabana Apartment-
Hotel petitioners,
vs.
HON. AMADO G. INCIONG, as Deputy Minister of Labor,HON.
FRANCISCO L. ESTRELLA, as Regional Director of the National Capital
Region, Ministry of Labor, nd RICARDO VALLADOLID, respondents.
Daniel Co for petitioner Ricardo Valadolid.
The Solicitor General for respondents.
Vicente V. Ocampo & Antonio V. de Ocampo for J.R.M. & Co., Inc.
MELENCIO-HERRERA, J.:
The Order dated December 26, 1979 of the Deputy Minister of Labor affirming
the Order of May 2, 1979 for reinstatement without backwages issued by
Regional Director Francisco L. Estrella in Case No. R4-STF-2-1316-79
entitled, "Ricardo C. Valladolid, Jr. vs. Copacabana Apartment-Hotel," is being
assailed by the parties in these petitions.
J. R. M. & Co., Inc. (hereinafter referred to as JRM), as petitioner in G.R. No.
53349, is also the respondent in G.R. No. 52364 named therein as
Copacabana Apartment-Hotel. JRM originally owned and operated not only
Copacabana but also Tropicana Apartment-Hotel. The principal stockholders
of JRM were the brothers Joseph, Manuel, Vicente and Roman, all surnamed
Yu. Upon the death of Joseph on October 12, 1975, although both
Copacabana and Tropicana continued technically as owned by JRM, the
controlling (70%) interest in Copacabana was lodged in the surviving heirs of
Joseph, with brothers Manuel and Roman having a 15% interest each. JRM
was placed under the management of the heirs of Joseph. The brothers
Manuel, Roman and Vicente were allowed 100% equity interest in Tropicana,
which was operated separately from JRM. Eventually, Tropicana and
Copacabana became competing businesses.
Ricardo Valladolid, petitioner in G.R. No. 52364 and respondent in G.R. No.
53349, after the death of Joseph, was employed by JRM in 1977 as a
telephone switchboard operator. He was subsequently transferred to the
position of clerk-collector by Mrs. Lourdes T. Yu, President of JRM.
According to the affidavit of Daniel T. Yu, Executive Vice-President, attached
to the position paper submitted by JRM before the Regional Director, the
transfer was motivated by the fact:
xxx xxx xxx
That as such switchboard operator numerous telephone
conversations and communications relating to business and
confidential matters were intercepted and relayed to Tropicana
Apartment-Hotel, a competitor;
That to confirm suspicion on Ricardo Valladolid as the person
responsible for said interception and relay, Mrs. Lourdes T.
Yu, President of JRM & Co., Inc. sent him on an errand to
Manila Hotel to bring flowers on the occasion of Wedding
Anniversary of Mr. & Mrs. Yu Hong Ty. Matters which Mrs.
Lourdes Yu told him in confidence and admonitions not to tell
anyone, reached Tropicana people;
xxx xxx xxx 1
The affidavit further disclosed:
xxx xxx xxx
That while serving in his capacity as clerk/collector, copies of
Accounts Receivables, reach Tropicana Management
although said copies were not referred to them;
That conferred (sic) on numerous confidential matters taken in
the office of Copacabana Apartment-Hotel reached Tropicana
Apartment-Hotel;
That to finally and fully confirmed suspicions that Ricardo
Valladolid was the person responsible for the aforementioned
disclosures, a plan for the entrapment was conceived by the
management of Copacabana Apartment- Hotel;
That on November 9, 1979, pursuance of said plan, a cash
voucher for P500,000.00 supposedly in payment for
representation expenses to myself with the corresponding
 check were prepared and issued respectively by Juan V.
Bermudo, Apartment-Hotel Manager, who thereafter called
Ricardo Valladolid and asked the latter to bring the said cash
voucher and check to my room which he did; few minutes later
I came down to the office and asked Mr. Ricardo Valladolid to
prepare the corresponding deposit slip to Pacific Banking
Corporation for said check;
That thereafter, the aforementioned cash voucher,
corresponding check and deposit slip were kept in the hotel
vault with no other person other than myself, Juan Bermudo
and Ricardo Valladolid having any knowledge of preparation
and existence thereof;
That unknown to Ricardo Villadolid, the aforementioned check,
cash voucher and deposit slip were cancelled;
That on December 4, 1978, Mr. Manuel Yu Chua, came to
Copacabana Apartment-Hotel as minority stockholder of the
latter, vehemently demanding for an accounting of
Copacabana books;
That he strongly charged that information reached him that I
received a disbursement of P500,000.00 from Copacabana
Apartment-Hotel as representation expenses in my capacity as
Executive Vice-President thereof;
That at this juncture, I brought out the cancelled cash voucher,
check and deposit slip with mouth agape Manuel Yu Chua,
could do nothing else but admit that in fact, his informer within
Copacabana Apartment-Hotel was no other than Mr. Ricardo
C. Villadolid;
That I then informed Manuel Yu Chua, that under the
circumstances, I could no longer repose any trust whatsoever
on Ricardo Valladolid and requested him to take the latter to
Tropicana Apartment-Hotel and just swap him with someone
else; Mr. Manuel Yu Chua directed me to tell Valladolid to see
him;
That after few days, Ricardo Valladolid came back and told me
that Manuel Yu Chua has no place for him at Tropicana
Apartment-Hotel; in this conversation, Ricardo Valladolid
apologized for having betrayed the trust that we had reposed
on him, especially after Mrs. Lourdes T. Yu had told him to
stay impartial; that he then having done this for Manuel Yu
Chua, the latter could not even accept him in Tropicana
Apartment-Hotel;
xxx xxx xxx 2
The entrapment scheme was corroborated by the affidavits of Sofia Mo.
Gianan, External Auditor of J.R.M. & Co., Inc., and Juan V. Bermudo,
Copacabana Apartment-Hotel Manager, which affidavits formed part of JRM's
position paper filed before the agency below. 3 The cancelled Cash Voucher,
the uncashed check, and the unused deposit slip, all in the respective amounts of
P500,000.00 were also attached to the same position paper as Exhibits "4", "5"
and "6".
On December 29, 1978, or after the entrapment scheme had been effected,
Valladolid filed a written request for a five (5) day vacation leave starting
December 30, 1978 with the Manager of Copacabana, stating therein that he
would report for work on January 5, 1979. 4 He did not report for work on
January 5 but sent a telegram from Bicol on January 8, 1979 requesting for 15
days sick leave as he was confined for flu at the Dr. Estrellado Clinic. 5 On
January 23, 1979, Valladolid's wife allegedly called up JRM informing the
company through its accountant, Eddie Escueta, that her husband was still sick
and requested for 30 days sick leave, which was allegedly granted. This was
denied by JRM.
Valladolid reported for work on February 16, 1979. The Executive Vice-
President, Mr. Daniel Yu, allegedly refused to admit him and instead asked
him to resign. JRM maintains that Valladolid left the office that same day and
never returned, because he was reprimanded for his unauthorized absences.
On February 22, 1979, Valladolid filed a Complaint for Illegal Dismissal with
vacation and sick leave pay. 6
On February 24, 1979, JRM sent a letter to Valladolid signed by Daniel T. Yu,
advising him of his preventive suspension effective February 26, 1979
preparatory to the termination of his services 10 days from receipt of a copy of
the application for clearance to dismiss him. The grounds given were: (1)
Willful Breach of Trust for having divulged, in various instances, confidential
business matters to competitors of the company; and (2) Gross Neglect of
Duty for having been absent without leave or notice for more than 25 days, to
the detriment of the company. 7
On February 28, 1979, JRM filed said application for clearance with the
Ministry of Labor. 8 The application for clearance and Valladolid's complaint for
Illegal Dismissal were consolidated and docketed as R4-STF-2-1316-79. The
parties submitted their respective position papers and documentary evidence. On
May 2, 1979, the Regional Director issued the following challenged Order:
WHEREFORE, premises considered, the application for
clearance with preventive suspension is hereby denied.
Respondent is hereby ordered to reinstate complainant to his
former position without backwages and without loss of
seniority rights. Let the time this case was pending be
considered as complainant's suspension for his absences.
The claim for vacation sick leave pay is dismissed for failure to
substantiate the same.
Valladolid appealed the foregoing order to the Minister of Labor seeking
modification of the same, praying for the award of backwages from the time
he was illegally dismissed on February 16, 1979 to the date of his actual
reinstatement. JRM also appealed the said Order.
On December 26, 1979, the Deputy Minister of Labor, in a succinct Order,
dismissed both appeals after finding "no sufficient justification or valid reason
to alter, modify, much less reverse the Order appealed from."
On January 21, 1980, Valladolid filed a Petition for certiorari with this Court,
docketed as G.R. No. 52364, praying for a modification of the Order of
December 26, 1979 of the Deputy Minister of Labor so as to grant him
backwages. This Court resolved. on February 4, 1980, to give due course to
the petition, and required the parties to submit simultaneous memoranda.
On March 12, 1980, JRM also filed a petition for certiorari with this Court
assailing that same Order. This Court gave due course to the petition and
consolidated the same with G.R. No. 52364. Thereafter, the parties filed their
respective memoranda.
The non-award of backwages is the only issue being raised by Valladolid
claiming that the Orders in question are contrary to law and evidence, and
were issued arbitrarily and capriciously with grave abuse of discretion,
amounting to excess or lack of jurisdiction.
JRM, on the other hand, assails the said Orders on the following grounds:
I because JRM had lost confidence in the latter. And although Manuel Yu, who
That respondent Deputy Minister of Labor committed grave
abuse of discretion when in his questioned order in effect
sustained the finding of respondent Regional Director that
there is no evidence to support the dismissal of private
respondent.
II
That respondent Deputy Minister Amado Inciong and Regional
Director Francisco Estrella committed grave abuse of
discretion when they arbitrarily failed to consider in their
respective orders under review, established jurisprudence.
III
That respondent Regional Director committed grave abuse of
discretion when he held that preventive suspension is
equivalent to dismissal.
IV
That the order of respondent Hon. Amado Inciong was a
capricious and whimsical exercise of judgment when it failed to
state the facts and conclusion of law upon which it is based.
V Valladolid on February 24, 1979 advising him of his preventive suspension
That respondent Regional Director Francisco Estrella acted in
excess of his jurisdiction when, without any statutory authority
or transcending beyond his jurisdiction, he absolutely
disregarded procedural requirement in the hearing of the
present controversy, thus depriving petitioner of its right to due
process.
Valladolid, in his affidavit dated March 29, 1979, denied having committed any
breach of trust. 9 In corroboration, he presented the affidavits of Mr. Manuel Yu
dated March 20, 1979 and March 29, 1979, wherein the latter stated that
Valladolid was "one of Copacabana's most hard-working and efficient employees;"
that Valladolid's work is "mere routinary collection and clerical in nature which do
not involve trust (or) confidential business or trade secrets which he may 'divulge'
to other companies." 10
On this issue, the Regional Director ruled that "there is no evidence on record
that Valladolid furnished copies of receivables or divulged confidential
business matters to Mr. Manuel Yu and the 'Tropicana People' including the
P500,000.00 'entrapment scheme.'"
That finding is not supported by the records. The affidavits attached to
petitioner's position paper adequately show that JRM did not act on mere
suspicion but on the contrary, acted prudently when it first transferred
Valladolid from switchboard operator where he could eavesdrop on telephone
conversations, to a less crucial position of clerk-collector. But even in the latter
capacity, JRM's fears were confirmed as shown by the entrapment scheme.
Manuel Yu's certification as to Valladolid's trustworthiness cannot be given
much weight not only because it was disproved by the entrapment contrived
but more so because even Manuel Yu himself refused to employ him at
Tropicana when Daniel Yu had suggested that Tropicana absorb Valladolid
owns 15% of the equity holding of Copacabana, and being a member of the
Board of Directors of JRM had a right to know the business standing of said
establishment, there is basis to believe that he would not have been able to
pinpoint the particular "disbursement" of P500,000.00, if the same had not
been leaked out to him.
Loss of confidence is a valid ground for dismissing an employee. Proof
beyond reasonable doubt of the employee's misconduct is not required, it
being sufficient that there is some basis for the same or that the employer has
reasonable ground to believe that the employee is responsible for the
misconduct and his participation therein renders him unworthy of the trust and
confidence demanded of his position. 11 However, as this was Valladolid's first
offense, as found by the Regional Director, dismissal from the service is too harsh
a punishment, considering that he had not been previously admonished, warned
or suspended for any misdemeanor. Besides as clerk-collector, he need not be
given access to facts relative to the business of Copacabana, which, if divulged to
Tropicana would be to the former's prejudice.
Moreover, we find basis for the finding of the Regional Director that Valladolid
was terminated without prior clearance. J.R.M. sent a memorandum to
effective February 26, 1979 pending approval of the application for clearance
to dismiss him. The clearance application was filed on February 28, 1979.
However, even prior to that date, or on February 22, 1979, Valladolid had
already filed a complaint for Illegal Dismissal. This shows that Valladolid was
indeed refused admittance on February 16, 1979 when he reported back to
work, so that he was practically dismissed before he was formally notified of
his suspension leading to his dismissal, in violation of the requirement of
Section 3, Rule XIV, Book V, Rules & Regulation Implementing the Labor
Code. 12 And as provided in Section 2 of the same Rule, any dismissal without
prior clearance shall be "conclusively presumed to be termination of employment
without a just cause."
JRM cannot claim that it was deprived of due process considering that
applications for clearance have to be summarily investigated and a decision
required to be rendered within ten (10) days from the filing of the
opposition13 As this Court had occasion to hold there is no violation of due
process where the Regional Director merely required the submission of position
papers and resolved the case summarily thereafter. 14
Nor is the questioned Order of the Deputy Minister of Labor violative of
Section 9, Article X of the Constitution, which requires a statement of the facts
and the conclusions of law upon which it is based. That prescription applies to
decisions of Courts of record. The Ministry of Labor is an administrative body
with quasi-judicial functions. Section 5, Rule XIII, Book V, Ibid, states that
proceedings in the NLRC shall be non-litigious and summary in nature without
regard to legal technicalities obtaining in courts of law. As the Deputy Minister
was in full accord with the findings of fact and the conclusions of law drawn
from those facts by the Regional Director, there was no necessity of
discussing anew the issues raised therein.
JRM admits that Valladolid requested for leave for 5 days from December 30,
1978, and thereafter for 15 days, but denies that he notified the company of
his absences subsequent to this. The Regional Director ruled that the
absences of Valladolid were unauthorized but did not amount to gross neglect
of duty or abandonment of work which requires deliberate refusal to resume
employment or a clear showing in terms of specific circumstances that the
worker does not intend to report for work. We agree. But as Valladolid had
been AWOL, no error was committed by respondent Regional Director in
ordering his reinstatement without backwages. 16
WHEREFORE, both Petitions for certiorari are hereby denied. No costs.
SO ORDERED.
Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 78648 January 24, 1989
RAFAEL N. NUNAL, petitioner,
vs.
COMMISSION ON AUDIT AND MUNICIPALITY OF ISABELA,
BASILAN, respondents.
Romulo D. Plagata for petitioner.
RESOLUTION
MELENCIO-HERRERA, J.:
For resolution is petitioner's Motion for Reconsideration of the Minute
Resolution of this Court of 11 May 1988 dismissing the Petition
for certiorari "for failure of the petitioner to sufficiently show that the public
respondent had committed grave abuse of discretion in holding, among
others, that the compromise agreement of the parties is not enforceable
against the Municipality of Isabela, the latter not having been impleaded as an
indispensable party in the case.
In the present Motion, petitioner contends:
1. The decision does not clearly and distinctly express the
facts and the law on which it is based;
2. The Municipality of Isabela, Basilan, is bound by the
compromise agreement; and
3. Public respondent "Commission on Audit (COA, for short)
gravely abused its discretion in denying the lawful claim for
separation pay by your petitioner." (Motion for
Reconsideration, p. 1; Rollo, p. 67)
The facts disclose that on 24 February 1986 petitioner was appointed as
Municipal Administrator of Isabela, Basilan. On 1 February 1980 he was
administratively charged and dismissed from the service for dishonesty,
misconduct and for lack of confidence. On appeal, the Merit Systems Board
exonerated petitioner and reinstated him to his position as Municipal
Administrator on 8 May 1980.
On 29 January 1981 petitioner was again dismissed for lack of confidence by
then Municipal Mayor Alvin Dans under Administrative Order No. 54, Series of
1981. Upon denial of his Motion for Reconsideration, petitioner filed Case No.
43, a suit for mandamus and Damages with Preliminary Injunction against the
Municipal Mayor, the Municipal Treasurer, and the Sangguniang Bayan of
Isabela, Basilan, before the then Court of First Instance in Basilan Province,
Branch 1, praying for reinstatement "with full backwages and other rights
inherent in the position." He also filed Case No. 45 with the same Court
seeking that he and his wife be paid their back salaries from 1 February 1980
to 31 May 1980 pursuant to the Decision of the Merit Systems Board on 16
February 1981.
On 20 February 1984, during the pendency of the said case, the Sangguniang
Bayan of Isabela, Basilan, abolished the subject position in its Resolution No.
902, Series of 1984, and Ordinance No. 336, pursuant to the provisions of the
Local Government Code.
On 5 December 1984, petitioner and his wife, on the one hand, and on the
other, Mayor Dans in his capacity both as Municipal Mayor and as Presiding
Officer of the Sangguniang Bayan of Isabela, Basilan, the Municipal Treasurer
and the Provincial Fiscal (p. 4, Reply To Comment of COA), entered into a
Compromise Agreement stipulating, among others, that:
l. The respondents shall pay petitioner Rafael Nunal all back
salaries and other emoluments due him by reason of his
employment as Municipal Administrator of Isabela, Basilan,
covering the period from January 1, 1980 to August 15, 1984,
together with accumulated vacation/sick leaves, mid-year and
Christmas bonuses in 1982 and 1983, and separation pay
under the Local Government Code, which are reflected in the
computation hereto attached and made an integral part
hereof... (p. 13, Rollo)
Under the same Compromise Agreement, petitioner was also considered as
"retired" upon receipt of the monetary considerations mentioned therein.
On 12 December 1984, the Court approved the Compromise Agreement.
On 1 April 1985, petitioner collected his retirement benefits although,
concededly, no provision for the same had been included in the Compromise
Agreement (Petition, p. 6; Rollo, P. 9).
On 17 September 1985, petitioner filed his claim for separation pay in the
amount of P54,092.50 to which he is allegedly entitled due to the abolition of
the position of Municipal Administrator, which separation pay is provided for
by the Local Government Code (B.P. 337, Section 76).
On 6 January 1986 the Municipal treasurer forwarded petitioner's claim to the
Provincial Auditor of Basilan. On 11 January, 1986, in a First Indorsement, the
Provincial Auditor opined that the claim was legal and proper but payment
thereof was made subject to availability of funds and the ruling of the Regional
Office of the Commission on Audit, Region IX, Zamboanga City.
On 12 February 1986, in a 2nd Indorsement, the Regional Director of the
Commission on Audit, Region IX, Zamboanga City, reversed the Provincial
Auditor of Basilan and denied petitioner's claim for separation pay. Petitioner's
Motion for Reconsideration was forwarded to the Commission on Audit (COA),
Central Office, Quezon City.
On 13 October 1986 the COA Central Office, in its Decision No. 388, not only
denied petitioner's claim for separation pay but also disallowed the other
payments made to petitioner. It held:.
Premises considered, and it appearing that Mr. Nunal has
been paid back salaries and other emoluments in the total
amount of P90,362.96 pursuant to the Compromise
Agreement, supra, this Commission hereby directs that any
and all payments made to Mr. Nunal corresponding to the
period when he was no longer in the government service
should be disallowed in audit without prejudice to his right of
recourse against the officials personally liable for his unlawful
dismissal. (pp. 15-16, Rollo)
Thus, this recourse by petitioner alleging grave abuse of discretion by COA,
which Petition we had previously dismissed in our Resolution of 11 May 1988
as heretofore adverted to.
It appearing, however, that the Compromise agreement was duly signed by
Mayor Alvin Dans as Mayor and as Presiding Officer of the Sangguniang
Bayan, by the Municipal Treasurer, and by the Provincial Fiscal as their
lawyer (Motion for Reconsideration, p. 3); that the case was one for
reinstatement and backwages; and following the ruling of this Court in
Gementiza vs. Court of Appeals (G.R. Nos. L-41717-33, 113 SCRA 477, April
12, 1982), the Municipality of Isabela should be deemed as impleaded in this
case, it being apparent that the officials concerned had been sued in their
official capacity.
It should be noted that before the Court below, respondents
sued petitioner Mayor alone. However, respondents, too,
prayed for a Writ of mandamus to compel petitioner Mayor to
reinstate them with back salaries and damages. Respondents,
therefore, actually intended to sue petitioner in his official
capacity. Failure to implead the Municipality and other
municipal authorities should not deter this Court, in the
interests of justice and equity, from including them herein as
respondents. (at p. 488)
The Compromise Agreement, therefore, must be held binding on the
Municipality of Isabela, which was not, in any way, deprived of its day in Court
(Gabutas vs. Castellanes, L- 17323, 14 SCRA 376, June 23, 1965). Thus, the
payments to petitioner of the sums of P68,389.25 as back salaries,
P21,387.71 as total accumulated vacation/sick leaves, P772.75 as Christmas
bonus, and the back salaries of Mrs. Nanie B. Nunal in the sum of P3,096.00,
have to be upheld. It likewise appears that retirement benefits bad also been
collected by petitioner on 1 April 1985.
In respect, however, of the separation pay claimed by petitioner, we uphold
the ruling of the COA reading in part:
Anent the second issue, this Commission believes and so
holds that the instant claim for separation pay in addition to the
retirement benefits earlier received by claimant is bereft of any
legal basis. Culled from the records is the fact that Mr. Nunal
was dismissed from the service on January 29, 1981 and has
not been reinstated to the service until his position of Municipal
Administrator of Isabela was abolished. In other words, he was
no longer in, or had already been separated from, the service
when the said position was abolished. Evidently then, his
separation from the service was not attributable to the abolition
of the position but was due to his dismissal and, therefore,
Section 76 of Batas Pambansa Blg. 337 which provides
'Section 76.-Abolition of Position. When the position of an
official or employee under the civil service is abolished by law
or ordinance, the official or employee so affected shall be
reinstated in another vacant position without diminution of
salary. Should such position not be available, the official or
employee affected shall be granted a separation pay
equivalent to one month salary for every year of service over
and above the monetary privileges granted to officials and
employees under existing law.'
cannot be validly invoked as legal basis for the claim for
separation pay. Moreover, the fact remains that as earlier seen
Mr. Nunal has already been paid his retirement benefits under
the existing retirement law. His entitlement, therefore, to
separation pay under Batas Pambansa Blg. 337 is offensive to
the general policy of the government prohibiting payment of
double retirement benefits to an employee. (p. 4, COA
Decision No. 388; p. 15, Rollo)
To grant double gratuity is unwarranted (See Cajiuat, et al. vs. Mathay, Sr.,
G.R. No. L-39743, 124 SCRA 710, September 24, 1983).
It may be that the matter of separation pay was included in the Compromise
Agreement. Nonetheless, it could not be granted outright but still had to be
claimed and passed in audit, and has been aptly denied by COA. And
although petitioner did file suit against the Municipality for reinstatement, it
does not follow that he was not effectively dismissed such that he could still
be considered an incumbent whose position had been abolished. A dismissed
employee can be considered as not having left his office only upon
reinstatement and should be given a comparable position and compensation
at the time of reinstatement (Cristobal vs. Melchor, No. L-43203, 101 SCRA
857, December 29, 1980).
Finally, a word on petitioner's contention that the Resolution of this Court
under date of 11 May 1988 is not in accordance with Section 14, Article VIII of
the 1987 Constitution, which provides:
Sec. 14. No decision shall be rendered by any Court without
expressing therein clearly and distinctly the facts and the law
on which it is based.
No petition for review or motion for reconsideration of a
decision of the Court shall be refused due course or denied
without stating the legal basis therefor.
In the first place, our "Resolution" of 11 May 1988 was not a "Decision" within
the meaning of the Constitutional requirement. This mandate is applicable
only in cases "submitted for decision," i.e., given due course and after the
filing of Briefs or Memoranda and/or other pleadings, as the case may be. It is
not applicable to an Order or Resolution refusing due course to a Petition
for Certiorari. In the second place, the assailed Resolution does state the legal
basis for the dismissal of the Petition and thus complies with the Constitutional
provision. (Tayamura, et al., vs. IAC, et al., G.R. No. 76355, May 21, 1987 [en
banc]; see also Que vs. People, G.R. Nos. L-75217-18, 154 SCRA 160,
September 21, 1987).
It may be added that the Writ of certiorari dealt with in Rule 65 of the Rules of
Court is a prerogative Writ, never demandable as a matter of right, "never
issued except in the exercise of judicial discretion." (Bouvier's Law Dictionary,
3d Rev. [8th ed.]; Francisco, The Revised Rules, 1972 ed., Vol. IV- B, pp.
4546, citing 14 C.J.S., 121-122).
ACCORDINGLY, the Resolution of this Court of 11 May 1988 is hereby
PARTIALLY RECONSIDERED in that the disallowance by respondent
Commission on Audit of the amounts ordered paid by the Court of First
Instance of Basilan, Branch 1, in its Decision dated 12 December 1984, is
hereby SET ASIDE, but its disallowance of petitioner's claim for separation
pay of P54,092.50, is hereby SUSTAINED. No costs.
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.
- Periods for deciding cases
- Article VIII, Section 15
- Article VII, Section 18 par. 3
- Act as PET
- Article VII, Section 4 par. 4
- Administrative powers
- Supervision of lower courts - Article VIII,
Section 6
- Temporarily assign judges to other stations in
public interest
- Article VIII, Section 5(3)
- Order a change of venue or place of trial to
avoid miscarriage of justice
- Article VIII, Section 5(4)
- Appointment of officials and employees of
entire judiciary
- Article VIII, section 5(6)
- Promulgate rules concerning the enforcement
and protection of constitutional rights
A.M. 02-1-09-SC, Jan. 21, 2002
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A. M. No. 02-1-07-SC January 21, 2002
RE: REQUEST OF ACCUSED THROUGH COUNSEL FOR CREATION OF
A SPECIAL DIVISION TO TRY THE PLUNDER CASE (SB CRIM. CASE NO.
26558 AND RELATED CASES)
BELLOSILLO, J.:
This Court through its Oversight Committee received on 11 January 2002
Resolution No. 01-2002 of the Sandiganbayan (En Banc) captioned Re:
Request for the Creation of a Special Division to Try the Plunder Case (SB
Crim. Case No. 26558 and related cases affecting the accused). The
Resolution was promulgated on 8 and 11 January 2002 in response to
the Request for Re-Raffle of the defense counsel and the Opposition to
Request for Re-Raffle of the Special Prosecution Panel.
Resolution No. 01-2002 recommends that "the cases against former President
Joseph Ejercito Estrada and those accused with him be referred to a special
division created by constitutional authority of the Supreme Court composed of
three justices with two alternates in case of temporary absence of any of the
three to be chosen from among the present composition of this Court who will
be able to participate therein until the termination of said cases."
In its Request for Re-Raffle, the Defense alleges that it is made "for (a) better
administration of justice" in view of the "shifting and uncertain nature of (the)
composition (of the Third Division)" to which the "Plunder Case" was originally
assigned, citing as based therefor the compulsory retirement of Associate
Justice Ricardo M. Ilarde on 27 November 2001, and the indefinite leave of
absence of Associate Justice Anacleto D. Badoy, Jr., pursuant to our
Resolution of 11 December 2001, thereby leaving a void in the composition of
the regular Third Division. Only Associate Justice Teresita J. Leonardo-De
Castro remains as permanent member thereof. Associate Justices Narciso S.
Nario, Sr., and Nicodemo T. Ferrer who were earlier designated to sit in the
Third Division as special members or so-called "warm bodies" are by the
nature of their designations temporary therein.1wphi1.nt
On 9 January 2002 the Special Prosecution Panel filed an Opposition to
Request for Re-Raffle arguing that there was no assurance that the other
divisions would have a complete set of members since "[c]hanges in
membership in any one of the divisions will surely occur every now and then
occasioned by death, resignation, optional or mandatory retirement, promotion
or other causes x x x x"
This Court is informed that on the basis of the letter-request for re-raffle and
the opposition thereto, the Acting Presiding Justice of Sandiganbayan
immediately called the parties through counsel to a conference on the same
date to give their comment and/or suggestion on how to resolve the issue at
hand.itc-a1f
On 10 January 2002 the Special Prosecution Panel filed its
comment/suggestion maintaining that the Third Division should continue
hearing the Plunder Case, and to achieve constancy in the membership of
that division it recommended the creation of Special Third Division to be
composed of the remaining permanent member of the Third Division, Justice
Teresita J. Leonardo-De Castro, and two (2) other justices who have
heretofore at one time or another taken part in hearing the Plunder Case, who
are not retirable within the next three (3) years, and who are not appointees of
the principal accused.
The Defense Panel on the other hand, in its letter of 11 January 2002, argues
that the creation of an Ad Hoc Special Division "may create serious equal
protection concerns and set a dangerous precedent that may come back to
haunt us." The Defense also manifests its "deep reservations" against the
participation of Justice Leonardo-De Castro "Being an object of an unresolved
petition to recuse as well as an administrative complaint." Consequently, it
recommended the transfer of the "Estrada Cases" to the Fifth Division
composed of Acting Presiding Justice Minita V. Chico-Nazario and Associate
Justices Ma. Cristina G. Cortez-Estrada and Francisco H. Villaruz, Jr., "a
tribunal with a predictable, stable, regular, permanent membership."
As a result of the 7 January 2002 meeting of the Oversight Committee with
Acting Presiding Justice and the Chairmen of the various divisions of the
Sandiganbayan, it was learned that Justices Nicodemo T. Ferrer, Catalino R.
Castaeda, Jr., Anacleto D. Badoy, Jr., Narciso S. Nario, Sr. and Rodolfo G.
Palattao are retiring on 3 August 2002, 20 September 2002, 19 October 2002,
29 October 2002 and 14 December 2003, respectively. Associate Justices
Godofredo L. Legaspi, Gregory S. Ong and Raoul V. Victorino had expressed
their preference not to be assigned to the Special Division to be created in
view of their close relationship and association with the accused and their
families, while Associate Justice Ma. Cristina G. Cortez-Estrada is an
appointee of the principal accused. Associate Justices Francisco H. Villaruz
Jr. is a very recent appointee, while Presiding Justice Francis E. Garchitorena
is devoting himself exclusively to decision writing under authority of A. M. No.
00-8-05-SC.
Thus, we are left with hardly any choice but to designate Acting Presiding
Justice Minita v. Chico-Nazario as Chairman, and Associate Justices Edilberto
G. Sandoval and Teresita J. Leonardo-De Castro as Members of the Special
Division to try and decide the Plunder Case (SB Crim. Case No. 26558 and
related cases).lawphi1.net
As regards Associate Justice Leonardo-De Castro, we do not find the
objection of the Defense Panel sufficient to disqualify her from the case.
Under Sec. 5,par. [5], Art. VIII, of the 1987 Constitution, the Supreme Court
has the power to promulgate rules concerning the protection and enforcement
of constitutional rights and procedure in all courts, including the
Sandiganbayan. Accordingly, given the nature of the Plunder Case and cases
related thereto, the prominence of the principal accused and the importance of
the immediate resolution of the cases to the Filipino people and the Philippine
Government, this Court, in the interest of justice and the speedy disposition of
cases, with due regard to the procedural and substantive rights of the
accused, deems it best to create a Special Division of the Sandiganbayan to
be composed of members mentioned in the immediately preceding paragraph.
This Special Division shall hear, try and decide with dispatch the Plunder
Case and all related cases filed or which may hereafter be filed against former
President Joseph Ejercito Estrada and those accused with him, until they are
resolved, decided and terminated.
The designation of temporary alternate members may be properly addressed
later. Meanwhile, until otherwise revoked, the Acting Presiding Justice is
authorized to designate from time to time, an alternate member to be drawn
from the remaining members of the Sandiganbayan as the exigencies of the
service may require.
WHEREFORE, upon recommendation of the Oversight Committee of this
Court, with due consideration to the facts and all attendant circumstances,
and in the interest of a speedy administration of justice, this Court RESOLVES
toCREATE, as it hereby creates, under its constitutional authority a Special
Division of the Sandiganbayan to be composed of Acting Presiding Justice
Minita V. Chico-Nazario as Chairman, and Associate Justices Edilberto G.
Sandoval and Teresita J. Leonardo-De Castro as Members, to hear, try and
decide with dispatch the Plunder Caseand all related cases filed or may
hereafter be filed against former President Joseph Ejercito Estrada and those
accused with him, until such cases are resolved, decided or otherwise finally
terminated in the Sandiganbayan. 1wphi1.nt
The Special Division may promulgate its own rules not otherwise inconsistent
with or contrary to the Rules of Court or the Rules of the Sandiganbayan to
govern the proceedings in these cases taking into consideration the
constitutional rights of all the parties concerned.
The regular members of the Special Division shall hereafter be excluded from
the regular raffle of cases in the Sandiganbayan except those related cases
herein before mentioned, until such time as this Court or the Sandiganbayan
may see fit to include them as existing conditions may warrant.
SO ORDERED.
Davide, Jr., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ.,
concur.
- Promulgate Rules Concerning Pleading,
Practice and Procedure
Admission to the Practice of Law
Zaldivar vs. Gonzales, 166 SCRA 316 (1988)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 79690-707 October 7, 1988
ENRIQUE A. ZALDIVAR, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M.
GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman
under the 1987 Constitution, respondents.
G.R. No. 80578 October 7, 1988
ENRIQUE A. ZALDIVAR, petitioner,
vs.
HON. RAUL M. GONZALEZ, claiming to be and acting as Tanodbayan-
Ombudsman ombudsman under the 1987 Constitution, respondent.
PER CURIAM:
The following are the subjects of this Resolution:
1) a Motion, dated 9 February 1988, to Cite in Contempt filed by
petitioner Enrique A. Zaldivar against public respondent Special
Prosecutor (formerly Tanodbayan) Raul M. Gonzalez, in connection with
G.R. Nos. 79690-707 and G.R. No. 80578. and 2) a Resolution of this
Court dated 2 May 1988 requiring respondent Hon. Raul Gonzalez to
show cause why he should not be punished for contempt and/or
subjected to administrative sanctions for making certain public
statements.
I authority under the 1987 Constitution to file such criminal cases and to
The pertinent facts are as follows:
Petitioner Zaldivar is one of several defendants in Criminal Cases Nos.
12159-12161 and 12163-12177 (for violation of the Anti-Graft and Corrupt
Practices Act) pending before the Sandiganbayan. The Office of the
Tanodbayan conducted the preliminary investigation and filed the
criminal informations in those cases (originally TBP Case No. 86-00778).
On 10 September 1987, petitioner filed with this Court a Petition for
Certiorari, Prohibition and mandamus (G.R. Nos. 79690-707) naming as
respondents both the Sandiganbayan and Hon. Raul M. Gonzalez.
Among other things, petitioner assailed: (1) the 5 February 1987
Resolution 1 of the "Tanodbayan" recommending the filing of criminal
informations against petitioner Zaldivar and his co-accused in TBP Case No.
86-00778; and (2) the 1 September 1987 Resolution 2 of the Sandiganbayan
in Criminal Cases Nos. 12159-12161 and 1216312177 denying his Motion to
Quash the criminal informations filed in those cases by the "Tanodbayan."
In this respect, petitioner alleged that respondent Gonzalez, as Tanodbayan
and under the provisions of the 1987 Constitution, was no longer vested
with power and authority independently to investigate and to institute
criminal cases for graft and corruption against public officials and
employees, and hence that the informations filed in Criminal Cases Nos.
12159-12161 and 12163-12177 were all null and void.
On 11 September 1987, this Court issued a Resolution, which read:
G.R. Nos. 79690-707 (Enrique A. Zaldivar vs. The
Honorable Sandiganbayan and Honorable Raul M.
Gonzalez, Claiming To Be and Acting as Tanodbayan-
Ombudsman under the 1987 Constitution ).Acting on
the special civil action for certiorari, prohibition and
mandamus under Rule 65 of the Rules of Court, with
urgent motion for preliminary elimination injunction, the
Court Resolved, without giving due course to the petition,
to require the respondents to COMMENT thereon, within
ten (10) days from notice.
The Court further Resolved to ISSUE a TEMPORARY
RESTRAINING ORDER, effective immediately and
continuing until further orders from this Court, ordering
respondent Sandiganbayan to CEASE and DESIST from
hearing and trying Criminal Cases Nos. 12159 to 12161
and 12163 to 12177 insofar as petitioner Enrique Zaldivar
is concerned and from hearing and resolving the Special
Prosecutor's motion to suspend dated September 3, 1987.
The parties later filed their respective pleadings.
Petitioner Zaldivar filed with this Court a second Petition for certiorari
and Prohibition (G.R. No. 80578) on 19 November 1987, initially naming
only Hon. Raul M. Gonzalez as respondent. That Petition assailed the 24
September 1987 Resolution 3 of the "Tanodbayan" in TBP Case No. 87-
01304 recommending that additional criminal charges for graft and
corruption be filed against petitioner Zaldivar and five (5) other individuals.
Once again, petitioner raised the argument of the Tanodbayan's lack of
investigate the same. Petitioner also moved for the consolidation of that
petition with G.R. No. 79690-707.
In a Resolution dated 24 November 1987, 4 this Court, without giving due
course to the second petition: (1) required respondent Gonzalez to submit a
comment thereon: and (2) issued a temporary restraining order "ordering
respondent Hon. Raul M. Gonzalez to CEASE and DESIST from further
acting in TBP Case No. 87-01394 ... and particularly, from filing the criminal
information consequent thereof and from conducting preliminary
investigation therein." In a separate resolution of the same date, 5 G.R. Nos.
79690-707 and G.R. No. 80578 were ordered consolidated by the Court.
In the meantime, however, on 20 November 1987 or four (4) days prior to
issuance by this Court of a temporary restraining order in G.R. No.
80578, the Office of the Tanodbayan instituted Criminal Case No.
12570 6 with the Sandiganbayan which issued on 23 November 1987 an
Order of Arrest 7 for petitioner Zaldivar and his co-accused in Criminal Case
No. 12570. Upon Motion 8 of petitioner Zaldivar, this Court issued the
following Resolution on 8 December 1987:
G.R. No. 80578 (Enrique A. Zaldivar vs. Hon. Raul M.
Gonzalez and Sandiganbayan). The motion filed by the
Solicitor General for respondents for an extension of
thirty (30) days from the expiration of the original period
within which to file comment on the petition for certiorari
and prohibition with prayer for a writ of preliminary
injunction or restraining order is GRANTED.
Acting on the manifestation with motion to treat the
Sandiganbayan as party-respondent, the Court Resolved
to (a) Consider IMPLEADED the Sandiganbayan as party
respondent; and (b) In pursuance of and supplementing
the Temporary Restraining Order of November 24, 1987
"ordering respondent Hon. Raul M. Gonzalez to CEASE
and DESIST from further acting in TBP Case No. 87-01304
entitled, "Commission on Audit vs. Gov. Enrique Zaldivar,
et al." and particularly, from filing the criminal information
consequent thereof and from conducting preliminary
investigation therein" ISSUE a TEMPORARY
RESTRAINING ORDER effective immediately and
continuing until further orders from this Court, ordering
respondents Hon. Raul M. Gonzalez and Sandiganbayan
to CEASE and DESIST from further acting in Criminal
Case No. 12570, entitled, "People of the Philippines vs.
Enrique M. Zaldivar, et al." and from enforcing the order of
arrest issued by the Sandiganbayan in said case.
The Solicitor General filed a Comment 9 on the petition in G.R. No. 80578,
and we required the petitioner to submit a Reply 10 thereto.
On 9 February 1988, petitioner Zaldivar filed with the Court a Motion to
Cite in Contempt 11 directed at respondent Gonzalez. The Motion cited as
bases the acts of respondent Gonzalez in: (1) having caused the filing of the
information against petitioner in Criminal Case No. 12570 before the
Sandiganbayan; and (2) issuing certain allegedly contemptuous statements
to the media in relation to the proceedings in G.R. No. 80578. In respect of
the latter, petitioner annexed to his Motion a photocopy of a news article,
reproduced here in toto, which appeared in the 30 November 1987 issue of
the "Philippine Daily Globe:"
Tanod Scores SC for Quashing Graft Case
TANODBAYAN Justice Raul M. Gonzalez said yesterday
the Supreme Court order stopping him from investigating
graft cases involving Antique Gov. Enrique Zaldivar can
aggravate the thought that affluent persons "an prevent
the progress of a trial."
What I am afraid of (with the issuance of the order) is that
it appears that while rich and influential persons get
favorable actions from the Supreme Court, it is difficult for
an ordinary litigant to get his petition to be given due
course. Gonzalez told the Daily Globe in an exclusive
interview.
Gonzalez said the high tribunal's order '"eightens the
people's apprehension over the justice system in this
country, especially because the people have been
thinking that only the small fly can get it while big fishes
go scot-free."
Gonzalez was reacting to an order issued by the tribunal
last week after Zaldivar petitioned the court to stop the
Tanodbayan from investigating graft cases filed against
him.
Zaldivar had charged that Gonzalez was biased in his
investigations because the latter wanted to help promote
the political fortunes of a friend from Antique, lawyer
Bonifacio Alentajan.
Acting on Zaldivar's petition, the high court stopped
Gonzalez from investigating a graft charge against the
governor, and from instituting any complaint with the
Sandiganbayan.
While President Aquino had been prodding me to
prosecute graft cases even if they involve the high and
mighty, the Supreme Court had been restraining
me. Gonzalez said.
In accordance with the President's order, Gonzalez said
he had filed graft cases against two "very powerful"
officials of the Aquino government-Commissioner Quintin
Doromal of the Presidential Commission on Good
Government and Secretary Jiamil I.M. Dianlan of the
Office of Muslim Affairs and Cultural Communities.
While I don't wish to discuss the merits of the Zaldivar
petition before the Supreme Court, I am a little bit
disturbed that (the order) can aggravate the thinking of
some people that affluent persons can prevent the
progress of a trial, he said.
He disclosed that he had a talk with the Chief Executive
over the weekend and that while she symphatizes with
local officials who are charged in court during election
time, 'She said that it might be a disservice to the people
and the voters who are entitled to know their candidates.
 Gonzalez said that while some cases filed against local
officials during election time could be mere harassment
suits, the Constitution makes it a right of every citizen to
be informed of the character of tile candidate, who should
be subject to scrutiny. (Emphasis supplied)
Acting on petitioner's Motion to Cite in Contempt, the Court on 16
February 1988 required respondent Gonzalez "to COMMENT on
aforesaid Motion within ten (10) days from notice." 12 On 27 April 1988, the
Court rendered its Decision 13 (per curiam) in the Consolidated Petitions.
The dispositive portion thereof read:
WHEREFORE, We hereby:
(1) GRANT the consolidated petitions filed by petitioner
Zaldivar and hereby NULLIFY the criminal informations
filed against him in the Sandiganbayan; and
(2) ORDER respondent Raul Gonzalez to cease and desist
from conducting investigations and filing criminal cases
with the Sandiganbayan or otherwise exercising the
powers and functions of the Ombudsman.
SO ORDERED.
A Motion for Reconsideration 14 was filed by respondent Gonzalez the next
day, 28 April 1988. In his Motion, respondent Gonzalez, after having argued
the legal merits of his position, made the following statements totally
unrelated to any legal issue raised either in the Court's Decision or in his
own Motion:
1. That he "ha(d) been approached twice by a leading
member of the court ... and he was asked to 'go slow on
Zaldivar and 'not to be too hard on him;' "
2. That he "was approached and asked to refrain from
investigating the COA report on illegal disbursements in
the Supreme Court because 'it will embarass the Court;"
and
3. That "(i)n several instances, the undersigned
respondent was called over the phone by a leading
member of the Court and was asked to dismiss the cases
against (two Members of the Court)."
Respondent Gonzalez also attached three (3) handwritten notes 15 which
he claimed were sent by "some members of this Honorable Court,
interceeding for cases pending before this office (i.e., the Tanodbayan)." He
either released his Motion for Reconsideration with facsimiles of said notes
to the press or repeated to the press the above extraneous statements: the
metropolitan papers for the next several days carried long reports on those
statements and variations and embellishments thereof On 2 May 1988, the
Court issued the following Resolution in the Consolidated Petitions:
G.R. No. 79690-707 (Enrique Zaldivar vs. The Hon.
Sandiganbayan, et al. G.R. No. 80578 (Enrique A. Zaldivar
vs. Hon. Raul M. Gonzalez, etc).
1. Acting on the Motion for Reconsideration filed by
respondent Gonzalez under date of April 28, 1988, the
Court Resolved to REQUIRE the petitioner to COMMENT
thereon within ten (10) days from notice hereof.
2. It appearing that respondent Raul M. Gonzalez has
made public statements to the media which not only deal
with matters subjudice but also appear offensive to and
disrespectful of the Court and its individual members and
calculated, directly or indirectly, to bring the Court into
disrepute, discredit and ridicule and to denigrate and
degrade the administration of justice, the Court Resolved
to require respondent Gonzalez to explain in writing
within ten (10) days from notice hereof, why he should not
be punished for contempt of court and/or subjected to
administrative sanctions for making such public
statements reported in the media, among others, in the
issues of the "Daily Inquirer," the "Journal," the "Manila
Times," the "Philippine Star," the "Manila Chronicle" the
"Daily Globe" and the "Manila Standard" of April 29 and
30, and May 1, 1988, to wit:
(a) That the Court resolution in question is merely "an
offshoot of the position he had taken that the SC Justices
cannot claim immunity from suit or investigation by
government prosecutors or motivated by a desire to stop
him 'from investigating cases against some of their
proteges or friends;"
(b) That no less than six of the members of the Court
"interceded for and on behalf of persons with pending
cases before the Tanodbayan," or sought "to pressure
him to render decisions favorable to their colleagues and
friends;"
(c) That attempts were made to influence him to go slow
on Zaldivar and not to be too hard on him and to refrain
from investigating the Commission on Audit report on
illegal disbursements in the Supreme Court because it will
embarass the Court;
(d) That there were also attempts to cause the dismissal
of cases against two Associate Justices; and
(e) That the Court had dismissed judges' without rhyme or
reason' and disbarred lawyers 'without due process.
3. It further appearing that three (3) affidavits relative to
the purpose of and circumstances attendant upon the
notes written to said public respondent by three (3)
members of the Court have since been submitted to the
Court and now form part of its official records, the Court
further Resolved to require the Clerk of Court to ATTACH
to this Resolution copies of said sworn statements and
the annexes thereto appended, and to DIRECT respondent
Gonzalez also to comment thereon within the same period
of ten (10) days.
 4. It finally appearing that notice of the Resolution of
February 16, 1988 addressed to respondent Gonzalez was
misdelivered and therefore not served on him, the Court
Resolved to require the Clerk of Court to CAUSE SERVICE
of said Resolution on the respondent and to REQUIRE the
latter to comply therewith.
Respondent Gonzalez subsequently filed with this Court on 9 May 1988
an Omnibus Motion for Extension and Inhibition 16 alleging, among other
things: that the above quoted 2 May 1988 Resolution of the Court "appears
to have overturned that presumption [of innocence] against him:" and that
"he gravely doubts whether that 'cold neutrality [of an impartial judge] is
still available to him" there being allegedly "at least 4 members of this
Tribunal who will not be able to sit in judgment with substantial sobriety and
neutrality." Respondent Gonzalez closed out his pleading with a prayer that
the four (4) Members of the Court Identified and referred to there by him
inhibit themselves in the deliberation and resolution of the Motion to Cite in
Contempt.
On 19 May 1988 17 after receipt of respondent's Supplemental Motion for
Reconsideration. 18 this Court in an extended per
curiam Resolution 19 denied the Motion and Supplemental Motion for
Reconsideration. That denial was made "final and immediately executory.
Respondent Gonzalez has since then filed the following pleadings of
record:
1. Manifestation with Supplemental Motion to
Inhibition 20 dated 23 May 1988;
2. Motion to Transfer Administrative Proceedures to the
Integrated Bar of the Philippines 21dated 20 May 1988
3. Urgent Motion for Additional Extension of Time to File
Explanation Ex Abundante Cautelam,22 dated 26 May 1988;
4. Urgent Ex-Parte Omnibus Motion
(a) For Extension of Time
(b) For Inhibition and
(c) For Transfer of Administrative Proceedings to the IBP,
Under Rule 139-B 23 dated 4 June 1988 (with Annex
"A;" 24 an anonymous letter dated 27 May 1988 from the
alleged Concerned Employees of the Supreme Court and
addressed to respondent):
5. Ex-Parte Manifestation 25 dated 7 June 1988;
6. Urgent Ex-Parte Motion for Reconsideration 26 1988; and
7. Urgent Ex-Parte Manifestation with Motion 27 member
1988.
In compliance with the 2 May 1988 Resolution of this Court quoted
earlier, respondent Gonzalez submitted on 17 June 1988 an Answer with
Explanation and Comment 28 offering respondent's legal arguments and
defenses against the contempt and disciplinary charges presently pending
before this Court. Attached to that pleading as Annex "A" thereof was
respondent's own personal Explanation/Compliance 29 second explanation
called "Compliance," 30 with annexes, was also submitted by respondent on
22 July 1988.
II
We begin by referring to the authority of the Supreme Court to discipline
officers of the court and members of the Bar. The Supreme Court, as
regulator and guardian of the legal profession, has plenary disciplinary
authority over attorneys. The authority to discipline lawyers stems from
the Court's constitutional mandate to regulate admission to the practice
of law, which includes as well authority to regulate the practice itself of
law. 31 Quite apart from this constitutional mandate, the disciplinary
authority of the Supreme Court over members of the Bar is an inherent
power incidental to the proper administration of justice and essential to an
orderly discharge of judicial functions. 32 Moreover, the Supreme Court has
inherent power to punish for contempt, to control in the furtherance of
justice the conduct of ministerial officers of the Court including lawyers and
all other persons connected in any manner with a case before the
Court. 33 The power to punish for contempt is "necessary for its own
protection against an improper interference with the due administration of
justice," "(it) is not dependent upon the complaint of any of the parties
litigant. 34
There are, in other words, two (2) related powers which come into play in
cases like that before us here; the Court's inherent power to discipline
attorneys and the contempt power. The disciplinary authority of the
Court over members of the Bar is broader than the power to punish for
contempt. Contempt of court may be committee both by lawyers and
non-lawyers, both in and out of court. Frequently, where the contemnor
is a lawyer, the contumacious conduct also constitutes professional
misconduct which calls into play the disciplinary authority of the
Supreme Court. 35 Where the respondent is a lawyer, however, the Supreme
Court's disciplinary authority over lawyers may come into play whether or
not the misconduct with which the respondent is charged also constitutes
contempt of court. The power to punish for contempt of court does not
exhaust the scope of disciplinary authority of the Court over lawyers. 36 The
disciplinary authority of the Court over members of the Bar is but corollary
to the Court's exclusive power of admission to the Bar. A lawyer is not
merely a professional but also an officer of the court and as such, he is
called upon to share in the task and responsibility of dispensing justice and
resolving disputes in society. Any act on his part which visibly tends to
obstruct, pervert, or impede and degrade the administration of justice
constitutes both professional misconduct calling for the exercise of
disciplinary action against him, and contumacious conduct warranting
application of the contempt power.
It is sometimes asserted that in the exercise of the power to punish for
contempt or of the disciplinary authority of the Court over members of
the Bar, the Court is acting as offended party, prosecutor and arbiter at
one and the same time. Thus, in the present case, respondent Gonzalez
first sought to get some members of the Court to inhibit themselves in
the resolution of this case for alleged bias and prejudice against him. A
little later, he in effect asked the whole Court to inhibit itself from
passing upon the issues involved in this proceeding and to pass on
responsibility for this matter to the Integrated Bar of the Philippines,
upon the ground that respondent cannot expect due process from this
Court, that the Court has become incapable of judging him impartially
and fairly. Respondent Gonzalez misconceives the nature of the
proceeding at bar as well as the function of the members of the Court in
such proceeding.
Respondent's contention is scarcely an original one. In In Re
Almacen, 37 then Associate (later Chief) Justice Fred Fruiz Castro had
occasion to deal with this contention in the following lucid manner:
xxx xxx xxx
It is not accurate to say, nor is it an obstacle to the
exercise of our authority in the premises, that, as Atty.
Almacen would have it appear, the members of the Court
are the 'complainants, prosecutors and judges' all rolled
up into one in this instance. This is an utter
misapprehension, if not a total distortion, not only of the
nature of the proceeding at hand but also of our role
therein.
Accent should be laid on the fact that disciplinary
proceedings like the present are sui generis. Neither
purely civil nor purely criminal, this proceeding is not
and does not involvea trial of an action or a suit, but is
rather an investigation by the Court into the conduct of its
officers. Not being intended to inflict punishment, it is in
no sense a criminal prosecution. Accordingly, there is
neither a plaintiff nor a prosecutor therein. It may be
initiated by the Court motu proprio. Public interest is its
primary objective, and the real question for determination
is whether or not the attorney is still a fit person to be
allowed the privileges as such. Hence, in the exercise of
its disciplinary powers, the Court merely calls upon a
member of the Bar to account for his actuations as an
officer of the Court with the end in view of preserving the
purity of the legal profession and the property and honest
administration of justice by purging the profession of
members who by their misconduct have proved
themselves no longer worthy to be entrusted with the
duties and responsibilities pertaining to the office of an
attorney. In such posture, there can thus be no occasion
to speak of a complainant or a prosecutor.
Undeniably, the members of the Court are, to a certain
degree, aggrieved parties. Any tirade against the Court as
a body is necessarily and inextricably as much so against
the individual members thereof But in the exercise of its
disciplinary powers, the Court acts as an entity separate
and distinct from the individual personalities of its
members. Consistently with the intrinsic nature of a
collegiate court, the individual members act not as such
individuals but only as a duly constituted court. The
distinct individualities are lost in the majesty of their
office. So that, in a very real sense, if there be any
complainant in the case at bar, it can only be the Court
itself, not the individual members thereofas well as the
people themselves whose rights, fortunes and properties,
nay, even lives, would be placed at grave hazard should
the administration of justice be threatened by the
retention in the Bar of men unfit to discharge the solemn
responsibilities of membership in the legal fraternity.
Finally, the power to exclude persons from the practice of
law is but a necessary incident of the power to admit
persons to said practice. By constitutional precept, this
power is vested exclusively in this Court. This duty it
cannot abdicate just as much as it cannot unilaterally
renounce jurisdiction legally invested upon it. So that
even if it be conceded that the members collectively are in
a sense the aggrieved parties, that fact alone does not
and cannot disqualify them from the exercise of the power
because public policy demands that they, acting as a
Court, exercise the power in all cases which call for
disciplinary action. The present is such a case. In the end,
the imagined anomaly of the merger in one entity of the
personalities of complainant, prosecutor and judge is
absolutely inexistent.
xxx xxx xxx. 38
It should not be necessary for the members of this Court expressly to
disclaim any bias or prejudice against the respondent that would
prevent them from acting in accordance with the exacting requirements
of their oaths of office. It also appears to the Court that for all the
members to inhibit themselves from sitting on this case is to abdicate
the responsibility with which the Constitution has burdened them.
Reference of complaints against attorneys either to the Integrated Bar of
the Philippines or to the Solicitor General is not mandatory upon the
Supreme Court; such reference to the Integrated Bar of the Philippines
or to the Solicitor General is certainly not an exclusive procedure under
the terms of Rule 139-B of the Revised Rules of Court, especially where
the charge consists of acts done before the Supreme Court. There is no
need for further investigation of facts in the present case for it is not
substantially disputed by respondent Gonzalez that he uttered or wrote
certain statements attributed to him. In any case, respondent has had
the amplest opportunity to present his defense; his defense is not that
he did not make the statements ascribed to him but that those
statements give rise to no liability on his part, having been made in the
exercise of his freedom of speech. The issues which thus need to be
resolved here are issues of law and of basic policy and the Court, not
any other agency, is compelled to resolve such issues.
III
It is necessary to become very explicit as to what respondent Gonzalez
was saying in his statements set out above. Respondent has not denied
making the above statements; indeed, he acknowledges that the
newspaper reports of the statements attributed to him are substantially
correct. 39
Respondent Gonzalez was in effect saying, firstly, that the Supreme
Court deliberately rendered an erroneous or wrong decision when it
rendered its per curiam Decision dated 27 April 1988 in G.R. Nos. 79690-
707 and 80578. That decision according to respondent Gonzalez, was
issued as an act of retaliation by the Court against him for the position
he had taken "that the (Supreme Court) Justices cannot claim immunity
from suit or investigation by government prosecutors," and in order to
stop respondent from investigating against "some of (the) proteges or
friends (of some Supreme Court Justices)." The Court cannot, of course,
and will not debate the correctness of its Decision of 27 April 1988 and
of its Resolution dated 19 May 1988 (denying respondent Gonzalez
Motion for Reconsideration) in the consolidated Zaldivar cases.
Respondent Gonzalez, and anyone else for that matter, is free
intellectually to accept or not to accept the reasoning of the Court set
out in its per curiam Decision and Resolution in the consolidated
Zaldivar cases. This should not, however, obscure the seriousness of
the assault thus undertaken by respondent against the Court and the
appalling implications of such assault for the integrity of the system of
administration of justice in our country. Respondent has said that the
Court rendered its Decision and Resolution without regard to the legal
merits of the Zaldivar cases and had used the judicial process to impose
private punishment upon respondent for positions he had taken
(unrelated to the Zaldivar cases) in carrying out his duties. It is very
difficult to imagine a more serious affront to, or a greater outrage upon,
the honour and dignity of this Court than this. Respondent's statement
is also totally baseless. Respondent's statements were made in
complete disregard of the fact that his continuing authority to act
as Tanodbayanor Ombudsman after the effectivity of the 1987
Constitution, had been questioned before this Court as early as 10
September 1987 in the Petition for Certiorari, Prohibition and mandamus
filed against him in these consolidated Petitions 40 that is, more than
seven (7) months before the Court rendered its Decision. Respondent also
ignores the fact that one day later, this Court issued a Temporary
Restraining Order effective immediately ordering the Sandiganbayan to
cease and desist from hearing the criminal cases filed against petitioner
Zaldivar by respondent Gonzalez. Respondent also disregards the fact that
on 24 November 1987, upon the filing of a second Petition for certiorari for
Prohibition by Mr. Zaldivar, the Court issued a Temporary Restraining Order
this time requiring the respondentto cease and desist from further acting in
TBP Case No. 87-0934. Thus, the decision finally reached by this Court in
April 1988 on the constitutional law issue pending before the Court for the
preceding eight (8) months, could scarcely have been invented as a reprisal
simply against respondent.
A second charge that respondent Gonzalez hurled against members of
the Supreme Court is that they have improperly Id pressured" him to
render decisions favorable to their "colleagues and friends," including
dismissal of "cases" against two (2) members of the Court. This
particularly deplorable charge too is entirely baseless, as even a cursory
examination of the contents of the handwritten notes of three (3)
members of this Court addressed to respondent (which respondent
attached to his Motion for Reconsideration of the Decision of this Court
of 27 April 1988 in the consolidated Petitions) win show. It is clear, and
respondent Gonzalez does not pretend otherwise, that the subject
matters of the said notes had no relation at all to the issues in G.R. Nos.
79690-707 and 80578. This charge appears to have been made in order
to try to impart some substance (at least in the mind of respondent) to
the first accusation made by respondent that the Court had deliberately
rendered a wrong decision to get even with respondent who had, with
great fortitude, resisted "pressure" from some members of the Court.
Once again, in total effect, the statements made by respondent appear
designed to cast the Court into gross disrepute, and to cause among the
general public scorn for and distrust in the Supreme Court and, more
generally, the judicial institutions of the Republic.
Respondent Gonzalez has also asserted that the Court was preventing
him from prosecuting "rich and powerful persons," that the Court was in
effect discrimination between the rich and powerful on the one hand and
the poor and defenseless upon the other, and allowing "rich and
powerful" accused persons to go "scot-free" while presumably allowing
or affirming the conviction of poor and small offenders. This accusation
can only be regarded as calculated to present the Court in an extremely
bad light. It may be seen as intended to foment hatred against the
Supreme Court; it is also suggestive of the divisive tactics of
revolutionary class war.
Respondent, finally, assailed the Court for having allegedly "dismissed
judges 'without rhyme or reason' and disbarred lawyers 'without due
process.'" The Court notes that this last attack is not without relation to
the other statements made by respondent against the Court. The total
picture that respondent clearly was trying to paint of the Court is that of
an "unjudicial" institution able and willing to render "clearly erroneous"
decisions by way of reprisal against its critics, as a body that acts
arbitrarily and capriciously denying judges and lawyers due process of
law. Once again, the purport of respondent's attack against the Court as
an institution unworthy of the people's faith and trust, is unmistakable.
Had respondent undertaken to examine the records 'of the two (2)
judges and the attorney he later Identified in one of his Explanations, he
would have discovered that the respondents in those administrative
cases had ample opportunity to explain their side and submit evidence
in support thereof. 41 He would have also found that there were both strong
reasons for and an insistent rhyme in the disciplinary measures there
administered by the Court in the continuing effort to strengthen the judiciary
and upgrade the membership of the Bar. It is appropriate to recall in this
connection that due process as a constitutional precept does not, always
and in all situations, require the trial-type proceeding, 42 that the essence of
due process is to be found in the reasonable opportunity to be heard and to
submit any evidence one may have in support of one's defense. 43 "To be
heard" does not only mean verbal arguments in court; one may be heard
also through pleadings. Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no denial of procedural due
process. 44
As noted earlier, respondent Gonzalez was required by the Court to
explain why he should not be punished for contempt and/or subjected to
administrative discipline for making the statements adverted to above. In
his subsequent pleadings where he asked the full Court to inhibit itself
and to transfer the administrative proceedings to the Integrated Bar of
the Philippines, respondent made, among others, the following
allegations:
(a) That the Members of the Court "should inhibit
[themselves] in the contempt and administrative charges
against the respondent, in the light of the manifest
prejudice and anger they hold against respondent as
shown in the language of the resolution on the Motion for
Reconsideration;"
(b) That "the entire membership of the court has already
lost that 'cold neutrality of an impartial judge' [to] be able
to allow fairness and due process in the contempt citation
as well as in the possible administrative charge;
(c) That "respondent honestly feels that this court as
angry and prejudiced as it is, respondent has no china
man's chance to get fair hearing in the contempt and
possible administrative charges;"
(d) That one must consider "the milieu before this
Tribunal with, perhaps passion and obfuscation running
riot;"
(e) That respondent, "after having been castigated with
such venom by the entire Court in its decision denying
the Motion for Reconsideration, does not have confidence
in the impartiality of the entire Court" and that he "funds it
extremely difficult to believe that the members of this
Tribunal can still act with unbiased demeanor towards
him;" and
(f) That "the Tribunal is determined to disbar [respondent]
without due process" and that a specified Member of the
Court "has been tasked to be the ponente, or at least
prepare the decision." (Underscoring in the original)
Thus, instead of explaining or seeking to mitigate his statements earlier
made, respondent sought to heap still more opprobrium upon the Court,
accusing it of being incapable of judging his acts and statements justly
and according to law. Once again, he paints this Court as a body not
only capable of acting without regard to due process but indeed
determined so to act. A grand design to hold up this Court to public
scorn and disrespect as an unworthy tribunal, one obfuscated by
passion and anger at respondent, emerges once more. It is very difficult
for members of this Court to understand how respondent Gonzalez
could suppose that judges on the highest tribunal of the land would be
ready and willing to violate their most solemn oath of office merely to
gratify any imagined private feelings aroused by respondent. The
universe of the Court revolves around the daily demands of law and
justice and duty, not around respondent nor any other person or group
of persons.
Whether or not the statements made by respondent Gonzalez may
reasonably be regarded by this Court as contumacious or as warranting
exercise of the disciplinary authority of this Court over members of the
Bar, may best be assayed by examining samples of the kinds of
statements which have been held in our jurisdiction as constituting
contempt or otherwise warranting the exercise of the Court's authority.
1. In Montecillo v. Gica, 45 Atty. Quirico del Mar as counsel for Montecillo,
who was accused in a slander case, moved to reconsider a decision of the
Court of Appeals in favor of the complainant with a veiled threat that he
should interpose his next appeal to the President of the Philippines. In his
Motion for Reconsideration, he referred to the provisions of the Revised
Penal Code on "knowingly rendering an unjust judgment," and "judgment
rendered through negligence" and implied that the Court of Appeals had
allowed itself to be deceived. Atty. del Mar was held guilty of contempt of
court by the Court of Appeals. He then sued the three (3) justices of the
Court of Appeals for damages before the Court of First Instance of Cebu,
seeking to hold them liable for their decision in the appealed slander case.
This suit was terminated, however, by compromise agreement after Atty. del
Mar apologized to the Court of Appeals and the justices concerned and
agreed to pay moral damages to the justices. Atty. del Mar some time later
filed with this Court a Petition for Review on certiorari of a decision of the
Court of Appeals in a slander case. This Court denied the Petition for
Review. Atty. del Mar then filed a Motion for Reconsideration and addressed
a letter to the Clerk of the Supreme Court asking for the names of the
justices of this Court who had voted in favor of and those who had voted
against his Motion for Reconsideration. After his Motion for Reconsideration
was denied for lack of merit, Atty. del Mar filed a Manifestation in this Court
saying:
I can at this time reveal to you that, had your Clerk of
Court furnished me with certified true copies of the last
two Resolutions of the Supreme Court confirming the
decision of the Court of Appeals in the case
entitled Francisco M. Gica vs. Jorge Montecillo, I would
have filed against the Justices supporting the same, civil
and criminal suits as I did to the Justices of the Court of
Appeals who, rewarding the abhorent falsification
committed by Mr. Gica, reversed for him the decisions of
the City Court and the Court of First Instance of Cebu, not
with a view to obtaining a favorable judgment therein but
 for the purpose of exposing to the people the corroding
evils extant in our Government, so that they may well
know them and work for their extermination.(60 SCRA at
240;emphasis supplied)
Counsel was asked to explain why he should not be administratively
dealt with for making the above statements. In his additional
explanation, Atty. del Mar made the following statements:
... Graft, corruption and injustice are rampant in and
outside of the Government. It is this state of things that
convinced me that all human efforts to correct and/or
reform the said evils will be fruitless and, as stated in my
manifestation to you, I have already decided to retire from
a life of militancy to a life of seclusion, leaving to God the
filling up deficiencies. (60 SCRA at 242)
The Court suspended Atty. del Mar, "until further orders," from the
practice of law saying:
... Respondent is utilizing what exists in his mind as state
of graft, corruption and injustice allegedly rampant in and
outside of the government as justification for his
contemptuous statements. In other words, he already
assumed by his own contemptuous utterances that
because there is an alleged existence of rampant
corruption, graft and injustice in and out of the
government, We, by Our act in G.R. No. L-36800, are
among the corrupt, the grafters and those allegedly
committing injustice. We are at a complete loss to follow
respondent del Mar's logic ...
xxx xxx xxx
To aged brethren of the bar it may appear belated to
remind them that second only to the duty of maintaining
allegiance to the Republic of the Philippines and to
support the Constitution and obey the laws of the
Philippines, is the duty of all attorneys to observe and
maintain the respect due to the courts of justice and
judicial officers (Sec. 20 (b) Rule 138, Rules of Court). But
We do remind them of said duty to emphasize to their
younger brethren its paramount importance. A lawyer
must always remember that he is an officer of the court
exercising a high privilege and serving in the noble
mission of administering justice.
xxx xxx xxx.
As already stated, the decision of the Court of Appeals in
C.A G.R. No. 46504-R was based on its evaluation of the
evidence on only one specific issue. We in turn denied in
G.R. No. L-36800 the petition for review on certiorari of the
decision because We found no reason for disturbing the
appellate court's finding and conclusion. In both
instances, both the Court of Appeals and this Court
exercised judicial discretion in a case under their
respective jurisdiction. The intemperate and imprudent
act of respondent del Mar in resorting to veiled threats to
make both Courts reconsider their respective stand in the
decision and the resolution that spelled disaster for his
client cannot be anything but pure contumely for aid
tribunals.
It is manifest that respondent del Mar has scant respect
for the two highest Court of the land when on the flimsy
ground of alleged error in deciding a case, he proceeded
to challenge the integrity of both Courts by claiming that
they knowingly rendered unjust judgment. In short, his
allegation is that they acted with intent and malice, if not
with gross ignorance of the law, in disposing of the case
of his client.
xxx xxx xxx
... To those who are in the practice of law and those who
in the future will choose to enter this profession, We wish
to point to this case as a reminder for them to imprint in
their hearts and minds that an attorney owes it to himself
to respect the courts of justice and its officers as a fealty
for the stability of our democratic institutions. (60 SCRA
at 242-247: emphasis supplied)
2. In Surigao Mineral Reservation Board v. Cloribel, 46 four (4) members of
the bar, acting as counsel for MacArthur International Minerals Company
were required by this Court to explain certain statements made in
MacArthur's third Motion for Reconsideration:
d. ...; and I the Supreme Court I has overlooked the
applicable law due to the mis-representation and
obfuscation of the petitioners' counsel. (Last sentence,
par. 1, Third Motion for Reconsideration dated Sept. 10,
1968).
e. ... Never has any civilized democratic tribunal ruled that
such a gimmick (referring to the "right to reject any and all
bids") can be used by vulturous executives to cover up
and excuse losses to the public, a government agency or
just plain fraud ... and it is thus difficult, in the light of our
upbringing and schooling, even under many of the
incumbent justices, that the Honorable Supreme Court
intends to create a decision that in effect does precisely
that in a most absolute manner. (Second sentence, par. 7,
Third Motion for Reconsideration dated Sept. 10, 1968).
(31 SCRA at 6)
They were also asked to explain the statements made in their Motion to
Inhibit filed on 21 September 1968 asking
Mr. Chief Justice Roberto Concepcion and Mr. Justice
Fred Ruiz Castro to inhibit themselves from considering,
judging and resolving the case or any issue or aspect
 thereof retroactive to January 11, 1967. The motion
charges "It that the brother of the Honorable Associate
Justice Castro is a vice-president of the favored party who
is the chief beneficiary of the false, erroneous and illegal
decision dated January 31, 1968" and the ex-
parte preliminary injunction rendered in the above-entitled
case, the latter in effect prejudging and predetermining
this case even before the joining of an issue. As to the
Chief Justice, the motion states [t]hat the son of the
Honorable Chief Justice Roberto Concepcion was given a
significant appointment in the Philippine Government by
the President a short time before the decision of July 31,
1968 was rendered in this case. The appointment referred
to was as secretary of the newly-created Board of
Investments. The motion presents a lengthy discourse on
judicial ethics, and makes a number of side comments
projecting what is claimed to be the patent wrongfulness
of the July 31, 1968 decision. It enumerates "incidents"
which, according to the motion, brought about
respondent MacArthur's belief that unjudicial prejudice
had been caused it and that there was 'unjudicial
favoritism' in favor of 'petitioners, their appointing
authority and a favored party directly benefited by the
said decision
(31 SCRA at 6-7)
Another attorney entered his appearance as new counsel for MacArthur
and filed a fourth Motion for Reconsideration without leave of court,
which Motion contained the following paragraphs:
4. The said decision is illegal because it was penned by
the Honorable Chief Justice Roberto Concepcion when in
fact he was outside the borders of the Republic of the
Philippines at the time of the Oral Argument of the above-
entitled casewhich condition is prohibited by the New
Rules of CourtSection 1, Rule 51, and we quote:
"Justices; who may take part... . Only those members
present when any matter is submitted for oral argument
will take part in its consideration and adjudication ... ."
This requirement is especially significant in the present
instance because the member who penned the decision
was the very member who was absent for approximately
four months or more. This provision also applies to the
Honorable Justices Claudio Teehankee and Antonio
Barredo.
xxx xxx xxx
6. That if the respondent MacArthur International Minerals
Company abandons its quest for justice in the Judiciary
of the Philippine Government, it will inevitably either raise
the graft and corruption of Philippine Government
officials in the bidding of May 12, 1965, required by the
Nickel Law to determine the operator of the Surigao nickel
deposits, to the World Court on grounds of deprivation of
justice and confiscation of property and/or to the United
States Government, either its executive or judicial
branches or both, on the grounds of confiscation of
respondent's proprietary vested rights by the Philippine
Government without either compensation or due process
of law and invoking the Hickenlooper Amendment
requiring the cutting off of all aid and benefits to the
Philippine Government, including the sugar price
premium, amounting to more than fifty million dollars
annually, until restitution or compensation is made.
(31 SCRA at 10-11)
Finding their explanations unsatisfactory, the Court, speaking through
Mr. Justice Sanchez, held three (3) attorneys guilty of contempt:
1. We start with the case of Atty. Vicente L. Santiago. In
his third motion for reconsideration, we, indeed, find
language that is not to be expected of an officer of the
courts. He pictures petitioners as 'vulturous executives.'
He speaks of this Court as a 'civilized, democratic
tribunal,' but by innuendo would suggest that it is not.
In his motion to inhibit, his first paragraph categorizes our
decision of July 31, 1968 as 'false, erroneous and illegal'
in a presumptuous manner. He then charges that the ex
parte preliminary injunction we issued in this case
prejudiced and predetermined the case even before the
joining of an issue. He accuses in a reckless manner two
justices of this Court for being interested in the decision
of this case: Associate Justice Fred Ruiz Castro, because
his brother is the vice president of the favored party who
is the chief beneficiary of the decision, and Chief Justice
Roberto Concepcion, whose son was appointed secretary
of the newly-created Board of Investments, 'a significant
appointment in the Philippine Government by the
President, a short time before the decision of July 31,
1968 was rendered.' In this backdrop, he proceeds to state
that 'it would seem that the principles thus established
[the moral and ethical guidelines for inhibition of any
judicial authority by the Honorable Supreme Court should
first apply to itself.' He puts forth the claim that lesser and
further removed conditions have been known to create
favoritism, only to conclude that there is no reason for a
belief that the conditions obtaining in the case of the
Chief Justice and Justice Castro would be less likely to
engender favoritism and prejudice for or against a
particular cause or party.' Implicit in this at least is that
the Chief Justice and Justice Castro are insensible
to delicadeza, which could make their actuation suspect.
He makes it plain in the motion that the Chief Justice and
Justice Castro not only were not free from the appearance
of impropriety but did arouse suspicion that their
relationship did affect their judgment. He points out that
courts must be above suspicion at all times like Ceasar's
wife, warns that loss of confidence for the Tribunal or a
member thereof should not be allowed to happen in our
country, 'although the process has already begun.
xxx xxx xxx
What is disconcerting is that Atty. Santiago's accusations
have no basis in fact and in law. The slur made is not
limited to the Chief Justice and Mr. Justice Castro. It
sweepingly casts aspersion on the whole court. For,
inhibition is also asked if, we repeated any other justices
who have received favors or benefits directly or indirectly
from any of the petitioners or any members of any board-
petitioner or their agents or principals, including the
president.' The absurdity of this posture is at once
apparent. For one thing, the justices of this Court are
appointed by the President and in that sense may be
considered to have each received a favor from the
President. Should these justices inhibit themselves every
time a case involving the Administration crops up? Such
a thought may not certainly be entertained. The
consequence thereof would be to paralyze the machinery
of this Court. We would in fact, be wreaking havoc on the
tripartite system of government operating in this country.
Counsel is presumed to know this. But why the
unfounded charge? There is the not too-well concealed
effort on the part of a losing litigant's attorney to
downgrade this Court.
The mischief that stems from all of the foregoing gross
disrespect is easy to discern. Such disrespect detracts
much from the dignity of a court of justice. Decidedly not
an expression of faith, counsel's words are intended to
create an atmosphere of distrust, of disbelief.
xxx xxx xxx
The precepts, the teachings, the injunctions just recited
are not unfamiliar to lawyers. and yet,this Court finds in
the language of Atty. Santiago a style that undermines
and degrades the administration of justice. The stricture
in Section 3 (d) of Rule 71 of the Rules against improper
conduct tending to degrade the administration of justice
is thus transgressed. Atty. Santiago is guilty of contempt
of court.
xxx xxx xxx
Third. The motion contained an express threat to take the
case to the World Court and/or the United States
government. It must be remembered that respondent
MacArthur at that time was still trying to overturn the
decision of this Court of July 31, 1968. In doing so,
unnecessary statements were in ejected. More
specifically, the motion announced that McArthur 'will
inevitably ... raise the graft and corruption of the
Philippine government officials in the bidding of May 12,
1965 ... to the World Court' and would invoke 'the
Hickenlooper Amendment requiring the cutting off of all
aid and benefits to the Philippine Government, including
the sugar price premium, amount to more than fifty million
dollars annually ...
This is a clear attempt to influence or bend the blind of
this Court to decide the case' in its favor. A notice of
appeal to the World Court has even been embodied in
Meads return. There is a gross inconsistency between the
appeal and the move to reconsider the decision. An
appeal from a decision presupposes that a party has
already abandoned any move to reconsider that decision.
And yet, it would appear that the appeal to the World
Court is being dangled as a threat to effect a change of
the decision of this Court. Such act has no aboveboard
explanation.
xxx xxx xxx
The dignity of the Court, experience teaches, can never be
protected where infraction of ethics meets with
complacency rather than punishment. The people should
not be given cause to break faith with the belief that a
judge is the epitome of honor amongst men. To preserve
its dignity, a court of justice should not yield to the
assaults of disrespect. Punctilio of honor, we prefer to
think, is a standard of behavior so desirable in a lawyer
pleading a cause before a court of justice. (31 SCRA at 13-
23; emphasis supplied)
3. In In re Almacen, supra, Atty. Vicente Raul Almacen, in protest against
what he asserted was "a great injustice committed against his client by
the Supreme Court," filed a Petition to Surrender Lawyer's Certificate of
Title. He alleged that his client was deeply aggrieved by this Court's
"unjust judgment," and had become "one of the sacrificial victims before
the altar of hypocrisy," saying that "justice as administered by the
present members of the Supreme Court [was) not only blind, but also
deaf and dumb." Atty. Almacen vowed to argue the cause of his client
"in the people's forum" so that "the people may know of this silent
injustice committed by this Court' and that "whatever mistakes, wrongs
and injustices that were committed [may] never be repeated." Atty.
Almacen released to the press the contents of his Petition and on 26
September 1967, the "Manila Times" published statements attributed to
him as follows:
Vicente Raul Almacen, in an unprecedented petition, said
he did not expose the tribunal's'unconstitutional and
obnoxious' practice of arbitrarily denying petitions or
appeals without any reason.
Because of the tribunal's 'short-cut justice.' Almacen
deplored, his client was condemned to pay
P120,000, without knowing why he lost the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said
in this petition, 'where our Supreme Court is composed of
men who are calloused to our pleas of justice, who ignore
without reason their own applicable decisions and commit
culpable violations of the Constitution with impunity.'
xxx xxx xxx
He expressed the hope that by divesting himself of his
title by which he earns his living, the present members of
the Supreme Court 'will become responsible to all cases
brought to its attention without discrimination, and will
purge itself of those unconstitutional and obnoxious "lack
of merit' or "denied resolutions. (31 SCRA at 565566;
emphasis supplied)
Atty. Almacen was required by this Court to show cause why
disciplinary action should not be taken against him. His explanation,
which in part read:
xxx xxx xxx
The phrase, Justice is blind is symbolized in paintings
that can be found in all courts and government offices.
We have added only two more symbols, that it is also deaf
and dumb. Deaf in the sense that no members of this
Court has ever heard our cries for charity, generosity,
fairness, understanding, sympathy and for justice; dumb
in the sense, that inspire of our beggings, supplications,
and pleadings to give us reasons why our appeals has
been DENIED, not one word was spoken or given ... We
refer to no human defect or ailment in the above
statement. We only described the impersonal state of
Things and nothing more.
xxx xxx xxx
As we have stated, we have lost our faith and confidence
in the members of this Court and for which reason we
offered to surrender our lawyer's certificate, IN TRUST
ONLY. Because what has been lost today may be regained
tomorrow. As the offer was intended as our self-imposed
sacrifice, then we alone may decide as to when we must
end our self- sacrifice. If we have to choose between
forcing ourselves to have faith and confidence in the
members of the Court but disregard our Constitution and
to uphold the Constitution and be condemned by the
members of this Court, there is no choice, we must
uphold the latter. (31 SCRA at 572; emphasis supplied)
was found by the Court to be "undignified and cynical" and rejected. The
Court indefinitely suspended Almacen from the practice of law holding,
through Mr. Justice Fred Ruiz Castro, that Almacen had exceeded the
boundaries of "fair criticism."
4. In Paragas V. Cruz, 47 Counsel, whose Petition for Ceriorari ran was
dismissed by this Court, made the following statements in his Motion for
Reconsideration:
The petitioner respectfully prays for a reconsideration of
the resolution of this Honorable Court dated April 20,1966
on the ground that it constitutes a violation of Section 14
of Rule 11 2 of the Rules of Court promulgated by this
very Hon. Supreme Court, and on the further ground that
it is likewise a violation of the most important right in the
Bill of Rights of the Constitution of the Philippines, a
culpable violation which is a ground for impeachment.
... The rule of law in a democracy should always be upheld
and protected by all means, because the rule of law
creates and preserves peace and order and gives
satisfaction and contentment to all concerned. But when
the laws and the rules are violated, the victims resort,
sometimes, to armed force and to the ways of the
cavemen We do not want Verzosa and Reyes repeated
again and again, killed in the premises of the Supreme
Court and in those of the City Hall of Manila.Educated
people should keep their temper under control at all
times! But justice should be done to all concerned to
perpetuate the very life of Democracy on the face of the
earth. (14 SCRA at 810; emphasis supplied)
The Court considered the above statements as derogatory to the dignity
of the Court and required counsel to show cause why administrative
action should not be taken against him. Counsel later explained that he
had merely related factual events (i.e., the killing of Verzosa and Reyes)
and to express his desire to avoid repetition of such acts. The Court,
through Mr. Justice J.B.L. Reyes, found these explanations
unsatisfactory and the above statements contumacious.
... The expressions contained in the motion for
reconsideration ... are plainly contemptuous and
disrespectful, and reference to the recent killing of two
employees is but a covert threat upon the members of the
Court. ... That such threats and disrespectful language
contained in a pleading filed in courts are constitutive of
direct contempt has been repeatedly decided(Salcedo vs.
Hernandez, 61 Phil. 724; People vs. Venturanza, 52 Off.
Gaz. 769; Medina vs. Rivera, 66 Phil. 151; De Joya vs.
 Court of First Instance of Rizal, 1, 9785, September
19,1956; Sison vs. Sandejas L- 9270, April 29,1959;
Lualhati vs. Albert, 57 Phil. 86). What makes the present
case more deplorable is that the guilty party is a member
of the bar; for, as remarked in People vs. Carillo, 77 Phil.
580-
Counsel should conduct himself towards the judges who
try his cases with that courtesy all have a right to expect.
As an officer of the court, it is his sworn and moral duty to
help build and not destroy unnecessarily that high esteem
and regard towards the courts so essential to the proper
administration of justice.
It in light and plausible that an attorney in defending the
cause and rights of his client, should do so with all the
fervor and energy of which he is capable, but it is not, and
never will be so, for him to exercise said right by resorting
to intimidation or proceeding without the propriety and
respect which the dignity of the courts require. (Salcedo
vs. Hernandez, [In re Francisco], 61 Phil. 729)' (1 4 SCRA
at 811-812; emphasis supplied)
5. In In re Sotto, 48 a newspaper reporter, Mr. Angel Parazo, invoking the
Press Freedom Law, refused to divulge the source of the news item which
carried his by-line and was sent to jail for so refusing. Atty. Vicente Sotto, a
senator and author of said law, caused the publication of the following item
in a number of daily newspapers in Manila:
As author of the Press Freedom Law (Republic Act No.
53), interpreted by the Supreme Court in the case of Angel
Parazo, reporter of a local daily, who now has to suffer 30
days imprisonment, for his refusal to divulge the source
of a news published in his paper, I regret to say that our
High Tribunal has not only erroneously interpreted said
law, but that it is once more putting in evidence the
incompetency or narrow mindedness of the majority of its
members. In the wake of so many blunders and injustices
deliberately committed during these last years, I believe
that the only remedy to put an end to so much evil, is to
change the members of the Supreme Court.To this effect,
I announce that one of the first measures, which I will
introduce in the coming congressional sessions, will have
as its object the complete reorganization of the Supreme
Court. As it is now constituted, the Supreme Court of
today constitutes a constant peril to liberty and
democracy. It need be said loudly, very loudly, so that
even the deaf may hear: The Supreme Court of today is a
far cry from the impregnable bulwark of Justice of those
memorable times of Cayetano Arellano, Victorino Mapa,
Manuel Araullo and other learned jurists who were the
honor and glory of the Philippine Judiciary. (82 Phil. at
597-598; emphasis supplied)
In finding Atty. Sotto in contempt, despite his avowals of
good faith and his invocation of the constitutional
guarantee of free speech and in requiring him to show
cause why he should not be disbarred, the Court, through
Mr. Justice Feria, said-
To hurl the false charge that this Court has been for the
last years committing deliberately so many blunders and
injustices that is to say, that it has been deciding in favor
of one party knowing that the law and justice is on the
part of the adverse party and not on the one in whose
favor the decision was rendered, in many cases decided
during the last years, would tend necessarily to
undermine the coincidence of the people in the honesty
and integrity of the members of this Court, and
consequently to lower and degrade the administration of
justice by this Court. The Supreme Court of the
Philippines is, under the Constitution, the last bulwark to
which the Filipino people may repair to obtain relief for
their grievances or protection of their rights when these
are trampled upon, and if the people lose their confidence
in the honesty and integrity of the members of this Court
and believe that they cannot expect justice therefrom,
they might be driven to take the law into their hands, and
disorder and perhaps chaos might be the result. As a
member of the bar and an officer of the courts Atty.
Vicente Sotto, like any other, is in duty bound to uphold
the dignity and authority of this Court, to which he owes
fidelity according to the oath he has taken as such
attorney, and not to promote distrust in the administration
of justice. Respect to the courts guarantees the stability
of other institutions, which without such guaranty would
be resting on a very shaky foundation. (82 Phil. at 601-
602; emphasis supplied)
6. In Salcedo v. Hernandez, 49 Atty. Vicente Francisco filed a Motion before
the Supreme Court which contained the following paragraph (in translation):
We should like frankly and respectfully to make it of
record that the resolution of this court, denying our
motion for reconsideration, is absolutely erroneous
and constitutes an outrage to the rights of the petitioner
Felipe Salcedo and a mockery of the popular will
expressed at the polls in the municipality of Tiaong,
Tayabas. We wish to exhaust all the means within our
power in order that this error may be corrected by the
very court which has committed it, because we should not
want that some citizen, particularly some voter of the
municipality of Tiaong, Tayabas, resort to the press
 publicly to denounce, as he has a right to do, the judicial
outrage of which the herein petitioner has been the victim,
and because it is our utmost desire to safeguard the
prestige of this honorable court and of each and every
member thereof in the eyes of the public. But, at the same
time we wish to state sincerely that erroneous decisions
like these, which the affected party and his thousands of
voters will necessarily consider unjust, increase the
proselytes of sakdalism and make the public lose
confidence in the administration of justice. (61 Phil. at
726; emphasis supplied)
When required by the Court to show cause why he should not be
declared in contempt, Atty. Francisco responded by saying that it was
not contempt to tell the truth. Examining the statements made above, the
Court held:
... [they] disclose, in the opinion of this court,
an inexcusable disrespect of the authority of the court
and an intentional contempt of its dignity, because the
court is thereby charged with no less than having
proceeded in utter disregard of the laws, the rights of the
parties, and of the untoward consequences, or with
having abused its power and mocked and flouted the
rights of Attorney Vicente J. Francisco's client, because
the acts of outraging and mocking from which the words
'outrage' and mockery' used therein are derived, means
exactly the same as all these, according to the Dictionary
of the Spanish Language published by the Spanish
Academy (Dictionary of the Spanish Language, 15th ed.,
pages 132-513).
The insertion of the phrases in question in said motion of
Attorney Vicente J. Francisco, for many years a member
of the Philippine bar, was neither justified nor in the least
necessary, because in order to call the attention of the
court in a special way to the essential points relied upon
in his argument and to emphasize the force thereof, the
many reasons stated in his said motion were sufficient
and the phrases in question were superfluous. In order to
appeal to reason and justice, it is highly improper and
amiss to make trouble and resort to threats, as Attorney
Vicente J. Francisco has done, because both means are
annoying and good practice can ever sanction them by
reason of their natural tendency to disturb and hinder the
free exercise of a serene and impartial judgment,
particularly in judicial matters, in the consideration of
questions submitted for resolution.
There is no question that said paragraph of Attorney
Vicente J. Francisco's motion contains a more or less
veiled threat to the court because it is insinuated therein,
after the author shows the course which the voters of
Tiaong should follow in case he fails in his attempt, that
they will resort to the press for the purpose of
denouncing, what he claims to be a judicial outrage of
which his client has been the victim; and because he
states in a threatening manner with the intention of
predisposing the mind of the reader against the court,
thus creating an atmosphere of prejudices against it in
order to make it odious in the public eye, that decisions of
the nature of that referred to in his motion to promote
distrust in the administration of justice and increase the
proselytes of sakdalism a movement with seditious and
revolutionary tendencies the activities of which, as is of
public knowledge, occurred in this country a few days
ago. This cannot mean otherwise than contempt of the
dignity of the court and disrespect of the authority thereof
on the part of Attorney Vicente J. Francisco, because he
presumes that the court is so devoid of the sense of
justice that, if he did not resort to intimidation, it would
maintain its error notwithstanding the fact that it may be
proven, with good reasons, that it has acted erroneously.
As a member of the bar and an officer of this court,
Attorney Vicente J. Francisco, as any attorney, is in duty
bound to uphold its dignity and authority and to defend its
integrity, not only because it had conferred upon him the
high privilege, not a right (Malcolm, Legal Ethics, 158 and
160), of being what he now is: a priest of justice (In re
Thatcher, 80 Ohio St., Rep., 492, 669), but also because in
so doing, he neither creates nor promotes distrust in the
administration of justice, and prevents anybody from
harboring and encouraging discontent which, in many
cases, is the source of disorder, thus undermining the
foundation upon which rests that bulwark called judicial
power to which those who are aggrieved turn for
protection and relief (61 Phil. at 727-728; emphasis
supplied)
It should not be supposed that the six (6) cases above discussed
exhaust our case law on this matter. In the following cases, among
others, the Supreme Court punished for contempt or administratively
disciplined lawyers who had made statements not very different from
those made in the cases discussed above:
1) In re Wenceslao Laureta, 148 SCRA 382 (1987);
2) Borromeo v. Court of appeals, 87 SCRA 67 (1978);
3) Rheem of the Philippines v. Ferrer, 20 SCRA 441 (1967);
4) Malolos v. Reyes, 1 SCRA 559 (1961);
5) De Joya, et al. v. Court of First Instance of Rizal, Pasay
City Branch, 99 Phil. 907 (1956);
6) People v. Venturanza, et al., 98 Phil. 211 (1956);
 7) In re Suzano A. Velasquez, per curiam Resolution
(unreported), Promulgated 29 April 1955;
8) Cornejo v. Tan, 85 Phil. 772 (1950);
9) People v. Carillon, 77 Phil. 572 (1946);
10) Intestate Estate of Rosario 0lba; Contempt
Proceedings against Antonio Franco, 67 Phil. 312 (1939);
and
11) Lualhati v. Albert, 57 Phil. 86 (1932).
Considering the kinds of statements of lawyers discussed above which
the Court has in the past penalized as contemptuous or as warranting
application of disciplinary sanctions, this Court is compelled to hold that
the statements here made by respondent Gonzalez clearly constitute
contempt and call for the exercise of the disciplinary authority of the
Supreme Court. Respondent's statements, especially the charge that the
Court deliberately rendered an erroneous and unjust decision in the
Consolidated Petitions, necessarily implying that the justices of this
Court betrayed their oath of office, merely to wreak vengeance upon the
respondent here, constitute the grossest kind of disrespect for the
Court. Such statements very clearly debase and degrade the Supreme
Court and, through the Court, the entire system of administration of
justice in the country. That respondent's baseless charges have had
some impact outside the internal world of subjective intent, is clearly
demonstrated by the filing of a complaint for impeachment of thirteen
(13) out of the then fourteen (14) incumbent members of this Court, a
complaint the centerpiece of which is a repetition of the appalling claim
of respondent that this Court deliberately rendered a wrong decision as
an act of reprisal against the respondent.
IV
The principal defense of respondent Gonzalez is that he was merely
exercising his constitutional right of free speech. He also invokes the
related doctrines of qualified privileged communications and fair
criticism in the public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of free
speech. No one seeks to deny him that right, least of all this Court. What
respondent seems unaware of is that freedom of speech and of
expression, like all constitutional freedoms, is not absolute and that
freedom of expression needs on occasion to be adjusted to and
accommodated with the requirements of equally important public
interests. One of these fundamental public interests is the maintenance
of the integrity and orderly functioning of the administration of justice.
There is no antinomy between free expression and the integrity of the
system of administering justice. For the protection and maintenance of
freedom of expression itself can be secured only within the context of a
functioning and orderly system of dispensing justice, within the context,
in other words, of viable independent institutions for delivery of justice
which are accepted by the general community. As Mr. Justice
Frankfurter put it:
... A free press is not to be preferred to an independent
judiciary, nor an independent judiciary to a free press.
Neither has primacy over the other; both are
indispensable to a free society. The freedom of the press
in itself presupposes an independent judiciary through
which that freedom may, if necessary be vindicated. And
one of the potent means for assuring judges their
independence is a free press. 50
Mr. Justice Malcolm of this Court expressed the same thought in the
following terms:
The Organic Act wisely guarantees freedom of speech
and press. This constitutional right must be protected in
its fullest extent. The Court has heretofore given evidence
of its tolerant regard for charges under the Libel Law
which come dangerously close to its violation. We shall
continue in this chosen path. The liberty of the citizens
must be preserved in all of its completeness. But license
or abuse of liberty of the press and of the citizens should
not be confused with liberty ill its true sense. As
important as is the maintenance of an unmuzzled press
and the free exercise of the rights of the citizens is the
maintenance of the independence of the
Judiciary. Respect for the Judiciary cannot be had if
persons are privileged to scorn a resolution of the court
adopted for good purposes, and if such persons are to be
permitted by subterranean means to diffuse inaccurate
accounts of confidential proceedings to the
embarassment of the parties and the courts. 51 (Emphasis
supplied)
Only slightly (if at all) less important is the public interest in the capacity
of the Court effectively to prevent and control professional misconduct
on the part of lawyers who are, first and foremost, indispensable
participants in the task of rendering justice to every man. Some courts
have held, persuasively it appears to us, that a lawyer's right of free
expression may have to be more limited than that of a layman. 52
It is well to recall that respondent Gonzalez, apart from being a lawyer
and an officer of the court, is also a Special Prosecutor who owes duties
of fidelity and respect to the Republic and to this Court as the
embodiment and the repository of the judicial power in the government
of the Republic. The responsibility of the respondent "to uphold the
dignity and authority of this Court' and "not to promote distrust in the
administration of justice 53 is heavier than that of a private practicing
lawyer.
Respondent Gonzalez claims to be and he is, of course, entitled to
criticize the rulings of this Court, to point out where he feels the Court
may have lapsed into error. Once more, however, the right of criticism is
not unlimited. Its limits were marked out by Mr. Justice Castro in In re
Almacen which are worth noting
 But it is the cardinal condition of all such criticism that it
shall be bonafide and shall not spill over the walls of
decency and propriety. A wide chasm exists between fair
criticism, on the one hand, and abuse and slander of
courts and the judges thereof, on the other. Intemperate
and unfair criticism is a gross violation of the duty of
respect to courts. It is such a misconduct that subjects a
lawyer to disciplinary action.
The lawyer's duty to render respectful subordination to
the courts is essential to the orderly administration of
justice. Hence, in the assertion of their clients' rights,
lawyers even those gifted with superior intellect are
enjoined to rein up their tempers.
xxx xxx xxx 54
(Emphasis supplied)
The instant proceeding is not addressed to the fact that respondent has
criticized the Court; it is addressed rather to the nature of that criticism
or comment and the manner in which it was carried out.
Respondent Gonzalez disclaims an intent to attack and denigrate the
Court. The subjectivities of the respondent are irrelevant so far as
characterization of his conduct or misconduct is concerned. He will not,
however, be allowed to disclaim the natural and plain import of his
words and acts. 55 It is upon the other hand, not irrelevant to point out that
respondent offered no apology in his two (2) explanations and exhibited no
repentance. 56
Respondent Gonzalez also defends himself contending that no injury to
the judiciary has been shown, and points to the fact that this Court
denied his Motion for Reconsideration of its per curiam Decision of 27
April 1988 and reiterated and amplified that Decision in its Resolution of
19 May 1988. In the first place, proof of actual damage sustained by a
court or the judiciary in general is not essential for a finding of contempt
or for the application of the disciplinary authority of the Court. Insofar as
the Consolidated Petitions are concerned, this Court after careful review
of the bases of its 27 April 1988 Decision, denied respondent's Motion
for Reconsideration thereof and rejected the public pressures brought to
bear upon this Court by the respondent through his much publicized
acts and statements for which he is here being required to account.
Obstructing the free and undisturbed resolution of a particular case is
not the only species of injury that the Court has a right and a duty to
prevent and redress. What is at stake in cases of this kind is the integrity
of the judicial institutions of the country in general and of the Supreme
Court in particular. Damage to such institutions might not be
quantifiable at a given moment in time but damage there will surely be if
acts like those of respondent Gonzalez are not effectively stopped and
countered. The level of trust and confidence of the general public in the
courts, including the court of last resort, is not easily measured; but few
will dispute that a high level of such trust and confidence is critical for
the stability of democratic government.
Respondent Gonzalez lastly suggests that punishment for contempt is
not the proper remedy in this case and suggests that the members of
this Court have recourse to libel suits against him. While the remedy of
libel suits by individual members of this Court may well be available
against respondent Gonzalez, such is by no means an exclusive remedy.
Moreover, where, as in the instant case, it is not only the individual
members of the Court but the Court itself as an institution that has been
falsely attacked, libel suits cannot be an adequate remedy. 57
The Court concludes that respondent Gonzalez is guilty both of
contempt of court in facie curiae and of gross misconduct as an officer
of the court and member of the Bar.
ACCORDINGLY, the Court Resolved to SUSPEND Atty. Raul M. Gonzalez
from the practice of law indefinitely and until further orders from this
Court, the suspension to take effect immediately.
Let copies of this Resolution be furnished the Sandiganbayan, the
Ombudsman, the Secretary of Justice, the Solicitor General and the
Court of Appeals for their information and guidance.
Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino,
Medialdea and Regalado, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
Resolution March 18, 1954
In the Matter of the Petitions for Admission to the Bar of Unsuccessful
Candidates of 1946 to 1953;
ALBINO CUNANAN, ET AL., petitioners.
Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile Inton
for petitioners.
Office of the Solicitor General Juan R. Liwag for respondent.
DIOKNO, J.:
In recent years few controversial issues have aroused so much public interest
and concern as Republic Act No. 972, popularly known as the "Bar Flunkers'
Act of 1953." Under the Rules of Court governing admission to the bar, "in
order that a candidate (for admission to the Bar) may be deemed to have
passed his examinations successfully, he must have obtained a general
average of 75 per cent in all subjects, without falling below 50 per cent in any
subject." (Rule 127, sec. 14, Rules of Court). Nevertheless, considering the
varying difficulties of the different bar examinations held since 1946 and the
varying degree of strictness with which the examination papers were graded,
this court passed and admitted to the bar those candidates who had obtained
an average of only 72 per cent in 1946, 69 per cent in 1947, 70 per cent in
1948, and 74 per cent in 1949. In 1950 to 1953, the 74 per cent was raised to
75 per cent.
Believing themselves as fully qualified to practice law as those reconsidered aforesaid law as an additional ground for admission. There are also others
and passed by this court, and feeling conscious of having been discriminated who have sought simply the reconsideration of their grades without, however,
against (See Explanatory Note to R.A. No. 972), unsuccessful candidates who invoking the law in question. To avoid injustice to individual petitioners, the
obtained averages of a few percentage lower than those admitted to the Bar court first reviewed the motions for reconsideration, irrespective of whether or
agitated in Congress for, and secured in 1951 the passage of Senate Bill No. not they had invoked Republic Act No. 972. Unfortunately, the court has found
12 which, among others, reduced the passing general average in bar no reason to revise their grades. If they are to be admitted to the bar, it must
examinations to 70 per cent effective since 1946. The President requested the be pursuant to Republic Act No. 972 which, if declared valid, should be
views of this court on the bill. Complying with that request, seven members of applied equally to all concerned whether they have filed petitions or not. A
the court subscribed to and submitted written comments adverse thereto, and complete list of the petitioners, properly classified, affected by this decision, as
shortly thereafter the President vetoed it. Congress did not override the veto. well as a more detailed account of the history of Republic Act No. 972, are
Instead, it approved Senate Bill No. 371, embodying substantially the appended to this decision as Annexes I and II. And to realize more readily the
provisions of the vetoed bill. Although the members of this court reiterated effects of the law, the following statistical data are set forth:
their unfavorable views on the matter, the President allowed the bill to become (1) The unsuccessful bar candidates who are to be benefited by section 1 of
a law on June 21, 1953 without his signature. The law, which incidentally was Republic Act No. 972 total 1,168, classified as follows:
enacted in an election year, reads in full as follows: 1946 (August) 206 121 18
REPUBLIC ACT NO. 972
AN ACT TO FIX THE PASSING MARKS FOR BAR 1946 (November) 477 228 43
EXAMINATIONS FROM NINETEEN HUNDRED AND FORTY- 1947 749 340 0
SIX UP TO AND INCLUDING NINETEEN HUNDRED AND
FIFTY-FIVE. 1948 899 409 11
Be it enacted by the Senate and House of Representatives of 1949 1,218 532 164
the Philippines in Congress assembled:
SECTION 1. Notwithstanding the provisions of section fourteen, Rule 1950 1,316 893 26
numbered one hundred twenty-seven of the Rules of Court, any bar 1951 2,068 879 196
candidate who obtained a general average of seventy per cent in any
bar examinations after July fourth, nineteen hundred and forty-six up 1952 2,738 1,033 426
to the August nineteen hundred and fifty-one bar examinations; 1953 2,555 968 284
seventy-one per cent in the nineteen hundred and fifty-two bar
examinations; seventy-two per cent in the in the nineteen hundred and TOTAL 12,230 5,421 1,168
fifty-three bar examinations; seventy-three per cent in the nineteen Of the total 1,168 candidates, 92 have passed in subsequent examination,
hundred and fifty-four bar examinations; seventy-four per cent in the and only 586 have filed either motions for admission to the bar pursuant to
nineteen hundred and fifty-five bar examinations without a candidate said Republic Act, or mere motions for reconsideration.
obtaining a grade below fifty per cent in any subject, shall be allowed (2) In addition, some other 10 unsuccessful candidates are to be benefited by
to take and subscribe the corresponding oath of office as member of section 2 of said Republic Act. These candidates had each taken from two to
the Philippine Bar: Provided, however, That for the purpose of this Act, five different examinations, but failed to obtain a passing average in any of
any exact one-half or more of a fraction, shall be considered as one them. Consolidating, however, their highest grades in different subjects in
and included as part of the next whole number. previous examinations, with their latest marks, they would be sufficient to
SEC. 2. Any bar candidate who obtained a grade of seventy-five per reach the passing average as provided for by Republic Act No. 972.
cent in any subject in any bar examination after July fourth, nineteen (3) The total number of candidates to be benefited by this Republic Acts is
hundred and forty-six shall be deemed to have passed in such subject therefore 1,094, of which only 604 have filed petitions. Of these 604
or subjects and such grade or grades shall be included in computing petitioners, 33 who failed in 1946 to 1951 had individually presented motions
the passing general average that said candidate may obtain in any for reconsideration which were denied, while 125 unsuccessful candidates of
subsequent examinations that he may take. 1952, and 56 of 1953, had presented similar motions, which are still pending
SEC. 3. This Act shall take effect upon its approval. because they could be favorably affected by Republic Act No. 972,
Enacted on June 21, 1953, without the Executive approval. although as has been already stated, this tribunal finds no sufficient reasons
After its approval, many of the unsuccessful postwar candidates filed petitions to reconsider their grades
for admission to the bar invoking its provisions, while others whose motions UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972
for the revision of their examination papers were still pending also invoked the
Having been called upon to enforce a law of far-reaching effects on the
practice of the legal profession and the administration of justice, and because
some doubts have been expressed as to its validity, the court set the hearing
of the afore-mentioned petitions for admission on the sole question of whether
or not Republic Act No. 972 is constitutional.
We have been enlightened in the study of this question by the brilliant
assistance of the members of the bar who have amply argued, orally an in
writing, on the various aspects in which the question may be gleaned. The
valuable studies of Messrs. E. Voltaire Garcia, Vicente J. Francisco, Vicente
Pelaez and Buenaventura Evangelista, in favor of the validity of the law, and
of the U.P. Women's Lawyers' Circle, the Solicitor General, Messrs. Arturo A.
Alafriz, Enrique M. Fernando, Vicente Abad Santos, Carlos A. Barrios, Vicente
del Rosario, Juan de Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta
against it, aside from the memoranda of counsel for petitioners, Messrs. Jose
M. Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio Enrile Inton, and of
petitioners Cabrera, Macasaet and Galema themselves, has greatly helped us
in this task. The legal researchers of the court have exhausted almost all
Philippine and American jurisprudence on the matter. The question has been
the object of intense deliberation for a long time by the Tribunal, and finally,
after the voting, the preparation of the majority opinion was assigned to a new
member in order to place it as humanly as possible above all suspicion of
prejudice or partiality.
Republic Act No. 972 has for its object, according to its author, to admit to the
Bar, those candidates who suffered from insufficiency of reading materials
and inadequate preparation. Quoting a portion of the Explanatory Note of the
proposed bill, its author Honorable Senator Pablo Angeles David stated:
The reason for relaxing the standard 75 per cent passing grade is the
tremendous handicap which students during the years immediately
after the Japanese occupation has to overcome such as the
insufficiency of reading materials and the inadequacy of the
preparation of students who took up law soon after the liberation.
Of the 9,675 candidates who took the examinations from 1946 to 1952, 5,236
passed. And now it is claimed that in addition 604 candidates be admitted
(which in reality total 1,094), because they suffered from "insufficiency of
reading materials" and of "inadequacy of preparation."
By its declared objective, the law is contrary to public interest because it
qualifies 1,094 law graduates who confessedly had inadequate preparation for
the practice of the profession, as was exactly found by this Tribunal in the
aforesaid examinations. The public interest demands of legal profession
adequate preparation and efficiency, precisely more so as legal problem
evolved by the times become more difficult. An adequate legal preparation is
one of the vital requisites for the practice of law that should be developed
constantly and maintained firmly. To the legal profession is entrusted the
protection of property, life, honor and civil liberties. To approve officially of
those inadequately prepared individuals to dedicate themselves to such a
delicate mission is to create a serious social danger. Moreover, the statement
that there was an insufficiency of legal reading materials is grossly
exaggerated. There were abundant materials. Decisions of this court alone in
mimeographed copies were made available to the public during those years
and private enterprises had also published them in monthly magazines and
annual digests. The Official Gazette had been published continuously. Books
and magazines published abroad have entered without restriction since 1945.
Many law books, some even with revised and enlarged editions have been
printed locally during those periods. A new set of Philippine Reports began to
be published since 1946, which continued to be supplemented by the addition
of new volumes. Those are facts of public knowledge.
Notwithstanding all these, if the law in question is valid, it has to be enforced.
The question is not new in its fundamental aspect or from the point of view of
applicable principles, but the resolution of the question would have been
easier had an identical case of similar background been picked out from the
jurisprudence we daily consult. Is there any precedent in the long Anglo-
Saxon legal history, from which has been directly derived the judicial system
established here with its lofty ideals by the Congress of the United States, and
which we have preserved and attempted to improve, or in our
contemporaneous judicial history of more than half a century? From the
citations of those defending the law, we can not find a case in which the
validity of a similar law had been sustained, while those against its validity
cite, among others, the cases of Day (In re Day, 54 NE 646), of Cannon
(State vs. Cannon, 240 NW, 441), the opinion of the Supreme Court of
Massachusetts in 1932 (81 ALR 1061), of Guaria (24 Phil., 37), aside from
the opinion of the President which is expressed in his vote of the original bill
and which the postponement of the contested law respects.
This law has no precedent in its favor. When similar laws in other countries
had been promulgated, the judiciary immediately declared them without force
or effect. It is not within our power to offer a precedent to uphold the disputed
law.
To be exact, we ought to state here that we have examined carefully the case
that has been cited to us as a favorable precedent of the law that of Cooper
(22 NY, 81), where the Court of Appeals of New York revoked the decision of
the Supreme court of that State, denying the petition of Cooper to be admitted
to the practice of law under the provisions of a statute concerning the school
of law of Columbia College promulgated on April 7, 1860, which was declared
by the Court of Appeals to be consistent with the Constitution of the state of
New York.
It appears that the Constitution of New York at that time provided:
They (i.e., the judges) shall not hold any other office of public trust. All
votes for either of them for any elective office except that of the Court
of Appeals, given by the Legislature or the people, shall be void. They
shall not exercise any power of appointment to public office. Any male
citizen of the age of twenty-one years, of good moral character, and
who possesses the requisite qualifications of learning and ability, shall
be entitled to admission to practice in all the courts of this State. (p.
93).
According to the Court of Appeals, the object of the constitutional precept is
as follows:
 Attorneys, solicitors, etc., were public officers; the power of appointing
them had previously rested with the judges, and this was the principal
appointing power which they possessed. The convention was
evidently dissatisfied with the manner in which this power had been
exercised, and with the restrictions which the judges had imposed
upon admission to practice before them. The prohibitory clause in the
section quoted was aimed directly at this power, and the insertion of
the provision" expecting the admission of attorneys, in this particular
section of the Constitution, evidently arose from its connection with the
object of this prohibitory clause. There is nothing indicative of
confidence in the courts or of a disposition to preserve any portion of
their power over this subject, unless the Supreme Court is right in the
inference it draws from the use of the word `admission' in the action
referred to. It is urged that the admission spoken of must be by the
court; that to admit means to grant leave, and that the power of
granting necessarily implies the power of refusing, and of course the
right of determining whether the applicant possesses the requisite
qualifications to entitle him to admission.
These positions may all be conceded, without affecting the validity of
the act. (p. 93.)
Now, with respect to the law of April 7, 1860, the decision seems to indicate
that it provided that the possession of a diploma of the school of law of
Columbia College conferring the degree of Bachelor of Laws was evidence of
the legal qualifications that the constitution required of applicants for
admission to the Bar. The decision does not however quote the text of the
law, which we cannot find in any public or accessible private library in the
country.
In the case of Cooper, supra, to make the law consistent with the Constitution
of New York, the Court of Appeals said of the object of the law:
The motive for passing the act in question is apparent. Columbia
College being an institution of established reputation, and having a law
department under the charge of able professors, the students in which
department were not only subjected to a formal examination by the
law committee of the institution, but to a certain definite period of study
before being entitled to a diploma of being graduates, the Legislature
evidently, and no doubt justly, considered this examination, together
with the preliminary study required by the act, as fully equivalent as a
test of legal requirements, to the ordinary examination by the court;
and as rendering the latter examination, to which no definite period of
preliminary study was essential, unnecessary and burdensome.
The act was obviously passed with reference to the learning and
ability of the applicant, and for the mere purpose of substituting the
examination by the law committee of the college for that of the court. It
could have had no other object, and hence no greater scope should
be given to its provisions. We cannot suppose that the Legislature
designed entirely to dispense with the plain and explicit requirements
of the Constitution; and the act contains nothing whatever to indicate
an intention that the authorities of the college should inquire as to the
age, citizenship, etc., of the students before granting a diploma. The
only rational interpretation of which the act admits is, that it was
intended to make the college diploma competent evidence as to the
legal attainments of the applicant, and nothing else. To this extent
alone it operates as a modification of pre-existing statutes, and it is to
be read in connection with these statutes and with the Constitution
itself in order to determine the present condition of the law on the
subject. (p.89)
xxx xxx xxx
The Legislature has not taken from the court its jurisdiction over the
question of admission, that has simply prescribed what shall be
competent evidence in certain cases upon that question. (p.93)
From the foregoing, the complete inapplicability of the case of Cooper with
that at bar may be clearly seen. Please note only the following distinctions:
(1) The law of New York does not require that any candidate of Columbia
College who failed in the bar examinations be admitted to the practice of law.
(2) The law of New York according to the very decision of Cooper, has not
taken from the court its jurisdiction over the question of admission of attorney
at law; in effect, it does not decree the admission of any lawyer.
(3) The Constitution of New York at that time and that of the Philippines are
entirely different on the matter of admission of the practice of law.
In the judicial system from which ours has been evolved, the admission,
suspension, disbarment and reinstatement of attorneys at law in the practice
of the profession and their supervision have been disputably a judicial function
and responsibility. Because of this attribute, its continuous and zealous
possession and exercise by the judicial power have been demonstrated
during more than six centuries, which certainly "constitutes the most solid of
titles." Even considering the power granted to Congress by our Constitution to
repeal, alter supplement the rules promulgated by this Court regarding the
admission to the practice of law, to our judgment and proposition that the
admission, suspension, disbarment and reinstatement of the attorneys at law
is a legislative function, properly belonging to Congress, is unacceptable. The
function requires (1) previously established rules and principles, (2) concrete
facts, whether past or present, affecting determinate individuals. and (3)
decision as to whether these facts are governed by the rules and principles; in
effect, a judicial function of the highest degree. And it becomes more
undisputably judicial, and not legislative, if previous judicial resolutions on the
petitions of these same individuals are attempted to be revoked or modified.
We have said that in the judicial system from which ours has been derived,
the act of admitting, suspending, disbarring and reinstating attorneys at law in
the practice of the profession is concededly judicial. A comprehensive and
conscientious study of this matter had been undertaken in the case of
State vs. Cannon (1932) 240 NW 441, in which the validity of a legislative
enactment providing that Cannon be permitted to practice before the courts
was discussed. From the text of this decision we quote the following
paragraphs:
This statute presents an assertion of legislative power without parallel
in the history of the English speaking people so far as we have been
 able to ascertain. There has been much uncertainty as to the extent of
the power of the Legislature to prescribe the ultimate qualifications of
attorney at law has been expressly committed to the courts, and the
act of admission has always been regarded as a judicial function. This
act purports to constitute Mr. Cannon an attorney at law, and in this
respect it stands alone as an assertion of legislative power. (p. 444)
Under the Constitution all legislative power is vested in a Senate and
Assembly. (Section 1, art. 4.) In so far as the prescribing of
qualifications for admission to the bar are legislative in character, the
Legislature is acting within its constitutional authority when it sets up
and prescribes such qualifications. (p. 444)
But when the Legislature has prescribed those qualifications which in
its judgment will serve the purpose of legitimate legislative solicitude,
is the power of the court to impose other and further exactions and
qualifications foreclosed or exhausted? (p. 444)
Under our Constitution the judicial and legislative departments are
distinct, independent, and coordinate branches of the government.
Neither branch enjoys all the powers of sovereignty which properly
belongs to its department. Neither department should so act as to
embarrass the other in the discharge of its respective functions. That
was the scheme and thought of the people setting upon the form of
government under which we exist. State vs. Hastings, 10 Wis., 525;
Attorney General ex rel. Bashford vs. Barstow, 4 Wis., 567. (p. 445)
The judicial department of government is responsible for the plane
upon which the administration of justice is maintained. Its
responsibility in this respect is exclusive. By committing a portion of
the powers of sovereignty to the judicial department of our state
government, under 42a scheme which it was supposed rendered it
immune from embarrassment or interference by any other department
of government, the courts cannot escape responsibility fir the manner
in which the powers of sovereignty thus committed to the judicial
department are exercised. (p. 445)
The relation at the bar to the courts is a peculiar and intimate
relationship. The bar is an attache of the courts. The quality of justice
dispense by the courts depends in no small degree upon the integrity
of its bar. An unfaithful bar may easily bring scandal and reproach to
the administration of justice and bring the courts themselves into
disrepute. (p.445)
Through all time courts have exercised a direct and severe
supervision over their bars, at least in the English speaking countries.
(p. 445)
After explaining the history of the case, the Court ends thus:
Our conclusion may be epitomized as follows: For more than six
centuries prior to the adoption of our Constitution, the courts of
England, concededly subordinate to Parliament since the Revolution
of 1688, had exercise the right of determining who should be admitted
to the practice of law, which, as was said in Matter of the Sergeant's at
Law, 6 Bingham's New Cases 235, "constitutes the most solid of all
titles." If the courts and judicial power be regarded as an entity, the
power to determine who should be admitted to practice law is a
constituent element of that entity. It may be difficult to isolate that
element and say with assurance that it is either a part of the inherent
power of the court, or an essential element of the judicial power
exercised by the court, but that it is a power belonging to the judicial
entity and made of not only a sovereign institution, but made of it a
separate independent, and coordinate branch of the government.
They took this institution along with the power traditionally exercise to
determine who should constitute its attorney at law. There is no
express provision in the Constitution which indicates an intent that this
traditional power of the judicial department should in any manner be
subject to legislative control. Perhaps the dominant thought of the
framers of our constitution was to make the three great departments of
government separate and independent of one another. The idea that
the Legislature might embarrass the judicial department by prescribing
inadequate qualifications for attorneys at law is inconsistent with the
dominant purpose of making the judicial independent of the legislative
department, and such a purpose should not be inferred in the absence
of express constitutional provisions. While the legislature may legislate
with respect to the qualifications of attorneys, but is incidental merely
to its general and unquestioned power to protect the public interest.
When it does legislate a fixing a standard of qualifications required of
attorneys at law in order that public interests may be protected, such
qualifications do not constitute only a minimum standard and limit the
class from which the court must make its selection. Such legislative
qualifications do not constitute the ultimate qualifications beyond
which the court cannot go in fixing additional qualifications deemed
necessary by the course of the proper administration of judicial
functions. There is no legislative power to compel courts to admit to
their bars persons deemed by them unfit to exercise the prerogatives
of an attorney at law. (p. 450)
Furthermore, it is an unlawful attempt to exercise the power of
appointment. It is quite likely true that the legislature may exercise the
power of appointment when it is in pursuance of a legislative functions.
However, the authorities are well-nigh unanimous that the power to
admit attorneys to the practice of law is a judicial function. In all of the
states, except New Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so
far as our investigation reveals, attorneys receive their formal license
to practice law by their admission as members of the bar of the court
so admitting. Cor. Jur. 572; Ex parte Secombre, 19 How. 9,15 L. Ed.
565; Ex parteGarland, 4 Wall. 333, 18 L. Ed. 366; Randall vs.
Brigham, 7 Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843,
115 P. 646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W.
1021, 130 Am. St. Rep. 1030, 20 Ann. Cas. 413.
The power of admitting an attorney to practice having been perpetually
exercised by the courts, it having been so generally held that the act of
the court in admitting an attorney to practice is the judgment of the
 court, and an attempt as this on the part of the Legislature to confer
such right upon any one being most exceedingly uncommon, it seems
clear that the licensing of an attorney is and always has been a purely
judicial function, no matter where the power to determine the
qualifications may reside. (p. 451)
In that same year of 1932, the Supreme Court of Massachusetts, in answering
a consultation of the Senate of that State, 180 NE 725, said:
It is indispensible to the administration of justice and to interpretation
of the laws that there be members of the bar of sufficient ability,
adequate learning and sound moral character. This arises from the
need of enlightened assistance to the honest, and restraining authority
over the knavish, litigant. It is highly important, also that the public be
protected from incompetent and vicious practitioners, whose
opportunity for doing mischief is wide. It was said by Cardoz, C.L., in
People ex rel. Karlin vs. Culkin, 242 N.Y. 456, 470, 471, 162 N.E. 487,
489, 60 A.L.R. 851: "Membership in the bar is a privilege burden with
conditions." One is admitted to the bar "for something more than
private gain." He becomes an "officer of the court", and ,like the court
itself, an instrument or agency to advance the end of justice. His
cooperation with the court is due "whenever justice would be imperiled
if cooperation was withheld." Without such attorneys at law the judicial
department of government would be hampered in the performance of
its duties. That has been the history of attorneys under the common
law, both in this country and England. Admission to practice as an
attorney at law is almost without exception conceded to be a judicial
function. Petition to that end is filed in courts, as are other proceedings
invoking judicial action. Admission to the bar is accomplish and made
open and notorious by a decision of the court entered upon its
records. The establishment by the Constitution of the judicial
department conferred authority necessary to the exercise of its powers
as a coordinate department of government. It is an inherent power of
such a department of government ultimately to determine the
qualifications of those to be admitted to practice in its courts, for
assisting in its work, and to protect itself in this respect from the unfit,
those lacking in sufficient learning, and those not possessing good
moral character. Chief Justice Taney stated succinctly and with finality
in Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, "It has been well
settled, by the rules and practice of common-law courts, that it rests
exclusively with the court to determine who is qualified to become one
of its officers, as an attorney and counselor, and for what cause he
ought to be removed." (p.727)
In the case of Day and others who collectively filed a petition to secure license
to practice the legal profession by virtue of a law of state (In re Day, 54 NE
646), the court said in part:
In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the court,
holding the test oath for attorneys to be unconstitutional, explained the
nature of the attorney's office as follows: "They are officers of the
court, admitted as such by its order, upon evidence of their possessing
sufficient legal learning and fair private character. It has always been
the general practice in this country to obtain this evidence by an
examination of the parties. In this court the fact of the admission of
such officers in the highest court of the states to which they,
respectively, belong for, three years preceding their application, is
regarded as sufficient evidence of the possession of the requisite legal
learning, and the statement of counsel moving their admission
sufficient evidence that their private and professional character is fair.
The order of admission is the judgment of the court that the parties
possess the requisite qualifications as attorneys and counselors, and
are entitled to appear as such and conduct causes therein. From its
entry the parties become officers of the court, and are responsible to it
for professional misconduct. They hold their office during good
behavior, and can only be deprived of it for misconduct ascertained
and declared by the judgment of the court after opportunity to be
heard has been afforded. Ex parte Hoyfron, admission or their
exclusion is not the exercise of a mere ministerial power. It is the
exercise of judicial power, and has been so held in numerous cases. It
was so held by the court of appeals of New York in the matter of the
application of Cooper for admission. Re Cooper 22 N. Y. 81.
"Attorneys and Counselors", said that court, "are not only officers of
the court, but officers whose duties relate almost exclusively to
proceedings of a judicial nature; and hence their appointment may,
with propriety, be entrusted to the court, and the latter, in performing
his duty, may very justly considered as engaged in the exercise of
their appropriate judicial functions." (pp. 650-651).
We quote from other cases, the following pertinent portions:
Admission to practice of law is almost without exception conceded
everywhere to be the exercise of a judicial function, and this opinion
need not be burdened with citations in this point. Admission to practice
have also been held to be the exercise of one of the inherent powers
of the court. Re Bruen, 102 Wash. 472, 172 Pac. 906.
Admission to the practice of law is the exercise of a judicial function,
and is an inherent power of the court. A.C. Brydonjack, vs. State
Bar of California, 281 Pac. 1018; See Annotation on Power of
Legislature respecting admission to bar, 65, A.L. R. 1512.
On this matter there is certainly a clear distinction between the functions of the
judicial and legislative departments of the government.
The distinction between the functions of the legislative and the judicial
departments is that it is the province of the legislature to establish
rules that shall regulate and govern in matters of transactions
occurring subsequent to the legislative action, while the judiciary
determines rights and obligations with reference to transactions that
are past or conditions that exist at the time of the exercise of judicial
power, and the distinction is a vital one and not subject to alteration or
change either by legislative action or by judicial decree.
 The judiciary cannot consent that its province shall be invaded by
either of the other departments of the government. 16 C.J.S.,
Constitutional Law, p. 229.
If the legislature cannot thus indirectly control the action of the courts
by requiring of them construction of the law according to its own views,
it is very plain it cannot do so directly, by settling aside their
judgments, compelling them to grant new trials, ordering the discharge
of offenders, or directing what particular steps shall be taken in the
progress of a judicial inquiry. Cooley's Constitutional Limitations,
192.
In decreeing the bar candidates who obtained in the bar examinations of 1946
to 1952, a general average of 70 per cent without falling below 50 per cent in
any subject, be admitted in mass to the practice of law, the disputed law is not
a legislation; it is a judgment a judgment revoking those promulgated by
this Court during the aforecited year affecting the bar candidates concerned;
and although this Court certainly can revoke these judgments even now, for
justifiable reasons, it is no less certain that only this Court, and not the
legislative nor executive department, that may be so. Any attempt on the part
of any of these departments would be a clear usurpation of its functions, as is
the case with the law in question.
That the Constitution has conferred on Congress the power to repeal, alter or
supplement the rule promulgated by this Tribunal, concerning the admission
to the practice of law, is no valid argument. Section 13, article VIII of the
Constitution provides:
Section 13. The Supreme Court shall have the power to promulgate
rules concerning pleading, practice, and procedure in all courts, and
the admission to the practice of law. Said rules shall be uniform for all
courts of the same grade and shall not diminish, increase or modify
substantive rights. The existing laws on pleading, practice and
procedure are hereby repealed as statutes, and are declared Rules of
Court, subject to the power of the Supreme Court to alter and modify
the same. The Congress shall have the power to repeal, alter, or
supplement the rules concerning pleading, practice, and procedure,
and the admission to the practice of law in the Philippines.
Constitution of the Philippines, Art. VIII, sec. 13.
It will be noted that the Constitution has not conferred on Congress and this
Tribunal equal responsibilities concerning the admission to the practice of law.
the primary power and responsibility which the Constitution recognizes
continue to reside in this Court. Had Congress found that this Court has not
promulgated any rule on the matter, it would have nothing over which to
exercise the power granted to it. Congress may repeal, alter and supplement
the rules promulgated by this Court, but the authority and responsibility over
the admission, suspension, disbarment and reinstatement of attorneys at law
and their supervision remain vested in the Supreme Court. The power to
repeal, alter and supplement the rules does not signify nor permit that
Congress substitute or take the place of this Tribunal in the exercise of its
primary power on the matter. The Constitution does not say nor mean that
Congress may admit, suspend, disbar or reinstate directly attorneys at law, or
a determinate group of individuals to the practice of law. Its power is limited to
repeal, modify or supplement the existing rules on the matter, if according to
its judgment the need for a better service of the legal profession requires it.
But this power does not relieve this Court of its responsibility to admit,
suspend, disbar and reinstate attorneys at law and supervise the practice of
the legal profession.
Being coordinate and independent branches, the power to promulgate and
enforce rules for the admission to the practice of law and the concurrent
power to repeal, alter and supplement them may and should be exercised with
the respect that each owes to the other, giving careful consideration to the
responsibility which the nature of each department requires. These powers
have existed together for centuries without diminution on each part; the
harmonious delimitation being found in that the legislature may and should
examine if the existing rules on the admission to the Bar respond to the
demands which public interest requires of a Bar endowed with high virtues,
culture, training and responsibility. The legislature may, by means of appeal,
amendment or supplemental rules, fill up any deficiency that it may find, and
the judicial power, which has the inherent responsibility for a good and
efficient administration of justice and the supervision of the practice of the
legal profession, should consider these reforms as the minimum standards for
the elevation of the profession, and see to it that with these reforms the lofty
objective that is desired in the exercise of its traditional duty of admitting,
suspending, disbarring and reinstating attorneys at law is realized. They are
powers which, exercise within their proper constitutional limits, are not
repugnant, but rather complementary to each other in attaining the
establishment of a Bar that would respond to the increasing and exacting
necessities of the administration of justice.
The case of Guaria (1913) 24 Phil., 37, illustrates our criterion. Guaria took
examination and failed by a few points to obtain the general average. A
recently enacted law provided that one who had been appointed to the
position of Fiscal may be admitted to the practice of law without a previous
examination. The Government appointed Guaria and he discharged the
duties of Fiscal in a remote province. This tribunal refused to give his license
without previous examinations. The court said:
Relying upon the provisions of section 2 of Act No. 1597, the applicant
in this case seeks admission to the bar, without taking the prescribed
examination, on the ground that he holds the office of provincial fiscal
for the Province of Batanes.
Section 2 of Act No. 1597, enacted February 28, 1907, is as follows:
Sec. 2. Paragraph one of section thirteen of Act Numbered One
Hundred and ninety, entitled "An Act providing a Code of Procedure in
Civil Actions and Special Proceedings in the Philippine Islands," is
hereby amended to read as follows:
1. Those who have been duly licensed under the laws and orders of
the Islands under the sovereignty of Spain or of the United States and
are in good and regular standing as members of the bar of the
Philippine Islands at the time of the adoption of this code; Provided,
That any person who, prior to the passage of this act, or at any time
 thereafter, shall have held, under the authority of the United States,
the position of justice of the Supreme Court, judge of the Court of First
Instance, or judge or associate judge of the Court of Land
Registration, of the Philippine Islands, or the position of Attorney
General, Solicitor General, Assistant Attorney General, assistant
attorney in the office of the Attorney General, prosecuting attorney for
the City of Manila, city attorney of Manila, assistant city attorney of
Manila, provincial fiscal, attorney for the Moro Province, or assistant
attorney for the Moro Province, may be licensed to practice law in the
courts of the Philippine Islands without an examination, upon motion
before the Supreme Court and establishing such fact to the
satisfaction of said court.
The records of this court disclose that on a former occasion this
appellant took, and failed to pass the prescribed examination. The
report of the examining board, dated March 23, 1907, shows that he
received an average of only 71 per cent in the various branches of
legal learning upon which he was examined, thus falling four points
short of the required percentage of 75. We would be delinquent in the
performance of our duty to the public and to the bar, if, in the face of
this affirmative indication of the deficiency of the applicant in the
required qualifications of learning in the law at the time when he
presented his former application for admission to the bar, we should
grant him license to practice law in the courts of these Islands, without
first satisfying ourselves that despite his failure to pass the
examination on that occasion, he now "possesses the necessary
qualifications of learning and ability."
But it is contented that under the provisions of the above-cited statute
the applicant is entitled as of right to be admitted to the bar without
taking the prescribed examination "upon motion before the Supreme
Court" accompanied by satisfactory proof that he has held and now
holds the office of provincial fiscal of the Province of Batanes. It is
urged that having in mind the object which the legislator apparently
sought to attain in enacting the above-cited amendment to the earlier
statute, and in view of the context generally and especially of the fact
that the amendment was inserted as a proviso in that section of the
original Act which specifically provides for the admission of certain
candidates without examination. It is contented that this mandatory
construction is imperatively required in order to give effect to the
apparent intention of the legislator, and to the candidate's claim de
jure to have the power exercised.
And after copying article 9 of Act of July 1, 1902 of the Congress of the United
States, articles 2, 16 and 17 of Act No. 136, and articles 13 to 16 of Act 190,
the Court continued:
Manifestly, the jurisdiction thus conferred upon this court by the
commission and confirmed to it by the Act of Congress would be
limited and restricted, and in a case such as that under consideration
wholly destroyed, by giving the word "may," as used in the above
citation from Act of Congress of July 1, 1902, or of any Act of
Congress prescribing, defining or limiting the power conferred upon
the commission is to that extent invalid and void, as transcending its
rightful limits and authority.
Speaking on the application of the law to those who were appointed to the
positions enumerated, and with particular emphasis in the case of Guaria,
the Court held:
In the various cases wherein applications for the admission to the bar
under the provisions of this statute have been considered heretofore,
we have accepted the fact that such appointments had been made as
satisfactory evidence of the qualifications of the applicant. But in all of
those cases we had reason to believe that the applicants had been
practicing attorneys prior to the date of their appointment.
In the case under consideration, however, it affirmatively appears that
the applicant was not and never had been practicing attorney in this or
any other jurisdiction prior to the date of his appointment as provincial
fiscal, and it further affirmatively appears that he was deficient in the
required qualifications at the time when he last applied for admission
to the bar.
In the light of this affirmative proof of his defieciency on that occasion,
we do not think that his appointment to the office of provincial fiscal is
in itself satisfactory proof if his possession of the necessary
qualifications of learning and ability. We conclude therefore that this
application for license to practice in the courts of the Philippines,
should be denied.
In view, however, of the fact that when he took the examination he fell
only four points short of the necessary grade to entitle him to a license
to practice; and in view also of the fact that since that time he has held
the responsible office of the governor of the Province of Sorsogon and
presumably gave evidence of such marked ability in the performance
of the duties of that office that the Chief Executive, with the consent
and approval of the Philippine Commission, sought to retain him in the
Government service by appointing him to the office of provincial fiscal,
we think we would be justified under the above-cited provisions of Act
No. 1597 in waiving in his case the ordinary examination prescribed by
general rule, provided he offers satisfactory evidence of his proficiency
in a special examination which will be given him by a committee of the
court upon his application therefor, without prejudice to his right, if he
desires so to do, to present himself at any of the ordinary
examinations prescribed by general rule. (In re Guaria, pp. 48-49.)
It is obvious, therefore, that the ultimate power to grant license for the practice
of law belongs exclusively to this Court, and the law passed by Congress on
the matter is of permissive character, or as other authorities say, merely to fix
the minimum conditions for the license.
The law in question, like those in the case of Day and Cannon, has been
found also to suffer from the fatal defect of being a class legislation, and that if
it has intended to make a classification, it is arbitrary and unreasonable.
In the case of Day, a law enacted on February 21, 1899 required of the
Supreme Court, until December 31 of that year, to grant license for the
practice of law to those students who began studying before November 4,
1897, and had studied for two years and presented a diploma issued by a
school of law, or to those who had studied in a law office and would pass an
examination, or to those who had studied for three years if they commenced
their studies after the aforementioned date. The Supreme Court declared that
this law was unconstitutional being, among others, a class legislation. The
Court said:
This is an application to this court for admission to the bar of this state
by virtue of diplomas from law schools issued to the applicants. The
act of the general assembly passed in 1899, under which the
application is made, is entitled "An act to amend section 1 of an act
entitled "An act to revise the law in relation to attorneys and
counselors," approved March 28, 1884, in force July 1, 1874." The
amendment, so far as it appears in the enacting clause, consists in the
addition to the section of the following: "And every application for a
license who shall comply with the rules of the supreme court in regard
to admission to the bar in force at the time such applicant commend
the study of law, either in a law or office or a law school or college,
shall be granted a license under this act notwithstanding any
subsequent changes in said rules". In re Day et al, 54 N.Y., p. 646.
. . . After said provision there is a double proviso, one branch of which
is that up to December 31, 1899, this court shall grant a license of
admittance to the bar to the holder of every diploma regularly issued
by any law school regularly organized under the laws of this state,
whose regular course of law studies is two years, and requiring an
attendance by the student of at least 36 weeks in each of such years,
and showing that the student began the study of law prior to
November 4, 1897, and accompanied with the usual proofs of good
moral character. The other branch of the proviso is that any student
who has studied law for two years in a law office, or part of such time
in a law office, "and part in the aforesaid law school," and whose
course of study began prior to November 4, 1897, shall be admitted
upon a satisfactory examination by the examining board in the
branches now required by the rules of this court. If the right to
admission exists at all, it is by virtue of the proviso, which, it is
claimed, confers substantial rights and privileges upon the persons
named therein, and establishes rules of legislative creation for their
admission to the bar. (p. 647.)
Considering the proviso, however, as an enactment, it is clearly a
special legislation, prohibited by the constitution, and invalid as such.
If the legislature had any right to admit attorneys to practice in the
courts and take part in the administration of justice, and could
prescribe the character of evidence which should be received by the
court as conclusive of the requisite learning and ability of persons to
practice law, it could only be done by a general law, persons or
classes of persons. Const. art 4, section 2. The right to practice law is
a privilege, and a license for that purpose makes the holder an officer
of the court, and confers upon him the right to appear for litigants, to
argue causes, and to collect fees therefor, and creates certain
exemptions, such as from jury services and arrest on civil process
while attending court. The law conferring such privileges must be
general in its operation. No doubt the legislature, in framing an
enactment for that purpose, may classify persons so long as the law
establishing classes in general, and has some reasonable relation to
the end sought. There must be some difference which furnishes a
reasonable basis for different one, having no just relation to the
subject of the legislation. Braceville Coal Co. vs. People, 147 Ill. 66, 35
N.E. 62; Ritchie vs. People, 155 Ill. 98, 40 N.E. 454; Railroad Co. vs.
Ellis, 165 U.S. 150, 17 Sup. Ct. 255.
The length of time a physician has practiced, and the skill acquired by
experience, may furnish a basis for classification (Williams vs. People
121 Ill. 48, II N.E. 881); but the place where such physician has
resided and practiced his profession cannot furnish such basis, and is
an arbitrary discrimination, making an enactment based upon it void
(State vs. Pennyeor, 65 N.E. 113, 18 Atl. 878). Here the legislature
undertakes to say what shall serve as a test of fitness for the
profession of the law, and plainly, any classification must have some
reference to learning, character, or ability to engage in such practice.
The proviso is limited, first, to a class of persons who began the study
of law prior to November 4, 1897. This class is subdivided into two
classes First, those presenting diplomas issued by any law school
of this state before December 31, 1899; and, second, those who
studied law for the period of two years in a law office, or part of the
time in a law school and part in a law office, who are to be admitted
upon examination in the subjects specified in the present rules of this
court, and as to this latter subdivision there seems to be no limit of
time for making application for admission. As to both classes, the
conditions of the rules are dispensed with, and as between the two
different conditions and limits of time are fixed. No course of study is
prescribed for the law school, but a diploma granted upon the
completion of any sort of course its managers may prescribe is made
all-sufficient. Can there be anything with relation to the qualifications
or fitness of persons to practice law resting upon the mere date of
November 4, 1897, which will furnish a basis of classification. Plainly
not. Those who began the study of law November 4th could qualify
themselves to practice in two years as well as those who began on the
3rd. The classes named in the proviso need spend only two years in
study, while those who commenced the next day must spend three
years, although they would complete two years before the time limit.
The one who commenced on the 3rd. If possessed of a diploma, is to
be admitted without examination before December 31, 1899, and
without any prescribed course of study, while as to the other the
prescribed course must be pursued, and the diploma is utterly
useless. Such classification cannot rest upon any natural reason, or
bear any just relation to the subject sought, and none is suggested.
 The proviso is for the sole purpose of bestowing privileges upon
certain defined persons. (pp. 647-648.)
In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441, where
the legislature attempted by law to reinstate Cannon to the practice of law, the
court also held with regards to its aspect of being a class legislation:
But the statute is invalid for another reason. If it be granted that the
legislature has power to prescribe ultimately and definitely the
qualifications upon which courts must admit and license those
applying as attorneys at law, that power can not be exercised in the
manner here attempted. That power must be exercised through
general laws which will apply to all alike and accord equal opportunity
to all. Speaking of the right of the Legislature to exact qualifications of
those desiring to pursue chosen callings, Mr. Justice Field in the case
of Dent. vs. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233, 32 L.
Ed. 626, said: "It is undoubtedly the right of every citizen of the United
States to follow any lawful calling, business or profession he may
choose, subject only to such restrictions as are imposed upon all
persons of like age, sex, and condition." This right may in many
respects be considered as a distinguishing feature of our republican
institutions. Here all vocations are all open to every one on like
conditions. All may be pursued as sources of livelihood, some
requiring years of study and great learning for their successful
prosecution. The interest, or, as it is sometimes termed, the "estate"
acquired in them that is, the right to continue their prosecution is
often of great value to the possessors and cannot be arbitrarily taken
from them, any more than their real or personal property can be thus
taken. It is fundamental under our system of government that all
similarly situated and possessing equal qualifications shall enjoy equal
opportunities. Even statutes regulating the practice of medicine,
requiring medications to establish the possession on the part of the
application of his proper qualifications before he may be licensed to
practice, have been challenged, and courts have seriously considered
whether the exemption from such examinations of those practicing in
the state at the time of the enactment of the law rendered such law
unconstitutional because of infringement upon this general principle.
State vs. Thomas Call, 121 N.C. 643, 28 S.E. 517; see, also, The
State ex rel. Winkler vs. Rosenberg, 101 Wis. 172, 76 N.W. 345;
State vs. Whitcom, 122 Wis. 110, 99 N.W. 468.
This law singles out Mr. Cannon and assumes to confer upon him the
right to practice law and to constitute him an officer of this Court as a
mere matter of legislative grace or favor. It is not material that he had
once established his right to practice law and that one time he
possessed the requisite learning and other qualifications to entitle him
to that right. That fact in no matter affect the power of the Legislature
to select from the great body of the public an individual upon whom it
would confer its favors.
A statute of the state of Minnesota (Laws 1929, c. 424) commanded
the Supreme Court to admit to the practice of law without examination,
all who had served in the military or naval forces of the United States
during the World War and received a honorable discharge therefrom
and who (were disabled therein or thereby within the purview of the
Act of Congress approved June 7th, 1924, known as "World War
Veteran's Act, 1924 and whose disability is rated at least ten per cent
thereunder at the time of the passage of this Act." This Act was held
|unconstitutional on the ground that it clearly violated the quality
clauses of the constitution of that state. In re Application of George W.
Humphrey, 178 Minn. 331, 227 N.W. 179.
A good summary of a classification constitutionally acceptable is explained in
12 Am. Jur. 151-153 as follows:
The general rule is well settled by unanimity of the authorities that a
classification to be valid must rest upon material differences between
the person included in it and those excluded and, furthermore, must
be based upon substantial distinctions. As the rule has sometimes
avoided the constitutional prohibition, must be founded upon pertinent
and real differences, as distinguished from irrelevant and artificial
ones. Therefore, any law that is made applicable to one class of
citizens only must be based on some substantial difference between
the situation of that class and other individuals to which it does not
apply and must rest on some reason on which it can be defended. In
other words, there must be such a difference between the situation
and circumstances of all the members of the class and the situation
and circumstances of all other members of the state in relation to the
subjects of the discriminatory legislation as presents a just and natural
cause for the difference made in their liabilities and burdens and in
their rights and privileges. A law is not general because it operates on
all within a clause unless there is a substantial reason why it is made
to operate on that class only, and not generally on all. (12 Am. Jur. pp.
151-153.)
Pursuant to the law in question, those who, without a grade below 50 per cent
in any subject, have obtained a general average of 69.5 per cent in the bar
examinations in 1946 to 1951, 70.5 per cent in 1952, 71.5 per cent in 1953,
and those will obtain 72.5 per cent in 1954, and 73.5 per cent in 1955, will be
permitted to take and subscribe the corresponding oath of office as members
of the Bar, notwithstanding that the rules require a minimum general average
of 75 per cent, which has been invariably followed since 1950. Is there any
motive of the nature indicated by the abovementioned authorities, for this
classification ? If there is none, and none has been given, then the
classification is fatally defective.
It was indicated that those who failed in 1944, 1941 or the years before, with
the general average indicated, were not included because the Tribunal has no
record of the unsuccessful candidates of those years. This fact does not justify
the unexplained classification of unsuccessful candidates by years, from
1946-1951, 1952, 1953, 1954, 1955. Neither is the exclusion of those who
failed before said years under the same conditions justified. The fact that this
Court has no record of examinations prior to 1946 does not signify that no one
concerned may prove by some other means his right to an equal
consideration.
To defend the disputed law from being declared unconstitutional on account of
its retroactivity, it is argued that it is curative, and that in such form it is
constitutional. What does Rep. Act 972 intend to cure ? Only from 1946 to
1949 were there cases in which the Tribunal permitted admission to the bar of
candidates who did not obtain the general average of 75 per cent: in 1946
those who obtained only 72 per cent; in the 1947 and those who had 69 per
cent or more; in 1948, 70 per cent and in 1949, 74 per cent; and in 1950 to
1953, those who obtained 74 per cent, which was considered by the Court as
equivalent to 75 per cent as prescribed by the Rules, by reason of
circumstances deemed to be sufficiently justifiable. These changes in the
passing averages during those years were all that could be objected to or
criticized. Now, it is desired to undo what had been done cancel the license
that was issued to those who did not obtain the prescribed 75 per cent ?
Certainly not. The disputed law clearly does not propose to do so.
Concededly, it approves what has been done by this Tribunal. What Congress
lamented is that the Court did not consider 69.5 per cent obtained by those
candidates who failed in 1946 to 1952 as sufficient to qualify them to practice
law. Hence, it is the lack of will or defect of judgment of the Court that is being
cured, and to complete the cure of this infirmity, the effectivity of the disputed
law is being extended up to the years 1953, 1954 and 1955, increasing each
year the general average by one per cent, with the order that said candidates
be admitted to the Bar. This purpose, manifest in the said law, is the best
proof that what the law attempts to amend and correct are not the rules
promulgated, but the will or judgment of the Court, by means of simply taking
its place. This is doing directly what the Tribunal should have done during
those years according to the judgment of Congress. In other words, the power
exercised was not to repeal, alter or supplement the rules, which continue in
force. What was done was to stop or suspend them. And this power is not
included in what the Constitution has granted to Congress, because it falls
within the power to apply the rules. This power corresponds to the judiciary, to
which such duty been confided.
Article 2 of the law in question permits partial passing of examinations, at
indefinite intervals. The grave defect of this system is that it does not take into
account that the laws and jurisprudence are not stationary, and when a
candidate finally receives his certificate, it may happen that the existing laws
and jurisprudence are already different, seriously affecting in this manner his
usefulness. The system that the said law prescribes was used in the first bar
examinations of this country, but was abandoned for this and other
disadvantages. In this case, however, the fatal defect is that the article is not
expressed in the title will have temporary effect only from 1946 to 1955, the
text of article 2 establishes a permanent system for an indefinite time. This is
contrary to Section 21 (1), article VI of the Constitution, which vitiates and
annuls article 2 completely; and because it is inseparable from article 1, it is
obvious that its nullity affect the entire law.
Laws are unconstitutional on the following grounds: first, because they are not
within the legislative powers of Congress to enact, or Congress has exceeded
its powers; second, because they create or establish arbitrary methods or
forms that infringe constitutional principles; and third, because their purposes
or effects violate the Constitution or its basic principles. As has already been
seen, the contested law suffers from these fatal defects.
Summarizing, we are of the opinion and hereby declare that Republic Act No.
972 is unconstitutional and therefore, void, and without any force nor effect for
the following reasons, to wit:
1. Because its declared purpose is to admit 810 candidates who failed in the
bar examinations of 1946-1952, and who, it admits, are certainly inadequately
prepared to practice law, as was exactly found by this Court in the aforesaid
years. It decrees the admission to the Bar of these candidates, depriving this
Tribunal of the opportunity to determine if they are at present already
prepared to become members of the Bar. It obliges the Tribunal to perform
something contrary to reason and in an arbitrary manner. This is a manifest
encroachment on the constitutional responsibility of the Supreme Court.
2. Because it is, in effect, a judgment revoking the resolution of this Court on
the petitions of these 810 candidates, without having examined their
respective examination papers, and although it is admitted that this Tribunal
may reconsider said resolution at any time for justifiable reasons, only this
Court and no other may revise and alter them. In attempting to do it directly
Republic Act No. 972 violated the Constitution.
3. By the disputed law, Congress has exceeded its legislative power to repeal,
alter and supplement the rules on admission to the Bar. Such additional or
amendatory rules are, as they ought to be, intended to regulate acts
subsequent to its promulgation and should tend to improve and elevate the
practice of law, and this Tribunal shall consider these rules as minimum norms
towards that end in the admission, suspension, disbarment and reinstatement
of lawyers to the Bar, inasmuch as a good bar assists immensely in the daily
performance of judicial functions and is essential to a worthy administration of
justice. It is therefore the primary and inherent prerogative of the Supreme
Court to render the ultimate decision on who may be admitted and may
continue in the practice of law according to existing rules.
4. The reason advanced for the pretended classification of candidates, which
the law makes, is contrary to facts which are of general knowledge and does
not justify the admission to the Bar of law students inadequately prepared.
The pretended classification is arbitrary. It is undoubtedly a class legislation.
5. Article 2 of Republic Act No. 972 is not embraced in the title of the law,
contrary to what the Constitution enjoins, and being inseparable from the
provisions of article 1, the entire law is void.
6. Lacking in eight votes to declare the nullity of that part of article 1 referring
to the examinations of 1953 to 1955, said part of article 1, insofar as it
concerns the examinations in those years, shall continue in force.
RESOLUTION
Upon mature deliberation by this Court, after hearing and availing of the
magnificent and impassioned discussion of the contested law by our Chief
Justice at the opening and close of the debate among the members of the
Court, and after hearing the judicious observations of two of our beloved November, 1946
colleagues who since the beginning have announced their decision not to take
part in voting, we, the eight members of the Court who subscribed to this Board of Examiners: The same as that of August, 1946, except Hon. Jose
decision have voted and resolved, and have decided for the Court, and under substituted by Atty. Honesto K. Bausan.
the authority of the same: Number of candidates
1. That (a) the portion of article 1 of Republic Act No. 972 referring to the
examinations of 1946 to 1952, and (b) all of article 2 of said law are Number of candidates whose grades were raised
unconstitutional and, therefore, void and without force and effect. (72 per cent and above 73 per cent ---
2. That, for lack of unanimity in the eight Justices, that part of article 1 which Minutes of March 31, 1947)
refers to the examinations subsequent to the approval of the law, that is from
1953 to 1955 inclusive, is valid and shall continue to be in force, in conformity Number of candidates who passed
with section 10, article VII of the Constitution. Number of candidates who failed
Consequently, (1) all the above-mentioned petitions of the candidates who
failed in the examinations of 1946 to 1952 inclusive are denied, and (2) all Number of those affected by Republic Act No. 972
candidates who in the examinations of 1953 obtained a general average of Percentage of success (pe
71.5 per cent or more, without having a grade below 50 per cent in any
subject, are considered as having passed, whether they have filed petitions Percentage of failure (pe
for admission or not. After this decision has become final, they shall be Passing grade (pe
permitted to take and subscribe the corresponding oath of office as members (By resolution of the Court).
of the Bar on the date or dates that the chief Justice may set. So ordered.
Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes, October, 1947
JJ., concur. Board of Examiners: Hon. Cesar Bengzon, Chairman, Hon. Guillermo B. G
Araneta, Atty. Simon Cruz, Hon. Sixto de la Costa, Atty. Celso B. Jamora,
ANNEX I Federico Agrava, Atty. Carlos B. Hilado, Members.
PETITIONERS UNDER REPUBLIC ACT NO. 972
A resume of pertinent facts concerning the bar examinations of 1946 to 1953 Number of candidates
inclusive follows: Number of candidates whose grades were raised
August, 19461
70.55 per cent with 2 subject below 50 per cent
Board of Examiners: Hon. Pedro Tuason, Chairman, Prof. Gerardo Florendo, Atty. Bernardino
69 per cent
Guerrero, Atty. Joaquin Ramirez, Atty. Crispin Oben, Hon. Jose Teodoro, Atty. Federico Agrava,
Atty. Jose Perez Cardenas, and Hon. Bienvenido A. Tan, members. 68 per cent
Number of candidates Number206
of candidates who passed
Number of candidates whose grades were raised Number of
12candidates who failed
73'S 6 Number of those affected by Republic Act No. 972
72'S 6 Percentage of success (pe
Number of candidates who passed Percentage
85 of failure (pe
Number of candidates who failed Passing121
grade (pe
Number of those affected by Republic Act No. 972 (by18
resolution of the Court).
Note.--In passing the 2 whose grades were 68.95 per cent and 68.
Percentage of success (per cent) 41.62
the Court found out that they were not benefited at all by the bonus
Percentage of failure (per cent) Examiner
58.74 in Civil Law.
Passing grade (per cent) 72 August, 1948
Board of Examiners: Hon. Marceliano R. Montemayor, Chairman Hon. Luis P. Torres, Hon. Felipe of the examiner in Remedial Law, Atty. Francisco Delgado).
Natividad, Hon. Jose Teodoro, Sr., Atty. Federico Agrava, Atty. Macario Peralta, Sr., Hon. Jesus G.
Number of candidates who passed
Barrera, Hon. Rafael Amparo, Atty. Alfonso Ponce Enrile, Members.
Number of candidates who failed
Number of candidates 899
Number of those affected by Republic Act No. 972
Number of candidates whose grades were raised 64
Percentage of success (pe
71's 29
Percentage of failure (pe
70's 35
Passing grade (pe
Number of candidates who passed 490
August, 1951
Number of candidates who failed 409
Board of Examiners: Hon. Guillermo F. Pablo, Chairman, Hon. Pastor M. E
Number of those affected by Republic Act No. 972 11
Altavas, Hon. Manuel Lim, Hon. Felipe Natividad, Hon. Vicente Albert, Atty
Percentage of success (per cent) Enrique V.
62.40
Filamor, Hon. Alfonso Felix, Members.
Percentage of failure (per cent) Number of
37.60
candidates
Passing grade (per cent) Number of
70candidates whose grades were raised (74's)
(by resolution of the Court). Number of candidates who passed
August, 1949 Number of candidates who failed
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Fernando Jugo, Hon. EnriqueNumber
Filamor,
of those affected by Republic Act No. 972
Atty. Salvador Araneta, Hon. Pastor M. Endencia, Atty. Federico Agrava, Hon. Mariano H. de Joya,
Percentage of success (pe
Hon. Felipe Natividad, Atty. Emeterio Barcelon, Members.
Percentage of failure (pe
Number of candidates 1,218
Passing grade (pe
Number of candidates whose grades were raised (74's) 55
August, 1952
Number of candidates who passed 686
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Pastor M. Ende
Number of candidates who failed 532
Filamor, Atty. Francisco Ortigas, Hon. Emilio Pea, Atty. Emilio P. Virata, H
Number of those affected by Republic Act No. 972 Felipe Natividad,
164 Atty. Macario Peralta, Sr., Members.
Percentage of success (per cent) Number of
56.28
candidates
Percentage of failure (per cent) Number of
43.72
candidates whose grades were raised (74's)
Passing grade (per cent) Number of
74candidates who passed
(by resolution of the Court). Number of candidates who failed
August, 1950 Number of those affected by Republic Act No. 972
Board of Examiners: Hon. Fernando Jugo,2 Chairman, Hon. Guillermo B. Guevara, Atty. Percentage
Enrique of success (pe
Altavas, Atty. Marcial P. Lichauco, Atty. Carlos B. Hilado, Atty. J. Antonio Araneta, Hon. Enrique V.
Percentage of failure (pe
Filamor, Hon. Francisco A. Delgado, Hon. Antonio Horrilleno, Members.
Passing grade (pe
Number of candidates 1,316
August, 1953
Number of candidates whose grades were raised 38
Board of Examiners: Hon. Fernando Jugo, Chairman, Hon. Pastor M. End
(The grade of 74 was raised to 75 per cent by recommendation and authority

Altavas, Atty. Francisco Ortigas, Jr., Hon. Emilio Pea, Atty. Jose S. de la Cruz, Hon. Alfonso
Hon. Felipe Natividad, Hon. Mariano L. de la Rosa, Members.
Number of candidates
Number of candidates whose grades were raised (74's)
Number of candidates who passed
Number of candidates who failed
Number of those affected by Republic Act No. 972
Percentage of success
Percentage of failure
Passing grade
A list of petitioners for admission to the Bar under Republic Act No. 972,
grouped by the years in which they took the bar examinations, with
annotations as to who had presented motions for reconsideration which were
denied (MRD), and who filed mere motions for reconsideration without
invoking said law, which are still pending, follows
The Enactment of Republic Act No. 972
As will be observed from Annex I, this Court reduced to 72 per cent the
passing general average in the bar examination of august and November of
1946; 69 per cent in 1947; 70 per cent in 1948; 74 per cent in 1949;
maintaining the prescribed 75 per cent since 1950, but raising to 75 per cent
those who obtained 74 per cent since 1950. This caused the introduction in
1951, in the Senate of the Philippines of Bill No. 12 which was intended to
amend Sections 5, 9, 12, 14 and 16 of Rule 127 of the Rules of Court,
concerning the admission of attorneys-at-law to the practice of the profession.
The amendments embrace many interesting matters, but those referring to
sections 14 and 16 immediately concern us. The proposed amendment is as
follows:
SEC. 14. Passing average. In order that a candidate may be
deemed to have passed the examinations successfully, he must have
obtained a general average of 70 per cent without falling below 50 per
cent in any subject. In determining the average, the foregoing subjects
shall be given the following relative weights: Civil Law, 20 per cent;
Land Registration and Mortgages, 5 per cent; Mercantile Law, 15 per
cent; Criminal Law, 10 per cent; Political Law, 10 per cent;
International Law, 5 per cent; Remedial Law, 20 per cent; Legal Ethics
and Practical Exercises, 5 per cent; Social Legislation, 5 per cent;
Taxation, 5 per cent. Unsuccessful candidates shall not be required to
take another examination in any subject in which they have obtained a
rating of 70 per cent or higher and such rating shall be taken into
account in determining their general average in any subsequent
examinations:
Felix, Provided, however, That if the candidate fails to get a
general average of 70 per cent in his third examination, he shall lose
the benefit of having already passed some subjects and shall be
2,555
required to the examination in all the subjects.
SEC. 16. 100Admission and oath of successful applicants. Any
applicant who has obtained a general average of 70 per cent in all
1,570
subjects without falling below 50 per cent in any examination held after
the 4th 986
day of July, 1946, or who has been otherwise found to be
entitled to admission to the bar, shall be allowed to take and subscribe
284Supreme Court the corresponding oath of office. (Arts. 4
before the
(per cent) and 5, 8, 61.04
No. 12).
With the bill was an Explanatory Note, the portion pertinent to the matter
(per cent)
before us being: 38.96
(per cent) It seems 75to be unfair that unsuccessful candidates at bar examinations
should be compelled to repeat even those subjects which they have
previously passed. This is not the case in any other government
examination. The Rules of Court have therefore been amended in this
measure to give a candidate due credit for any subject which he has
previously passed with a rating of 75 per cent or higher."
Senate Bill No. 12 having been approved by Congress on May 3, 1951, the
President requested the comments of this Tribunal before acting on the same.
The comment was signed by seven Justices while three chose to refrain from
making any and one took no part. With regards to the matter that interests us,
the Court said:
The next amendment is of section 14 of Rule 127. One part of this
amendment provides that if a bar candidate obtains 70 per cent or
higher in any subject, although failing to pass the examination, he
need not be examined in said subject in his next examination. This is a
sort of passing the Bar Examination on the installment plan, one or
two or three subjects at a time. The trouble with this proposed system
is that although it makes it easier and more convenient for the
candidate because he may in an examination prepare himself on only
one or two subjects so as to insure passing them, by the time that he
has passed the last required subjects, which may be several years
away from the time that he reviewed and passed the firs subjects, he
shall have forgotten the principles and theories contained in those
subjects and remembers only those of the one or two subjects that he
had last reviewed and passed. This is highly possible because there is
nothing in the law which requires a candidate to continue taking the
Bar examinations every year in succession. The only condition
imposed is that a candidate, on this plan, must pass the examination
in no more that three installments; but there is no limitation as to the
time or number of years intervening between each examination taken.
This would defeat the object and the requirements of the law and the
Court in admitting persons to the practice of law. When a person is so
admitted, it is to be presumed and presupposed that he possesses the
knowledge and proficiency in the law and the knowledge of all law
subjects required in bar examinations, so as presently to be able to
practice the legal profession and adequately render the legal service
required by prospective clients. But this would not hold true of the
candidates who may have obtained a passing grade on any five
subjects eight years ago, another three subjects one year later, and
the last two subjects the present year. We believe that the present
system of requiring a candidate to obtain a passing general average
with no grade in any subject below 50 per cent is more desirable and
satisfactory. It requires one to be all around, and prepared in all
required legal subjects at the time of admission to the practice of law.
xxx xxx xxx
We now come to the last amendment, that of section 16 of Rule 127.
This amendment provides that any application who has obtained a
general average of 70 per cent in all subjects without failing below 50
per cent in any subject in any examination held after the 4th day of
July, 1946, shall be allowed to take and subscribe the corresponding
oath of office. In other words, Bar candidates who obtained not less
than 70 per cent in any examination since the year 1946 without failing
below 50 per cent in any subject, despite their non-admission to the
Bar by the Supreme Court because they failed to obtain a passing
general average in any of those years, will be admitted to the Bar. This
provision is not only prospective but retroactive in its effects.
We have already stated in our comment on the next preceding
amendment that we are not exactly in favor of reducing the passing
general average from 75 per cent to 70 per cent to govern even in the
future. As to the validity of making such reduction retroactive, we have
serious legal doubts. We should not lose sight of the fact that after
every bar examinations, the Supreme Court passes the corresponding
resolution not only admitting to the Bar those who have obtained a
passing general average grade, but also rejecting and denying the
petitions for reconsideration of those who have failed. The present
amendment would have the effect of repudiating, reversing and
revoking the Supreme Court's resolution denying and rejecting the
petitions of those who may have obtained an average of 70 per cent or
more but less than the general passing average fixed for that year. It is
clear that this question involves legal implications, and this phase of
the amendment if finally enacted into law might have to go thru a legal
test. As one member of the Court remarked during the discussion,
when a court renders a decision or promulgate a resolution or order on
the basis of and in accordance with a certain law or rule then in force,
the subsequent amendment or even repeal of said law or rule may not
affect the final decision, order, or resolution already promulgated, in
the sense of revoking or rendering it void and of no effect.
Another aspect of this question to be considered is the fact that
members of the bar are officers of the courts, including the Supreme
Court. When a Bar candidate is admitted to the Bar, the Supreme
Court impliedly regards him as a person fit, competent and qualified to
be its officer. Conversely, when it refused and denied admission to the
Bar to a candidate who in any year since 1946 may have obtained a
general average of 70 per cent but less than that required for that year
in order to pass, the Supreme Court equally and impliedly considered
and declared that he was not prepared, ready, competent and
qualified to be its officer. The present amendment giving retroactivity
to the reduction of the passing general average runs counter to all
these acts and resolutions of the Supreme Court and practically and in
effect says that a candidate not accepted, and even rejected by the
Court to be its officer because he was unprepared, undeserving and
unqualified, nevertheless and in spite of all, must be admitted and
allowed by this Court to serve as its officer. We repeat, that this is
another important aspect of the question to be carefully and seriously
considered.
The President vetoed the bill on June 16, 1951, stating the following:
I am fully in accord with the avowed objection of the bill, namely, to
elevate the standard of the legal profession and maintain it on a high
level. This is not achieved, however, by admitting to practice precisely
a special class who have failed in the bar examination, Moreover, the
bill contains provisions to which I find serious fundamental objections.
Section 5 provides that any applicant who has obtained a general
average of 70 per cent in all subjects without failing below 50 per cent
in any subject in any examination held after the 4th day of July, 1946,
shall be allowed to take and subscribed the corresponding oath of
office. This provision constitutes class legislation, benefiting as it does
specifically one group of persons, namely, the unsuccessful
candidates in the 1946, 1947, 1948, 1949 and 1950 bar examinations.
The same provision undertakes to revoke or set aside final resolutions
of the Supreme Court made in accordance with the law then in force. It
should be noted that after every bar examination the Supreme Court
passes the corresponding resolution not only admitting to the Bar
those who have obtained a passing general average but also rejecting
and denying the petitions for reconsideration of those who have failed.
The provision under consideration would have the effect of revoking
the Supreme Court's resolution denying and rejecting the petitions of
those who may have failed to obtain the passing average fixed for that
year. Said provision also sets a bad precedent in that the Government
would be morally obliged to grant a similar privilege to those who have
failed in the examinations for admission to other professions such as
medicine, engineering, architecture and certified public accountancy.
Consequently, the bill was returned to the Congress of the Philippines, but it
was not repassed by 2/3 vote of each House as prescribed by section 20,
article VI of the Constitution. Instead Bill No. 371 was presented in the
Senate. It reads as follows:
AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS
FROM 1946 UP TO AND INCLUDING 1953
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
SECTION 1. Notwithstanding the provisions of section 14, Rule 127 of
the Rules of Court, any bar candidate who obtained a general average
 of 70 per cent in any bar examinations after July 4, 1946 up to the
August 1951 Bar examinations; 71 per cent in the 1952 bar
examinations; 72 per cent in the 1953 bar examinations; 73 per cent in
the 1954 bar examinations; 74 per cent in 1955 bar examinations
without a candidate obtaining a grade below 50 per cent in any
subject, shall be allowed to take and subscribe the corresponding oath
of office as member of the Philippine Bar; Provided, however, That 75
per cent passing general average shall be restored in all succeeding
examinations; and Provided, finally, That for the purpose of this Act,
any exact one-half or more of a fraction, shall be considered as one
and included as part of the next whole number.
SEC. 2. Any bar candidate who obtained a grade of 75 per cent in any
subject in any bar examination after July 4, 1945 shall be deemed to
have passed in such subject or subjects and such grade or grades
shall be included in computing the passing general average that said
candidate may obtain in any subsequent examinations that he may
take.
SEC. 3. This bill shall take effect upon its approval.
With the following explanatory note:
This is a revised Bar bill to meet the objections of the President and to
afford another opportunity to those who feel themselves discriminated
by the Supreme Court from 1946 to 1951 when those who would
otherwise have passed the bar examination but were arbitrarily not so
considered by altering its previous decisions of the passing mark. The
Supreme Court has been altering the passing mark from 69 in 1947 to
74 in 1951. In order to cure the apparent arbitrary fixing of passing
grades and to give satisfaction to all parties concerned, it is proposed
in this bill a gradual increase in the general averages for passing the
bar examinations as follows; For 1946 to 1951 bar examinations, 70
per cent; for 1952 bar examination, 71 per cent; for 1953 bar
examination, 72 per cent; for 1954 bar examination, 73 percent; and
for 1955 bar examination, 74 per cent. Thus in 1956 the passing mark
will be restored with the condition that the candidate shall not obtain in
any subject a grade of below 50 per cent. The reason for relaxing the
standard 75 per cent passing grade, is the tremendous handicap
which students during the years immediately after the Japanese
occupation has to overcome such as the insufficiency of reading
materials and the inadequacy of the preparation of students who took
up law soon after the liberation. It is believed that by 1956 the
preparation of our students as well as the available reading materials
will be under normal conditions, if not improved from those years
preceding the last world war.
In this will we eliminated altogether the idea of having our Supreme
Court assumed the supervision as well as the administration of the
study of law which was objected to by the President in the Bar Bill of
1951.
The President in vetoing the Bar Bill last year stated among his
objections that the bill would admit to the practice of law "a special
class who failed in the bar examination". He considered the bill a class
legislation. This contention, however, is not, in good conscience,
correct because Congress is merely supplementing what the Supreme
Court have already established as precedent by making as low as 69
per cent the passing mark of those who took the Bar examination in
1947. These bar candidates for who this bill should be enacted,
considered themselves as having passed the bar examination on the
strength of the established precedent of our Supreme Court and were
fully aware of the insurmountable difficulties and handicaps which they
were unavoidably placed. We believe that such precedent cannot or
could not have been altered, constitutionally, by the Supreme Court,
without giving due consideration to the rights already accrued or
vested in the bar candidates who took the examination when the
precedent was not yet altered, or in effect, was still enforced and
without being inconsistent with the principles of their previous
resolutions.
If this bill would be enacted, it shall be considered as a simple curative
act or corrective statute which Congress has the power to enact. The
requirement of a "valid classification" as against class legislation, is
very expressed in the following American Jurisprudence:
A valid classification must include all who naturally belong to the class,
all who possess a common disability, attribute, or classification, and
there must be a "natural" and substantial differentiation between those
included in the class and those it leaves untouched. When a class is
accepted by the Court as "natural" it cannot be again split and then
have the dissevered factions of the original unit designated with
different rules established for each. (Fountain Park Co. vs. Rensier,
199 Ind. 95, N. E. 465 (1926).
Another case penned by Justice Cardozo: "Time with its tides brings
new conditions which must be cared for by new laws. Sometimes the
new conditions affect the members of a class. If so, the correcting
statute must apply to all alike. Sometimes the condition affect only a
few. If so, the correcting statute may be as narrow as the mischief.
The constitution does not prohibit special laws inflexibly and always. It
permits them when there are special evils with which the general laws
are incompetent to cope. The special public purpose will sustain the
special form. . . . The problem in the last analysis is one of legislative
policy, with a wide margin of discretion conceded to the lawmakers.
Only in the case of plain abuse will there be revision by the court. (In
Williams vs. Mayor and City Council of Baltimore, 286 U. S. 36, 77 L.
Ed. 1015, 53 Sup. Ct. 431). (1932)
This bill has all the earmarks of a corrective statute which always
retroacts to the extent of the care of correction only as in this case
from 1946 when the Supreme Court first deviated from the rule of 75
per cent in the Rules of Court.
For the foregoing purposes the approval of this bill is earnestly
recommended.

(Sgd.) PABLO ANGELES DAVID
Senator
Without much debate, the revised bill was passed by Congress as above
transcribed. The President again asked the comments of this Court, which
endorsed the following:
Respectfully returned to the Honorable, the Acting Executive
Secretary, Manila, with the information that, with respect to Senate Bill
No. 371, the members of the Court are taking the same views they
expressed on Senate Bill No. 12 passed by Congress in May, 1951,
contained in the first indorsement of the undersigned dated June 5,
1951, to the Assistant Executive Secretary.
(Sgd.) RICARDO PARAS
The President allowed the period within which the bill should be signed to
pass without vetoing it, by virtue of which it became a law on June 21, 1953
(Sec. 20, Art. VI, Constitution) numbered 972 (many times erroneously cited
as No. 974).
It may be mentioned in passing that 1953 was an election year, and that both
the President and the author of the Bill were candidates for re-election,
together, however, they lost in the polls.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
B. M. No. 1036 June 10, 2003
DONNA MARIE S. AGUIRRE, Complainant,
vs.
EDWIN L. RANA, Respondent.
DECISION
CARPIO, J.:
The Case
Before one is admitted to the Philippine Bar, he must possess the requisite
moral integrity for membership in the legal profession. Possession of moral
integrity is of greater importance than possession of legal learning. The
practice of law is a privilege bestowed only on the morally fit. A bar candidate
who is morally unfit cannot practice law even if he passes the bar
examinations.
The Facts
Respondent Edwin L. Rana ("respondent") was among those who passed the
2000 Bar Examinations.
On 21 May 2001, one day before the scheduled mass oath-taking of
successful bar examinees as members of the Philippine Bar, complainant
Donna Marie Aguirre ("complainant") filed against respondent a Petition for
Denial of Admission to the Bar. Complainant charged respondent with
unauthorized practice of law, grave misconduct, violation of law, and grave
misrepresentation.
The Court allowed respondent to take his oath as a member of the Bar during
the scheduled oath-taking on 22 May 2001 at the Philippine International
Convention Center. However, the Court ruled that respondent could not sign
the Roll of Attorneys pending the resolution of the charge against him. Thus,
respondent took the lawyers oath on the scheduled date but has not signed
the Roll of Attorneys up to now.
Complainant charges respondent for unauthorized practice of law and grave
misconduct. Complainant alleges that respondent, while not yet a lawyer,
appeared as counsel for a candidate in the May 2001 elections before the
Municipal Board of Election Canvassers ("MBEC") of Mandaon, Masbate.
Complainant further alleges that respondent filed with the MBEC a pleading
dated 19 May 2001 entitled Formal Objection to the Inclusion in the
Canvassing of Votes in Some Precincts for the Office of Vice-Mayor. In this
pleading, respondent represented himself as "counsel for and in behalf of Vice
Mayoralty Candidate, George Bunan," and signed the pleading as counsel for
George Bunan ("Bunan").
On the charge of violation of law, complainant claims that respondent is a
municipal government employee, being a secretary of the Sangguniang
Bayan of Mandaon, Masbate. As such, respondent is not allowed by law to act
as counsel for a client in any court or administrative body.
On the charge of grave misconduct and misrepresentation, complainant
accuses respondent of acting as counsel for vice mayoralty candidate George
Bunan ("Bunan") without the latter engaging respondents services.
Complainant claims that respondent filed the pleading as a ploy to prevent the
proclamation of the winning vice mayoralty candidate.
On 22 May 2001, the Court issued a resolution allowing respondent to take
the lawyers oath but disallowed him from signing the Roll of Attorneys until he
is cleared of the charges against him. In the same resolution, the Court
required respondent to comment on the complaint against him.
In his Comment, respondent admits that Bunan sought his "specific
assistance" to represent him before the MBEC. Respondent claims that "he
decided to assist and advice Bunan, not as a lawyer but as a person who
knows the law." Respondent admits signing the 19 May 2001 pleading that
objected to the inclusion of certain votes in the canvassing. He explains,
however, that he did not sign the pleading as a lawyer or represented himself
as an "attorney" in the pleading.
On his employment as secretary of the Sangguniang Bayan, respondent
claims that he submitted his resignation on 11 May 2001 which was allegedly
accepted on the same date. He submitted a copy of the Certification of
Receipt of Revocable Resignation dated 28 May 2001 signed by Vice-Mayor
Napoleon Relox. Respondent further claims that the complaint is politically
motivated considering that complainant is the daughter of Silvestre Aguirre,
the losing candidate for mayor of Mandaon, Masbate. Respondent prays that
the complaint be dismissed for lack of merit and that he be allowed to sign the
Roll of Attorneys.
On 22 June 2001, complainant filed her Reply to respondents Comment and
refuted the claim of respondent that his appearance before the MBEC was
only to extend specific assistance to Bunan. Complainant alleges that on 19
May 2001 Emily Estipona-Hao ("Estipona-Hao") filed a petition for
proclamation as the winning candidate for mayor. Respondent signed as
counsel for Estipona-Hao in this petition. When respondent appeared as
counsel before the MBEC, complainant questioned his appearance on two
grounds: (1) respondent had not taken his oath as a lawyer; and (2) he was
an employee of the government.
Respondent filed a Reply (Re: Reply to Respondents Comment) reiterating
his claim that the instant administrative case is "motivated mainly by political
vendetta."
On 17 July 2001, the Court referred the case to the Office of the Bar Confidant
("OBC") for evaluation, report and recommendation.
OBCs Report and Recommendation
The OBC found that respondent indeed appeared before the MBEC as
counsel for Bunan in the May 2001 elections. The minutes of the MBEC
proceedings show that respondent actively participated in the proceedings.
The OBC likewise found that respondent appeared in the MBEC proceedings
even before he took the lawyers oath on 22 May 2001. The OBC believes
that respondents misconduct casts a serious doubt on his moral fitness to be
a member of the Bar. The OBC also believes that respondents unauthorized
practice of law is a ground to deny his admission to the practice of law. The
OBC therefore recommends that respondent be denied admission to the
Philippine Bar.
On the other charges, OBC stated that complainant failed to cite a law which
respondent allegedly violated when he appeared as counsel for Bunan while
he was a government employee. Respondent resigned as secretary and his
resignation was accepted. Likewise, respondent was authorized by Bunan to
represent him before the MBEC.
The Courts Ruling
We agree with the findings and conclusions of the OBC that respondent
engaged in the unauthorized practice of law and thus does not deserve
admission to the Philippine Bar.
Respondent took his oath as lawyer on 22 May 2001. However, the records
show that respondent appeared as counsel for Bunan prior to 22 May 2001,
before respondent took the lawyers oath. In the pleading entitled Formal
Objection to the Inclusion in the Canvassing of Votes in Some Precincts for
the Office of Vice-Mayor dated 19 May 2001, respondent signed as "counsel
for George Bunan." In the first paragraph of the same pleading respondent
stated that he was the "(U)ndersigned Counsel for, and in behalf of Vice
Mayoralty Candidate, GEORGE T. BUNAN." Bunan himself wrote the MBEC
on 14 May 2001 that he had "authorized Atty. Edwin L. Rana as his counsel to
represent him" before the MBEC and similar bodies.
On 14 May 2001, mayoralty candidate Emily Estipona-Hao also "retained"
respondent as her counsel. On the same date, 14 May 2001, Erly D. Hao
informed the MBEC that "Atty. Edwin L. Rana has been authorized by
REFORMA LM-PPC as the legal counsel of the party and the candidate of the
said party." Respondent himself wrote the MBEC on 14 May 2001 that he was
entering his "appearance as counsel for Mayoralty Candidate Emily Estipona-
Hao and for the REFORMA LM-PPC." On 19 May 2001, respondent signed as
counsel for Estipona-Hao in the petition filed before the MBEC praying for the
proclamation of Estipona-Hao as the winning candidate for mayor of
Mandaon, Masbate.
All these happened even before respondent took the lawyers oath. Clearly,
respondent engaged in the practice of law without being a member of the
Philippine Bar.
In Philippine Lawyers Association v. Agrava,1 the Court elucidated that:
The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and proceedings
on behalf of clients before judges and courts, and in addition, conveyancing.
In general, all advice to clients, and all action taken for them in
matters connected with the law, incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings in attachment, and
in matters of estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal instruments, where the
work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jur. p. 262, 263). (Italics supplied) x x x
In Cayetano v. Monsod,2 the Court held that "practice of law" means any
activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. To engage in the practice of
law is to perform acts which are usually performed by members of the legal
profession. Generally, to practice law is to render any kind of service which
requires the use of legal knowledge or skill.
Verily, respondent was engaged in the practice of law when he appeared in
the proceedings before the MBEC and filed various pleadings, without license
to do so. Evidence clearly supports the charge of unauthorized practice of law.
Respondent called himself "counsel" knowing fully well that he was not a
member of the Bar. Having held himself out as "counsel" knowing that he had
no authority to practice law, respondent has shown moral unfitness to be a
member of the Philippine Bar.3
The right to practice law is not a natural or constitutional right but is a
privilege. It is limited to persons of good moral character with special
qualifications duly ascertained and certified. The exercise of this privilege
presupposes possession of integrity, legal knowledge, educational attainment,
and even public trust4 since a lawyer is an officer of the court. A bar candidate
does not acquire the right to practice law simply by passing the bar
examinations. The practice of law is a privilege that can be withheld even from
one who has passed the bar examinations, if the person seeking admission
had practiced law without a license.5
The regulation of the practice of law is unquestionably strict. In Beltran, Jr. v.
Abad,6 a candidate passed the bar examinations but had not taken his oath
and signed the Roll of Attorneys. He was held in contempt of court for
practicing law even before his admission to the Bar. Under Section 3 (e) of
Rule 71 of the Rules of Court, a person who engages in the unauthorized
practice of law is liable for indirect contempt of court.7
True, respondent here passed the 2000 Bar Examinations and took the
lawyers oath. However, it is the signing in the Roll of Attorneys that finally
1wphi1

makes one a full-fledged lawyer. The fact that respondent passed the bar
examinations is immaterial. Passing the bar is not the only qualification to
become an attorney-at-law.8 Respondent should know that two essential
requisites for becoming a lawyer still had to be performed, namely: his
lawyers oath to be administered by this Court and his signature in the Roll of
Attorneys.9
On the charge of violation of law, complainant contends that the law does not
allow respondent to act as counsel for a private client in any court or
administrative body since respondent is the secretary of the Sangguniang
Bayan.
Respondent tendered his resignation as secretary of the Sangguniang Bayan
prior to the acts complained of as constituting unauthorized practice of law. In
his letter dated 11 May 2001 addressed to Napoleon Relox, vice- mayor and
presiding officer of the Sangguniang Bayan, respondent stated that he was
resigning "effective upon your acceptance."10 Vice-Mayor Relox accepted
respondents resignation effective 11 May 2001.11 Thus, the evidence does
not support the charge that respondent acted as counsel for a client while
serving as secretary of the Sangguniang Bayan.
On the charge of grave misconduct and misrepresentation, evidence shows
that Bunan indeed authorized respondent to represent him as his counsel
before the MBEC and similar bodies. While there was no misrepresentation,
respondent nonetheless had no authority to practice law.
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the
Philippine Bar.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., and Azcuna, JJ., concur.

- The Judicial and Bar Council

- Article VIII, Section 8

- Automatic release of appropriation for the

judiciary
- Article VIII, Section 3