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CERTIORARI redemption price.

Citing jurisprudence on the matter, the P


EDITHA B. ALBOR, Petitioner vs. ARAD opined that tender of payment must be for the full
COURT OF APPEALS, NERY A MACASIL joined by amount of the repurchase price; otherwise, the offer to
her husband RUDY MACASIL and NORMA BELUSO, redeem would be held ineffectual.
joined by her husband NOLI BELUSO, Respondents
Aggrieved, Editha filed an appeal before the DARAB.
G.R. No. 196598 MARTIRES, J. On 10 November 2008, Editha's erstwhile counsel, Atty.
Fredicindo A. Talabucon (Atty. Talabucon), received a
FACTS: copy of the DARAB's 8 October 2008 decision which
Petitioner Editha was the agricultural lessee of Lot 2429 affirmed in toto the PARAD's ruling.
located at Barangay Dinginan, Roxas City. Said lot was
covered by Transfer Certificate of Title (TCT),4 registered in On 25 November 2008, Editha filed before the CA a
the name of Rosario Andrada (Rosario). motion for extension of time9 to file a Rule 43 petition for
review. She prayed for an additional fifteen (15) days, or
Sometime in September 2000, the Municipal Agrarian from 25 November 2008 until 10 December 2008.
Reform Officer (MARO) of Roxas City, invited Editha to
appear before the MARO office. Editha heeded the Shortly thereafter, on 3 December 2008, a motion to
invitation and there met respondents who informed her withdraw as counsel,10 dated 28 November 2008, was
that they had purchased Lot 2429 from the heirs of filed by Atty. Talabucon after finding out that Editha
Rosario. No Deed of Sale, however, was shown to Editha. engaged services of another counsel to assist her in the
said case.
Later, Editha was able to obtain from the Regional Trial
Court (RTC) in Roxas City, a document entitled "Extra- On 9 December 2008, Editha's new counsel, Atty.
Judicial. Settlement with Deed of Sale," purportedly Ferdinand Y. Samillano (Atty. Samillano ), filed with the
executed by the heirs of Rosario. It appears that on in June CA a notice of appearance11 and at the same time moved
1997, the heirs of Rosario adjudicated unto themselves Lot for an extension of thirty (30) days, or from 10 December
2429 and thereupon sold the same to respondents for 2008 until 9 January 2009, within which to file the
₱600,000.00. petition for review. The second motion for extension of
time was grounded on heavy workload and the need for
Asserting that she had the right to redeem Lot 2429 from more time to study the case.
respondents, Editha lodged a complaint for redemption of
landholding and damages before the Provincial Agrarian Eventually, Editha's petition for review was filed on 5
Reform Adjudicator (PARAD). January 2009.
alleged that under Section 12 of Republic
Act (R.A.) No. 3844,5 as amended by R.A. No. 6389, she The Assailed CA Resolutions
had the right to redeem Lot 2429 within 180 days from In the assailed resolution, dated 24 September 2009, the
notice in writing of the sale which shall be served by the CA dismissed Editha's petition for review for having
vendee on all lessees affected and on the Department of been filed out of time. The appellate court ratiocinated that
Agrarian Reform upon registration of the sale. Considering while it may grant Editha's first motion for extension of
that the said extrajudicial settlement with deed of sale had fifteen (15) days within which to file the petition, it was
not yet been registered with the Register of Deeds of Roxas devoid of authority to grant her second motion for
City, her 180-period for redemption did not commence. extension which asked for an additional time of thirty
Thus, she prayed that judgment be rendered declaring her (30) days.
entitled to redeem the said lot, at the price of ₱60,000.00.
Editha filed a motion for reconsideration, which was
Respondents asserted that prior to the actual sale of Lot likewise denied by the CA in its 15 February 2011
2429, Editha knew that the selling price was ₱600,000.00 resolution. Both resolutions denying Editha's petition for
and not ₱60,000.00, as misleadingly alleged in her review were anchored on Section 4, Rule 43 of the Rules of
complaint. Court, viz:
stated that they held a conference wherein Editha
Section 4. Period of appeal. - The appeal
attended and learned about the impending sale of Lot 2429.
shall be taken within fifteen (15) days
During the conference, Editha was apprised of her right of
from notice of the award, judgment, final
preemption, and Lot 2429 was offered to her for the price of
order or resolution, or from the date of
₱600,000.00. This notwithstanding, Editha did not exercise
its last publication, if publication is
her preemptive right to buy the lot; consequently, the sale
required by law for its effectivity, or of
was consummated between the heirs of Rosario and
the denial of petitioner's motion for new
respondents on 6 June 1997.
trial or reconsideration duly filed in
further claimed that Editha was well-informed in
accordance with the governing law of the
writing regarding the sale of Lot 2429.
court or agency a quo. Only one (1)
averred that they sent Editha a written demand for
motion for reconsideration shall be
payment of rentals reckoned from 1998.
allowed. Upon proper motion and the
payment of the full amount of the docket
While the PARAD sustained Editha's right of redemption
fee before the expiration of the
claiming there was defect in the written notice given to
reglementary period, the Court of
her, it nevertheless resolved to dismiss her complaint Appeals may grant an additional period
after finding that only ₱216,000.00 was consigned as of fifteen (15) days only within which to
file the petition for review. No further not and cannot be made a substitute for an appeal where the
extension shall be granted except for the latter remedy is available but was lost through fault or
most compelling reason and in no case to negligence.18 Where the rules prescribe a particular remedy
exceed fifteen (15) days. for the vindication of rights, such remedy should be availed
of.19 Accordingly, adoption of an improper remedy
In her bid to undo the CA resolutions, Editha comes before
already warrants outright dismissal of this petition.20
this Court via a Rule 65 petition for certiorari.

ISSUE Even if the Court looks beyond Editha's procedural


WHETHER OR NOT THE CA ERRED IN misstep, her petition must fail.
Editha imputes grave abuse of discretion on the part of the
DISMISSING EDITHA'S PETITION FOR REVIEW
CA and argues that it was too technical and constricted in
FOR HAVING BEEN FILED OUT OF TIME. - NO
applying the rules of procedure. She insists that Section 4,
Rule 43 of the Rules of Court admits of an exception, as
Whether or not certiorari is the proper remedy in this case. –
NO! It should have been Petition for revier via Rule 45 the said provision states that a second extension may be
granted for compelling reason.
OUR RULING
Editha posits that there is a compelling reason to grant a
second extension of time because on 3 December 2008,
Editha's petition fails. Editha availed of the wrong mode
Atty. Talabucon suddenly withdrew as her counsel. It was
of appeal in bringing her case before this Court.
only on 9 December 2008 that she hired a new counsel,
Atty. Samillano. Having just entered the picture, Atty.
The proper remedy of a party aggrieved by a decision of
the CA is a petition for review under Rule 45; and such is Samillano needed more time to study the case, and he
not similar to a petition for certiorari under Rule 65 of the could not be expected to finish drafting the petition for
Rules of Court. review in just one (1) day before the expiration of the 15-
day extension granted by the CA. In this accord, Editha
As provided in Rule 45 of the Rules of Court, decisions, contends that the filing of the second motion for
final orders or resolutions of the CA in any case, i.e., extension of time was justified; and that the CA's
regardless of the nature of the action or proceedings dismissal of her petition for review impinged on her
involved, may be appealed to this Court by filing a petition substantive right to due process.
for review, which in essence is a continuation of the
appellate process over the original case.12 The arguments proffered are specious and deserve scant
consideration.
It is doctrinally entrenched that the right to appeal is a
On the other hand, a special civil action under Rule 65 is a
statutory right and the one who seeks to avail of that right
limited form of review and is a remedy of last recourse.13It
must comply with the statute or rules. The requirements for
is an independent action that lies only where there is no
perfecting an appeal within the reglementary period
appeal nor plain, speedy and adequate remedy in the
ordinary course of law. specified in the law must be strictly followed as they are
considered indispensable interdictions against needless
delays. Moreover, the perfection of appeal in the manner
Certiorari will issue only to correct errors of jurisdiction,
and within the period set by law is not only mandatory but
not errors of procedure or mistakes in the findings or
jurisdictional as well.21 The failure to perfect the appeal
conclusions of the lower court.14
As long as the court a quo acts within its jurisdiction, any within the time prescribed by the Rules of Court
alleged errors committed in the exercise of its discretion will unavoidably renders the judgment final as to preclude the
appellate court from acquiring the jurisdiction to review the
amount to nothing more than mere errors of judgment,
judgment.22
correctible by an appeal or a petition for review under
Rule 45 of the Rules of Court.
It bears stressing that the statutory nature of the right to
The 24 September 2009 and 15 February 2011 resolutions of appeal requires the appealing party to strictly comply with
the CA were final and appealable judgments. the statutes or rules governing the perfection of an appeal, as
such statutes or rules are instituted in order to promote an
In particular, the resolution dated 24 September 2009
orderly discharge of judicial business. In the absence of
dismissed Editha's Rule 43 petition for review, while the
highly exceptional circumstances warranting their
resolution dated 15 February 2011 denied her motion for
relaxation, the statutes or rules should remain inviolable. 23
reconsideration of the earlier resolution. The assailed
resolutions disposed of Editha's appeal in a manner that left
nothing more to be done by the CA with respect to the said The Court quotes the relevant portion of Section 4, Rule 43
appeal.16 Hence, Editha should have filed an appeal of the Rules of Court:
before this Court by way of a petition for review Upon proper motion and the payment
on certiorari under Rule 45, not a petition of the full amount of the docket fee
for certiorari under Rule 65.17 before the expiration of the
reglementary period, the Court of
Editha received the 15 February 2011 resolution denying her Appeals may grant an additional period
motion for reconsideration on 28 February 2011. Under the of fifteen (15) days only within which to
rules, she had until 15 March 201 l to file a petition for file the petition for review. No further
review on certiorari with this Court. Editha allowed the extension shall be granted except for the
period to lapse without filing an appeal and, instead, filed most compelling reason and in no case
this petition for certiorari on 29 April 2011. Certiorari is to exceed fifteen (15) days.
The provision is straightforward. While the CA enjoys a escape the same outcome entered by the Court
wide latitude of discretion in granting a first motion for in Spouses Jesus Dycoco v. CA.
extension of time, its authority to grant a further or second
motion for extension of time is delimited by two conditions: Apropos, even if the Court were to believe that Atty.
First, there must exist a most compelling reason for the Talabucon's withdrawal was "sudden" as alleged by Editha,
grant of a further extension; and it cannot be gainsaid that the corresponding motion to
second, in no case shall such extension exceed fifteen (15) withdraw as counsel was filed with at least seven (7) days
days. remaining from the 15-day extension granted by the CA.
Ordinary prudence should have impelled Editha to seek the
So narrow is the discretion accorded to the CA in granting a assistance of a new counsel immediately after signing her
second extension of time that the word "most" was utilized conformity to Atty. Talabucon's motion to withdraw as
to underscore the compelling reason demanded by the rule. counsel. Yet, regrettably, she hired her new counsel only
Editha maintains that the filing of the second motion for one (1) day before the expiration of the 15-day extension
extension of time was prompted by the sudden granted to her. Hence, for failure to exercise vigilance in the
withdrawal of her previous counsel. prosecution of her case, Editha must be prepared to accept
whatever adverse judgment may be rendered against her.
The CA, however, did not appreciate such predicament as a
most compelling reason to grant her plea for further Finally, even on the merits, Editha's petition has no leg to
extension of time. On this score, the Court similarly finds no stand on.
compelling reason to deviate from the sound conclusion of Both the PARAD and the DARAB found that Editha only
the CA. consigned the amount of ₱216,000.00 as redemption price
for Lot 2429. As aptly observed in the PARAD's decision, it
Editha's situation is not unique. In Spouses Jesus Dycoco v. was Editha herself who secured a copy of the extrajudicial
CA,24 petitioner-spouses (Sps. Dycoco) received on 3 April settlement and deed of sale from the Clerk of Court of the
2000, a copy of the DARAB decision they sought to assail. RTC in Roxas City. The purchase price stated in the deed of
Thus, the Sps. Dycoco had until 18 April 2000 to file an conveyance was ₱600,000.00, and the administrative
appeal. They filed a motion in the CA praying for an tribunals correctly held that absent sufficient evidence to the
extension of thirty (30) days within which to file their contrary, it must be accepted the reasonable price of the land
intended petition. The CA granted them an extension of as purchased by the respondents.
fifteen (15) days, or until 3 May 2000 to file their petition. The redemption price Editha consigned falls short of the
Despite the extension, the Sps. Dycoco filed their petition by requirement of the law, leaving the Court with no choice but
registered mail only on 8 May 2000. Not surprisingly, their to rule against her claim. In fine, there is an abundance of
petition was denied due course and dismissed by the CA.25 reasons, both procedural and substantive, which has proved
fatal to Editha's cause.
Like Editha, the Sps. Dycoco erroneously elevated their case
to the Court via a Rule 65 petition for certiorari. Seeking WHEREFORE, the petition
liberality, the Sps. Dycoco contended that their appeal was for certiorari is DISMISSED. The assailed CA Resolutions
filed after the extension granted by the CA because, on 10 in CA-G.R. SP No. 03895 are hereby AFFIRMED.
April 2000, they secured the services of a new counsel who
still had to study the voluminous records. In dismissing the Agnes Coeli Bugaoisan v Owi Group Manila and Morris
Sps. Dycoco's petition for certiorari, the Court held that: Corporation
Petitioner-spouses caused their own GR 226208 February 7, 2018
predicament when they decided to change
horses in midstream and engaged the FACTS:
services of their present counsel on April Petitioner Agnes filed a complaint for constructive illegal
10, 2000 or just a week before the dismissal and payment of salary for the unexpired portion of
expiration of the period to appeal in the the employment period, moral and exemplary damages, and
Court of Appeals, discharging the services attorney’s fees against respondents OWI Group Manila Inc
of their former counsel who handled the (OWI) and Morris Corporation and Marlene Alejandrino
case from the level of the Provincial before the NLRC.
Adjudicator to the DARAB. They cannot
escape the consequences of a belated In that NLRC case, the petitioner alleged that on 6 May
appeal caused by the need of their new 2011, she responded to an advertisement that she saw from
counsel for more time to study OWI regarding a job opening in Australia.
voluminous records and familiarize
himself with the case.26 OWI is the agent of Morris here in the Philippines. OWI
offered petitioner full time employment after she underwent
In juxtaposition, it was alleged in the motion to withdraw as a series of three interviews and did a cooking demonstration.
counsel that Editha had decided to engage the services of Petitioner accepted such offer with a term of employment
another counsel; and that for said reason, Atty. Talabucon for one year.
was withdrawing his appearance. The Court notes that the
motion to withdraw as counsel bore Editha's In September 2011, petitioner Agnes flew from Manila to
signature27 which signified her conformity. At this point, the Perth,Australia. Upon arrival, she was asked to sign another
striking parallelism between the present petition and the offer of full-time employment by Morris. It was indicated in
case of the Sps. Dycoco becomes manifest. The records the offer that her position would be of a breakfast chef and
reveal that it was Editha herself who caused her
predicament. As such, her petition for certiorari cannot
she would receive an annual salary of AUS$75,000. She was Respondents filed MR but the same was denied by the
likewise entitled to a paid annual leave of 25 days. NLRC in its Resolution dated July 22 2013.

She was deployed to Morris’ mining site in Randalls Aggrieved, respondents OWI and Morris filed with the
Kalgoorlie, Australia. She was tasked to prepare breakfast CA a Petition for Certiorari under Rule 65 assailing the
buffet for Morris’ 85 employees all by herelf. It was only NLRC’s decision and resolution, with prayer for
then did she learn that after cooking the dishes, she was also issuance of TRO and/or Writ of Preliminary Injunction.
the one who was tasked to wash the dishes. Overwhelmed The issues raised by respondents before the appellate court
with her duties, petitioner raised her concerns to the ascribed grave abuse of discretion on the part of the
attention of Morris. NLRC in resolving the merits of the case.

Morris refused to giver her an assistant to aid her in her Feb 24 2016, the CA Decision ruled in favor of petitioner
duties in Randall mining site instead she was transferred to saying that petitioner is entitled to receive sum of money
another mining site in Golden Grove, Western Australia. which represents her salary for the unexpired portion of her
The mining site in Golden Grove is bigger but petitioner 1 year employment contract.
worked with a team.
Petitioner moved for partial reconsideration of the CA
On the evening of 12 November 2011, while preparing the decision insofar as it ruled that petitioner’s Overseas
breakfast for the following day, petitioner felt a tingling Employment Contract was only for 1 year, instead of 2 years
sensation followed by numbness on both of her hands. She as ruled by the LA and the NLRC. However, this was denied
was referred to Morris’ on-site nurse, who gave her pain by the CA.
reliever. She was diagnosed to be suffering from Carpal Hence, this petition for review on certiorari.
Tunnel Syndrome (CTS) and was advised to undergo an
intensive examination for confirmation. Issue:
Whether or not the CA was correct when it went beyond the
Several physicians, including Morris’ preferred physician, issues of the case and the assigned errors raised by
conducted a series of medical examination on petitioner. She respondents when it filed the certiorari petition under Rule
was diagnosed to be suffering from Bilateral CTS and was 65. – NO!! Outside its jurisdiction
declared unfit to work for several days. Dr. Timothy
strongly advised her to undergo surgery. The CA, on the other hand, modified the award on the
ground that the second contract was not clear as to whether
Petitioner filed a compensation claim with the Worker’s or not the original duration of one ( 1) year had been
Compensation and Injury Management of Australia to seek extended. Thus, applying the pertinent provisions of the
compensation for her wages while she was still unfit for Civil Code regarding perfection of contracts, it posits that
work or reimbursement of her medical expenses. Her the one ( 1) year period should be applied. Without an iota
application, however, was denied. of doubt, this is a question of fact that is outside the scope
of a petition for review under rule 65.
Morris’ representative met with petitioner and assured her
that they would not be terminating her employment. She Held:
must, however, be declared fit for work before they would In a petition for review on certiorari under Rule 45, only
allow her to report back. Although still employed, petitioner questions of law may be raised, in contrast with
had no other means to support her daily sustenance and the jurisdictional errors which are essentially the basis of Rule
required medication for her CTS since she would not be 65.
receiving salary until declared fit to go back to work. She Simply put, in a Rule 65, petition for certiorari filed with
decided to tender her resignation letter and left for the the CA, the latter must limit itself to the determination
Philippines (after 3 months of service). of whether or not the inferior court, tribunal, board or
officer exercising judicial or quasi-judicial functions
Petitioner filed labor complaint against the respondents. acted without, in excess of or with grave abuse of
She averred in her Position Paper that she was illegally discretion amounting to lack or excess of jurisdiction.
dismissed and was not paid her salaries, overtime pay and
medical expenses. In resolving said questions of jurisdiction, the CA ruled in
favor of petitioner and public respondent NLRC. It
Labor Arbiter ruled in favor petitioner saying that she was affirmed the findings of the NLRC, ruling that no grave
illegally dismissed from employment. It was found that the abuse of discretion could be attributed to the latter when
respondents committed gross misrepresentations and bad it issued its 2013 Decisions.
faith in inducing petitioner to work for them. Furthermore, However, the appellate court modified the aforesaid
the tenor of her resignation letter and the immediate filing of decision by reducing the award of unpaid salaries due
the labor complaint evinced that she did not voluntarily the petitioner on the ground that the basis should be the
tender her resignation. first contract of employment which had a duration of
only one (1) year.
On appeal, the NLRC sustained the findings of the LA
about the existence of constructive dismissal, the solidary On the other hand, the NLRC decision affirmed the ruling of
liability of the respondents and the award of petitioner’s the LA insofar as it concerned, among others, the award of
salary for the unexpired portion of her 2-year employment petitioner's unpaid salaries for the unexpired portion of her
contract. employment contract which was adjudged to be two (2)
years.
In the case of Montoya v. Transmed Manila
The primary issue now that must be resolved is whether or Corporation/Mr. Ellena, et al.,31 the Court ruled:
not the CA was correct when it went beyond the issues of In a Rule 45 review, we consider the correctness of
the case and the assigned errors raised by respondents when the assailed CA decision, in contrast with the review for
it filed the certiorari petition under Rule 65. jurisdictional error that we undertake under Rule 65.
Furthermore, Rule 45 limits us to the review of questions of
The Rules of Court is clear and unambiguous in this regard. law raised against the assailed CA decision. In ruling for
A petition for certiorari is governed by Rule 65 of the legal correctness, we have to view the CA decision in the
Revised Rules of Court, which reads: same context that the petition for certiorari it ruled upon was
presented to it; we have to examine the CA decision from
Section 1. Petition for certiorari. -When any tribunal, board the prism of whether it correctly determined the presence or
or officer exercising judicial or quasi-judicial functions has absence of grave abuse of discretion in the NLRC decision
acted without or in excess of its or his jurisdiction, or with before it, not on the basis of whether the NLRC decision on
grave abuse of discretion amounting to lack or excess of its the merits of the case was correct. In other words, we have
or his jurisdiction, and there is no appeal, or any plain, to be keenly aware that the CA undertook a Rule 65 review,
speedy, and adequate remedy in the ordinary course of law, not a review on appeal, of the NLRC decision challenged
a person aggrieved thereby may file a verified petition in the before it. This is the approach that should be basic in a Rule
proper court, alleging the facts with certainty and praying 45 review of a CA ruling in a labor case.
that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting Similarly, the petition before the Court involves mixed
such incidental reliefs as law and justice may require. xx xx questions of law and fact. Respondents, in its Comment
claim that the present petition must be denied for the reason
To eradicate confusion, what respondents filed with the that only questions of law must be raised in a petition for
CA was a special civil action for certiorari, under Rule review under Rule 45. They are correct. To reiterate, the CA
65 of the Revised Rules of Court. The issues raised by correctly affirmed the findings of the NLRC in that: ( 1)
respondents before the appellate court ascribed grave petitioner was illegally dismissed; and (2) petitioner was
abuse of discretion on the part of the NLRC in resolving entitled to her unpaid salaries for the unexpired portion of
the merits of the case. the employment contract, damages and attorney's fees.
If respondents wanted to question the matter regarding However, it departed from the issues presented by the
contract duration, it should have raised the issue at the parties and decided by the labor tribunals when it modified
earliest possible opportunity or raised it as error on the part the award of unpaid salaries to petitioner notwithstanding
of the NLRC, thus, strengthening its claim of abuse of the fact that neither party ever raised as an issue the matter
discretion committed by the latter. This issue, however, regarding duration of petitioner's employment contract. The
remained unraised. labor tribunals ruled that the award of unpaid salaries should
be the amount corresponding to the unexpired portion of the
A writ of certiorari may be issued only for the correction employment contract which is two (2) years.
of errors of jurisdiction or grave abuse of discretion
amounting to lack or excess of jurisdiction. It cannot be The CA, on the other hand, modified the award on the
used for any other purpose, as its function is limited to ground that the second contract was not clear as to whether
keeping the inferior court within the bounds of its or not the original duration of one ( 1) year had been
jurisdiction. extended. Thus, applying the pertinent provisions of the
Civil Code regarding perfection of contracts, it posits that
The supervisory jurisdiction of a court over the issuance of a the one ( 1) year period should be applied. Without an iota
writ of certiorari cannot be exercised for reviewing the of doubt, this is a question of fact that is outside the scope of
intrinsic correctness of a judgment of the lower court -on the a petition for review under rule 65.
basis either of the law or the facts of the case, or of the The CA is only tasked to determine whether or not the
wisdom or legal soundness of the decision. Even if the NLRC committed grave abuse of discretion in its
findings of the court are incorrect, as long as it has appreciation of factual issues presented before it by any
jurisdiction over the case, such correction is normally parties.
beyond the province of certiorari. Where the error is not The CA is not given unbridled discretion to modify
one of jurisdiction, but an error of law or fact - a mistake factual findings of the NLRC and LA, especially when
of judgment -appeal is the remedy such matters have not been assigned as errors nor raised
in the pleadings. With regard to the issues brought to the
Applying this to the case at bench, the supervisory Court in this present petition, it bears stressing that this
jurisdiction of the CA under Rule 65 was confined only Court's review of a CA ruling is limited to: ill ascertaining
to the determination of whether or not the NLRC the correctness of the CA's decision in finding the presence
committed grave abuse of discretion in deciding the or absence of grave abuse of discretion; and (ii) deciding
issues brought before it on appeal. To recapitulate, the CA any other jurisdictional error that attended the CA's
is allowed to consider the factual issues only insofar as they interpretation or application of the law.33 Clearly, the
serve as the basis of the jurisdictional error imputed to the appellate court found no grave abuse of discretion
lower court or in this case, the NLRC. What, then, is the committed by the NLRC.
"question of law" that must be resolved by this Court in a
Rule 45 petition assailing a decision of the CA on a Rule 65 In light of the foregoing, the Court considers the findings of
certiorari petition? fact of the LA, as affirmed by the NLRC, final and
conclusive, in the absence of proof that the latter acted
without, in excess of or with grave abuse of discretion 9442, promulgate implementing rules and regulations for
amounting to lack or excess of jurisdiction. their effective implementation, as well as prosecute and
revoke licenses of erring establishments.
WHEREFORE, premises considered, the petition is hereby
GRANTED. The Decision dated February 24, 2016 and
Resolution dated August 3, 2016 of the Court of Appeals in ISSUES:
CA-G.R. SP No. 131670 are AFFIRMED with 1. Whether or not the Petition for Prohibition may be filed
MODIFICATION insofar as the award of petitioner Agnes to question the constitutionality of a law;
Coeli Bugaoisan unpaid salaries is concerned. The Decision
dated May 31, 2013 of the National Labor Relations 2. Whether or not the case constitute stare decisis
Conunission with respect to the award of unpaid salaries to
petitioner Agnes Coeli Bugaoisan for the unexpired portion 3. Whether or not the 20% Sales Discount for Senior
of her two-year contract with respondents OWI Group Citizens PWDs does not violate the petitioner’s right to
Manila, Inc. and Morris Corporation is hereby equal
REINSTATED. protection of the law

PROHIBITION 4. Whether or not the definitions of Disabilities and PWDs


are vague and violates the petitioners right to due process of
law
SOUTHERN LUZON DRUG CORPORATION,
Petitioner, vs. THE DEPARTMENT OF SOCIAL
WELFARE AND DEVELOPMENT, et al. Respondents RULING:
G.R. No. 199669
April 25, 2017 1. Yes. Prohibition may be filed to question the
constitutionality of a law.

FACTS: Generally, the office of prohibition is to prevent the


unlawful and oppressive exercise of authority and is
The case at bar is a Petition for Review on Certiorari directed against proceedings that are done without or in
assailing the Decision of the Court of Appeals which excess of jurisdiction, or with grave abuse of discretion,
dismissed the petition for prohibition filed by Southern there being no appeal or other plain, speedy, and
Luzon Drug Corporation (petitioner) against the adequate remedy in the ordinary course of law.
Department of Social Welfare and Development , the It is the remedy to prevent inferior courts, corporations,
National Council for the Welfare of Disabled boards, or persons from usurping or exercising a jurisdiction
Persons (now National Council on Disability Affairs or or power with which they have not been vested by the law.
NCDA), the Department of Finance and the Bureau of
Internal Revenue (collectively, the respondents), which This is, however, not the lone office of an action for
sought to prohibit the implementation of Section 4(a) of prohibition. In Diaz, et al. v. The Secretary of Finance, et
Republic Act (R.A.) No. 9257, otherwise known as the al., prohibition was also recognized as a proper remedy to
"Expanded Senior Citizens Act of 2003" and Section 32 prohibit or nullify acts of executive officials that amount to
of R.A. No. 9442, which amends the "Magna Carta for usurpation of legislative authority. And, in a number of
Disabled Persons," particularly the granting of 20% jurisprudence, prohibition was allowed as a proper action
discount on the purchase of medicines by senior citizens to assail the constitutionality of a law or prohibit its
and persons with disability (PWD), respectively, and implementation.
treating them as tax deduction. which dismissed the
petition for prohibition filed by Southern Luzon Drug 2. No. The Court agrees that the ruling in Carlos Superdrug
Corporation (petitioner) against the Department of Social does not constitute stare decisis to the instant case, not
Welfare and Development , the National Council for the because of the petitioner's submission of financial
Welfare of Disabled Persons (now National Council on statements which were wanting in the first case, but because
Disability Affairs or NCDA), the Department of it had the good sense of including questions that had not
Finance and the Bureau of: Internal Revenue (collectively, been raised or deliberated in the former case of Carlos
the respondents), which sought to prohibit the Superdrug, i.e., validity of the 20% discount granted to
implementation of Section 4(a) of Republic Act (R.A.) No. PWDs, the supposed vagueness of the provisions of R.A.
9257, otherwise known as the "Expanded Senior Citizens No. 9442 and violation of the equal protection clause.
Act of 2003" and Section 32 of R.A. No. 9442, which
amends the "Magna Carta for Disabled Persons," 3. Yes. The subject laws do not violate the equal
particularly the granting of 20% discount on the purchase of protection clause. The equal protection clause is not
medicines by senior citizens and persons with disability infringed by legislation which applies only to those persons
(PWD),: respectively, and treating them as tax deduction falling within a specified class. If the groupings are
due to the reason that claiming it affects the profitability of characterized by substantial distinctions that make real
their business. differences, one class may be treated and regulated
differently from another." For a classification to be valid, (1)
The petitioner is a domestic corporation engaged in the it must be based upon substantial distinctions, (2) it must be
business of drugstore operation in the Philippines while the germane to the purposes of the law, (3) it must not be
respondents are government' agencies, office and bureau limited to existing conditions only, and (4) it must apply
tasked to monitor compliance with R.A. Nos. 9257 and equally to all members of the same class.
(a) the grant of twenty percent (20%) discount from all
4. No. The definitions of "disabilities" and "PWDs" are clear establishments relative to the utilization of services in
and unequivocal. Section 4(a) of R.A. No. 7277, the hotels and similar lodging establishments, restaurants
precursor of R.A. No. 94421 defines "disabled persons" as and recreation centers, and purchase of medicines in all
follows: establishments for the exclusive use or enjoyment of
(a) Disabled persons are those suffering from restriction or senior citizens, including funeral and burial services for
different abilities, as a result of a mental, physical or sensory the death of senior citizens;
impairment, to perform an activity in the manner or within
the range considered normal for a human being[.] xxxx

On the other hand, the term "PWDs" is defined in Section


The establishment may claim the discounts granted
5.1 of the IRR of R.A. No. 9442 as follows:
under (a), (f), (g) and (h) as tax deduction based on the
net cost of the goods sold or services
5.1. Persons with Disability are those individuals defined
rendered: Provided, That the cost of the discount shall be
under Section 4 of [R.A. No.] 7277 [or] An Act Providing allowed as deduction from gross income for the same
for the Rehabilitation, Self-Development and Self-Reliance
taxable year that the discount is granted. Provided,
of Persons with Disability as amended and their integration
further, That the total amount of the claimed tax deduction
into the Mainstream of Society and for Other Purposes. This
net of value-added tax if applicable, shall be included in
is defined as a person suffering from restriction or different
their gross sales receipts for tax purposes and shall be
abilities, as a result of a mental, physical or sensory subject to proper documentation and to the provisions of the
impairment, to perform an activity in a manner or within the National Internal Revenue Code, as amended. (Emphasis
range considered normal for human being. Disability shall
ours)
mean (1) a physical 1or mental impairment that
substantially limits one or more psychological,
physiological or anatomical function of an individual or On May 28, 2004, the DSWD issued the Implementing
activities of such individual; (2) a record of such an Rules and Regulations (IRR) of R.A. No. 9257. Article 8 of
impairment; or (3) being regarded as having such an Rule VI of the said IRR provides:
impairment.
Article 8. Tax Deduction of Establishments. - The
In view of the foregoing disquisition, Section 4(a) of establishment may claim the discounts granted under Rule
Republic Act No. 9257 and Section 32 of Republic Act No. V, Section 4 - Discounts for Establishments; Section 9,
9442 are hereby declared CONSTITUTIONAL. Medical and Dental Services in Private Facilities and
Sections 10 and 11 -Air, Sea and Land Transportation as tax
FULL TEXT!!!! deduction based on the net cost of the goods sold or services
rendered. Provided, That the cost of the discount shall be
In 1992, R.A. No. 7432, entitled "An Act to Maximize the allowed as deduction from gross income for the same
Contribution of Senior Citizens to Nation-Building, Grant taxable year that the discount is granted; Provided,
Benefits and Special Privileges and For Other further, That the total amount of the claimed tax deduction
Purposes," was enacted. Under the said law, a senior citizen, net of value-added tax if applicable, shall be included in
who must be at least 60 years old and has an annual income their gross sales receipts for tax purposes and shall be
of not more than P60,000.00,4 may avail of the privileges subject to proper documentation and to the provisions of the
provided in Section 4 thereof, one of which is 20% discount National Internal Revenue Code, as amended; Provided,
on the purchase of medicines. finally, that the implementation of the tax deduction shall be
subject to the Revenue Regulations to be issued by the
Bureau of Internal Revenue (BIR) and approved by the
To recover the amount given as discount to qualified senior
Department of Finance (DOF). (Emphasis ours)
citizens, covered establishments can claim an equal amount
as tax credit which can be applied against the income tax
due from them. The change in the tax treatment of the discount given to
senior citizens did not sit well with some drug store owners
and corporations, claiming it affected the profitability of
On February 26, 2004, then President Gloria Macapagal-
their business.
Arroyo signed R.A. No. 9257, amending some provisions of
R.A. No. 7432. The new law retained the 20% discount on
the purchase of medicines but removed the annual income Thus, on January 13, 2005, I Carlos Superdrug
ceiling thereby qualifying all senior citizens to the privileges Corporation (Carlos Superdrug), together with other.
under the law. Further, R.A. No. 9257 modified the tax corporation and proprietors operating drugstores in the
treatment of the discount granted to senior citizens, from tax Philippines, filed a Petition for Prohibition with Prayer
credit to tax deduction from gross income, computed based for Temporary Restraining Order (TRO) I and/or
on the net cost of goods sold or services rendered. The Preliminary Injunction before this Court, entitled Carlos
pertinent provision, as amended by R.A. No. 9257, reads as Superdrug I Corporation v. DSWD,5docketed as G.R. No.
follows: 166494, assailing the constitutionality of Section 4(a) of
R.A. No. 9257 primarily on the ground that it amounts to
taking of private property without payment of just
SEC. 4. Privileges for the Senior Citizens. - The senior compensation.
citizens shall be entitled to the following:
In a Decision dated June 29, 2007, the Court upheld the
constitutionality of the assailed provision, holding that
the same is a legitimate exercise of police power. The income, based on the net cost of goods sold or services
relevant portions of the decision read, thus: rendered.

The law is a legitimate exercise of police power which, Pursuant to the foregoing, the IRR of R.A. No. 9442 was
similar to the power of eminent domain, has general welfare promulgated by the DSWD, Department of Education, DOF,
for its object. Police power is not capable of an exact Department of Tourism and the Department of
definition, but has been purposely veiled in general terms to Transportation and Communications.8Sections 5 .1 and 6.1.d
underscore its comprehensiveness to meet all exigencies and thereof provide:
provide enough room for an efficient and flexible response
to conditions and circumstances, thus assuring the greatest Sec. 5. Definition of Terms. For purposes of these Rules and
benefits. Accordingly, it has been described as "the most Regulations, these terms are defined as follows:
essential, insistent and the least limitable of powers,
extending as it does to all the great public needs." It is "[t]he 5.1. Persons with Disability are those individuals
power vested in the legislature by the constitution to make, defined under Section 4 of RA 7277, "An Act
ordain, and establish all manner of wholesome and
Providing for the Rehabilitation, Self-Development
reasonable laws, statutes, and ordinances, either with
and Self-Reliance of Persons with Disability as
penalties or without, not repugnant to the constitution, as
amended and their integration into the Mainstream
they shall judge to be for the good and welfare of the
of Society and for Other Purposes." This is defined
commonwealth, and of the subjects of the same." as a person suffering from restriction or different
abilities, as a result of a mental, physical or sensory
For this reason, when the conditions so demand as impairment, to perform an activity in a manner or
determined by the legislature, property rights must bow to within the range considered normal for human
the primacy of police power because property rights, though being. Disability shall mean: (1) a physical or
sheltered by due process, must yield to general welfare. mental impairment that substantially limits one or
more psychological, physiological or anatomical
xxxx function of an individual or activities of such
individual; (2) a record of such an impairment; or
Moreover, the right to property has a social dimension. (3) being regarded as having such an impairment.
While Article XIII of the Constitution provides the precept
for the protection of property, various laws and xxxx
jurisprudence, particularly on agrarian reform and the
regulation of contracts and public utilities, continuously 6.1.d Purchase of Medicine - At least twenty
serve as a reminder that the right to property can be percent (20%) discount on the purchase of
relinquished upon the command of the State for the medicine for the exclusive use and enjoyment of
promotion of public good. Undeniably, the success of the persons with disability. All drug stores, hospital,
senior citizens program rests largely on the support imparted pharmacies, clinics and other similar
by petitioners and the other private establishments establishments selling medicines are required to
concerned. This being the case, the means employed in provide at least twenty percent (20%) discount
invoking the active participation of the private sector, in subject to the guidelines issued by DOH and
order to achieve the purpose or objective of the law, is PHILHEALTH.
reasonably and directly related. Without sufficient proof
that Section 4(a) of RA. No. 9257 is arbitrary, and that On February 26, 2008, the petitioner filed a Petition for
the continued implementation of the same would be
Prohibition with Application for TRO and/or Writ of
unconscionably detrimental to petitioners, the Court will
Preliminary Injunction9 with the CA, seeking to declare
refrain from quashing a legislative act. as unconstitutional (a) Section 4(a) of R.A. No.
9257, and (b) Section 32 of R.A. No. 9442 and Section 5.1
WHEREFORE, the petition is DISMISSED for lack of of its IRR, insofar as these provisions only allow tax
merit.6 (Citations omitted) deduction on the gross income based on the net cost of
goods sold or services rendered as compensation to
On August 1, 2007, Carlos Superdrug filed a motion for private establishments for the 20% discount that they
reconsideration of the foregoing decision. Subsequently, are required to grant to senior citizens and PWDs.
the Court issued Resolution dated August 21, 2007, Further, the petitioner prayed that the respondents be
denying the said motion with finality. 7 permanently enjoined from implementing the assailed
provisions.
Meanwhile, on March 24, 1992, R.A. No. 7277 pertaining to
the "Magna Carta for Disabled Persons" was enacted, Ruling of the CA
codifying the rights and privileges of PWDs. Thereafter, on
April 30, 2007, R.A. No. 9442 was enacted, amending R.A. On June 17, 2011, the CA dismissed the petition,
No. 7277. One of the salient amendments in the law is the reiterating the ruling of the Court in Carlos
insertion of Chapter 8 in Title 2 thereof, which enumerates Superdrug10particularly that Section 4(a) of R.A. No.
the other privileges and incentives of PWDs, including the 9257 was a valid exercise of police power. Moreover, the
grant of 20% discount on the purchase of medicines. Similar CA held that considering that the same question had been
to R.A. No. 9257, covered establishments shall claim the raised by parties similarly situated and was resolved
discounts given to PWDs as tax deductions from the gross in Carlos Superdrug, the rule of stare decisis stood as a
hindrance to any further attempt to relitigate the same issue.
It further noted that jurisdictional considerations also assail the constitutionality of a law or prohibit its
compel the dismissal of the action. It particularly implementation.
emphasized that it has no original or appellate
jurisdiction to pass upon the constitutionality of the In Social Weather Stations, Inc. v. Commission on
assailed laws, 11 the same pertaining to the Regional Elections,21therein petitioner filed a petition for prohibition
Trial Court (RTC). Even assuming that it had to assail the constitutionality of Section 5.4 of R.A. No.
concurrent jurisdiction with the RTC, the principle of 9006, or the "Fair Elections Act," which prohibited the
hierarchy of courts mandates that the case be publication of surveys within 15 days before an election for
commenced and heard by the lower court. 12 The CA national candidates, and seven days for local candidates.
further ruled that the petitioner resorted to the wrong Included in the petition is a prayer to prohibit the
remedy as a petition for prohibition will not lie to Commission on Elections from enforcing the said provision.
restrain the actions of the respondents for the simple The Court granted the Petition and struck down the assailed
reason that they do not exercise judicial, quasi-judicial provision for being unconstitutional. 22
or ministerial duties relative to the issuance or
implementation of the questioned provisions. Also, the In Social Justice Society (SJS) v. Dangerous Drugs Board,
petition was wanting of the allegations of the specific acts et al.,23 therein petitioner assailed the constitutionality of
committed by the respondents that demonstrate the paragraphs (c ), (d), (f) and (g) of Section 36 of R.A. No.
exercise of these powers which may be properly 9165, otherwise known as the "Comprehensive Dangerous
challenged in a petition for prohibition.13 Drugs Act of 2002," on the ground that they constitute
undue delegation of legislative power for granting unbridled
The petitioner filed its Motion for Reconsideration 14 of the discretion to schools and private employers in determining
Decision dated June 17, 2011 of the CA, but the same was the manner of drug 'testing of their employees, and that the
denied in a Resolution 15 dated November 25, 2011. law constitutes a violation of the right against unreasonable
searches and seizures. It also sought to enjoin the Dangerous
Unyielding, the petitioner filed the instant petition. Drugs Board and the Philippine Drug Enforcement Agency
from enforcing the challenged provision.24The Court
ISSUE/S: partially granted the petition by declaring Section 36(f) and
(g) of R.A. No. 9165 unconstitutional, and permanently
Whether or not the CA seriously erred when it ruled that a enjoined the concerned agencies from implementing them. 25
petition for prohibition filed with the CA is an improper
remedy to assail the constitutionality of the 20% sales In another instance, consolidated petitions for
discount for senior citizens and PWDs. – NO!!! prohibitions26 questioning the constitutionality of the
Priority Development Assistance Fund were deliberated
upon by this Court which ultimately granted the same.
Ruling of the Court

Clearly, prohibition has been found an appropriate


Prohibition may be filed to question
remedy to challenge the constitutionality of various laws,
the constitutionality of a law
rules, and regulations.
In the assailed decision, the CA noted that the action,
There is also no question regarding the jurisdiction of the
although denominated as one for prohibition, seeks the
CA to hear and decide a petition for prohibition. By express
declaration of the unconstitutionality of Section 4(a) of R.A.
provision of the law, particularly Section 9(1) of Batas
No. 9257 and Section 32 of R.A. No.9442. It held that in
Pambansa Bilang 129,27 the CA was granted "original
such a case, the proper remedy is not a special civil 1 action
but a petition for declaratory relief, which falls under the jurisdiction to issue writs
exclusive original jurisdiction of the RTC, in the first of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or I
instance, and of the Supreme Court, on appeal. 17
processes, whether or not in aid of its appellate jurisdiction."
This authority· the CA enjoys concurrently with RTCs and
The Court clarifies. this Court.

Generally, the office of prohibition is to prevent the In the same manner, the supposed violation of the principle
unlawful and oppressive exercise of authority and is of the ·. hierarchy of courts does not pose any hindrance to
directed against proceedings that are done without or in the full deliberation of the issues at hand. It is well to
excess of jurisdiction, or with grave abuse of discretion, remember that "the judicial hierarchy of courts is not an
there being no appeal or other plain, speedy, and iron-clad rule. It generally applies to cases involving
adequate remedy in the ordinary course of law. It is the warring factual allegations. For this reason, litigants are
remedy to prevent inferior courts, corporations, boards, or required to [refer] to the trial courts at the first instance to
persons from usurping or exercising a jurisdiction or power determine the truth or falsity of these contending allegations
with which they have not been vested by law. 18 This is, on the basis of the evidence of the parties. Cases which
however, not the lone office of an action for prohibition. depend on disputed facts for decision cannot be brought
In Diaz, et al. v. The Secretary of Finance, et immediately before appellate courts as they are not triers of
al., 19 prohibition was also recognized as a proper remedy to facts. Therefore, a strict application of the rule of hierarchy
prohibit or nullify acts of executive officials that amount to of courts is not necessary when the cases brought before the
usurpation of legislative authority. 20 And, in a number of appellate courts do not involve factual but legal questions." 28
jurisprudence, prohibition was allowed as a proper action to
Moreover, the principle of hierarchy of courts may be set In both cases, it is apparent that what the petitioners are
aside for special and important reasons, such as when ultimately questioning is not the grant of the senior
dictated by public welfare and ' the advancement of public citizen discount per se, but the manner by which they
policy, or demanded by the broader interest of were allowed to recoup the said discount. In particular,
justice.29Thus, when based on the good judgment of the they are protesting the change in the tax treatment of the
court, the urgency and significance of the issues presented senior citizen discount from tax credit to being merely a
calls for its intervention, it should not hesitate to exercise its deduction from gross income which they claimed to have
duty to resolve. significantly reduced their profits.

The instant petition presents an exception to the principle as This question had been settled in Carlos Superdrug, where
it basically raises a legal question on the constitutionality of the Court ruled that the change in the tax treatment of the
the mandatory discount and the breadth of its rightful discount was a valid exercise of police power, thus:
beneficiaries. More importantly, the resolution of the issues
will redound to the benefit of the public as it will put to rest Theoretically, the treatment of the discount as a deduction
the questions on the propriety of the granting of discounts to reduces the net income of the private establishments
senior citizens and PWDs amid the fervent insistence of concerned. The discounts given would have entered the
affected establishments that the measure transgresses their coffers and formed part of the gross sales of the private
property rights. The Court, therefore, finds it to the best establishments, were it not for R.A. No. 9257.
interest of justice that the instant petition be resolved.
xxxx
The instant case is not barred by
stare decisis
A tax deduction does not offer full reimbursement of the
senior citizen discount. As such, it would not meet the
STARE DECISIS – when an issue has been previously definition of just compensation.
brought to the court and a ruling already issued.
Having said that, this raises the question of whether the
The petitioner contends that the CA erred in holding that the State, in promoting the health and welfare of a special group
ruling in Carlos Superdrug constitutes as stare decisis or of citizens, can impose upon private establishments the
law of the case which bars the relitigation of the issues that burden of partly subsidizing a government program.
had been resolved therein and had been raised anew in the
instant petition. It argues that there are substantial
The Court believes so.
differences between Carlos Superdrug and the
circumstances in the instant case which take it out from the
operation of the doctrine of stare decisis. It cites that The Senior Citizens Act was enacted primarily to maximize
in Carlos Superdrug, the Court denied the petition because the contribution of senior citizens to nation-building, and to
the petitioner therein failed to prove the confiscatory effect grant benefits and privileges to them for their improvement
of the tax deduction scheme as no proof of actual loss was and well-being as the State considers them an integral part
submitted. It believes that its submission of financial of our society.
statements for the years 2006 and 2007 to prove the
confiscatory effect of the law is a material fact that The priority given to senior citizens finds its basis in the
distinguishes the instant case from that of Carlos Constitution as set forth in the law itself. Thus, the Act
Superdrug. 30 provides:

The Court agrees that the ruling in Carlos Superdrug does SEC. 2. [R.A.] No. 7432 is hereby amended to read as
not constitute stare decisis to the instant case, not because of follows:
the petitioner's submission of financial statements which
were wanting in the first case, but because it had the good SEC. 1. Declaration of Policies and Objectives.- Pursuant to
sense of including questions that had not been raised or Article XV, Section 4 of the Constitution, it is the duty of
deliberated in the former case of Carlos Superdrug, the family to take care of its elderly members while the State
i.e., validity of the 20% discount granted to PWDs, the may design programs of social security for them. In addition
supposed vagueness of the provisions of R.A. No. 9442 and to this, Section 10 in the Declaration of Principles and State
violation of the equal protection clause. Policies provides: "The State shall provide social justice in
all phases of national development." Further, Article XIII,
Nonetheless, the Court finds nothing in the instant case that Section 11, provides: "The State shall adopt an integrated
merits a reversal of the earlier ruling of the Court in Carlos and comprehensive approach to health development which
Superdrug. Contrary to the petitioner's claim, there is a very shall endeavor to make essential goods, health and other
slim difference between the issues in Carlos Superdrug and social services available to all the people at affordable cost.
the instant case with respect to the nature of the senior There shall be priority for the needs of the underprivileged
citizen discount. A perfunctory reading of the circumstances sick, elderly, disabled, women and children." Consonant
of the two cases easily discloses marked similarities in the with these constitutional principles the following are the
issues and the arguments raised by the petitioners in both declared policies of this Act:
cases that semantics nor careful play of words can hardly
obscure. xxxx
(f) To recognize the important role of the private sector patriae means parent of his or her country, and refers to the
in the improvement of the welfare of senior citizens and State in its role as "sovereign", or the State in its capacity as
to actively seek their partnership. a provider of protection to those unable to care for
themselves. 33 In fulfilling this duty, the State may resort to
To implement the above policy, the law grants a twenty the exercise of its inherent powers: police power, eminent
percent discount to senior citizens for medical and dental domain and power of taxation.
services, and diagnostic and laboratory fees; admission fees
charged by theaters, concert halls, circuses, carnivals, and In Gerochi v. Department of Energy,34the Court passed upon
other similar places of culture, leisure and amusement; fares one of the inherent powers of the state, the police power,
for domestic land, air and sea travel; utilization of services where it emphasized, thus:
in hotels and similar lodging establishments, restaurants and
recreation centers; and purchases of medicines for the [P]olice power is the power of the state to promote public
exclusive use or enjoyment of senior citizens. As a form of welfare by restraining and regulating the use of liberty and
reimbursement, the law provides that business property. It is the most pervasive, the least limitable, and the
establishments extending the twenty percent discount to most demanding of the three fundamental powers of the
senior citizens may claim the discount as a tax deduction. State. The justification is found in the Latin maxim salus
populi est suprema lex (the welfare of the people is the
The law is a legitimate exercise of police power which, supreme law) and sic utere tuo ut alienum non laedas (so
similar to the power of eminent domain, has general use your property as not to injure the property of others). As
welfare for its object. Police power is not capable of an an inherent attribute of sovereignty which virtually extends
exact definition, but has been purposely veiled in general to all public needs, police power grants a wide panoply of
terms to underscore its comprehensiveness to meet all instruments through which the State, as parens
exigencies and provide enough room for an efficient and patriae, gives effect to a host of its regulatory powers. We
flexible response to conditions and circumstances, thus have held that the power to "regulate" means the power to
assuring the greatest benefits. Accordingly, it has been protect, foster, promote, preserve, and control, with due
described as "the most essential, insistent and the least regard for the interests, first and foremost, of the public,
limitable of powers, extending as it does to all the great then of the utility and of its patrons. 35 (Citations omitted)
public needs." It is "[t]he power vested in the legislature by
the constitution to make, ordain, and establish all manner of It is in the exercise of its police power that the Congress
wholesome and reasonable laws, statutes, and ordinances, enacted R.A. Nos. 9257 and 9442, the laws mandating a
either with penalties or without, not repugnant to the 20% discount on purchases of medicines made by senior
constitution, as they shall judge to be for the good and citizens and PWDs. It is also in further exercise of this
welfare of the commonwealth, and of the subjects of the power that the legislature opted that the said discount be
same." claimed as tax deduction, rather than tax credit, by
covered establishments.
For this reason, when the conditions so demand as
determined by the legislature, property rights must bow to The petitioner, however, claims that the change in the tax
the primacy of police power because proper rights, though treatment of the discount is illegal as it constitutes taking
sheltered by due process, must yield to general without just compensation. It even submitted financial
welfare. 31 (Citations omitted and emphasis in the original) statements for the years 2006 and 2007 to support its claim
of declining profits when the change in the policy was
Verily, it is the bounden duty of the State to care for the implemented.
elderly as they reach the point in their lives when the vigor
of their youth has diminished and resources have become The Court is not swayed.
scarce. Not much because of choice, they become needing
of support from the society for whom they presumably spent
To begin with, the issue of just compensation finds no
their productive days and for whose betterment they'
relevance in the instant case as it had already been made
exhausted their energy, know-how and experience to make
clear in Carlos Superdrug that the power being exercised by
our days better to live.
the State in the imposition of senior citizen discount was its
police power. Unlike in the exercise of the power of eminent
In the same way, providing aid for the disabled persons is an domain, just compensation is not required in wielding police
equally important State responsibility. Thus, the State is power. This is precisely because there is no taking involved,
obliged to give full support to the improvement of the total but only an imposition of burden.
well-being of disabled persons and their integration into the
mainstream of society. 32This entails the creation of In Manila Memorial Park, Inc., et al. v. Secretary of the
opportunities for them and according them privileges if only DSWD, et al., 36 the Court ruled that by examining the
to balance the playing field which had been unduly tilted
nature and the effects of R.A. No. 9257, it becomes apparent
against them because of their limitations.
that the challenged governmental act was an exercise of
police power. It was held, thus:
The duty to care for the elderly and the disabled lies not
only upon the State, but also on the community and even [W]e now look at the nature and effects of the 20% discount
private entities. As to the State, the duty emanates from its
to determine if it constitutes an exercise of police power or
role as parens patriae which holds it under obligation to
eminent domain.
provide protection and look after the welfare of its people
especially those who cannot tend to themselves. Parens
The 20% discount is intended to improve the welfare of integrated! and comprehensive approach to health
senior citizens who, at their age, are less likely to be development which shall endeavor to make essential goods,
gainfully employed, more prone to illnesses and other health and other social services available to all the people at
disabilities, and, thus, in need of subsidy in purchasing basic affordable cost, with priority for the needs of the
commodities. It may not be amiss to mention also that the underprivileged sick, elderly, disabled, women, and
discount serves to honor senior citizens who presumably children.40
spent the productive years of their lives on contributing to
the development and progress of the nation. This distinct In the same manner, the family and the community have
cultural Filipino practice of honoring the elderly is an equally significant duties to perform in reducing social
integral part of this law. inequality. The family as the basic social institution has the
foremost duty to care for its elderly members. 41 On the other
As to its nature and effects, the 20% discount is a regulation hand, the community, which include the private sector, is
affecting the ability of private establishments to price their recognized as an active partner of the State in pursuing
products and services relative to a special class of greater causes. The private sector, being recipients of the
individuals, senior citizens, for which the Constitution privilege to engage business in our land, utilize our goods as
affords preferential concern. In turn, this affects the amount well as the services of our people for proprietary purposes, it
of profits or income/gross sales that a private establishment is only fitting to expect their support in measures that
can derive from senior citizens. In other words, the subject contribute to common good. Moreover, their right to own,
regulation affects the pricing, and, hence, the profitability of establish and operate economic enterprises is always subject
a private establishment. However, it does not purport to to the duty of the State to promote distributive justice and to
appropriate or burden specific properties, used in the intervene when the common good so demands.42
operation or conduct of the business of private
establishments, for the use or benefit of the public, or senior The Court also entertains no doubt on the legality of the
citizens for that matter, but merely regulates the pricing of method taken by the legislature to implement the declared
goods and services relative to, and the amount of profits or policies of the subject laws, that is, to impose discounts on
income/gross sales that such private establishments may the medical services and purchases of senior citizens and
derive from, senior citizens. PWDs and to treat the said discounts as tax deduction rather
than tax credit. The measure is fair and reasonable and no
The subject regulation may be said to be similar to, but with credible proof was presented to prove the claim that it was
substantial distinctions from, price control or rate of 'return confiscatory. To be considered confiscatory, there must
on investment control laws which are traditionally regarded be taking of property without just compensation.
as police power measures. x x x.37 (Citations omitted)
Illuminating on this point is the discussion of the Court on
In the exercise of police power, "property rights of private the concept of taking in City of Manila v. Hon. Laguio,
individuals are subjected to restraints and burdens in order Jr.,43viz.:
to secure the general comfort, health, and prosperity of the
State."38 Even then, the State's claim of police power cannot There are two different types of taking that can be identified.
be arbitrary or unreasonable. After all, the overriding A "possessory" taking occurs when the government
purpose of the exercise of the power is to promote general confiscates or physically occupies property. A "regulatory"
welfare, public health and safety, among others. It is a taking occurs when the government's regulation leaves no
measure, which by sheer necessity, the State exercises, even reasonable economically viable use of the property.
to the point of interfering with personal liberties or property
rights in order to advance common good. To warrant such
xxxx
interference, two requisites must concur: (a) the interests of
the public generally, as distinguished from those of a
particular class, require the interference of the! State; and No formula or rule can be devised to answer the questions of
(b) the means employed are reasonably necessary to the: what is too far and when regulation becomes a taking.
attainment of the object sought to be accomplished and not In Mahon, Justice Holmes recognized that it was "a question
unduly oppressive upon individuals. In other words, the of degree and therefore cannot be disposed of by general
proper exercise of the police power requires the concurrence propositions." On many other occasions as well, the U.S.
of a lawful subject and a lawful method.39 Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in
each case. x x x.
The subjects of R.A. Nos. 9257 and 9442, i.e., senior
citizens and PWDs, are individuals whose well-being is a
recognized public duty. As a public duty, the responsibility What is crucial in judicial consideration of regulatory
for their care devolves upon the concerted efforts of the takings is that government regulation is a taking if it leaves
State, the family and the community. In Article XIII, no reasonable economically viable use of property in a
Section 1 of the Constitution, the State is mandated to give manner that interferes with reasonable expectations for use.
highest priority to the enactment of measures that protect A regulation that permanently denies all economically
and enhance the right of all the people to human dignity, beneficial or productive use of land is, from the owner's
reduce social, economic, and political inequalities, and point of view, equivalent to a "taking" unless principles of
remove cultural inequities by equitably diffusing wealth and nuisance or property law that existed when the owner
political power1 for the common good. The more apparent acquired the land make the use prohibitable. When the
manifestation of these social inequities is the unequal owner of real property has been called upon to sacrifice all
distribution or access to healthcare services. To: abet in economically beneficial uses in the name of the common
alleviating this concern, the State is committed to adopt an
good, that is, to leave his property economically idle, he has discount and retain their profitability while being fully
suffered a taking. compliant to the laws. It follows that losses are not
inevitable because establishments are free to take business
xxxx measures to accommodate the contingency. Lacking in
permanence and consistency, there can be no taking in the
constitutional sense. There cannot be taking in one
A restriction on use of property may also constitute a
establishment and none in another, such that the former can
"taking" if not reasonably necessary to the effectuation of a
substantial public purpose or if it has an unduly harsh claim compensation but the other may not. Simply told,
impact on the distinct investment-backed expectations of the there is no taking to justify compensation; there is only poor
business decision to blame.
owner.44 (Citations omitted)

There is also no ousting of the owner or deprivation of


The petitioner herein attempts to prove its claim that the
pertinent provisions of R.A. Nos. 9257 and 9442 amount to ownership. Establishments are neither divested of ownership
taking by presenting financial statements purportedly of any of their properties nor is anything forcibly taken from
them. They remain the owner of their goods and their profit
showing financial losses incurred by them due to the
or loss still depends on the performance of their sales.
adoption of the tax deduction scheme.

For the petitioner's clarification, the presentation of the Apart from the foregoing, covered establishments are also
financial statement is not of compelling significance in provided with a mechanism to recoup the amount of
discounts they grant the senior citizens and PWDs. It is
justifying its claim for just compensation. What is
provided in Section 4(a) of R.A. No. 9257 and Section 32 of
imperative is for it to establish that there was taking in the
R.A. No. 9442 that establishments may claim the discounts
constitutional sense or that, in the imposition of the
as "tax deduction based on the net cost of the goods sold or
mandatory discount, the power exercised by the state was
eminent domain. services rendered." Basically, whatever amount was given
as discount, covered establishments may claim an equal
amount as an expense or tax deduction. The trouble is that
According to Republic of the Philippines v. Vda. de the petitioner, in protesting the change in the tax treatment
Castellvi,45five circumstances must be present in order to of the discounts, apparently seeks tax incentive and not
qualify "taking" as an exercise of eminent domain. First, the merely a return of the amount given as discounts. It
expropriator must enter a private property. Second, the premised its interpretation of financial losses in terms of the
entrance into private property must be for more than a effect of the change in the tax treatment of the discount on
momentary period. Third, the entry into the property should its tax liability; hence, the claim that the measure was
be under warrant or color of legal authority. Fourth, the confiscatory. However, as mentioned earlier in the
property must be devoted to a public use or otherwise discussion, loss of profits is not the inevitable result of the
informally appropriated or injuriously affected. Fifth, the change in tax treatment of the discounts; it is more
utilization of the property for public use must be in such a appropriately a consequence of poor business decision.
way as to oust the owner and deprive him of all beneficial
enjoyment of the property. 46
It bears emphasizing that the law does not place a cap on the
amount of mark up that covered establishments may impose
The first requirement speaks of entry into a private property on their items. This rests on the discretion of the
which clearly does not obtain in this case. There is no establishment which, of course, is expected to put in the
private property that is; invaded or appropriated by the price of the overhead costs, expectation of profits and other
State. As it is, the petitioner precipitately deemed future considerations into the selling price of an item. In a simple
profits as private property and then proceeded to argue that illustration, here is Drug A, with acquisition cost of ₱8.00,
the State took it away without full compensation. This and selling price of ₱10.00. Then comes a law that imposes
seemed preposterous considering that the subject of what the 20% on senior citizens and PWDs, which affected
petitioner supposed as taking was not even earned profits Establishments 1, 2 and 3.
but merely an expectation of profits, which may not even
occur. For obvious reasons, there cannot be taking of a
The foregoing demonstrates that it is not the law per
contingency or of a mere possibility because it lacks
physical existence that is necessary before there could be se which occasioned the losses in the covered
any taking. Further, it is impossible to quantify the establishments but bad business I judgment. One of the main
considerations in making business decisions is the law
compensation for the loss of supposed profits before it is
because its effect is widespread and inevitable. Literally,
earned.
anything can be a subject of legislation. It is therefore
incumbent upon business managers to cover this
The supposed taking also lacked the characteristics of contingency and consider it in making business strategies.
permanence 47 and consistency.1âwphi1 The presence of As shown in the illustration, the better responses were
these characteristics is significant because they can establish exemplified by Establishments 2 and 3 which promptly put
that the effect of the questioned provisions is the same on all in the additional costs brought about by the law into the
establishments and those losses are indeed its unavoidable price of Drug A. In doing so, they were able to maintain the
consequence. But apparently these indications are wanting profitability of the business, even earning some more, while
in this case. The reason is that the impact on the at the same time being fully compliant with the law. This is
establishments varies depending on their response to the not to mention that the illustration is even too simplistic and
changes brought about by the subject provisions. To be not' the most ideal since it dealt only with a single drug
clear, establishments, are not prevented from adjusting their being purchased by both regular patrons and senior citizens
prices to accommodate the effects of the granting of the and PWDs. It did not consider the accumulated profits from
the other medical and non-medical products being sold by other event may prevent their vesting." 51Certainly, the
the establishments which are expected to further curb the petitioner cannot claim confiscation or taking of something
effect of the granting of the discounts in the business. that has yet to exist. It cannot claim deprivation of profit
before the consummation of a sale and the purchase by a
It is therefore unthinkable how the petitioner could have senior citizen or PWD.
suffered losses due to the mandated discounts in R.A. Nos.
9257 and 9442, when a fractional increase in the prices of Right to profit is not an accrued right; it is not fixed,
items could bring the business standing at a balance even absolute nor indefeasible. It does not come into being until
with the introduction of the subject laws. A level adjustment the occurrence or realization of a condition precedent. It is a
in the pricing of items is a reasonable business measure to mere "contingency that might never eventuate into a right. It
take in order to adapt to the contingency. This could even stands for a mere possibility of profit but nothing might ever
make establishments earn more, as shown in the illustration, be payable under it."52
since every fractional increase in the price of covered items
translates to a wider cushion to taper off the effect of the The inchoate nature of the right to profit precludes the
granting of discounts and ultimately results to additional possibility of compensation because it lacks the quality or
profits gained from the purchases of the same items by characteristic which is necessary before any act of taking or
regular patrons who are not entitled to the discount. Clearly, expropriation can be effected. Moreover, there is no
the effect of the subject laws in the financial standing of yardstick fitting to quantify a contingency or to determine
covered companies depends largely on how they respond compensation for a mere possibility. Certainly, "taking"
and forge a balance between profitability and their sense of presupposes the existence of a subject that has a quantifiable
social responsibility. The adaptation is entirely up to them or determinable value, characteristics which a mere
and they are not powerless to make adjustments to contingency does not possess.
accommodate the subject legislations.
Anent the question regarding the shift from tax credit to tax
Still, the petitioner argues that the law is confiscatory in the deduction, suffice it is to say that it is within the province of
sense that the State takes away a portion of its supposed Congress to do so in the exercise of its legislative power. It
profits which could have gone into its coffers and utilizes it has the authority to choose the subject of legislation, outline
for public purpose. The petitioner claims that the action of the effective measures to achieve its declared policies and
the State amounts to taking for which it should be even impose penalties in case of non-compliance. It has the
compensated. sole discretion to decide which policies to pursue and devise
means to achieve them, and courts often do not interfere in
To reiterate, the subject provisions only affect the this exercise for as long as it does not transcend
petitioner's right to profit, and not earned profits. constitutional limitations. "In performing this duty, the
Unfortunately for the petitioner, the right to profit is not a legislature has no guide but its judgment and discretion and
vested right or an entitlement that has accrued on the person the wisdom of experience."53 In Carter v. Carter Coal
or entity such that its invasion or deprivation warrants Co.,54legislative discretion has been described as follows:
compensation. Vested rights are "fixed, unalterable, or
irrevocable."48 More extensively, they are depicted as Legislative congressional discretion begins with the choice
follows: of means, and ends with the adoption of methods and details
to carry the delegated powers into effect. x x x [W]hile the
Rights which have so completely and definitely accrued to powers are rigidly limited to the enumerations of the
or settled in a person that they are not subject to be defeated Constitution, the means which may be employed to carry the
or cancelled by the act of any other private person, and powers into effect are not restricted, save that they must be
which it is right and equitable that the government should appropriate, plainly adapted to the end, and not prohibited
recognize and protect, as being lawful in themselves, and by, but consistent with, the letter and spirit of the
settled according to the then current rules of law, and of Constitution. x x x. 55 (Emphasis ours)
which the individual could not be deprived arbitrarily
without injustice, or of which he could not justly be Corollary, whether to treat the discount as a tax deduction or
deprived otherwise than by the established methods of tax credit is a matter addressed to the wisdom of the
procedure and for the public welfare. x x x A right is not legislature. After all, it is within its prerogative to enact laws
'vested' unless it is more than a mere expectation based on which it deems sufficient to address a specific public
the anticipated continuance of present laws; it must be an concern. And, in the process of legislation, a bill goes
established interest in property, not open to doubt. x x x To through rigorous tests of validity, necessity and sufficiency
be vested in its accurate legal sense, a right must be in both houses of Congress before enrolment. It undergoes
complete and consummated, and one of which the person to close scrutiny of the members of Congress and necessarily
whom it belongs cannot be divested without his consent.x x had to surpass the arguments hurled against its passage.
x.49 (Emphasis ours) Thus, the presumption of validity that goes with every law
as a form of deference to the process it had gone through
Right to profits does not give the petitioner the cause of and also to the legislature's exercise of discretion. Thus,
action to ask for just compensation, it being only an inchoate in lchong, etc., et al. v. Hernandez) etc., and Sarmiento,56the
right or one that has not fully developed50 and therefore Court emphasized, thus:
cannot be claimed as one's own. An inchoate right is a mere
expectation, which may or may not come into existence. It is It must not be overlooked, in the first place, that the
contingent as it only comes "into existence on an event or legislature, which is the constitutional repository of police
condition which may not happen or be performed until some power and exercises the prerogative of determining the
policy of the State, is by force of circumstances calling subject of regulation. A lawful business or calling
primarily the judge of necessity, adequacy or may not, under the guise of regulation, be unreasonably
reasonableness and wisdom, of any law promulgated in interfered with even by the exercise of police power. 64 After
the exercise of the police power, or of the measures all, regulation only signifies control or restraint, it does not
adopted to implement the public policy or to achieve mean suppression or absolute prohibition. Thus,
public interest.x x x.57 (Emphasis ours) in Philippine Communications Satellite
Corporation v. Alcuaz, 65the Court emphasized:
The legislature may also grant rights and impose additional
burdens: It may also regulate industries, in the exercise of The power to regulate is not the power to destroy useful and
police power, for the protection of the public. R.A. Nos. harmless enterprises, but is the power to protect, foster,
9257 and 9442 are akin to regulatory laws, the issuance of promote, preserve, and control with due regard for the
which is within the ambit of police power. The minimum interest, first and foremost, of the public, then of the utility
wage law, zoning ordinances, price control laws, laws and of its patrons. Any regulation, therefore, which operates
regulating the operation of motels and hotels, laws limiting as an effective confiscation of private property or constitutes
the working hours to eight, and the like fall under this an arbitrary or unreasonable infringement of property rights
category. 58 is void, because it is repugnant to the constitutional
guaranties of due process and equal protection of the
Indeed, regulatory laws are within the category of police laws. 66 (Citation omitted)
power measures from which affected persons or entities
cannot claim exclusion or compensation. For instance, Here, the petitioner failed to show that R.A. Nos. 9257 and
private establishments cannot protest that the imposition of 9442, under the guise of regulation, allow undue
the minimum wage is confiscatory since it eats up a interference in an otherwise legitimate
considerable chunk of its profits or that the mandated business.1avvphi1 On the contrary, it was shown that the
remuneration is not commensurate for the work done. The questioned laws do not meddle in the business or take
compulsory nature of the provision for minimum wages anything from it but only regulate its realization of profits.
underlies the effort of the State; as R.A. No.
672759 expresses it, to promote productivity-improvement The subject laws do not violate the
and gain-sharing measures to ensure a decent standard of equal protection clause
living for the workers and their families; to guarantee the
rights of labor to its just share in the fruits of production; to The petitioner argues that R.A. Nos. 9257 and 9442 are
enhance employment generation in the countryside through
violative of the equal protection clause in that it failed to
industry dispersal; and to allow business and industry
distinguish between those who have the capacity to pay and
reasonable returns on investment, expansion and growth,
those who do not, in granting the 20% discount. R.A. No.
and as the Constitution expresses it, to affirm labor as a
9257, in particular, removed the income qualification in
primary social economic force. 60 R.A. No. 7432 of'₱60,000.00 per annum before a senior
citizen may be entitled to the 20o/o discount.
Similarly, the imposition of price control on staple goods in
R.A. No. 758161 is likewise a valid exercise of police power
The contention lacks merit.
and affected establishments cannot argue that the law was
depriving them of supposed gains. The law seeks to ensure
the availability of basic necessities and prime commodities The petitioner's argument is dismissive of the reasonable
at reasonable prices at all times without denying legitimate qualification on which the subject laws were based. In City
business a fair return on investment. It likewise aims to of Manila v. Hon. Laguio, Jr., 67 the Court emphasized:
provide effective and sufficient protection to consumers
against hoarding, profiteering and cartels with respect to the Equal protection requires that all persons or things similarly
supply, distribution, marketing and pricing of said goods, situated should be treated alike, both as to rights conferred
especially during periods of calamity, emergency, and responsibilities imposed. Similar subjects, in other
widespread illegal price manipulation and other similar words, should not be treated differently, so as to give undue
situations.62 favor to some and unjustly discriminate against others. The
guarantee means that no person or class of persons shall be
More relevantly, in Manila Memorial Park, Inc.,63it was denied the same protection of laws which is enjoyed by
ruled that it is within the bounds of the police power of the other persons or other classes in like
state to impose burden on private entities, even if it may circumstances.68 (Citations omitted)
affect their profits, such as in the imposition of price control
measures. There is no compensable taking but only a "The equal protection clause is not infringed by legislation
recognition of the fact that they are subject to the regulation which applies only to those persons falling within a
of the State and that all personal or private interests must specified class. If the groupings are characterized by
bow down to the more paramount interest of the State. substantial distinctions that make real differences, one class
may be treated and regulated differently from
This notwithstanding, the regulatory power of the State does another."69 For a classification to be valid, (1) it must be
not authorize the destruction of the business. While a based upon substantial distinctions, (2) it must be germane
business may be regulated, such regulation must be within to the purposes of the law, (3) it must not be limited to
the bounds of reason, i.e., the regulatory ordinance must be existing conditions only, and (4) it must apply equally to all
reasonable, and its provision cannot be oppressive members of the same class. 70
amounting to an arbitrary interference with the business or
To recognize all senior citizens as a group, without The subject laws also address a continuing concern of the
distinction as to income, is a valid classification. The government for the welfare of the senior citizens and PWDs.
Constitution itself considered the elderly as a class of their It is not some random predicament but an actual, continuing
own and deemed it a priority to address their needs. When and pressing concern that requires preferential attention.
the Constitution declared its intention to prioritize the Also, the laws apply to all senior citizens and PWDs,
predicament of the underprivileged sick, elderly, disabled, respectively, without further distinction or reservation.
women, and children,71 it did not make any reservation as to Without a doubt, all the elements for a valid classification
income, race, religion or any other personal circumstances. were met.
It was a blanket privilege afforded the group of citizens in
the enumeration in view of the vulnerability of their class. The PWD identification card also has a validity period of
only three years which facilitate in the monitoring of those
R.A. No. 9257 is an implementation of the avowed policy of who may need continued support and who have been
the Constitution to enact measures that protect and enhance relieved of their disability, and therefore may be taken out of
the right of all the people to human dignity, reduce social, the coverage of the law.
economic, and political inequalities. 72 Specifically, it
caters to the welfare of all senior citizens. The classification At any rate, the law has penal provisions which give
is based on age and therefore qualifies all who have attained concerned establishments the option to file a case against
the age of 60. Senior citizens are a class of their own, who those abusing the privilege Section 46(b) of R.A. No. 9442
are in need and should be entitled to government support, provides that "[a]ny person who abuses the privileges
and the fact that they may still be earning for their own granted herein shall be punished with imprisonment of not
sustenance should not disqualify them from the privilege. less than six months or a fine of not less than Five Thousand
pesos (₱5,000.00), but not more than Fifty Thousand pesos
It is well to consider that our senior citizens have already (₱50,000.00), or both, at the discretion of the court." Thus,
reached the age when work opportunities have dwindled concerned establishments, together with the proper
concurrently as their physical health.1âwphi1 They are no government agencies, must actively participate in
longer expected to work, but there are still those who monitoring compliance with the law so that only the
continue to work and contribute what they can to the intended beneficiaries of the law can avail of the privileges.
country. Thus, to single them out and take them out of the
privileges of the law for continuing to strive and earn Indubitably, the law is clear and unequivocal, and the
income to fend for themselves is inimical to a welfare state petitioner claim of vagueness to cast uncertainty in the
that the Constitution envisions. It is tantamount to validity of the law does not stand.
penalizing them for their persistence. It is commending
indolence rather than rewarding diligence. It encourages
WHEREFORE, in view of the foregoing disquisition,
them to become wards of the State rather than productive
Section 4(a) of Republic Act No. 9257 and Section 32 of
partners. Republic Act No. 9442 are hereby
declared CONSTITUTIONAL.
Our senior citizens were the laborers, professionals and
overseas contract workers of the past. While some may be
SO ORDERED.
well to do or may have the capacity to support their
sustenance, the discretion to avail of the privileges of the
law is up to them. But to instantly tag them. as undeserving G.R. No. 197762
of the privilege would be the height of ingratitude; it is an
outright discrimination. CAREER EXECUTIVE SERVICE BOARD represented
by CHAIRPERSON BERNARDO P. ABESAMIS,
The same ratiocination may be said of the recognition of EXECUTIVE DIRECTOR MA. ANTHONETTE
PWDs as a class in R.A. No. 9442 and in granting them VELASCO-ALLONES, and DEPUTY EXECUTIVE
discounts.1âwphi1 It needs no further explanation that DIRECTOR ARTURO M. LACHICA, Petitioner
PWDs have special needs which, for most,' last their entire vs
lifetime. They constitute a class of their own, equally CIVIL SERVICE COMMISSION represented by
deserving of government support as our elderlies. While CHAIRMAN FRANCISCO T. DUQUE III et al,
some of them maybe willing to work and earn income for Respondents
themselves, their disability deters them from living their full
potential. Thus, the need for assistance from the government FACTS:
to augment the reduced income or productivity brought The dispute in this case concerns the classification of certain
about by their physical or intellectual limitations. positions in the Public Attorney's Office (PAO).The Court is
asked to determine, in particular, whether these positions are
There is also no question that the grant of mandatory properly included in the Career Executive Service (CES);
discount is germane to the purpose of R.A. Nos. 9257 and and whether the occupants of these positions must obtain
9442, that is, to adopt an integrated and comprehensive third-level eligibility to qualify for permanent appointment.
approach to health development and make essential goods To resolve these questions, the Court must also delineate the
and other social services available to all the people at respective jurisdictions granted by law to the competing
affordable cost, with special priority given to the elderlies authorities involved in this case - the Civil Service
and the disabled, among others. The privileges granted by Commission (CSC) and the Career Executive Service Board
the laws ease their concerns and allow them to live more (CESB).
comfortably.
In this Petition for Certiorari and Prohibition,1 the Secondly, since the Chief Public Attorney, Deputy Chief
CESB2 seeks the reversal of the Decision3 and Public Attorneys and Regional Public Attorneys are
Resolution4 of the CSC declaring that (a) it had the occupying CES positions, it is required by law that they
jurisdiction to resolve an appeal from a CESB should be CES eligibles to become permanent appointees to
Resolution5 refusing to declassify certain positions in PAO; the said position. x x x.
and (b) the PAO positions involved in the appeal do not
require third-level eligibility. xxxx

On 24 September 2010, the PAO received a copy of the This leads to the inevitable conclusion that the appointments
CESB Report on the CES Occupancy of the Department of of the Chief Public Attorney, Deputy Chief Public Attorneys
Justice (DOJ).6 This document stated, among others, that out and Regional Public Attorneys are not permanent, despite
of 35 filled positions in the PAO, 33 were occupied by your claims to the contrary, considering that they do not
persons without the required CES eligibility. possess the required CES eligibility for the said positions.
As such, they cannot invoke their right to security of tenure
In response to the report, PAO Deputy Chief Public even if it was expressly guaranteed to them by the PAO
Attorney Silvestre A. Mosing (Deputy Chief Mosing) sent a Law.
letter7 to CESB Executive Director Maria Anthonette V.
Allones. He informed her that the positions of Chief Public xxxx
Attorney, Deputy Chief Public Attorneys, and Regional
Public Attorneys (subject positions) were already permanent
Considering that the appointments of the Chief Public
in nature pursuant to Section 6 8 of Republic Act No. (R.A.)
Attorney, Deputy Chief Public Attorneys and Regional
9406, which accorded security of tenure to the occupants
Public Attorneys are temporary, they are required to
thereof.
subsequently take the CES examination. In the absence of
any evidence that would show compliance with the said
A second letter dated 9 November 20109 was sent to the condition, it is presumed that the top-level officials of the
CESB by Deputy Chief Mosing to reiterate its earlier PAO are non-CES eligibles; therefore they may be removed
communication. The letter also contained supplementary from office by the appointing authority without violating
arguments in support of the assertion that the subject their constitutional and statutory rights to security of
positions were permanent posts; hence, their occupants may tenure.14
only be removed for cause provided by law. Based on the
foregoing premises, the PAO requested the deletion of its
The DOJ also noted that the permanent nature of an
office from the Data on CES Occupancy for the Department
appointment does not automatically translate to an
of Justice (DOJ).
exemption from CES coverage, as it is only the CESB that
has the authority to exempt certain positions from CES
On 18 November 2010, the PAO received the reply sent to requirements.15 The DOJ further rejected the claim that the
Deputy Chief Mosing by the CESB, through Deputy occupants of the subject positions were exercising quasi-
Executive Director Arturo M. Lachica.10 The latter informed judicial functions. It explained that while the lawyers of the
Deputy Chief Mosing that the CESB would conduct a PAO regularly conduct mediation, conciliation or arbitration
position classification study on the specified PAO positions of disputes, their functions do not entail the rendition of
to determine whether they may still be considered CES judgments or decisions - an essential element of the exercise
positions in the DOJ. of quasi-judicial functions.16

The DOJ Legal Opinion The CSC Legal Opinion

While the matter was pending, PAO Deputy Chief Mosing It appears that while waiting for the CESB to respond to its
wrote a letter to then DOJ Secretary Leila M. de Lima to letters, the PAO wrote to the CSC to request a legal opinion
inform her about the communications sent by the PAO to on the same matter.17 The PAO thereafter informed the
the CESB.11 He also reiterated the PAO's opinion that the CESB of the former's decision to seek the opinion and
subject positions must be considered permanent in nature, requested the latter to issue no further opinion or statement,
and not subject to CES requirements.12 oral or written, relative to the qualifications of the PAO
officials.18
In a letter13 sent to Chief Public Attorney Persida V. Rueda-
Acosta on 3 January 2011, Chief State Counsel Ricardo V. On 7 January 2011, the CSC issued the requested legal
Paras III elucidated the legal opinion of the DOJ on the opinion.19 Citing its mandate as an independent
matter: constitutional commission and its authority under the
Administrative Code to "render opinions and rulings on all
Based on the foregoing, your claim that the appointments of personnel and other civil service matters," the CSC declared
the top-level officials of the PAO are permanent is without that third-level eligibility is not required for the subject
merit. For one, the positions of the Chief Public Attorney, positions in the PAO:
Deputy Chief Public Attorney and Regional Public
Attorneys are part of the CES. xxx The law is explicit that the positions [of] Chief Public
Attorney, Deputy Chief Public Attorney and Regional
xxxx Public Attorney in PAO shall have the same qualifications
for appointment, among other things, as those of the Chief
State Prosecutor, Assistant Chief State Prosecutor and The aforecited provision does not limit the mandate of PAO
Regional State Prosecutor, respectively. These, of course to perform only non-executive functions. All that the
include, the eligibility requirement for these positions. x x x. aforecited provision states is that the PAO is mandated to
render legal representation, assistance and counseling to
xxxx indigent persons in criminal, civil, labor, administrative and
other quasi-judicial cases, free of charge. Notably, the
positions of Chief Public Attorney, Deputy Chief Public
The Prosecution Service Act of 2010 explicitly provides that
the Prosecutor General (the retitled position of Chief State Attorney, Regional Public Attorneys and Assistant Regional
Prosecutor) has the same qualifications for appointment, Public Attorneys evidently require leadership and
managerial competence.
among other things, as those of the Presiding Justice of the
Court of Appeals (CA). Further, the Senior Deputy State
Prosecutor and the Regional Prosecutor have the same xxxx
qualifications as those of an associate justice of the CA. x x
x. WHEREAS, it is undisputed that the subject pos1t10ns are
CES in nature and as such, the eligibility requirement for
xxxx appointment thereto is CES eligibility.

No less than the Constitution provides that justices and With regard to the question of its jurisdiction over the matter
judges in the judiciary are required, among other things, as against that of the CSC, the CESB stated:
practice of law as requirement for appointment thereto.
Pointedly, the Presiding Justice and the Associate Justice of WHEREAS, under Section 8, Chapter 2, Book V of EO 292,
the Court of Appeals (CA) have the same qualifications as it is the Board which has the mandate over Third-level
those provided for in the Constitution for Justices of the positions in the Career Service and not the CSC. Section 8,
Supreme Court[,] which includes, among other Chapter 2, Book V of EO 292 provides:
requirements, practice of law. This means that the
Constitution and the Civil Service Law prescribe RA 1080 Section 8. Classes of Positions in the Civil Service. - (l)
(BAR) as the appropriate civil service eligibility therefor. Classes of positions in the career service, appointment to
Accordingly, any imposition of a third-level eligibility (e.g. which requires examinations shall be grouped into three
CESE, CSEE) is not proper, if not, illegal under the major levels as follows:
circumstances. In fact, even in the 1997 Qualification
Standards Manual of the Commission, all of these positions
xxxx
require RA 1080 BAR eligibility for purposes of
appointment.
(c) The third-level shall cover positions in the Career
Executive Service.
xxxx
(2) x x x Entrance to the third-level shall be prescribed by
Thus, it is the Commission's op1mon that for purposes of the Career Executive Service Board.
permanent appointment to the positions of Chief Public
Attorney, Deputy Chief Public Attorney and Regional
Public Attorney, no thirdlevel eligibility is required but only WHEREAS, in the case of De Jesus v. People, G.R. No.
RA 1080 (BAR) civil service eligibility.20 61998, February 22, 1983, 120 SCRA 760, the Supreme
Court ruled that "where there are two acts, one of which is
special and particular and the other general which, if
CESB Resolution No. 918 standing alone, would include the same matter and thus
conflict with the special act, the special must prevail since it
On 12 January 2011, the CESB issued Resolution No. evinces the legislative intent more clearly than that of a
91821 (CESB Resolution No, 918) denying the PAO's general statute and must be taken as intended to constitute
request to declassify the subject positions. Citing the an exception to the general act."
Position Classification Study22 submitted by its secretariat,
the CESB noted that the positions in question "require
WHEREAS, following the above-cited rule, it is clear that
leadership and managerial competence" 23 and were thus part
Section 8, Chapter 2, Book V of EO 292 is the exception to
of the CES. Hence, the appointment of persons without
[the] general act pertaining to the authority of the CSC;
third-level eligibility for these posts cannot be considered
permanent.
xxxx
"SEC. 14-A Powers and Functions. - The PAO shall
independently discharge its mandate to render, free of WHEREAS, it is clear that the mandate of the Board is in
charge, legal representation, assistance, and counselling to accordance with existing laws and pertinent jurisprudence
indigent persons in criminal, civil, labor, administrative and on matters pertaining to the CES[.]24
other quasi-judicial cases. In the exigency of the service, the
PAO may be called upon by proper government authorities Aggrieved by the CESB Resolution, the PAO filed a
to render such service to other persons, subject to existing Verified Notice of Appeal25 and an Urgent Notice of
laws, rules and regulations." Appeal26with the CSC.

PROCEEDINGS BEFORE THE CSC


Before the CSC, the PAO assailed CESB Resolution No. administrative agency, the CESB can only promulgate rules
918 on the following grounds: (a) the resolution was and regulations which must be consistent with and in
rendered contrary to R.A. 9406 in relation to R.A. harmony with the provisions of the laws, and it cannot add
10071,27 the 1987 Constitution and the CSC letter-opinion; or subtract thereto. Most evidently, therefore, in
and (b) the CESB usurped the legislative function of promulgating the assailed resolution, which sets out
Congress when the former required additional qualifications additional qualifications for the subject positions in the
for appointment to certain PAO positions. The PAO PAO, the CESB has overstepped the bounds of its authority.
likewise asserted that its appeal had been brought to the x x x.
CSC, because the latter had the power to review decisions
and actions of one of its attached agencies - the CESB. In so saying, the Commission does not lose sight of the
power of the CESB to identify other positions equivalent to
In an Order28 dated 17 January 2011, the CSC directed the those enumerated in the Administrative Code of 1987 as
CESB to comment on the appeal. being part of the third-level or CES for as long as they come
within the ambit of the appointing prerogative of the
Instead of submitting a comment, however, the CESB filed a President. Yet, such grant of authority is derived from a
Motion for Clarification29 to assail the authority of the CSC general law (the Administrative Code) and hence, it must be
to review its Decision. It asserted that the CSC had no deemed circumscribed or qualified by the special law
jurisdiction to decide the appeal given that (a) the appeal governing the PAO. Reiteratively, the PAO Law, in
involved a controversy between two government entities conjunction with other laws, merely fixes practice of law as
regarding questions of law;30 and (b) the CESB was an the principal qualification requirement for the positions of
autonomous agency whose actions were appealable to the Acosta, et al.
Office of the President.31 In addition, the CESB emphasized
the inability of the CSC to render an unbiased ruling on the WHEREFORE, foregoing premises considered, the instant
case, considering the latter's previous legal opinion on the appeal is hereby GRANTED. Accordingly, the CESB
appropriate eligibility for key positions in the PA0. 32 Resolution No. 918 dated Jnaury 12, 2011 is REVERSED
and SET ASIDE for not being in conformity with law and
In a Decision33 dated 15 February 2011, the CSC granted the jurisprudence. It is declared that the following key positions
appeal and reversed CESB Resolution No. 918. in the Public Attorney's Office do not require third-level
eligibility and CESO rank for purposes of tenurial security.
As a preliminary matter, the CSC ruled that it could assume
jurisdiction over the appeal, which involved the employment PROCEEDINGS BEFORE THIS COURT
status and qualification standards of employees belonging to
the civil service. It was supposedly a matter falling within its On 9 August 2011, the CESB filed the instant
broad and plenary authority under the Constitution and the Petition40 imputing grave abuse of discretion to
Administrative Code. The CSC also declared that the respondent CSC. It asserts that (a) the CSC has no
authority of the CESB over third-level employees was jurisdiction to review the Resolution of the CESB, given the
limited to the imposition of entry requirements and "should latter's autonomy as an attached agency; (b) CESB
not be interpreted as cutting off the reach of the Commission Resolution No. 918 should have been appealed to the Office
over this particular class of positions." 34 Moreover, the of the President, and not to the CSC, in accordance with
CESB was declared subject to the revisory power of the Article IV, Part III of the Integrated Reorganization Plan.
CSC, given that an attached office is not entirely and totally The subject PAO positions are supposedly part of the CES,
insulated from its mother agency.35 With respect to the based on criteria established by the CESB.41 These criteria
provision in the Integrated Reorganization Plan36 on appeals were set pursuant to the latter's power to identify positions
from the CESB to the Office of the President, the CSC belonging to the third-level of the civil service and to
construed this requirement as pertaining only to disciplinary prescribe the requirements for entry thereto. The Petition
proceedings.37 further reiterates the alleged inability of the CSC to decide
the case with impartiality.
On the merits, the CSC ruled in favor of the PAO officials.
It declared that the CESB would be in violation of R.A. In its Comment,42 the CSC contends that the Petition filed
9406 if the latter would require an additional qualification - by the CESB before this Court should be dismissed
in this case, third-level eligibility - for purposes of outright for being an improper remedy and for violating
permanent appointments to certain PAO positions: the hierarchy of courts. The CSC further asserts its
jurisdiction over the PAO's appeal from the CESB
The foregoing elaboration shows the qualifications of the Resolution in this case. Citing its mandate as the central
subject PAO positions under the existing laws. It is gleaned personnel agency of the government based on the 1987
that nowhere in these laws is there a reference to third-level Constitution and the Administrative Code, the CSC insists
eligibility and CESO rank as qualification requirements for that it has broad authority to administer and enforce the
attaining tenurial security. All that the laws uniformly constitutional and statutory provisions on the merit system
prescribe for the positions in question is practice of law for for all levels and ranks of the civil service. This authority
certain period of time, which presupposes a bar license. This allegedly encompasses the power to review and revise the
being the case, the CESB cannot, in the guise of enforcing decisions and actions of offices attached to it, such as the
and administering the policies of the third-level, validly CESB. It also claims that the present dispute involves a
impose qualifications in addition to what the laws prescribe. personnel action that is within its jurisdiction.
It cannot add another layer of qualification requirement
which is not otherwise specified in the statutes. As an
Respondents PAO and its officials have also filed their own OUR RULING
Comment43 on the Petition. They assert that (a) the Petition
should be dismissed outright as it is tainted with serious We DENY the Petition.
procedural and jurisdictional flaws; (b) the CSC properly
exercised its jurisdiction when it resolved the appeal in this
At the outset, we note that the CESB availed itself of an
case; and (c) CESB Resolution No. 918 contravened R.A.
improper remedy to challenge the ruling of the CSC. In any
9406 in relation to the 1987 Constitution, R.A. 10071 and
event, after a judicious consideration of the case, we find
the CSC letteropinion dated 7 January 2011. that the CSC acted within its jurisdiction when it resolved
the PAO's appeal and reversed CESB Resolution No. 918.
Because the instant case involves the contradictory views of The CSC also correctly ruled that third-level eligibility is
two government offices, the Court likewise required the not required for the subject positions.
Office of the Solicitor General (OSG) to comment on the
matter as the lawyer of the government tasked to uphold the
A petition for certiorari and prohibitinn is
best interest of the latter.
not the appropriate remedy to challenge
the ruling of the CSC.
On 28 February 2012, the OSG filed the required
Comment.44 On the issue of jurisdiction, it supports the view
As a preliminary matter, this Court must address the
of the CSC and the PAO. It cites the Constitution and the objections of respondents to the remedy availed of by the
Administrative Code as the sources of the authority of the CESB to question the ruling of the CSC.
CSC to review rulings of the CESB, particularly with regard
to personnel matters such as the reclassification of positions.
Respondents contend that the Petition for Certiorari and
Prohibition filed by the CESB before this Court was
As to the merits of the case, the OSG asserts that the subject improper, because the remedy of appeal was available via a
positions in the PAO should be declassified from the CES. It petition for review under Rule 43.
points out that the primary function of these PAO officials --
the provision of legal assistance to the indigent - is
specialized in nature; in contrast, their managerial functions On the other hand, the CESB insists that a Rule 65 petition
are merely incidental to their role. The OSG further is proper, because it is disputing the authority and
contends that the manifest intent of the law is to require jurisdiction of the CSC.
PAO officials to have the same qualifications as their
counterpmis in the National Prosecution Service (NPS). We find in favor of respondents.
Consequently, the OSG argued that the decision of the
CESB to declassify certain posts in the NPS should have It is settled that a resort to the extraordinary remedies
likewise resulted in the declassification of the corresponding of certiorari and prohibition is proper only in cases
positions in the PAO. where

In its Reply to the Comment of the OSG,45 the CESB urges (a) a tribunal, a board or an officer exercising judicial or
the Court to adhere to the alleged limitations on the general quasi-judicial functions has acted without or in excess of
authority of the CSC over all matters concerning the civil jurisdiction, or with grave abuse of discretion amounting to
service. In particular, the CESB asserts its specific and lack or excess of jurisdiction; and
exclusive mandate to administer all matters pertaining to the
third-level of the career service. Included in these matters is (b) there is no appeal or any plain, speedy, and adequate
the power to promulgate rules, standards and procedures for remedy in the ordinary course of law. Rule 65 of the Rules
the selection, classification, compensation and career of Civil Procedure requires the concurrence of both these
development of its members. Moreover, the CESB insists requisites:
that it is an agency within the Executive Department under
the Integrated Reorganization Plan; hence, its decisions are
Section l. Petition for certiorari. - When any tribunal, board
appealable only to the Office of the President. Lastly, the
or officer exercising judicial or quasi-judicial functions has
CESB maintains that the subject positions properly belong
acted without or in excess of its or his jurisdiction, or with
to the CES, considering that executive and managerial
grave abuse of discretion amounting to lack or excess of
functions must be exercised by the occupants thereof.
jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person
ISSUES aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that
(1) Whether a petition for certiorari and prohibition was judgment be rendered annulling or modifying the
the proper remedy to question the assailed CSC Decision proceedings of such tribunal, board or officer, and granting
and Resolution -- NO such incidental reliefs as law and justice may
require.1âwphi1
(2) Whether the CSC had the jurisdiction to resolve the
appeal filed by the PAO and to reverse CESB Resolution The petition shall be accompanied by a certified true copy of
No. 918 the judgment, order or resolution subject thereof, copies of
all pleadings and documents relevant and pertinent thereto,
(3) Whether the CSC acted in accordance with law when it and a sworn certification of non-forum shopping as provided
reversed the CESB and declared that third-level eligibility is in the third paragraph of section 3, Rule 46.
not required for occupants of the subject PAO positions
Section 2. Petition for prohibition. - When the proceedings petitioner shall pay the docketing and other lawful fees and
of any tribunal, corporation, board, officer or person, deposit for costs within fifteen (15) days from notice of the
whether exercising judicial, quasi-judicial or ministerial denial. (Emphasis supplied)
functions, are without or in excess of its or his jurisdiction,
or with grave abuse of discretion amounting to lack or In an attempt to justify its resort to certiorari and
excess of jurisdiction, and there is no appeal or any other prohibition under Rule 65, the CESB asserts that the
plain, speedy, and adequate remedy in the ordinary course of allegations in its Petition - the patent illegality of the
law, a person aggrieved thereby may file a verified petition assailed Decision and Resolution of the CSC, as well as the
in the proper court, alleging the facts with certainty and lack of jurisdiction and the grave abuse of discretion
praying that judgment he rendered commanding the attending the latter's ruling - are not suitable for an appeal
respondent to desist from further proceedings in the action under Rule 43. It argues that since these grounds properly
or matter specified therein, or otherwise granting such pertain to a petition for certiorari and prohibition, this
incidental reliefs as law and justice may require. remedy is more appropriate.

The petition shall likewise be accompanied by a certified SC -- We find the CESB's contention untenable. As
true copy of the judgment, order or resolution subject previously stated, certiorari and prohibition are proper only
thereof copies of all pleadings and documents relevant and if both requirements are present, that is, if the appropriate
pertinent thereto, and a sworn certification of non-forum grounds are invoked; and an appeal or any plain, speedy,
shopping as provided in the third paragraph of section 3, and adequate remedy is unavailable. Mere reference to a
Rule 46. (Emphasis supplied) ground under Rule 65 is not sufficient. This Court has, in
fact, dismissed a Petition for Certiorari assailing another
In this case, the second requirement is plainly absent. As CSC Resolution precisely on this ground. In Mahinay v.
respondents correctly observed, there was an appeal Court of Appeals,46 the Court ruled:
available to the CESB in the form of a petition for review
under Rule 43 of the Rules of Civil Procedure. Section 1 of As provided by Rule 43 of the Rules of Court, the proper
Rule 43 specifically provides for appeals from decisions of mode of appeal from the decision of a quasi-judicial agency,
the CSC: like the CSC, is a petition for review filed with the CA.

Section 1. Scope. - This Rule shall apply to appeals from The special civil action of certiorari under Rule 65 of the
judgments or final orders of the Court of Tax Appeals and Rules of Court may be resorted to only when any tribunal,
from awards, judgments, final orders or resolutions of or board or officer exercising judicial or quasi-judicial
authorized by any quasi-judicial agency in the exercise of its functions has acted without or in excess of its/his
quasi-judicial functions. Among these agencies are the Civil jurisdiction or with grave abuse of discretion amounting to
Service Commission, Central Board of Assessment Appeals, lack or excess of jurisdiction, and there is no appeal, or any
Securities and Exchange Commission, Office of the plain, speedy, and adequate remedy in the ordinary course of
President, Land Registration Authority, Social Security law.
Commission, Civil Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer, National
In this case, petitioner clearly had the remedy of appeal
Electrification Administration, Energy Regulatory Board,
provided by Rule 43 of the Rules of Court. Madrigal
National Telecommunications Commission, Department of Tran.\port, Inc. v. Lapanday Holdings Corporation held:
Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees
Compensation Commission, Agricultural Invention Board, Where appeal is available to the aggrieved party, the action
Insurance Commission, Philippine Atomic Energy for certiorari will not be entertained. Remedies of appeal
Commission, Board of Investments, Construction Industry (including petitions for review) and certiorari are
Arbitration Commission, and voluntary arbitrators mutually exclusive, not alternative or successive.
authorized by law. Hence, certiorari is not and cannot be a substitute for an
appeal, especially if one's own negligence or error in one's
choice of remedy occasioned such loss or lapse. One of the
xxxx
requisites of certiorari is that there be no available appeal or
any plain, speedy and adequate remedy. Where an appeal is
Section 5. How appeal taken. - Appeal shall be taken by available, certiorari will not prosper, even if the ground
filing a verified petition for review in seven (7) legible therefor is grave abuse of discretion. (Emphasis and
copies with the Court of Appeals, with proof of service of a underscoring supplied)
copy thereof on the adverse party and on the court or
agency a quo. The original copy of the petition intended for Here, the CESB could have appealed the CSC Decision and
the Court of Appeals shall be indicated as such by the Resolution to the CA via a petition for review under Rule
petitioner.
43. Hence, the filing of the instant Petition
for Certiorari and Prohibition is improper regardless of the
Upon the filing of the petition, the petitioner shall pay to the grounds invoked therein.
clerk of court of the Court of Appeals the docketing and
other lawful fees and deposit the sum of ₱500.00 for costs. Moreover, we find no reason to allow the CESB to avail
Exemption from payment of docketing and other lawful fees
itself of the extraordinary remedies of certiorari and
and the deposit for costs may be granted by the Court of
prohibition. Indeed, the petition itself cites no exceptional
Appeals upon a verified motion setting forth valid grounds
circumstance47 other than the supposed transcendental
therefor. If the Court of Appeals denies the motion, the
importance of the issues raised, "as the assailed CSC
Decision is gravely prejudicial to the mandate of the Article IX-B of the 1987 Constitution entrusts to the
Petitioner." Even when confronted by respondents with CSC48 the administration of the civil service, which is
regard to the availability of an appeal, the CESB still failed comprised of "all branches, subdivisions, instrumentalities,
to cite any special justification for its refusal to avail itself of and agencies of the Government, including government-
an appeal. Instead, it opted to focus on the nature of the owned or controlled corporations with original
grounds asserted in its Petition. For the reasons stated above, charters."49 In particular, Section 3 of Article IX-B provides
a mere reference to grave abuse of discretion cannot justify for the mandate of this independent constitutional
a resort to a petition under Rule 65. commission:

Considering the failure of the CESB to offer a compelling SECTION 3. The Civil Service Commission, as the central
explanation for its insistence upon the special remedies personnel agency of the Government, shall establish a career
of certiorari and prohibition, the Court finds no justification service and adopt measures to promote morale, efficiency,
for a liberal application of the rules. integrity, responsiveness, progressiveness, and courtesy in
the civil service. It shall strengthen the merit and rewards
In any event, the contentions of the CESB are without merit. system, integrate all human resources development
As will be further explained, we find no grave abuse of programs for all levels and ranks, and institutionalize a
discretion on the part of the CSC. In resolving the appeal management climate conducive to public accountability. It
filed by the PAO, the CSC merely exercised the authority shall submit to the President and the Congress an annual
granted to it by the Constitution as the central personnel report on its personnel programs. (Emphases supplied)
agency of the government.
The proceedings of the 1986 Constitutional Commission
The CSC acted within its }urisdiction reveal the intention to emphasize the status of the CSC as
when it resolved the PAO's appeal and the "central personnel agency of the Government with all
reversed CESB Resolution No. 918. powers and functions inherent in and incidental to human
resources management."50 As a matter of fact, the original
proposed provision on the functions of the CSC reads:
At its core, this case requires the Court to delineate the
respective authorities granted by law to two agencies
involved in the management of government personnel - the Sec. 3. The Civil Service Commission, as the central
CSC and the CESB. This particular dispute involves not personnel agency of the government. shall establish a career
only the jurisdiction of each office over personnel belonging service, promulgate and enforce policies on personnel
to the third-level of the civil service, but also the actions, classif[y] positions, prescribe conditions of
relationship between the two offices. employment except as to compensation and other monetary
benefits which shall be provided by law, and exercise alt
On the one hand, the CESB asserts its jurisdiction over powers and functions inherent in and incidental to human
members of the CES. Specifically, it refers to the resources management, to promote morale, efficiency, and
integrity in the Civil Service. It shall submit to the President
identification and classification of positions belonging to the
and the Congress an aimual report on its personnel
third-level, as well as the establishment of the qualifications
programs, and perform such other functions as may be
for appointment to those posts. The CESB further
provided by law.51 (Emphases supplied)
emphasizes its autonomy from the CSC on the basis of this
Court's ruling that its status as an attached agency only
pertains to policy and program coordination. Although the specific powers of the CSC are not enumerated
in the final version of 1987 Constitution,52 it is evident from
the deliberations of the framers that the concept of a "central
The CSC, on the other hand, defends its authority to review
personnel agency" was considered all-encompassing. The
actions and decisions of its attached agencies, including the
CESB. The CSC further claims original and appellate concept was understood to be sufficiently broad as to
include the authority to promulgate and enforce policies on
jurisdiction over administrative cases involving contested
personnel actions, to classify positions, and to exercise all
appointments, pursuant to its constitutional mandate as the
powers and functions inherent in and incidental to human
central personnel agency of the government.
resources management:
In the interest of the effective and efficient organization of
MR. FOZ. Will the amendment reduce the powers and
the civil service, this Court must ensure that the respective
functions of the Civil Service as embodied in our original
powers and functions of the CSC and the CESB are well-
draft?
defined. After analyzing and harmonizing the legal
provisions pertaining to each of these two agencies, the
Court concludes that the CSC has the authority to review MS. AQUINO: No, it will not. The proposed deletion of
CESB Resolution No. 918. We have arrived at this lines 35 to 40 of page 2 until line 1 of page 3 would not in
conclusion after a consideration of (a) the broad mandate of any way minimize the powers of the Civil Service
the CSC under the Constitution and the Administrative (Commission] because they are deemed implicitly included
Code; and (b) the specific and narrowly tailored powers in the all-embracing definition and concept of "central
granted to the CESB in the Integrated Reorganization Plan personnel agency of the government." I believe that the lines
and the Administrative Code. we have mentioned are but redundant articulation of that
same concept, unnecessary surplusage.
As the central personnel agency of the
government, the CSC has broad authority
to pass upon all civil service matters.
MR. FOZ. For instance, will the power or function to subsumed under and included in the concept of a central
promulgate policies on personnel actions be encompassed personnel agency.
by the Commissioner's amendment?
MS. AQUINO. I would have no objection to
MS. AQUINO. It is not an amendment because I am that.53 (Emphases and underscoring supplied)
retaining lines 33 to 35. I proposed an amendment after the
words "career service.'' I am only doing away with In accordance with the foregoing deliberations, the mandate
unnecessary redundancy. of the CSC should therefore be read as the comprehensive
authority to perform all functions necessary to ensure the
MR. FOZ. Can we say that all of the powers enumerated in efficient administration of the entire civil service, including
the original provision are still being granted by the Civil the CES.
Service Commission despite the elimination of the listing of
these powers and functions? The Administrative Code of 1987 further reinforces this
view. Book V, Title I, Subtitle A, Chapter 3, Section 12
MS. AQUINO. Yes, Mr. Presiding Officer, in the nature of a thereof enumerates the specific powers and functions of the
central personnel agency, it would have to necessarily CSC while recognizing its comprehensive authority over all
execute all of these functions. civil service matters. Section 12, Items (1) to (5), (11), (14),
and (19), are of particular relevance to this dispute:
MR. FOZ. And will the elimination of all these specific
functions be a source of ambiguity and controversies later SECTION 12. Powers and Functions.-The Commission
on as to the extent of the powers and functions of the shall have the following powers and functions:
commission?
(1) Administer and enforce the constitutional and statutory
MS. AQUINO. I submit that this would not be susceptible provisions on the merit system for all levels and ranks in the
of ambiguity because the concept of a central personnel Civil Service;
agency is a generally accepted concept and as experience
would bear out, this function is actually being carried out (2) Prescribe, amend and enforce rules and regulations for
already by the Civil Service Commission, except that we are carrying into effect the provisions of the Civil Service Law
integrating this concept. I do not think that it would be and other pertinent laws;
susceptible of any ambiguity.
(3) Promulgate policies, standards and guidelines for the
MR. REGALADO. Mr. Presiding Officer. Civil Service and adopt plans and programs to promote
economical, efficient and effective personnel administration
THE PRESIDING OFFICER (Mr. Treñas). Yes, in the government;
Commissioner Regalado is recognized.
(4) Formulate policies and regulations for the
MR. REGALADO. This is more for clarification. administration, maintenance and implementation of position
classification and compensation and set standards for the
The original Section 3 states, among others, the functions of establishment, allocation and reallocation of pay scales,
the Civil Service Commission - to promulgate and enforce classes and positions;
policies on personnel actions. Will Commissioner Aquino
kindly indicate to us the corresponding provisions and her (5) Render opinion and rulings on all personnel and other
proposed amendment which would encompass the powers to Civil Service matters which shall be binding on all heads of
promulgate and enforce policies on personnel actions? departments, offices and agencies and which may be
brought to the Supreme Court on certiorari;
MS. AQUINO. It is my submission that the same functions
are already subsumed under the concept of a central xxxx
personnel agency.
(11) Hear and decide administrative cases instituted by or
MR. REGALADO. In other words, all those functions brought before it directly or on appeal, including contested
enumerated from line 35 on page 2 to line I of page 3 appointments, and review decisions and actions of its offices
inclusive, are understood to be encompassed in the phrase and of the agencies attached to it. Officials and employees
"central personnel agency of the government." who fail to comply with such decisions, orders, or rulings
shall be liable for contempt of the Commission. Its
MS. AQUINO. Yes, Mr. Presiding Officer, except that on decisions, orders, or rulings shall be final and executory.
line 40 of page 2 and line 1 of the subsequent page, it was Such decisions, orders, or rulings may be brought to the
only subjected to a little modification. Supreme Court on certiorari by the aggrieved party within
thirty (30) days from receipt of a copy thereof;
MR. REGALADO. May we, therefore, make it of record
that the phrase"... promulgate and enforce policies on xxxx
personnel actions, classify positions, prescribe conditions of
employment except as to compensation and other monetary (14) Take appropriate action on all appointments and other
benefits which shall be provided by law" is understood to be personnel matters in the Civil Service including extension of
Service beyond retirement age;
xxxx who shall provide competent and faithful service." 59 The
CESB was likewise established to serve as the governing
(19) Perform all functions properly belonging to a central body of the CES60 with the following functions: (a) to
personnel agency and such other functions as may be promulgate rules, standards and procedures for the selection,
provided by law. classification, compensation and career development of
members of the CES;61 (b) to set up the organization and
operation of the civil service in accordance with the
It is evident from the foregoing constitutional and statutory
provisions that the CSC, as the central personnel agency of guidelines provided in the plan;62 (c) to prepare a program of
the government, has been granted the broad authority and training and career development for members of the
CES;63 (d) to investigate and adjudicate administrative
the specific powers to pass upon all civil service matters.
complaints against members of the CES.64
The question before the Court today is whether this broad
authority encompasses matters pertaining to the CES and
are, as such, recognized to be within the jurisdiction of the When the Administrative Code was enacted in 1987, the
CESB. CESB was given the additional authority to (a) identify
other officers belonging to the CES in keeping with the
conditions imposed by law;65 and (b) prescribe requirements
To allow us to understand the legal framework governing
for entrance to the third-level.66
the two agencies and to harmonize the provisions of law, it
is now necessary for the Court to examine the history and
the mandate of the CESB. It may thereby determine the Based on the foregoing provisions, it is clear that the powers
proper relation between the CSC and the CESB. granted to the CESB are specific and limited. This Court
must now determine whether it is possible to interpret these
powers in harmony with the broad constitutional mandate of
The CESB has been granted specific and limited powers
the CSC.
under the law.

The specific powers of the CESB must be


On 9 September 1968, Congress enacted R.A. 5435
narrowly interpreted as exceptions to the
authorizing the President to reorganize different executive
comprehensive authority granted to the
departments, bureaus, offices, agencies, and
instrumentalities of the government. The statute also created CSC by the Constitution and relevant
a Commission on Reorganization with the mandate to study statutes.
and investigate the status of all offices in the executive
branch. This commission was also tasked to submit an As we have earlier observed, the interplay between the
integrated reorganization plan to the President, and later on broad mandate of the CSC and the specific authority granted
to Congress, for approval. The Commission was given until to the CESB is at the root of this controversy. The question
31 December 1970 to present its plan to the President. 54 we must resolve, in particular, is whether the CSC had the
authority to review and ultimately reverse CESB Resolution
No. 918, upon the appeal of the PAO.
After the conduct of hearings and intensive studies, a
proposed Integrated Reorganization Plan55 was submitted to
then President Ferdinand E. Marcos on 31 December 1970. For its part, the CESB contends that the Integrated
The plan included a proposal to develop a professionalized Reorganization Plan and the Administrative Code have
and competent civil service through the establishment of the granted it the exclusive authority to identify the positions
CES - a group of senior administrators carefully selected for belonging to the third-level of the civil service and to
managerial posts in the higher levels.56 To promulgate prescribe the eligibility requirements for appointments
standards for the CES, the Commission on Reorganization thereto.67 It thus asserts that the foregoing matters are
recommended the creation of the CESB: beyond the revisory jurisdiction of the CSC, and must
instead be appealed to the Office of the President in
accordance with the specific provisions of the
To promulgate standards, rules and procedures regarding the
aforementioned laws. This special mandate must allegedly
selection, classification, compensation and career
prevail over the general authority granted to the CSC.
development of members of the Career Executive Service, a
Board is proposed to be established. The Board shall be
composed of high-level officials to provide a government- As to its status as an attached agency, the CESB cites this
wide view and to ensure effective support for the Court's pronouncement in Eugenio v. CSC68on its autonomy
establishment and development of a corps of highly from its mother agency. The CESB contends that its
competent, professional administrators.57 attachment to the CSC is only for the purpose of "policy and
program coordination."69 Allegedly, this attachment does
The plan was referred to a presidential commission for not mean that the former's decisions, particularly CESB
Resolution No. 918, are subject to the CSC's review.
review, but Martial Law was declared before the proposal
could be acted upon. Four days after the declaration of
Martial Law, however, the Integrated Reorganization Plan On the other hand, the CSC asserts its jurisdiction to act
was approved by former President Marcos through upon the appeal from CESB Resolution No. 918 by virtue of
Presidential Decree No. 1.58This approved plan included the its status as the central personnel agency of the government.
creation of the CES and the CESB. It contends that the CESB 's authority to prescribe entrance
requirements for the third-level of the civil service does not
mean that the CSC no longer has jurisdiction over that class
The CES was created to "form a continuing pool of well-
of positions. It also points out that the case involves a
selected and development-oriented career administrators
personnel action that is within the jurisdiction conferred refers only to administrative cases involving
upon it by law. the discipline of members of the CES:

We uphold the position of the CSC. 5. The Board shall promulgate rules, standards and
procedures on the selection, classification, compensation
It is a basic principle in statutory construction that statutes and career development of members of the Career Executive
must be interpreted in harmony with the Constitution and Service. The Board shall set up the organization and
other laws.70 In this case, the specific powers of the CESB operation of the Service in accordance with the following
over members of the CES must be interpreted in a manner guidelines:
that takes into account the comprehensive mandate of the
CSC under the Constitution and other statutes. xxxx

The present case involves the classification of positions h. Discipline. Investigation and adjudication of
belonging to the CES and the qualifications for these posts. administrative complaints against members of the Career
These are matters clearly within the scope of the powers Executive Service shall be governed by Article VI, Chapter
granted to the CESB under the Administrative Code and the II and Paragraph I (d) of Article II, Chapter III of this Part;
Integrated Reorganization Plan. However, this fact alone provided that appeals shall be made to the Career Executive
does not push the matter beyond the reach of the CSC. Service Board instead of the Civil Service Commission.
Administrative cases involving members of the Service on
As previously discussed, the CSC, as the central personnel assignment with the Board shall be investigated and
agency of the government, is given the comprehensive adjudicated by the Board with the right to appeal to the
mandate to administer the civil service under Article IX-B, Office of the President. (Emphasis supplied)
Section 3 of the 1987 Constitution; and Section 12, Items
(4), (5), and (14) of the Administrative Code. It has also In our view, the foregoing rule on appeals to the Office of
been expressly granted the power to promulgate policies, the President only covers disciplinary cases involving
standards, and guidelines for the civil service; and to render members of the CES. It is evident that this special rule was
opinions and rulings on all personne1 and other civilservice created for that particular type of case, because members of
matters.71 the CES arc all presidential appointees. Given that the
power to appoint generally carries with it the power to
Here, the question of whether the subject PAO positions discipline,74 it is only reasonable for the president to be
belong to the CES is clearly a civil service matter falling given the ultimate authority to discipline presidential
within the comprehensive jurisdiction of the CSC. Further, appointees. But this special rule cannot apply to the matter
considering the repercussions of the issue concerning the at hand, because CESB Resolution No. 918 did not involve
appointments of those occupying the posts in question, the a disciplinary case. Since it was clearly outside the scope of
jurisdiction of the CSC over personnel actions is implicated. the foregoing provision, the Resolution did not come within
the jurisdiction of the Office of the President. It was
therefore correctly appealed to the CSC.
It must likewise be emphasized that the CSC has been
granted the authority to review the decisions of agencies
attached to it under Section 12(11), Chapter 3, Subtitle A, From the above discussion, it is evident that the CSC acted
Title I, Book V of the Administrative Code: within its jurisdiction when it resolved the PAO's appeal.
The arguments of the CESB on this point must perforce be
rejected.
SECTION 12. Powers and Functions.--The Commission
shall have the following powers and functions:
The CSC correctly ruled that third level
eligibility is not required for the subject
(11) Hear and decide administrative cases instituted by or
positions.
brought before it directly or on appeal, including contested
appointments, and review decisions and actions of its offices
and of the agencies attached to it. Officials and employees The Court now comes to the final issue for resolution -
who fail to comply with such decisions, orders, or rulings whether the CSC ruled in accordance with law when the
shall be liable for contempt of the Commission. Its latter declared that it was not necessary for occupants of the
decisions, orders, or rulings shall be final and executory. subject PAO posts to possess third-level eligibility.
Such decisions, orders, or rulings may be brought to the
Supreme Court on certiorari by the aggrieved party within On this point, the CESB argues that third-level eligibility is
thirty (30) days from receipt of a copy thereof; required for the positions pursuant to R.A. 9406 in relation
to R.A. 10071. It avers that R.A. 9406 requires the Chief
Since the CESB is an attached agency of the CSC,72 the Public Attorney, Deputy Chief Public Attorneys, Regional
former's decisions are expressly subject to the CSC's review Public Attorneys and Assistant Regional Public Attorneys to
on appeal. have the same qualifications for appointment, rank, salaries,
allowances and retirement privileges as the Chief State
Prosecutor, Assistant Chief State Prosecutor, Regional State
Against the express mandate given to the CSC in the
Prosecutor and Assistant Regional State Prosecutor of the
foregoing provision, the contention of the CESB that its
NPS under P.D. 1275. The latter law is the old one that
decisions may only be appealed to the Office of the
governs the NPS and requires third-level eligibility for
President must fail. We note that the supporting
provision73 cited by the CESB in support of its argument senior prosecutorial posts. According to the CESB, R.A.
10071 cannot apply, because R.A. 9406 could not have
referred to a law that had not yet been enacted at the time. It The Chief Public Attorney shall have the same
also asserts that the subsequent declassification of qualifications for appointment, rank, salaries, allowances,
prosecutors cannot benefit members of the PAO, because and retirement privileges as those of the Chief State
the prosecutors exercise quasi-judicial functions while the Prosecutor of the National Prosecution Service. The Deputy
PAO members do not. Chief Public Attorneys shall have the same qualifications
for appointment, rank, salaries, allowances, and retirement
On the other hand, the CSC argues that nowhere in R.A. privileges as those of the Assistant Chief State Prosecutor of
9406, P.D. 1275, R.A. 10071 or Batas Pambansa Blg. (B.P.) the National Prosecution Service.
129 is there a reference to third-level eligibility and CESO
rank as qualification requirements. It emphasizes that the xxxx
CESB cannot add to the provisions of these laws, which
only require the practice of law for a certain period of time The Regional Public Attorney and the Assistant Regional
and presuppose a bar license. The PAO, for its part, Public Attorney shall have the same qualifications for
maintains that the posts concerned are highly technical in appointment, rank, salaries, allowances, and retirement
nature because they primarily involve legal practice, and any privileges as those of a Regional State Prosecutor and the
managerial functions performed are merely incidental to Assistant Regional State Prosecutor of the National
their principal roles. It also claims that the legislature could Prosecution Service respectively.
never have intended to require third-level eligibility for
occupants of the subject posts when it enacted R.A. 9406. At the time of the enactment of R.A. 9406, the qualifications
of officials of the NPS, to which the foregoing provision
After a careful consideration of the relevant statutes and referred, were provided by Section 3 of P.D. 1275:
rules, this Court agrees with the conclusion of the CSC. To
require the occupants of the subject PAO positions to
Section 3. Prosecution Staff; Organization, Qualifications,
possess third-level eligibility would be to amend the law and Appointment. The Prosecution Staff shall be composed of
defeat its spirit and intent.
prosecuting officers in such number as hereinbelow
determined. It shall be headed by a Chief State Prosecutor
The CESB effectively amended the who shall be assisted by three Assistants Chief State
law when it required the occupants Prosecutors.
of the subject PAO positions to
obtain third-level eligibility.
The Chief State Prosecutor, the three Assistants Chief State
Prosecutors; and the members of the Prosecution Staff shall
The authority to prescribe qualifications for pos1t10ns in the be selected from among qualified and professionally trained
government is lodged in Congress75 as part of its plenary members of the legal profession who arc of proven integrity
legislative power to create, abolish and modify public and competence and have been in the actual practice of the
offices to meet societal demands.76 From this authority legal profession for at least five (5) years prior to their
emanates the right to change the qualifications for existing appointment or have held during like period, any position
statutory offices.77 requiring the qualifications of a lawyer. (Emphases
supplied)
It was in the exercise of this power that the legislature
enacted Section 5 of R.A. 9406, which provides for the Soon after, R.A. 10071 or the Prosecution Service Act of
qualifications for the Chief Public Attorney, Deputy Chief 201078 was passed. In updating the qualifications for senior
Public Attorneys, Regional Public Attorneys and Assistant positions in the NPS, Congress again opted to refer to
Regional Public Attorneys: another set of positions, this time in the judiciary:

SEC. 5. Section 16, Chapter 5, Title III, Book IV of SECTION 14. Qualifications, Rank and Appointment of the
Executive Order No. 292, as amended, is hereby further Prosecutor General. - The Prosecutor General shall have the
amended to read as follows: same qualifications for appointment, rank, category,
prerogatives, salary grade and salaries, allowances,
SEC. 16. The Chief Public Attorney and Other PAO emoluments and other privileges, shall be subject to the
Officials. - The PAO shall be headed by a Chief Public same inhibitions and disqualifications, and shall enjoy the
Attorney and shall be assisted by two (2) Deputy Chief same retirement and other benefits as those of the Presiding
Public Attorneys. Each Justice of the Court of Appeals and shall be appointed by the
President.
PAO Regional Office established in each of the
administrative regions of the country shall be headed by a SECTION 15. Ranks of Prosecutors. - The Prosecutors m
Regional Public Attorney who shall be assisted by an the National Prosecution Service shall have the following
Assistant Regional Public ranks:

Attorney. The authority and responsibility for the exercise of Rank Position/Title
the mandate of the PAO and for the discharge of its powers
and functions shall be vested in the Chief Public Attorney. Prosecutor V (I) Senior Deputy State Prosecutors;

xxxx (2) Regional Prosecutors; and


(3) Provincial Prosecutors or City Prosecutors of provinces It is also beyond the power of the CESB to question or
or cities with at least twenty-five overrule the specific qualifications imposed by Congress for
the subject positions. The legislature must be deemed to
(25) prosecutors and City Prosecutors of cities within a have considered the entirety of the functions attendant to
metropolitan area established by law Prosecutor IV (1) these posts when it enacted R.A. 9406 and prescribed the
Deputy State Prosecutors; relevant qualifications for each position. The choice not to
require third level eligibility in this instance must be
(2) Deputy Regional Prosecutors respected - not only by the CESB but also by this Court - as
a matter that goes into the wisdom and the policy of a
statute.83
(3) Provincial Prosecutors or City Prosecutors of provinces
or cities with less than twenty-five (25) prosecutors; and
The intent of R.A. 9406 to establish
and maintain the parity in
(4) Deputy Provincial Prosecutors or Deputy City qualifications between the senior
Prosecutors of provinces or cities with at least twenty- five officials of the PAO and the NPS
(25) prosecutors; and Deputy City Prosecutors of cities must he respected.
within a metropolitan area established by law.
This Court must likewise reject the CESB's contention that
xxxx the declassification of positions in the NPS (as a result of the
enactment of R.A. 10071) cannot benefit the PAO because
SECTION 16. Qualifications, Ranks and Appointments of of a supposed difference in their functions. This argument
Prosecutors and Other Prosecution Officers. - Prosecutors goes against the express terms and the clear intent of R.A.
with the rank of Prosecutor V shall have the same 9406 and is therefore untenable.
qualifications for appointment, rank, category, prerogatives,
salary grade and salaries, allowances, emoluments and other As stated previously, Section 5 of R.A. 9406 amended the
privileges, shall be subject to the same inhibitions and Administrative Code of 1987. The amendment was done to
disqualifications, and shall enjoy the same retirement and provide for "the same qualifications for appointment, rank,
other benefits as those of an Associate Justice of the Court salaries, allowances, and retirement privileges" of senior
of Appeals. officials of both the PAO and the NPS. The deliberations of
Congress on R.A. 9406 reveal its intention to establish
Prosecutors with the rank of Prosecutor IV shall have the parity between the two offices. The lawmakers clearly
same qualifications for appointment, rank, category, viewed these officers as counterparts in the administration
prerogatives, salary grade and salaries, allowances, of justice:
emoluments and other privileges, shall be subject to the
same inhibitions and disqualifications, and shall enjoy the Senator Enrile. Well, I agree with the gentleman. As I said,
same retirement and other benefits as those of a Judge of the we should equalize the prosecution and the defense. The
PAO Office is actually an arm of the same government to
Regional Trial Court. protect those who need protection.

A reading of B.P. 129 reveals, in turn, that the Presiding Senator Pimentel. That is right.
Justice and the Associate Justices of the Court of
Appeals79are required to have the same qualifications as the Senator Enrile. At the same time, the Prosecution Service is
members of this Court. 80 On the other hand, judges of the the arm of the government to punish those who would need
regional trial courts are governed by a separate provision. 81 punishment. So, these two perform the same class of service
for the nation and they should be equalized.
Based on the foregoing, it is clear that occupants of the
subject PAO positions are only mandated to comply with Senator Pimentel. Yes, I totally agree with that, that is why
requirements as to age, citizenship, education, and precisely I made this observation that talking alone of
experience. Since third-level eligibility is not at all starting pay, the level of starting pay of a PAO lawyer
mentioned in the law, it would be improper for the CESB to should not be lower than the starting pay of a prosecutor.
impose this additional qualification as a prerequisite to
permanent appointments.82 To do so would be to amend the
law and to overrule Congress. Now maybe at the proper time we can insert that
amendment.
While the CESB has been granted the power to prescribe
Senator Enrile. I will be glad to receive the proposed
entrance requirements for the third-level of the civil service,
amendment.84 (Emphases supplied)
this power cannot be construed as the authority to modify
the qualifications specifically set by law for certain
positions. Hence, even granting that the occupants of the During the bicameral conference on the proposed bill,
subject positions indeed exercise managerial and executive Senator Franklin M. Drilon explained that equal treatment of
functions as incidents of their primary roles, the CESB has the two offices was essential:
no power to impose additional qualifications for them. It
cannot use the authority granted to it by Congress itself to SEN. DRILON. Yes, this is our amendment that the PAO
defeat the express provisions of statutes enacted by the chief should have the same salary as the Chief State
latter. Prosecutor and down the line, the Assistant Chief State
Prosecutor, etcetera. And I want to put this on record justification for treating the two offices differently, given the
because there are PAO lawyers here. There are PAO plain provisions and the rationale of the law.
lawyers here before us and we want to explain why we have
placed this. This Court would render nugatory both the terms and the
intent of the law if it sustains the view of the CESB. We
xxxx cannot construe R.A. 9046 in relation to P.D. 1275 only,
while disregarding the amendments brought about by R.A.
SEN. DRILON. All right. As I said - you know, I want to 10071. To do so would defeat the legislature's very purpose,
put on record why we had tried to streamline the salary which is to equalize the qualifications of the NPS and the
structure and place it at the same level as the Chief State PAO.
Prosecutor. Because we do not want a salary distortion in
the Department of Justice where you have the PAO higher Based on the foregoing discussion, it is evident that the CSC
than the prosecutors. That's why we want to put them on acted within its jurisdiction and authority as the central
equal footing rather than mag - you know, there'll be personnel agency of the government when it passed upon
whipsawing. You place the prosecutors below the PAO. I the appeal filed by the PAO from CESB Resolution No.
can assure you that tomorrow the PAO will come to us - the 918. Further, there was no grave abuse of discretion on the
prosecutors will come to us and say, "Put us higher than the part of the CSC when it reversed the said resolution, which
PAO lawyers." So you will have whipsawing here.85 refused to declassify the subject PAO positions. As the CSC
noted, the third-level eligibility required by the CESB as an
Although these statements were made to address the specific additional qualification for these posts contravened not only
issue of salary, this Court considers them as manifestations the express terms, but also the clear intent of R.A. 9406.
of the intent to create and maintain parity between
prosecutors and public attorneys. In Re: Vicente S. E. For the reasons stated above, and as a consequence of the
Veloso,86 this Court considered similar provisions in other improper remedy the CESB has resorted to, this Court must
laws as confirmations of the legislative intent to grant equal dismiss the instant petition.
treatment to certain classes of public officers:
WHEREFORE, the Petition for Certiorari and Prohibition
Nonetheless, there are existing laws which expressly require is DISMISSED for lack of merit. CSC Decision No. 110067
the qualifications for appointment, confer the rank, and and Resolution No. 1100719 dated 15 February 2011 and 1
grant the salaries, privileges, and benefits of members of the June 2011, respectively, are hereby AFFIRMED.
Judiciary on other public officers in the Executive
Department, such as the following: SO ORDERED.

(a) the Solicitor General and Assistant Solicitor Generals of G.R. No. 197665
the Office of the Solicitor General (OSG); and P/S INSP. SAMSON B. BELMONTE, SPO1 FERMO R.
GALLARDE, PO3 LLOYD F. SORIA, PO1 HOMER D.
(b) the Chief Legal Counsel and the Assistant Chief Legal GENEROSO, PO1 SERGS DC. MACEREN, PO3
Counsel, the Chief State Prosecutor, and the members of the AVELINO L. GRAVADOR, PO2 FIDEL O.
National Prosecution Service (NPS) in the Department of GUEREJERO, and PO1 JEROME T.
Justice. NOCHEFRANCA, JR., Petitioners,
vs.
The intention of the above laws is to establish a parity in OFFICE OF THE DEPUTY OMBUDSMAN FOR THE
qualifications required, the rank conferred, and the salaries MILITARY AND OTHER LAW ENFORCEMENT
and benefits given to members of the Judiciary and the OFFICES, OFFICE OF THE OMBUDSMAN,
public officers covered by the said laws. The said laws seek Respondent.
to give equal treatment to the specific public officers in the
executive department and the Judges and Justices who are Before the Court is a Petition for Prohibition with Prayer for
covered by Batas Pambansa Blg. 129, as amended, and other the Issuance of a Temporary Restraining Order and/or Writ
relevant laws. In effect, these laws recognize that public of Preliminary Injunction under Rule 65 of the Rules of
officers who are expressly identified in the laws by the Court seeking to prohibit the Deputy Ombudsman for the
special nature of their official functions render services Military and Other Law Enforcement Offices from
which are as important as the services rendered by the implementing its Decision1 dated May 24, 2011 issued in
Judges and Justices. They acknowledge the respective roles OMB-P-A-07-1396-L finding petitioners guilty of Grave
of those public officers and of the members of the Judiciary Misconduct and imposing the penalty of Dismissal from
in the promotion of justice and the proper functioning of our Service, together with its accessory penalties.
legal and judicial systems.
The instant case stemmed from a Complaint filed by Sandra
To fulfill the legislative intent to accord equal treatment to Uy Matiao against petitioners P/S Insp. Samson B.
senior officials of the PAO and the NPS, parity in their Belmonte, SPO1 Fermo R. Gallarde, et al., members of the
qualifications for appointment must be maintained. Regional Traffic Management Office-7 (RTMO-7) as well
Accordingly, the revised qualifications of those in the NPS as P/Supt. Eleuterio N. Gutierrez, Regional Director of the
must also be considered applicable to those in the PAO. The Traffic Management Group Region 7 (TMG-R7). In said
declassification of positions in the NPS should thus benefit Complaint, Sandra alleged that sometime on September 3,
their counterpart positions in the PAO. There is no 2007 in Dumaguete City, petitioners flagged down her
vehicle because the 2007 LTO sticker was not displayed on
its windshield. Consequently, petitioners proceeded to seize subject motor vehicle. She also averred that petitioners tried
and impound the subject vehicle without any warrant or to make it appear that there were irregularities in her vehicle
existing complaint for theft. Thereafter, Sandra alleged that so that they could extort money from her. But when she
they asked her if she could shoulder their lodging expenses refused to succumb to their demands, they filed the Anti-
at the OK Pensionne House and treat them for dinner while Carnapping and Anti-Fencing charges.
an initial macro-etching examination was being conducted
on her vehicle. Sandra acceded. While on their way to On May 24, 2011, the Office of the Ombudsman issued the
dinner, however, petitioner Belmonte told Sandra to just assailed Decision finding petitioners guilty of Grave
settle the problem for three hundred thousand pesos Misconduct. It ruled that Sandra presented substantial
(P300,000.00).3 evidence, such as hotel receipts, to support her allegations
that petitioners demanded and received favours from her as
The next day, the macro-etching examination revealed that consideration for the processing of the macro-etching
the engine, chassis and production numbers of Sandra’s examination of the subject vehicle.
vehicle were tampered. Because of this, the vehicle was
placed under the list of stolen vehicles and was subsequently On July 18, 2011, petitioners filed a Motion for
brought to the PNP-TMG 7 Office in Cebu City under the Reconsideration arguing that the Ombudsman’s decision is
custody of P/Supt. Gutierrez. not supported by evidence and that the penalty of dismissal
imposed on them is oppressive.
In a demand letter dated September 14, 2007, Sandra
requested Gutierrez to release the subject vehicle. Before the Ombudsman could resolve the said motion,
Immediately thereafter, she received a phone call from however, petitioners elevated the matter to the Court by
petitioner Belmonte threatening to file criminal charges filing the instant Petition for Prohibition on August 3, 2011,
against her for violations of Republic Act (RA) No. 6539, praying that the Court issue a Writ of Prohibition and
otherwise known as the Anti-Carnapping Act and Temporary Restraining Order and/or Writ of Preliminary
Presidential Decree (PD) No. 1612, otherwise known as the Injunction commanding the Ombudsman to desist from
Anti-Fencing Law. implementing its Decision dated May 24, 2011 ordering
their dismissal from service pending resolution of their
Despite such threat, Sandra filed a civil case against Motion for Reconsideration with said office or until
petitioners for Recovery of Personal Property with Prayer remedies under the Rules and law have been fully
for Issuance of a Writ of Replevin before the RTC of Cebu exhausted.
City. Conversely, petitioners filed the criminal cases they
had previously threatened to file against Sandra before the The Court notes, however, that on September 6, 2011, a
Prosecutor’s Office of Dumaguete City, docketed as I.S. No. month after the filing of the instant petition, the Office of
2007-443.4 the Ombudsman issued an Order7 modifying its Decision by
finding petitioners guilty not of Grave Misconduct, but of
On December 12, 2007, Sandra filed the subject Conduct Prejudicial to the Best Interest of the Service and
Administrative Complaint for Grave Misconduct and Abuse further modifying the penalty from dismissal to suspension
of Authority against petitioners before the Visayas Office of from office for a period of six (6) months and (1) day
the Ombudsman. without pay.
In their Counter-Affidavits, petitioners denied the charges
and pleaded, as part of their defense, the findings of Nevertheless, in filing the instant action, petitioners claim
Prosecutor May Flor V. Duka on the criminal charges for that the assailed May 24, 2011 Decision was issued with
Anti-Carnapping and Anti-Fencing in her Resolution dated grave abuse of discretion amounting to lack or excess of
December 14, 2007 which upheld, in their favor, the jurisdiction for it was issued without proof that they are
presumption of regularity in their performance of duty. The indeed guilty of demanding and accepting favours from
Resolution noted that petitioners were on official duty at the Sandra. Considering that the Decision of the Ombudsman is
time when they apprehended and seized the subject motor immediately effective and executory, petitioners alleged that
vehicle for not bearing the 2007 LTO sticker. they were left with no appeal, or any other plain, speedy and
adequate remedy but the instant petition. According to them,
Petitioners also invoked good faith as regards the allegation their Motion for Reconsideration would not operate to stay
that their hotel accommodation was paid for by Sandra the implementation of the Decision rendered by the
claiming to be in honest belief that it was P/Supt. Manuel Ombudsman. Thus, they stood to lose their jobs unless the
Vicente of the Negros Traffic Management Office (NTMO) Decision is stayed by the Court.
who billeted them at the OK Pensionne House at said
office’s own expense, and without any inkling that it was In its Comment, public respondent Office of the
Sandra who had paid for the same. They further averred that Ombudsman countered that the instant petition is
Sandra is guilty of forum shopping due to the fact that she dismissible outright. For a party to be entitled to a writ of
had already filed a civil case for Recovery of Personal prohibition, he must establish that the office or tribunal
Property before the RTC of Cebu City, which contains has acted without or in excess of its jurisdiction or with
similar issues with the administrative case except for the grave abuse of discretion and that there is no appeal or
allegation of extortion, a mere afterthought.5 any other plain, speedy and accurate remedy in the
ordinary course of law.
In her Reply-Affidavit, Sandra denied the forum shopping Public respondent asserted that, first, petitioners have not
allegation in stressing that her present cause of action shown that it gravely abused its discretion in issuing the
pertains to petitioners’ acts of extortion while the civil case assailed Decision. As can be seen in said Decision,
for Recovery of Personal Property seeks the recovery of the substantial evidence existed to warrant a finding of
administrative culpability on the part of petitioners. Public exercised in an arbitrary and despotic manner because of
respondent further noted that, in any event, it issued an passion or hostility. Petitioners, in this case, must prove that
Order dated September 6, 2011 modifying the assailed May public respondent committed not merely reversible error,
24, 2011 Decision and eventually found petitioners guilty, but grave abuse of discretion amounting to lack or excess of
not of grave misconduct, but of conduct prejudicial to the jurisdiction. Mere abuse of discretion is not enough; it must
best interest of the service. Second, the remedy of a motion be grave.11
for reconsideration was available and, in fact, availed of by
the petitioners. Thus, the instant petition should be But the Court observes that in arriving at the assailed
dismissed. Decision, public respondent carefully weighed the rights and
interests of the parties vis-à-vis the evidence they presented
Moreover, public respondent posited that petitioners to substantiate the same. It ruled that Sandra submitted
violated the doctrine of hierarchy of courts, for appeals from substantial evidence, such as hotel receipts, to support her
decisions of the Office of the Ombudsman in administrative allegations that petitioners demanded and received favours
disciplinary cases should be brought not directly to the from her as consideration for the processing of the macro-
Court but to the Court of Appeals via petition for review etching examination of the subject vehicle. Thus, that public
under Rule 43 of the Rules of Court. Finally, public respondent’s ruling was unfavourable to petitioners’
respondent submitted that there exists no valid ground to interests does not necessarily mean that it was issued with
grant petitioners’ prayer for the issuance of a temporary grave abuse of discretion, especially so when such ruling
restraining order and/or writ of preliminary mandatory was aptly corroborated by evidence submitted by the parties.
injunction for there is no such thing as a vested interest in a
public office, let alone an absolute right to hold it. Second, petitioners filed the instant action when they clearly
had some other plain, speedy, and adequate remedy in the
ordinary course of law. A remedy is considered plain,
ISSUE: speedy and adequate if it will promptly relieve the petitioner
Whether or not the petition for prohibition filed by from the injurious effects of the judgment or rule, order or
petitioners is inappropriate. - YES resolution of the lower court or agency.12 As public
respondent pointed out, the remedy of a motion for
SC ---We rule in favor of public respondent. reconsideration was still available to petitioners, as
expressly granted by the following Section 8 of Rule III of
The petition for prohibition filed by petitioners is the Rules of Procedure of the Office of the Ombudsman, as
inappropriate. Section 2, Rule 65 of the Rules of Court amended by Administrative Order (AO) No. 17:
provides:
Section 8. Motion for reconsideration or reinvestigation:
Sec. 2. Petition for Prohibition. - When the proceedings of Grounds – Whenever allowable, a motion for
any tribunal, corporation, board, officer or person, whether reconsideration or reinvestigation may only be entertained if
exercising judicial, quasi-judicial or ministerial functions, filed within ten (10) days from receipt of the decision or
are without or in excess of its jurisdiction, or with grave order by the party on the basis of any of the following
abuse of discretion amounting to lack or excess of grounds:
jurisdiction, and there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law, a) New evidence had been discovered which materially
a person aggrieved thereby may file a verified petition in the affects the order, directive or decision;
proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent to b) Grave errors of facts or laws or serious irregularities have
desist from further proceedings in the action or matter been committed prejudicial to the interest of the movant.
specified therein, or otherwise granting such incidental
reliefs as law and justice may require.9 Only one motion for reconsideration or reinvestigation shall
be allowed, and the Hearing Officer shall resolve the same
For a party to be entitled to a writ of prohibition, he within five (5) days from the date of submission for
must establish the following requisites: resolution.
(a) it must be directed against a tribunal, corporation, board
or person exercising functions, judicial or ministerial; In fact, as borne by the records, petitioners actually availed
(b) the tribunal, corporation, board or person has acted of the same when they filed their Motion for
without or in excess of its jurisdiction, or with grave abuse Reconsideration with public respondent on July 18, 2011.
of discretion; and
(c) there is no appeal or any other plain, speedy, and Moreover, the mere fact that the Ombudsman’s decision
adequate remedy in the ordinary course of law.1 imposing the penalty of dismissal from service is
immediately executory, alone, does not justify the issuance
A cursory reading of the records of the case readily reveals of an injunctive writ to stay the implementation thereof. As
the absence of the second and third requisites. the Court explained in Villaseñor v. Ombudsman:13

First, the Court does not find that public respondent The nature of appealable decisions of the Ombudsman was,
gravely abused its discretion in issuing the subject in fact, settled in Ombudsman v. Samaniego, where it was
Decision. Grave abuse of discretion is a capricious and held that such are immediately executory pending appeal
whimsical exercise of judgment so patent and gross as to and may not be stayed by the filing of an appeal or the
amount to an evasion of a positive duty or a virtual refusal issuance of an injunctive writ.
to perform a duty enjoined by law, as where the power is
xxxx questions of law. In the case at bench, there are certainly
factual issues as Vivas is questioning the findings of the
Thus, petitioner Villaseñor’s filing of a motion for investigating team.
reconsideration does not stay the immediate implementation
of the Ombudsman’s order of dismissal, considering that "a Strict observance of the policy of judicial hierarchy
decision of the Office of the Ombudsman in administrative demands that where the issuance of the extraordinary writs
cases shall be executed as a matter of course" under Section is also within the competence of the CA or the RTC, the
7. special action for the obtainment of such writ must be
presented to either court. As a rule, the Court will not
xxxx entertain direct resort to it unless the redress desired cannot
be obtained in the appropriate lower courts; or where
The Ombudsman did not, therefore, err in implementing the exceptional and compelling circumstances, such as cases of
orders of suspension of one year and dismissal from the national interest and with serious implications, justify the
service against the petitioners. availment of the extraordinary remedy of writ of certiorari,
prohibition, or mandamus calling for the exercise of its
This may be so because, as the Court further explained, the primary jurisdiction. The judicial policy must be observed to
immediate implementation of an order of dismissal does not prevent an imposition on the precious time and attention of
violate any vested right for petitioners are considered the Court.16
preventively suspended during their appeal, viz.:
However, as in the foregoing pronouncement, petitioners
The Rules of Procedure of the Office of the Ombudsman are herein directly elevated the instant case before the Court
procedural in nature and, therefore, may be applied failing to advance any compelling reason for the Court to
retroactively to petitioners’ cases which were pending and allow the same. In fact, they even raised issues concerning
unresolved at the time of the passing of A.O. No. 17. No public respondent’s factual findings, contrary to the rule that
vested right is violated by the application of Section 7 parties who appeal directly to this Court must only raise
because the respondent in the administrative case is questions of law. It is clear, therefore, that the Court has
considered preventively suspended while his case is on ample reason to dismiss petitioners’ recourse.
appeal and, in the event he wins on appeal, he shall be paid
the salary and such other emoluments that he did not receive Besides, even granting the propriety of the instant petition,
by reason of the suspension or removal. It is important to the same can no longer be given effect under the
note that there is no such thing as a vested interest in an circumstances availing. Note that the instant petition
office, or even an absolute right to hold office. Excepting particularly sought the Court to issue a Writ of Prohibition
constitutional offices which provide for special immunity as and Temporary Restraining Order and/or Writ of
regards salary and tenure, no one can be said to have any Preliminary Injunction commanding public respondent to
vested right in an office.14 desist from implementing its Decision dated May 24, 2011.
But as aptly pointed out by public respondent, the assailed
In view of the foregoing, therefore, the Court cannot give Decision had already been modified by its September 6,
credence to petitioners’ assertion that given the immediate 2011 Order finding petitioners guilty, not of Grave
effectivity of the assailed Decision, a Writ of Prohibition Misconduct, but of Conduct Prejudicial to the Best Interest
and Temporary Restraining Order and/or Writ of of the Service and imposing the penalty of suspension from
Preliminary Injunction must be issued to stay the office for a period of six (6) months and (1) day without
implementation thereof. As clearly held by the Court, they pay, instead of dismissal from service. Accordingly,
have no vested right which stands to be violated by the considering that the act sought to be enjoined has already
execution of the subject decision. been modified, there is nothing more to restrain.17

At this point, it must be observed that the instant petition is Indeed, prohibition is a preventive remedy seeking that a
likewise dismissible for its violation of the doctrine of judgment be rendered directing the defendant to desist from
hierarchy of courts. As previously mentioned, petitioners, continuing with the commission of an act perceived to be
without awaiting public respondent’s action on their Motion illegal. Its proper function is to prevent the doing of an act
for Reconsideration, immediately filed the instant petition which is about to be done. When, however, under the
before this Court, instead of the appellate court, as required circumstances, the act sought to be restrained can no longer
by said doctrine. In Vivas v. The Monetary Board of the be committed, resort to such recourse is rendered futile for
Bangko Sentral ng Pilipinas,15 the Court had occasion to prohibition is not intended to provide a remedy for acts
explain: already accomplished.18

Even in the absence of such provision, the petition is also WHEREFORE, premises considered, the instant petition for
dismissible because it simply ignored the doctrine of Prohibition is DENIED.
hierarchy of courts.1âwphi1 True, the Court, the CA and the
RTC have original concurrent jurisdiction to issue writs of SO ORDERED.
certiorari, prohibition and mandamus. The concurrence of
jurisdiction, however, does not grant the party seeking any G.R. No. 207145 July 28, 2015
of the extraordinary writs the absolute freedom to file a
petition in any court of his choice. The petitioner has not
advanced any special or important reason which would GIL G. CAWAD, MARIO BENEDICT P. GALON,
allow a direct resort to this Court. Under the Rules of Court, DOMINGO E. LUSAYA, JEAN V. APOLINARES, MA.
a party may directly appeal to this Court only on pure LUISA S. OREZCA, JULIO R. GARCIA, NESTOR M.
INTIA, RUBEN C. CALIWATAN, ADOLFO Q.
ROSALES, MA. LUISA NAVARRO, and the Health in consultation with the Management-Health
PHILIPPINE PUBLIC HEALTH ASSOCIATION, Worker's Consultative Councils, as established under
INC., Petitioners, Section 33 of this Act: Provided, That representation and
vs. travel allowance shall be given to rural health physicians as
FLORENCIO B. ABAD, in his capacity as Secretary of enjoyed by municipal agriculturists, municipal planning and
the Department of Budget and Management (DBM); development officers and budget officers.
ENRIQUE T. ONA, in his capacity as Secretary of the
Department of Health (DOH); and FRANCISCO T. Section 23. Longevity Pay.- A monthly longevity pay
DUQUE III, in his capacity as Chairman of the Civil equivalent to five percent (5%)of the monthly basic pay
Service Commission (CSC), Respondents. shall be paid to a health worker for every five (5) years of
continuous, efficient and meritorious services rendered as
Before the Court is a petition for certiorari and prohibition certified by the chief of office concerned, commencing with
under Rule 65 of the Rules of Court filed by the officers and the service after the approval of this Act.4
members of the Philippine Public Health Association, Inc.
(PPHAI) assailing the validity of Joint Circular No. 11dated Pursuant to Section 355 of the Magna Carta, the Secretary of
November 29, 2012 of the Department of Budget and Health promulgated its Implementing Rules and Regulations
Management (DBM) and the Department of Health (DOH) (IRR) in July 1992.
as well as Item 6.5 of the Joint Circular2 dated September 3,
2012 of the DBM and the Civil Service Commission (CSC). Thereafter, in November 1999, the DOH, in collaborateon
with various government agencies and health workers'
FACTS: organizations, promulgated a Revised IRR consolidating all
On March 26, 1992, Republic Act (RA) No. 7305, otherwise additional and clarificatory rules issued by the former
known as The Magna Carta of Public Health Workerswas Secretaries of Health dating back from the effectivity of the
signed into law in order to promote the social and economic Magna Carta. The pertinent provisions of said Revised IRR
well-being of health workers, their living and working provide:
conditions and terms of employment, to develop their skills
and capabilities to be better equipped to deliver health 6.3. Longevity Pay.- A monthly longevity pay equivalent to
projects and programs, and to encourage those with proper five percent (5%)of the present monthly basic pay shall be
qualifications and excellent abilities to join and remain in paid to public health workers for every five (5) years of
government service.3 Accordingly, public health workers continuous, efficient and meritorious services rendered as
(PHWs) were granted the following allowances and certified by the Head of Agency/Local Chief Executives
benefits, among others commencing after the approval of the Act. (April 17, 1992)
: xxxx
Section 20. Additional Compensation. - Notwithstanding 7.1.1. Eligibility to Receive Hazard Pay.- All public health
Section 12 of Republic Act No. 6758, public health workers workers covered under RA 7305 are eligible to receive
shall receive the following allowances: hazard allowance, hazard pay when the nature of their work exposes them to
subsistence allowance, longevity pay, laundry allowance high risk/low risk hazards for at least fifty percent (50%) of
and remote assignment allowance. their working hours as determined and approved by the
Secretary of Health or his authorized representatives.
Section 21. Hazard Allowance. - Public health workers in xxxx
hospitals, sanitaria, rural health units, main health centers, 7.2.1. Eligibility for Subsistence Allowance
health infirmaries, barangay health stations, clinics and other a. All public health workers covered under RA 7305 are
health-related establishments located in difficult areas, eligible to receive full subsistence allowance as long as they
strife-torn or embattled areas, distressed or isolated stations, render actual duty.
prisons camps, mental hospitals, radiation exposed clinics, b. Public Health Workers shall be entitled to full
laboratories or disease-infested areas or in areas declared Subsistence Allowance of three (3) meals which may be
under state of calamity or emergency for the duration computed in accordance with prevailing circumstances as
thereof which expose them to great danger, contagion, determined by the Secretary of Health in consultation with
radiation, volcanic activity/eruption, occupational risks or the Management-Health Workers Consultative Council, as
perils to life as determined by the Secretary of Health or the established under Section 33 of the Act.
Head of the unit with the approval of the Secretary of c. Those public health workers who are out of station shall
Health, shall be compensated hazard allowances equivalent be entitled to per diems in place of Subsistence Allowance.
to at least twenty-five percent (25%) of the monthly basic Subsistence Allowance may also be commuted.
salary of health workers receiving salary grade 19 and xxxx
below, and five percent (5%) for health workers with<="" 7.2.3 Rates of Subsistence Allowance
b=""> a. Subsistence allowance shall be implemented at not less
than Ph₱50.00 per day or Ph₱1,500.00 per month as
Section 22. Subsistence Allowance. - Public health workers certified by head of agency.
who are required to render service within the premises of xxxx
hospitals, sanitaria, health infirmaries, main health centers, d. Part-time public health workers/consultants are entitled to
rural health units and barangay health stations, or clinics, one-half (1/2)of the prescribed rates received by full-time
and other health-related establishments in order to make public health workers.6
their services available at any and all times, shall be entitled On July 28, 2008, the Fourteenth Congress issued Joint
to full subsistence allowance of three (3) meals which may Resolution No. 4, entitled Joint Resolution Authorizing the
be computed in accordance with prevailing President of the Philippines to Modify the Compensation
circumstances as determined by the Secretary of and Position Classification System of Civilian Personnel and
the Base Pay Schedule of Military and Uniformed Personnel service which are not in accordance with prevailing
in the Government, and for other Purposes, approved by circumstances determined by the Secretary of Health as
then President Gloria Macapagal-Arroyo on June 17,2009, required by RA No. 7305. Moreover, petitioners fault
which provided for certain amendments in the Magna Carta respondents for the premature effectivity of the DBM-DOH
and its IRR. Joint Circular which they believe should have been on
On September 3, 2012, respondents DBM and CSC issued January 29, 2012 and not on January 1, 2012. As to the grant
one of the two assailed issuances, DBM-CSC Joint Circular of Longevity Pay, petitioners posit that the same was
No. 1, Series of 2012, to prescribe the rules on the grant of wrongfully granted only to PHWs holding regular plantilla
Step Increments due to meritorious performance and Step positions. Petitioners likewise criticize the DBM-CSC Joint
Increment due to length of service.7 Specifically, it provided Circular insofar as it withheld the Step Increment due to
that "an official or employee authorized to be granted length of service from those who are already being granted
Longevity Pay under an existing law is not eligible for the Longevity Pay. As a result, petitioners claim that the subject
grant of Step Increment due to length of service." 8 Shortly circulars are void for being an undue exercise of legislative
thereafter, on November29, 2012, respondents DBM and power by administrative bodies.
DOH then circulated the other assailed issuance, DBM-
DOH Joint Circular No. 1, Series of 2012, the relevant In their Comment, respondents, through the Solicitor
provisions of which state: General, refute petitioners' allegations in stating that the
7.0. Hazard Pay. - Hazard pay is an additional compensation assailed circulars were issued within the scope of their
for performing hazardous duties and for enduring physical authority, and are therefore valid and binding. They also
hardships in the course of performance of duties. assert the authority of Joint Resolution No. 4, Series of
As a general compensation policy, and in line with Section 2009, approved by the President, in accordance with the
21 of R. A. No. 7305, Hazard Pay may be granted to PHWs prescribed procedure. Moreover, respondents question the
only if the nature of the duties and responsibilities of their remedies of Certiorari and Prohibition used by petitioners
positions, their actual services, and location of work expose for the assailed circulars were done in the exercise of their
them to great danger, occupational risks, perils of life, and quasi-legislative, and not of their judicial or quasi-judicial
physical hardships; and only during periods of actual functions.
exposure to hazards and hardships.
xxxx
8.3 The Subsistence Allowance shall be ₱50for each day of Issue:
actual full-time service, or ₱25for each day of actual part- Whether or not petition for prohibition is proper in this
time service. case. - NO!!! IMPROPER REMEDY
xxxx
9.0 Longevity Pay (LP) The petition is partly meritorious.
9.1 Pursuant to Section 23 of R.A. No. 7305, a PHW may be
granted LP at 5% of his/her current monthly basic salary, in At the outset, the petition for certiorari and prohibition filed
recognition of every 5 years of continuous, efficient, and by petitioners is not the appropriate remedy to assail the
meritorious services rendered as PHW. The grant thereof is validity of respondents' circulars. Sections 1 and 2 of Rule
based on the following criteria: 65 of the Rules of Court provide:
9.1.1 The PHW holds a position in the agency plantilla of
regular positions; and RULE 65
9.1.2 He/She has rendered at least satisfactory performance CERTIORARI, PROHIBITION AND MANDAMUS
and has not been found guilty of any administrative or Section 1. Petition for certiorari. - When any tribunal, board
criminal case within all rating periods covered by the 5-year or officer exercising judicial or quasi-judicial functions has
period. acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
In a letter9 dated January 23, 2013 addressed to respondents jurisdiction, and there is no appeal, or any plain, speedy, and
Secretary of Budget and Management and Secretary of adequate remedy in the ordinary course of law, a person
Health, petitioners expressed their opposition to the Joint aggrieved thereby may file a verified petition in the proper
Circular cited above on the ground that the same diminishes court, alleging the facts with certainty and praying that
the benefits granted by the Magna Carta to PHWs. judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting
Unsatisfied, petitioners, on May 30, 2013, filed the instant such incidental reliefs as law and justice may require.
petition xxxx

Petitioners contend that respondents acted with grave abuse Sec. 2. Petition for Prohibition. - When the proceedings of
of discretion when they issued DBM-DOH Joint Circular any tribunal, corporation, board, officer or person, whether
No. 1, Series of 2012 and DBM-CSC Joint Circular No. 1, exercising judicial, quasi-judicial or ministerial functions,
Series of 2012 which prescribe certain requirements on the are without or in excess of its jurisdiction, or with grave
grant of benefits that are not otherwise required by RA No. abuse of discretion amounting to lack or excess of
7305. jurisdiction, and there is no appeal or any other plain,
Specifically, petitioners assert that the DBM-DOH Joint speedy, and adequate remedy in the ordinary course of law,
Circular grants the payment of Hazard Pay only if the nature a person aggrieved thereby may file a verified petition in the
of the PHWs' duties expose them to danger when RA No. proper court, alleging the facts with certainty and praying
7305 does not make any qualification. They likewise claim that judgment be rendered commanding the respondent to
that said circular unduly fixes Subsistence Allowance at ₱50 desist from further proceedings in the action or matter
for each day of full-time service and ₱25 for part-time
specified therein, or otherwise granting such incidental the nature of subordinate legislation, promulgated by them
reliefs as law and justice may require.10 in their exercise of delegated power.

Thus, on the one hand, certiorari as a special civil action is Quasi-legislative power is exercised by administrative
available only if: agencies through the promulgation of rules and
(1) it is directed against a tribunal, board, or officer regulations within the confines of the granting statute
exercising judicial or quasi-judicial functions; and the doctrine of non-delegation of powers from the
(2) the tribunal, board, or officer acted without or in excess separation of the branches of the government. 18
of jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction; and Based on the foregoing, certiorari and prohibition do not lie
(3) there is no appeal nor any plain, speedy, and adequate against herein respondents' issuances. It is beyond the
remedy in the ordinary course of law. 11 province of certiorari to declare the aforesaid administrative
issuances illegal because petitions for certiorari seek solely
On the other hand, prohibition is available only if: to correct defects in jurisdiction, and not to correct just any
(1) it is directed against a tribunal, corporation, board, error committed by a court, board, or officer exercising
officer, or person exercising functions, judicial, quasi- judicial or quasi-judicial functions unless such court, board,
judicial, or ministerial; or officer thereby acts without or in excess of jurisdiction or
(2) the tribunal, corporation, board or person acted with such grave abuse of discretion amounting to lack of
without or in excess of its jurisdiction, or with grave jurisdiction.19
abuse of discretion amounting to lack or excess of
jurisdiction; and It is likewise beyond the territory of a writ of prohibition
(3) there is no appeal or any other plain, speedy, and since generally, the purpose of the same is to keep a lower
adequate remedy in the ordinary course of law.12 court within the limits of its jurisdiction in order to maintain
the administration of justice in orderly channels. It affords
Based on the foregoing, this Court has consistently relief against usurpation of jurisdiction by an inferior court,
reiterated that petitions for certiorari and prohibition may be or when, in the exercise of jurisdiction, the inferior court
invoked only against tribunals, corporations, boards, transgresses the bounds prescribed by the law, or where
officers, or persons exercising judicial, quasi-judicial or there is no adequate remedy available in the ordinary course
ministerial functions, and not against their exercise of of law.20
legislative or quasi-legislative functions.13
Be that as it may, We proceed to discuss the substantive
Judicial functions involve the power to determine what issues raised in the petition in order to finally resolve the
the law is and what the legal rights of the parties are, doubt over the Joint Circulars' validity. For proper guidance,
and then undertaking to determine these questions and the pressing issue of whether or not the joint circulars
adjudicate upon the rights of the parties.14 regulating the salaries and benefits relied upon by public
health workers were tainted with grave abuse of discretion
Quasi judicial functions apply to the actions and discretion rightly deserves its prompt resolution. With respect to the
of public administrative officers or bodies required to infirmities of the DBM-DOH Joint Circular raised in the
investigate facts, hold hearings, and draw conclusions from petition, they cannot be said to have been issued with grave
them as a basis for their official action, in their exercise of abuse of discretion for not only are they reasonable, they
discretion of a judicial nature.15 were likewise issued well within the scope of authority
granted to the respondents. In fact, as may be gathered from
Ministerial functions are those which an officer or tribunal prior issuances on the matter, the circular did not make any
performs in the context of a given set of facts, in a substantial deviation therefrom, but actually remained
prescribed manner and without regard to the exercise of his consistent with, and germane to, the purposes of the law.
own judgment upon the propriety or impropriety of the act
done.16 First, the qualification imposed by the DBM-DOH Joint
Circular granting the payment of Hazard Pay only if the
Before a tribunal, board, or officer may exercise judicial or nature of PHWs' duties expose them to danger and
quasi-judicial acts, it is necessary that there be a law that depending on whether the risk involved is high or low was
gives rise to some specific rights under which adverse merely derived from Section 7.1.1 of the Revised IRR of
claims are made, and the controversy ensuing therefrom is RA No. 7305, duly promulgated by the DOH in
brought before a tribunal, board, or officer clothed with collaboration with various government health agencies and
authority to determine the law and adjudicate the respective health workers' organizations in November 1999, to wit:
rights of the contending parties.17
SECTION 7.1.1. Eligibility to Receive Hazard Pay. - All
In this case, respondents did not act in any judicial, quasi- public health workers covered under RA 7305 are eligible to
judicial, or ministerial capacity in their issuance of the receive hazard pay when the nature of their work exposes
assailed joint circulars. In issuing and implementing the them to high risk/low risk hazards for at least fifty percent
subject circulars, respondents were not called upon to (50%) of their working hours as determined and approved
adjudicate the rights of contending parties to exercise, in any by the Secretary of Health or his authorized
manner, discretion of a judicial nature. The issuance and representatives.21
enforcement by the Secretaries of the DBM, CSC and DOH Second, fixing the Subsistence Allowance at ₱50 for each
of the questioned joint circulars were done in the exercise of day of full-time service and ₱25 for part-time service was
their quasi-legislative and administrative functions. It was in also merely a reiteration of the limits prescribed by the
Revised IRR, validly issued by the Secretary of Health
pursuant to Section 3522 of RA No. 7305, the pertinent supplanting the same, they cannot be rendered ineffective, to
portions of which states: wit:
Section 7.2.3 Rates of Subsistence Allowance
a. Subsistence allowance shall be implemented at not less When the policy guidelines of the ERC directed the
than Ph₱50.00 per day or Ph₱1,500.00 per month as exclusion of discounts extended by power suppliers in the
certified by head of agency. computation of the cost of purchased power, the guidelines
xxxx merely affirmed the plain and unambiguous meaning of
d. Part-time public health workers/consultants are entitled to "cost" in Section 5, Rule IX of the IRR of R.A. No.
one-half (1/2)of the prescribed rates received by full-time 7832."Cost" is an item of outlay, and must therefore exclude
public health workers. discounts since these are "not amounts paid or charged for
Third, the condition imposed by the DBM-DOH Joint the sale of electricity, but are reductions in rates.
Circular granting longevity pay only to those PHWs holding xxxx
regular plantilla positions merely implements the
qualification imposed by the Revised IRR which provides: Thus, the policy guidelines of the ERC on the treatment of
6.3. Longevity Pay. - A monthly longevity pay equivalent to discounts extended by power suppliers "give no real
five percent (5%) of the present monthly basic pay shall be consequence more than what the law itself has already
paid to public health workers for every five (5) years of prescribed." Publication is not necessary for the effectivity
continuous, efficient and meritorious services rendered as of the policy guidelines.
certified by the Head of Agency/Local Chief Executives As interpretative regulations, the policy guidelines of the
commencing after the approval of the Act. (April 17, 1992) ERC on the treatment of discounts extended by power
6.3.1. Criteria for Efficient and Meritorious Service A suppliers are also not required to be filed with the U.P. Law
Public Worker shall have: Center in order to be effective. Section 4, Chapter 2, Book
a. At least a satisfactory performance rating within the rating VII of the Administrative Code of 1987 requires every rule
period. adopted by an agency to be filed with the U.P. Law Center
b. Not been found guilty of any administrative or criminal to be effective. However, in Board of Trustees of the
case within the rating period. Government Service Insurance System v. Velasco, this
Court pronounced that "not all rules and regulations adopted
As can be gleaned from the aforequoted provision, by every government agency are to be filed with the UP
petitioners failed to show any real inconsistency in granting Law Center." Interpretative regulations and those merely
longevity pay to PHWs holding regular plantilla positions. internal in nature are not required to be filed with the U.P.
Not only are they based on the same premise, but the intent Law Center. Paragraph 9 (a) of the Guidelines for Receiving
of longevity pay, which is paid to workers for every five (5) and Publication of Rules and Regulations Filed with the
years of continuous, efficient and meritorious services, U.P. Law Center states:
necessarily coincides with that of regularization. Thus, the 9. Rules and Regulations which need not be filed with the
assailed circular cannot be invalidated for its issuance is U.P. Law Center, shall, among others, include but not be
consistent with, and germane to, the purposes of the law. limited to, the following:
a. Those which are interpretative regulations and those
Anent petitioners' contention that the DBM-DOH Joint merely internal in nature, that is, regulating only the
Circular is null and void for its failure to comply with personnel of the Administrative agency and not the public.
Section 3523 of RA No. 7305 providing that its xxxx
implementing rules shall take effect thirty (30) days after
publication in a newspaper of general circulation, as well as Furthermore, the policy guidelines of the ERC did not
its failure to file a copy of the same with the University of create a new obligation and impose a new duty, nor did
the Philippines Law Center-Office of the National it attach a new disability. As previously discussed, the
Administrative Register (UP Law Center-ONAR), policy guidelines merely interpret R.A. No. 7832 and its
jurisprudence as well as the circumstances of this case IRR, particularly on the computation of the cost of
dictate otherwise. purchased power. The policy guidelines did not modify,
amend or supplant the IRR.
Indeed, publication, as a basic postulate of procedural due Similarly, in Republic v. Drugmaker's Laboratories,
process, is required by law in order for administrative rules Inc.,28 the validity of circulars issued by the Food and Drug
and regulations to be effective.24 There are, however, several Administration (FDA) was upheld in spite of the non-
exceptions, one of which are interpretative regulations compliance with the publication, prior hearing, and
which "need nothing further than their bare issuance for they consultation requirements for they merely implemented the
give no real consequence more than what the law itself has provisions of Administrative Order No. 67, entitled
already prescribed."25 These regulations need not be "Revised Rules and Regulations on Registration of
published for they add nothing to the law and do not affect Pharmaceutical Products" issued by the DOH, in the
substantial rights of any person.26 following wise:

Thus, in Association of Southern Tagalog Electric A careful scrutiny of the foregoing issuances would
Cooperatives, et. al. v. Energy Regulatory Commission reveal that AO 67, s. 1989 is actually the rule that
(ERC),27wherein several orders issued by the ERC were originally introduced the BA/BE testing requirement as
sought to be invalidated for lack of publication and non- a component of applications for the issuance of CPRs
submission of copies thereof to the UP Law Center - ONAR, covering certain pharmaceutical products. As such, it is
it has been held that since they merely interpret RA No. considered an administrative regulation - a legislative rule to
7832 and its IRR, particularly on the computation of the cost be exact - issued by the Secretary of Health in consonance
of purchased power, without modifying, amending or with the express authority granted to him by RA 3720 to
implement the statutory mandate that all drugs and devices enforce are entitled to great respect.31 They partake of the
should first be registered with the FDA prior to their nature of a statute and are just as binding as if they have
manufacture and sale. Considering that neither party been written in the statute itself. As such, administrative
contested the validity of its issuance, the Court deems that regulations have the force and effect of law and enjoy the
AO 67, s. 1989 complied with the requirements of prior presumption of legality. Unless and until they are overcome
hearing, notice, and publication pursuant to the presumption by sufficient evidence showing that they exceeded the
of regularity accorded to the government in the exercise of bounds of the law,32 their validity and legality must be
its official duties.42 upheld.
Thus, notwithstanding the contention that the Joint
On the other hand, Circular Nos. 1 and 8, s. 1997 cannot Resolution No. 4 promulgated by Congress cannot be a
be considered as administrative regulations because they proper source of delegated power, the subject Circular was
do not: (a) implement a primary legislation by providing nevertheless issued well within the scope of authority
the details thereof; (b) interpret, clarify, or explain granted to the respondents. The issue in this case is not
existing statutory regulations under which the FDA whether the Joint Resolution No. 4 can become law and,
operates; and/or (c) ascertain the existence of certain consequently, authorize the issuance of the regulation in
facts or things upon which the enforcement of RA 3720 question, but whether the circular can be struck down as
depends. In fact, the only purpose of these circulars is invalid for being tainted with grave abuse of discretion.
for the FDA to administer and supervise the Regardless, therefore, of the validity or invalidity of Joint
implementation of the provisions of AO 67, s. 1989, Resolution No. 4, the DBMDOH Joint Circular assailed
including those covering the BA/BE testing requirement, herein cannot be said to have been arbitrarily or capriciously
consistent with and pursuant to RA 3720.43 Therefore, issued for being consistent with prior issuances duly
the FDA has sufficient authority to issue the said promulgated pursuant to valid and binding law.
circulars and since they would not affect the substantive
rights of the parties that they seek to govern - as they are Distinction must be made, however, with respect to the
not, strictly speaking, administrative regulations in the DBM-CSC Joint Circular, the contested provision of which
first place - no prior hearing, consultation, and states:
publication are needed for their validity. 6.5 An official or employee authorized to be granted
Longevity Pay under an existing law is not eligible for the
In this case, the DBM-DOH Joint Circular in question gives grant of Step Increment Due to Length of Service.
no real consequence more than what the law itself had A review of RA No. 7305 and its Revised IRR reveals that
already prescribed. As previously discussed, the the law does not similarly impose such condition on the
qualification of actual exposure to danger for the PHW's grant of longevity pay to PHWs in the government service.
entitlement to hazard pay, the rates of ₱50 and ₱25 As such, the DBM-CSC Joint Circular effectively created a
subsistence allowance, and the entitlement to longevity pay new imposition which was not otherwise stipulated in the
on the basis of PHW's status in the plantilla of regular law it sought to interpret. Consequently, the same exception
positions were already prescribed and authorized by pre- granted to the DBM-DOH Joint Circular cannot be applied
existing law. There is really no new obligation or duty to the DBM-CSC Joint Circular insofar as the requirements
imposed by the subject circular for it merely reiterated those on publication and submission with the UP Law Center -
embodied in RA No. 7305 and its Revised IRR. The Joint ONAR are concerned. Thus, while it was well within the
Circular did not modify, amend nor supplant the Revised authority of the respondents to issue rules regulating the
IRR, the validity of which is undisputed. Consequently, grant of step increments as provided by RA No. 6758,
whether it was duly published and filed with the UP Law otherwise known as the Compensation and Position
Center - ONAR is necessarily immaterial to its validity Classification Act of 1989, which pertinently states:
because in view of the pronouncements above, interpretative Section 13. Pay Adjustments. - Paragraphs (b) and (c),
regulations, such as the DBM-DOH circular herein, need not Section 15 of Presidential Decree No. 985 are hereby
be published nor filed with the UP Law Center - ONAR in amended to read as follows:
order to be effective. Neither is prior hearing or consultation xxxx
mandatory. (c) Step Increments- Effective January 1, 1990 step
Nevertheless, it bears stressing that in spite of the increments shall be granted based on merit and/or length of
immateriality of the publication requirement in this case, service in accordance with rules and regulations that will be
and even assuming the necessity of the same, its basic promulgated jointly by the DBM and the Civil Service
objective in informing the public of the contents of the law Commission,
was sufficiently accomplished when the DBM-DOH Joint and while it was duly published in the Philippine Star, a
Circular was published in the Philippine Star, a newspaper newspaper of general circulation, on September 15,
of general circulation, on December 29, 2012. 29 2012,33the DBM-CSC Joint Circular remains unenforceable
As to petitioners' allegation of grave abuse of discretion on for the failure of respondents to file the same with the UP
the part of respondent DOH Secretary in failing to include Law Center - ONAR.34 Moreover, insofar as the DBM-DOH
the Magna Carta benefits in his department's yearly budget, Joint Circular similarly withholds the Step Increment due to
the same is belied by the fact that petitioners themselves length of service from those who are already being granted
specifically provided in their petition an account of the Longevity Pay, the same must likewise be declared
amounts allocated for the same in the years 2012 and unenforceable.[35
2013.30 Note also that the DBM-DOH Joint Circular must further be
Based on the foregoing, it must be recalled that invalidated insofar as it lowers the hazard pay at rates below
administrative regulations, such as the DBM-DOH Joint the minimum prescribed by Section 21 of RA No. 7305 and
Circular herein, enacted by administrative agencies to Section 7.1.5 (a) of its Revised IRR as follows:
implement and interpret the law they are entrusted to
SEC. 21. Hazard Allowance. - Public health worker in under an existing law is not eligible for the grant of Step
hospitals, sanitaria, rural health units, main centers, health Increment Due to Length of Service, is declared
infirmaries, barangay health stations, clinics and other UNENFORCEABLE. The validity, however, of the DBM-
health-related establishments located in difficult areas, DOH Joint Circular as to the qualification of actual exposure
strife-torn or embattled areas, distresses or isolated stations, to danger for the PHW's entitlement to hazard pay, the rates
prisons camps, mental hospitals, radiation-exposed clinics, of ₱50 and ₱25 subsistence allowance, and the entitlement
laboratories or disease-infested areas or in areas declared to longevity pay on the basis of the PHW' s status in the
under state of calamity or emergency for the duration plantilla of regular positions, is UPHELD.
thereof which expose them to great danger, contagion,
radiation, volcanic activity/eruption occupational risks or
perils to life as determined by the Secretary of Health or the G.R. No. 174202 April 7, 2015
Head of the unit with the approval of the Secretary of
Health, shall be compensated hazard allowance equivalent
to at least twenty-five percent (25%)of the monthly basic DYNAMIC BUILDERS & CONSTRUCTION CO.
salary of health workers receiving salary grade 19 and (PHIL.), INC., Petitioner,
below, and five percent (5%) for health workers with salary vs.
grade 20 and above. HON. RICARDO P. PRESBITERO, JR., MAYOR
xxxx AND HEAD OF PROCURING UNIT OF THE
7.1.5. Rates of Hazard Pay MUNICIPALITY OF VALLADOLID, NEGROS
a. Public health workers shall be compensated hazard OCCIDENTAL; BIDS AND A WARDS
allowances equivalent to at least twenty five (25%)of the COMMITTEE, MUNICIPALITY OF VALLADOLID,
monthly basic salary of health workers, receiving salary NEGROS OCCIDENTAL; AND HENRY L.
grade 19 and below, and five percent (5%)for health JORDAN AND/OR HLJ CONSTRUCTION AND
workers with salary grade 20 and above. This may be ENTERPRISE,Respondents.
granted on a monthly, quarterly or annual basis.
It is evident from the foregoing provisions that the rates of
hazard pay must be at least25% of the basic monthly salary On December 28, 2005, the Municipality of
of PWHs receiving salary grade 19 and below, and 5% Valladolid, Negros Occidental,through its Bids and
receiving salary grade 20 and above. As such, RA No. 7305 Awards Committee, published an invitation to bid for
and its implementing rules noticeably prescribe the thec o n s t r u c t i o n o f a 1 , 0 5 0 - l i n e a l - m e t e r r u b b l e
minimum rates of hazard pay due all PHWs in the c o n c r e t e s e a wa l l a l o n g t h e m u n i c i p a l i t y ' s
government, as is clear in the self-explanatory phrase "at shoreline. This infrastructure venture is
least" used in both the law and the rules.36 Thus, the k n o w n a s t h e "Construction Shoreline Protection
following rates embodied in Section 7.2 of DBM-DOH Joint Project."
Circular must be struck down as invalid for being contrary
to the mandate of RA No. 7305 and its Revised IRR: The Bids and Awards Committee conducted a pre-bid
7.2.1 For PHWs whose positions are at SG-19 and below, conference attended bysix (6) prospective contractors
Hazard Pay shall be based on the degree of exposure to high including Dynamic Builders.The Bids and Awards
risk or low risk hazards, as specified in sub-items 7 .1.1 and Committee issued Resolution No. 6 recommending
7 .1.2 above, and the number of workdays of actual theaward in favor of HLJ Construction and Enterprise.
exposure over 22 workdays in a month, at rates not to
exceed 25% of monthly basic salary. In case of exposure to On April 18, 2006, the Municipality of Valladolid received
both high risk and low risk hazards, the Hazard Pay for the its "NO OBJECTION"letter from World Bank through
month shall be based on only one risk level, whichever is the LOGOFIND project director, advising theBids and
more advantageous to the PHW. Awards Committee to proceed with the issuance of
7.2.2 PHWs whose positions are at SG-20 and above may be the notice ofaward, letter of acceptance, signing of
entitled to Hazard Pay at 5% of their monthly basic salaries contract, and notice to proceed.
for all days of exposure to high risk and/or low risk hazards.
However, those exposed to high risk hazards for 12 or more Bids and Awards Committee Chairperson Celina C.
days in a month may be entitled to a fixed amount of Segunla wrote Engr. RaulF. Balandra of Dynamic
₱4,989.75 per month. Builders and the other participating losing
Rates of Hazard Pay bidders,ADP Construction and Mig-Wells Construction
e/ High Risk Low Risk Corporation, to inform them ofthe Bids and Awards
Committee's findings and decision.
s 25% of monthly basic salary 14% of monthly basic salary
Dynamic Builderswas informed that "its bid proposal
14% of monthly basic salary had been found to be 'not substantiallyresponsive.'"
8% of monthly basic salary
Dynamic Builders received this decision on May 11,
s 8% monthly basic salary 5% of monthly basic salary
2006.Dynamic Builders lodged a formal protest
WHEREFORE, premises considered, the instant petition is with the head of the procuringentity, Mayor Ricardo
PARTLY GRANTED. The DBM-DOH Joint Circular, P. Presbitero, Jr. (Mayor Presbitero), to set aside
insofar as it lowers the hazard pay at rates below the theBids and Awards Committee decision declaring
minimum prescribed by Section 21 of RA No. 7305 and Dynamic Builders' bid as notsubstantially responsive.
Section 7.1.5 (a) of its Revised IRR, is declared INVALID.
The DBM-CSC Joint Circular, insofar as it provides that an P ur s ua nt to Art ic le XVI I, Se ct io n 5 8 o f
official or employee authorized to be granted Longevity Pay Rep ub li c Act No . 9 1 8 4 , o th er wi s e known as the
Government Procurement Reform Act, Dynamic Section 58 could not have envisioned a
Builders filedthe Petition for Certiorari before the Regional simultaneous resort to this court by one that had
Trial Court of Bago City, NegrosOccidental, assailing Mayor already filed an action before the Regional Trial
Presbitero's Decision and Resolution.Simultaneo usly, Court without violating the basic rules on
Dynamic Builders filed this Petition dated proscription against the splitting of a cause of
September 4,2006 for prohibition with application for action, multiplicity of suits, and forum shopping.
temporary restraining order and/orwrit of preliminary
injunction before this court.
Rule 2, Section 3 of the Rules of Court provides that
Petitioner Dynamic Builders submits that Article XVII, "[a] party may not institute more than one suit for a
Section 58 of RepublicA c t N o . 9 1 8 4 i m p l i c i t l y single cause of action."
allowed it to simultaneously file a Petition
for Moreover, Section 4 discusses the splitting of a
Certiorari before the Regional Trial Court assailing single cause of action in that "if two or more suits
the protest case on themerits, and another Petition before are instituted on the basis of the same cause of
this court for injunctive remedies. action, the filing of one or a judgment upon the
merits in any one is available as a ground for the
Issue:Whether or not petitioner resorted to an dismissal of the others."
improper remedy when it filed apetition for
prohibition with this court.
The splitting of a cause of action "violate[s] the
policy against multiplicity of suits, whose primary
Ruling:Yes. Petition lacks merit. Hence, petition is
DISMISSED.
objective [is] to avoid unduly burdening the dockets
of the courts."59

We proceed with the procedural issue of whether This Petition seeks to enjoin the execution of public
petitioner availed itself of the wrong remedy in respondent’s Decision and Resolution on the protest
simultaneously filing (1) a petition for certiorari — the same Decision and Resolution sought to be
before the trial court alleging that public set aside in the Petition before the Regional Trial
respondent gravely abused its discretion in Court. In essence, petitioner seeks the same relief
rendering its June 12, 2006 Decision and June through two separate Petitions filed before separate
30, 2006 Resolution and courts. This violates the rule against forum
shopping.
(2) a petition for prohibition seeking injunctive
reliefs from this court to enjoin the enforcement Rule 7, Section 5 of the Rules of Court requires the
of public respondent’s June 12, 2006 Decision plaintiff or principal party to certify under oath that
and June 30, 2006 Resolution during the he or she has not commenced any action involving
pendency of the case before the trial court. the same issues in any court. This court has
discussed this rule against forum shopping:
Public respondents submit that a simple reading of
the Petition in Civil Case No. 1459 readily reveals In essence, forum shopping is the practice of
that petitioner also asked the trial court to nullify the litigants resorting to two different for a for the
same Decision and Resolution on the identical purpose of obtaining the same relief, to increase
ground of grave abuse of discretion amounting to their chances of obtaining a favorable judgment.
lack or excess of jurisdiction.57 Petitioner counters In determining whether forum shopping exists, it
that it was compelled to file the separate petitions is important to consider the vexation caused to
pursuant to, and in view of, Article XVII, Section 58 the courts and the parties-litigants by a person
of Republic Act No. 9184:58 who asks appellate courts and/or administrative
entities to rule on the same related causes
and/or to grant the same or substantially the
Sec. 58. Report to Regular Courts; Certiorari. –
same relief, in the process creating the
Court action may be resorted to only after the
possibility of conflicting decisions by the
protests contemplated in this Article shall have been
different courts or for a on the same issues.
completed. Cases that are filed in violation of the
process specified in this Article shall be dismissed
for lack of jurisdiction. The regional trial court shall We have ruled that forum shopping is present when,
have jurisdiction over final decisions of the head of in two or more cases pending, there is identity of
the procuring entity. Court actions shall be governed (1) parties
by Rule 65 of the 1997 Rules of Civil Procedure.
(2) rights or causes of action and reliefs prayed
This provision is without prejudice to any law for and
conferring on the Supreme Court the sole
jurisdiction to issue temporary restraining orders (3) the identity of the two preceding particulars
and injunctions relating to Infrastructure Projects of is such that any judgment rendered in the other
Government. (Emphasis supplied) action, will, regardless of which party is
successful, amount to res judicata in the action proper action filed before this court. However, direct
under consideration.60 resort to this court can prosper only when the
requisites for direct invocation of this court’s original
Private respondent alleges that petitioner did not jurisdiction are present.
even notify the Regional Trial Court of Bago City,
Negros Occidental, of its Petition filed before this II
court.61
Prohibition is a preventive remedy. This court has
The second paragraph of Article XVII, Section 58 of held that injunctive remedies will not lie for acts
Republic Act No. 9184 simply means it does not already accomplished.67
preclude a direct filing before this court in proper
cases. The acts sought to be enjoined in this case included
the implementation of the Construction Shoreline
The Rules of Court provides for original concurrent Protection Project awarded to private respondent
jurisdiction by the Regional Trial Court, the Court of HLJ Construction and Enterprise. The project had
Appeals, and this court in entertaining petitions for already commenced and had been ongoing at the
certiorari, prohibition, or mandamus.62 However, time petitioner filed this case. Moreover, the issue of
parties must adhere to the principle of hierarchy of whether these acts infringed on petitioner’s rights is
courts. This was discussed in Dimson (Manila), Inc., a matter interrelated with the issues raised in the
et al. v. Local Water Utilities Administration:63 Petition before the trial court, emphasizing the
existence of the splitting of a cause of action.
Clearly, the proper recourse to a court action
from decisions of the BAC, such as this one, is In any case, this court has stressed that
to file a certiorari not before the Supreme Court extraordinary writs of certiorari, prohibition, and
but before the regional trial court which is mandamus are "prerogative writs of equity[.]"68 It is
vested by R.A. No. 9184 with jurisdiction to within the court’s sound discretion whether these
entertain the same. writs should be granted, and it will need to ensure
that there is a clear right to the relief.69
In the recent case of First United Constructors
Corporation v. Poro Point Management Corporation, Prohibition is defined as "an extraordinary remedy
we held that while indeed the certiorari jurisdiction of available to compel any tribunal, corporation, board,
the regional trial court is concurrent with this or person exercising judicial or ministerial functions,
Court’s, that fact alone does not allow an to desist from further [proceeding] in an action or
unrestricted freedom of choice of the court forum. matter when the proceedings in such tribunal,
But since this is not an iron-clad rule and the full corporation, board or person are without or in
discretionary power to take cognizance of and excess of jurisdiction or with grave abuse of
assume jurisdiction over special civil actions for discretion[.]"70
certiorari directly filed with the Court may actually be
exercised by it, it is nevertheless imperative that the Grave abuse of discretion will prosper as a ground
Court’s intervention be called for by exceptionally for prohibition when it is shown that "there was . . .
compelling reasons or be warranted by the nature of capricious and whimsical exercise of judgment . . .
the issues involved. In other words, a direct equivalent to lack of jurisdiction or that the tribunal,
invocation of the Supreme Court’s original corporation, board or person has exercised its
jurisdiction to issue the writ will be allowed only power in an arbitrary or despotic manner by reason
when there are special and important reasons of passion or personal hostility."71
clearly and specifically set out in the
petition.64 (Citations omitted) First, public respondent had jurisdiction to rule on
the protest since it was then head of the procuring
The hierarchy of courts must be respected. The entity.72
doctrine with respect to hierarchy of courts was
designed so that this court will have more time to Second, this court need not look into petitioner’s
focus on its constitutional tasks without the need to allegation that its Petition before the Regional Trial
deal with causes that also fall within the lower Court raised grounds warranting the reversal of
courts’ competence.65 This court acts on petitions for public respondent’s Decision.73 The merits of
extraordinary writs under Rule 65 "only when whether there was grave abuse of discretion by
absolutely necessary or when serious and important public respondent were already subject of the
reasons exist to justify an exception to the policy."66 Petition before the trial court. Petitioner cannot be
allowed to seek the same relief from this court.
Consistent with these rules and doctrines, the
remedy contemplated by Article XVII, Section 58 of Rule 65 likewise requires that there be "no appeal or
Republic Act No. 9184 is either an action under any . . . plain, speedy, [or] adequate remedy in the
Rule 65 before the Regional Trial Court or the ordinary course of law."74 Section 3 of Republic Act
No. 8975 provides for such a remedy when it gave constitutional provision. Violations of constitutional
an exception to the general rule prohibiting lower provisions are easily alleged, but trial courts should
courts from issuing provisional injunctive relief scrutinize diligently and deliberately the evidence
against national government projects: showing the existence of facts that should support
the conclusion that a constitutional provision is
Sec. 3. Prohibition on the Issuance of Temporary clearly and convincingly breached. In case of doubt,
Restraining Orders, Preliminary Injunctions and no injunctive relief should issue. In the proper
Preliminary Mandatory Injunctions. – No court, cases, the aggrieved party may then avail itself of
except the Supreme Court, shall issue any special civil actions and elevate the matter.
temporary restraining order, preliminary injunction or
preliminary mandatory injunction against the This court adheres to the policy behind the
government, or any of its subdivisions, officials or prohibition under Republic Act No. 8975 and even
any person or entity, whether public or private, issued Administrative Circular No. 11-2000 entitled
acting under the government’s direction, to restrain, Re: Ban on the Issuance of Temporary Restraining
prohibit or compel the following acts: . . . . Orders or Writs of Preliminary Prohibitory or
Mandatory Injunctions in Cases Involving
This prohibition shall apply in all cases, disputes or Government Infrastructure Projects. This circular
controversies instituted by a private party, including enjoins lower court judges to strictly comply with
but not limited to cases filed by bidders or those Republic Act No. 8975.
claiming to have rights through such bidders
involving such contract/project. This prohibition shall However, the issue here does not involve the
not apply when the matter is of extreme urgency propriety of a lower court’s issuance or non-
involving a constitutional issue, such that unless a issuance of provisional injunctive relief, but
temporary restraining order is issued, grave injustice petitioner’s insistence that only this court can issue
and irreparable injury will arise. The applicant shall such injunctive relief in justifying its simultaneous
file a bond, in an amount to be fixed by the court, Petitions before the Regional Trial Court and this
which bond shall accrue in favor of the government court.
if the court should finally decide that the applicant
was not entitled to the relief sought. (Emphasis Petitioner hinges its erroneous simultaneous
supplied) When the matter is of "extreme urgency Petitions on its reading of Republic Act No. 8975 in
involving a constitutional issue," even Regional Trial relation to Presidential Decree No. 1818.
Courts may grant injunctive reliefs as explained in
Republic v. Nolasco:75 III

Republic Act No. 8975 definitively enjoins all courts, Petitioner submits that only this court has the power
except the Supreme Court, from issuing any to issue injunctions to enjoin government
temporary restraining order, preliminary injunction, infrastructures including those of local government.78
or preliminary mandatory injunction against the
government, or any of its subdivisions, officials or
Petitioner explains that the "laws" referred to in
any person or entity to restrain, prohibit or compel
Article XVII, Section 58 of Republic Act No. 9184
the bidding or awarding of a contract or project of
refer to Republic Act No. 8975 that prohibits courts,
the national government, precisely the situation that
except the Supreme Court, from issuing temporary
obtains in this case with respect to the Agno River
restraining orders and injunctions against
Project. The only exception would be if the matter is
government infrastructure projects. It adds that
of extreme urgency involving a constitutional issue,
Republic Act No. 8975 must be taken in relation to
such that unless the temporary restraining order is
Presidential Decree No. 1818 prohibiting the
issued, grave injustice and irreparable injury will
issuances by the courts of restraining orders or
arise.76 (Emphasis supplied, citations omitted)
injunctions involving infrastructure projects.79 The full
text of Presidential Decree No. 1818 promulgated in
Considering that petitioner alleges that this matter is 1981 reads: PRESIDENTIAL DECREE NO. 1818
"of extreme urgency, involving as it does the . . .
constitutional right[s] to due process and equal
PROHIBITING COURTS FROM ISSUING
protection of the law,"77 it should have prayed for
RESTRAINING ORDERS OR PRELIMINARY
injunctive relief before the trial court where its
INJUNCTIONS IN CASES INVOLVING
Petition for Certiorari via Rule 65 was pending,
INFRASTRUCTURE AND NATURAL RESOURCE
together with a bond fixed by the court.
DEVELOPMENT PROJECTS OF, AND PUBLIC
UTILITIES OPERATED BY, THE GOVERNMENT.
Mere allegation or invocation that constitutionally
protected rights were violated will not automatically
WHEREAS, Presidential Decree No. 605 prohibits
result in the issuance of injunctive relief. The plaintiff
the issuance by the courts of restraining orders or
or the petitioner should discharge the burden to
injunctions in cases involving concessions, licenses,
show a clear and compelling breach of a
and other permits issued by administrative officials
or bodies for the exploitation, development and (e) The undertaking or authorization of any
utilization of natural resources of the country; other lawful activity necessary for such
contract/project.
WHEREAS, it is in the public interest to adopt a
similar prohibition against the issuance of such This prohibition shall apply in all cases, disputes or
restraining orders or injunctions in other areas of controversies instituted by a private party, including
activity equally critical to the economic development but not limited to cases filed by bidders or those
effort of the nation, in order not to disrupt or hamper claiming to have rights through such bidders
the pursuit of essential government projects; involving such contract/project. This prohibition shall
not apply when the matter is of extreme urgency
NOW, THEREFORE, I, FERDINAND E. MARCOS, involving a constitutional issue, such that unless a
President of the Philippines, by virtue of the powers temporary restraining order is issued, grave injustice
vested in me by the Constitution, do hereby decree and irreparable injury will arise. The applicant shall
and order as follows: file a bond, in an amount to be fixed by the court,
which bond shall accrue in favor of the government
Section 1. No court in the Philippines shall have if the court should finally decide that the applicant
jurisdiction to issue any restraining order, was not entitled to the relief sought.
preliminary injunction, or preliminary mandatory
injunction in any case, dispute, or controversy If after due hearing the court finds that the award of
involving an infrastructure project, or a mining, the contract is null and void, the court may, if
fishery, forest or other natural resource appropriate under the circumstances, award the
development project of the government, or any contract to the qualified and winning bidder or order
public utility operated by the government, including a rebidding of the same, without prejudice to any
among others public utilities for the transport of the liability that the guilty party may incur under existing
goods or commodities, stevedoring and arrastre laws. (Emphasis supplied)
contracts, to prohibit any person or persons, entity
or government official from proceeding with, or Petitioner submits that since the repealing clause of
continuing the execution or implementation of any Republic Act No. 8975 has "amended accordingly"
such project, or the operation of such public utility, Presidential Decree No. 1818, the prohibition no
or pursuing any lawful activity necessary for such longer extends to this court.80 Section 9 reads:
execution, implementation or operation.
Sec. 9. Repealing Clause. – All laws, decrees,
Section 2. This decree shall take effect immediately. including Presidential Decree Nos. 605, 1818 and
(Emphasis supplied) Republic Act No. 7160, as amended, orders, rules
and regulations or parts thereof inconsistent
In 2000, Republic Act No. 8975 was passed.
Section 3 of the law provides: with this Act are hereby repealed or amended
accordingly.81
Sec. 3. Prohibition on the Issuance of Temporary
Restraining Orders, Preliminary Injunctions and Petitioner argues that even if Republic Act No. 8975
Preliminary Mandatory Injunctions. - No court, only mentions national government infrastructure
except the Supreme Court, shall issue any projects, Section 9 has accordingly amended
temporary restraining order, preliminary injunction or Presidential Decree No. 1818, such that the projects
preliminary mandatory injunction against the covered by this earlier law, like those undertaken by
government or any of its subdivisions, officials or local governments, are similarly covered by the
any person or entity, whether public or private, removal of the prohibition against this court.82
acting under the government’s direction, to restrain,
prohibit or compel the following acts: (a) Acquisition, In other words, petitioner contends that based on
clearance and development of the right-of-way these laws, only this court can issue injunctive relief
and/or site or location of any national government against local government infrastructure
project; projects. Thus, it was forced to simultaneously file
1âw phi 1

two separate Petitions before the Regional Trial


(b) Bidding or awarding of contract/project of Court and this court
the national government as defined under
Section 2 hereof; RULING:.

(c) Commencement, prosecution, execution, We cannot agree.


implementation, operation of any such
contract or project; There is nothing in Republic Act No. 8975 or in
Presidential Decree No. 1818 that allows the
(d) Termination or rescission of any such simultaneous availment of legal remedies before the
contract/project; and Regional Trial Court and this court. Republic Act No.
8975, even when read with Presidential Decree No. Republic Act No. 8975 mentions the constitutional
1818, does not sanction the splitting of a cause of provision in that "[t]he use of property bears a social
action in order for a party to avail itself of the function, and all economic agents shall contribute to
ancilliary remedy of a temporary restraining order the common good."84
from this court.
Statute cannot be interpreted as to violate protected
Petitioner’s reading of Republic Act No. 8975’s rights. Thus, the above conditions safeguard against
repealing clause, such that only this court can issue lower court issuances of provisional injunctive relief
injunctive relief, fails to persuade. in cases not falling within the exception.

This court has set the limit on the prohibition found These safeguards are also consistent with the law’s
in Presidential Decree No. 1818 by explaining that policy for the expeditious implementation of
lower courts are not prohibited from enjoining government projects that ultimately benefit the
administrative acts when questions of law exist and public:
the acts do not involve administrative discretion in
technical cases: Section 1. Declaration of Policy. - Article XII, Section
6 of the Constitution states that the use of property
Although Presidential Decree No. 1818 prohibits bears a social function, and all economic agents
any court from issuing injunctions in cases involving shall contribute to the common good. Towards this
infrastructure projects, the prohibition extends only end, the State shall ensure the expeditious and
to the issuance of injunctions or restraining orders efficient implementation and completion of
against administrative acts in controversies government infrastructure projects to avoid
involving facts or the exercise of discretion in unnecessary increase in construction, maintenance
technical cases. On issues clearly outside this and/or repair costs and to immediately enjoy the
dimension and involving questions of law, this Court social and economic benefits therefrom.85 (Emphasis
declared that courts could not be prevented from supplied)
exercising their power to restrain or prohibit
administrative acts. In such cases, let the hammer There is no need for this court to labor on
fall and let it fall hard.83 petitioner’s arguments regarding violations of due
process and equal protection of the law and the
(Emphasis supplied, citations omitted) alleged grave injustice and irreparable injury
petitioner suffered. The Petition’s incorporation of its
We also consider the second paragraph of Republic discussion on these arguments, as made in its
Act No. 8975, Section 3 on the exception to the Petition before the Regional Trial Court docketed as
prohibition: Civil Case No. 1459, only emphasizes the splitting
of a cause of action committed.
This prohibition shall apply in all cases, disputes or
controversies instituted by a private party, including In any event, the general rule of prohibition under
but not limited to cases filed by bidders or those Republic Act No. 8975 does not preclude lower
claiming to have rights through such bidders courts from assuming jurisdiction when the ultimate
involving such contract/project. This prohibition shall relief prayed for is to nullify a national government
not apply when the matter is of extreme urgency infrastructure project and its implementation:
involving a constitutional issue, such that unless a
temporary restraining order is issued, grave injustice However, it must be clarified that Republic Act No.
and irreparable injury will arise. The applicant shall 8975 does not ordinarily warrant the outright
file a bond, in an amount to be fixed by the court, dismissal of any complaint or petition before the
which bond shall accrue in favor of the government lower courts seeking permanent injunctive relief
if the court should finally decide that the applicant from the implementation of national government
was not entitled to the relief sought. (Emphasis infrastructure projects.
supplied) In other words, the Regional Trial Court
can issue injunctive relief against government What is expressly prohibited by the statute is the
infrastructure projects, even those undertaken by issuance of the provisional reliefs of temporary
local governments, considering that the prohibition restraining orders, preliminary injunctions, and
in Section 3 of Republic Act No. 8957 only mentions preliminary mandatory injunctions.
national government projects. These courts can
issue injunctive relief when there are compelling It does not preclude the lower courts from assuming
constitutional violations — only when the right is jurisdiction over complaints or petitions that seek as
clear, there is a need to prevent grave and ultimate relief the nullification or implementation of a
irreparable injuries, and the public interest at stake national government infrastructure project. A statute
in restraining or enjoining the project while the such as Republic Act No. 8975 cannot diminish the
action is pending far outweighs the inconvenience constitutionally mandated judicial power to
or costs to the party to whom the project is awarded. determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of Indubitably, the trial court must not make use of its
jurisdiction on the part of any branch or injunctive power to alter such status.94 (Emphasis
instrumentality of government. Section 3 of the law supplied, citations omitted)
in fact mandates, thus:
The ordinary meaning of status quo is "the existing
If after due hearing the court finds that the award of state of affairs[,]"95 while status quo ante refers to
the contract is null and void, the court may, if "the state of affairs that existed previously. "96
appropriate under the circumstances, award the
contract to the qualified and winning bidder or order Relying in good faith on the ordinary meaning of
a rebidding of the same, without prejudice to any status quo as differentiated from status quo ante,
liability that the guilty party may incur under existing respondents pushed through with the construction,
laws. which had been the existing state of affairs at the
time the September 18, 2006 Resolution was
Thus, when a court is called upon to rule on an issued.
initiatory pleading assailing any material aspect
pertinent to a national government infrastructure This is consistent with Republic Act No. 8975's
project, the court ordinarily may not dismiss the policy that "the State shall ensure the expeditious
action based solely on Republic Act No. 8975 but is and efficient implementation and completion of
merely enjoined from granting provisional reliefs. If government infrastructure projects to avoid
no other ground obtains to dismiss the action, the unnecessary increase in construction, maintenance
court should decide the case on the and/or repair costs and to immediately enjoy the
merits.86 (Emphasis supplied, citation omitted) social and economic benefits therefrom."97 This
policy declaration does not distinguish between
IV national and local government infrastructure
projects. Delay in the project will only mean
We decide on petitioner’s verified Petition to Cite additional costs for the government and prejudice to
Respondent for Contempt alleging violation of this the people of the Municipality of Valladolid who will
court’s September 18, 2006 status quo Order. directly benefit from the Construction Shoreline
Protection Project. WHEREFORE, considering the
In its Comment, private respondent HLJ foregoing, the Petition is DISMISSED for lack of
Construction and Enterprise explains that it has no merit. The verified Petition to Cite Respondents for
intention to disobey the Resolution. Its decision to Contempt dated December 11, 2006 is likewise
continue the Construction Shoreline Protection DISMISSED for lack of merit.
Project was based on the definition of "status quo,"
meaning the "present, current, existing state of SO ORDERED
affairs."87
G.R. No. 193796 July 2, 2014
"The present[,] existing condition on September 18,
2006, was the ongoing construction."88 Moreover, LAND BANK OF THE PHILIPPINES, Petitioner,
petitioner’s rights were not violated as its bid was vs.
declared as "not substantially responsive."89 In the ATLANTA INDUSTRIES, INC., Respondent.
absence of a clear legal right, no injunction can be
granted.90 Similarly, public respondent contends in DECISION
its Comment that the Construction Shoreline
Protection Project commenced as early as May 8,
PERLAS-BERNABE, J.:
2006.91 At the time the Petition was filed in
September 2006, the Construction Shoreline
Protection Project had been ongoing for four (4) This is a direct recourse1 to the Court from the
months.92 Thus, the status quo as of the September Decision2 dated September 3, 2010 of the Regional
18, 2006 Resolution was that the project was Trial Court of Manila, Branch 21 (Manila RTC) in
ongoing.93 Civil Case No. 09-122643 which declared null and
void the results of the re-bidding for the supply of
water pipes conducted by the Bids and Awards
This court has explained that status quo should be
Committee (BAC) of the City Government of Iligan
the one existing at the time of the filing of the case:
due to the use of bidding documents outside of the
rules and procedures prescribed under Republic Act
The status quo should be that existing at the time of No. (RA) 9184,3 otherwise known as the
the filing of the case. The status quo usually "Government Procurement Act."
preserved by a preliminary injunction is the last
actual, peaceable and uncontested status which
The Facts
preceded the actual controversy. The status quo
ante litem is, ineluctably, the state of affairs which is
existing at the time of the filing of the case.
On October 3, 2006, Land Bank of the Philippines Atlanta's disqualification in view of the fact that the
(Land Bank) and the International Bank for bidding had already been declared a failure
Reconstruction and Development4 (IBRD) entered because of noted violations of the IBRD
into Loan Agreement No. 4833-PH5 for the Procurement Guidelines and that, unless the BAC
implementation. of the IBRD's "Support for Strategic conducts a new bidding on the project, it would not
Local Development and Investment . Project" be able to obtain a "no objection" from .the World
(S2LDIP). The loan facility in the amount of Bank. Atlanta did not pursue the matter further with
JP¥11,710,000,000.00 was fully guaranteed by the the BAC and opted, instead, to participate in the re-
Government of the Philippines and conditioned bidding of the project, the notice of which was
upon the participation of at least two (2) local published anew on October 30, 2009.17
government units by way of a Subsidiary Loan
Agreement (SLA) with Land Bank.6 This notwithstanding, Atlanta, in a letter18 dated
November 16, 2009, called the BAC's attention to its
On February 22, 2007, Land Bank entered into an use of Bidding Documents19 which, as it purported,
SLA7 with the City Government of Iligan to finance not only failed to conform with the Third Edition of
the development and expansion of the city's water the Philippine Bidding Documents for the
supply system, which had two (2) components, Procurement of Goods (PBDs)20 prescribed by the
namely: (a) the procurement of civil works; and ( b) Government Procurement Policy Board (GPPB) but
the procurement of goods for the supply and also contained numerous provisions that were not in
delivery of various sizes of PE 100 HDPE pipes and accordance with RA 9184 and its Implementing
fittings.8 Rules and Regulations (IRR). During the pre-bid
conference, the BAC declared that the project was
The SLA expressly provided that the goods, works, not covered by RA 9184 or by any of the GPPB 's
and services to be financed out of the proceeds of issuances. It further announced that the bid opening
the loan with Land Bank were to be "procured in would be conducted on December 14, 2009.21
accordance with the provisions of Section I of the
'Guidelines: Procurement under IBRD Loans and Apprehensive of the BAC's use of bidding
IDA Credits' x x x, and with the provisions of [the] documents that appeared to be in contravention of
Schedule 4."9Accordingly, the City Government of RA 9184 and its IRR, Atlanta filed on December 10,
Iligan, through its BAC, conducted a public bidding 2009 a Petition for Prohibition and Mandamus22 with
for the supply and delivery of various sizes of PE an urgent prayer for the issuance of a temporary
100 HDPE pipes and fittings using the IBRD restraining order (TRO) and/or writ of preliminary
Procurement Guidelines.10 injunction to enjoin the re-bidding .of the project
against the City Government of Iligan, the BAC, and
Respondent Atlanta Industries, Inc. (Atlanta) Land Bank before the Manila RTC, docketed as
participated in the said bidding and came up with Civil Case No. 09-122643 (Petition for Prohibition).
the second to the lowest bid in the amount of
₱193,959,354.34.11 In their separate comments on the said petition,
Land Bank and the BAC asserted that the case was
However, in a letter12 dated July 27, 2009, the BAC dismissible for improper. venue, mootness, non-
informed Atlanta that the bidding was declared a exhaustion of administrative remedies, failure to
failure upon the recommendation of Land "Bank due implead an indispensable party, and the
to the IBRD 's non-concurrence with the Bid inapplicability of RA 918.4.23
Evaluation Report. Moreover, in a letter13 dated
August 28, 2009, the BAC informed Atlanta of its In the meantime, with Atlanta's Urgent Ex Parte
disqualification from the bidding because it lacked Motion for the Issuance of a 72-Hour TRO and
several documentary requirements. Special Raffle24having been denied,25 the re-bidding
of the project was conducted (as scheduled on
In response, Atlanta, through a letter14 dated December 14, 2009), with four .C 4) bidders
September 8, 2009, sought to correct the BAC's participating and submitting the following bids:
erroneous assumption that it failed to submit the
necessary documents and to have its 1. Atlanta Industries,
disqualification reconsidered. It expressed its ₱141,289,680.50
Inc.
objection against the BAC's declaration of a failure
of bidding, asserting that had it not been improperly
disqualified there would have also been no need to 2. Moldex Products,
₱172,727,052.49
declare the bidding a failure because its tender Inc.
would be the sole responsive bid necessary to save
the bid process.15
3. Dong Won
₱189,184,599.74
Plastics, Inc.
However, in a Resolution16 dated September 25,
2009, the BAC deemed it futile to reconsider
4. Thai-Asia/Junnie The main issues presented for the Court's resolution
₱191,900.020.0026 are: (a) whether or not the Manila RTC has
Industries
jurisdiction over the instant prohibition case and
eventually issue the writ prayed for; and --- NOOOO

Thereupon, the case proceeded with the parties' (b) whether or not the SLA between the Land Bank
submission of their respective memoranda27 and the and the City Government of Iligan is an executive
denial of Atlanta's prayer for the issuance of an agreement similar to Loan Agreement No. 4833-PH
injunctive writ.28 such that the procurement of water pipes by the
BAC of the City Government of Iligan should be
The Manila RTC Ruling deemed exempt from the application of RA 9184.

In a Decision29 dated September 3, 2010, the The Court's Ruling


Manila RTC declared the subject bidding null
and void on the ground that it was done The petition is meritorious.
contrary to the rules and procedure prescribed
in RA 9184 and its IRR. Consequently, it enjoined
The Court first resolves the procedural issues of this
the City Government of Iligan and. its BAC from
case, then proceeds to its substantive aspects.
entering into and/or implementing the contract for
the supply of water pipes with Moldex Products,
Inc.30 A. PROCEDURAL ISSUES:

The Manila RTC also ruled that the City The Manila RTC's Lack of Jurisdiction to
Government of Iligan cannot claim exemption from Issue the Writ of Prohibition Subject of
the application of RA 9184 and its IRR by virtue of this Case; and Atlanta's Failure to
Loan Agreement No. 48~3-PH with the IBRD Exhaust Administrative Remedies.
because it was Land Bank, and not the City
Government of Iligan, which was the party to the Preliminarily, Land Bank asserts that the Petition for
same. Moreover, it .held that the IBRD could not Prohibition was improperly filed before the Manila
have passed on its status as an international RTC considering that the acts sought to be
institution exempt from RA 9184 simply because it enjoined, i.e., the public bidding for the supply of
loaned money to Land Bank.31 It added that the SLA water pipes, are beyond the said court's territorial
subsequently executed by Land Bank with the City jurisdiction.35
Government of Iligan cannot validly provide for the
use of bidding procedures different from those Atlanta, for its part, counter-argues that the acts of
provided under RA 9184 because the said SLA is Land Bank are as much to be enjoined for causing
not in the nature of an international agreement the City Government of Iligan and its BAC to
similar to the Loan Agreement with the IBRD.32 continuously violate the provisions of RA 9184, its
IRR, and the PBDs in the conduct of the public
The Manila RTC finally concluded that in view of bidding36 and that the filing of the prohibition case in
GPPB Resolution No. 05-2009 (September 30, the City of Manila was in accordance with the rules
2009) which requires "all branches, agencies, on venue given that Land Bank's main office is in
departments, bureaus, offices and instrumentalities the City of Manila.37
of the Government, including x x x local government
units x x x to use the Philippine Bidding Documents The Court finds for Land Bank.
Third Edition for all their procurement activities," the
City Government of Iligan and its BAC exceeded A petition for prohibition is a special civil action that
their jurisdiction in conducting the public bidding seeks for a judgment ordering the respondent to
using the questioned bidding documents.33 desist from continuing with the commission of an act
perceived to be illegal. Section 2, Rule 65 of the
Dissatisfied, Land Bank elevated the matter directly Rules of Court (Rules) reads:
to the Court, vigorously asserting, among others,
that: (a) venue was improperly laid; and (b) the Sec. 2. Petition for Prohibition. - When the
public bidding for the supply of water pipes to the proceedings of any tribunal, corporation, board,
City of Iligan's Water Supply System Development officer or person, whether exercising judicial, quasi-
and Expansion Project is exempt from the judicial or ministerial functions, are without or in
application of RA 9184 and its IRR by virtue of the excess of its or his jurisdiction, or with grave abuse
SLA being .a related and subordinate covenant to of discretion amounting to lack or excess of
Loan Agreement No. 4833-PH.34 jurisdiction, and there is no appeal or any other
plain, speedy, and adequate remedy in the ordinary
The Issues Before the Court 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 commanding the respondent to desist injunction, which may be enforced in any part of
from further proceedings in the action or matter their respective regions;
specified therein, or otherwise granting such
incidental reliefs as law and justice may require. x x x x (Emphasis supplied)

x x x x (Emphasis supplied) The Court already ruled in numerous cases,


beginning with the very early case of Costaño v.
While the Court, Court of Appeals and Regional Lobingier,39 that the power to administer justice
Trial Court have original concurrent jurisdiction to conferred upon judges of the Regional Trial Courts,
issue writs of certiorari, prohibition and mandamus, formerly Courts of First Instance (CFI), can only be
if what is assailed relates to "acts or omissions of a exercised within the limits of their respective
lower court or of a corporation, board, officer or districts, outside of which they have no jurisdiction
person," the petition must be filed "in the Regional whatsoever. Applying previous legislation similar to
Trial Court exercising jurisdiction over the territorial the present Section 21 of BP 129 and its
area as defined by the Court." Section 4 of the same complementary provision, i.e., Section 4, Rule 65 of
Rules provides that: the Rules, the Court held in said case that the CFI
of Leyte had no power to issue writs of injunction
Sec. 4. When and Where to file the petition. -The and certiorari against the Justice of the Peace of
petition shall be filed not later than sixty (60) Manila, as the same was outside the territorial
days from notice of the judgment, order or boundaries of the issuing court. Also, in Samar
resolution. Mining Co., Inc. v. Arnado,40 a petition for certiorari
and prohibition with preliminary injunction was filed
In case a motion for reconsideration or new trial in the CFI of Manila to question the authority of the
is timely filed, whether such motion is required Regional Administrator and Labor Attorney of the
or not, the petition shall be filed not later than Department of Labor in Cebu City to hear a
sixty (60) days counted from the notice of the complaint for sickness compensation in Catbalogan,
denial of the motion. Samar and to enjoin said respondents from
conducting further proceedings thereat. The Court
affirmed the dismissal . of the case on the ground of
If the petition relates to an act or an omission of a
improper venue, holding that the CFI of Manila had
municipal trial court or of a corporation, a board, an
no authority to issue writs of injunction, certiorari,
officer or a person, it shall be filed with the Regional
and prohibition affecting persons outside its
Trial Court exercising jurisdiction over the territorial
territorial boundaries. Further, in both Cudiamat v.
area as defined by the Supreme Court. H may also
Torres (Cudiamat)41 and National Waterworks and
be filed with the Court of Appeals or with the
Sewerage Authority v. Reyes42(NAWASA), the
Sandiganbayan, whether or not the same is .in aid
losing bidders succeeded in securing an injunctive
of the court's appellate jurisdiction.
writ from the CFI of Rizal in order to . restrain, in
Cudiamat, the implementation of an award on a
If the petition involves an act or an omission of a public bidding for the supply of a police call and
quasi-judicial agency, unless otherwise provided by signal box system for the City of Manila, and, in
law or these rules, the petition shall be filed with and NAWASA, the conduct of the public bidding for the
be cognizable only by the Court of Appeals. supply of steel pipes for its Manila and Suburbs
Waterworks Project. The Court held in both cases
x x x x (Emphasis supplied) that the injunction issued by the CFI of Rizal
purporting to restrain acts outside the province of
The foregoing rule corresponds to Section 21 ( 1) of Rizal was null and void for want of jurisdiction.
Batas Pambansa Blg. 129,38 otherwise known as
"The Judiciary Reorganization Act of 1980" (BP Undoubtedly, applying the aforementioned precepts
129), which gives Regional Trial Courts original and pronouncements to the instant case, the writ of
jurisdiction over cases of certiorari, prohibition, prohibition issued by the Manila RTC in order to
mandamus, quo warranto, habeas corpus, and restrain acts beyond the bounds of the territorial
injunction but lays down the limitation that the writs limits of its jurisdiction (i.e., in Iligan City) is null
issued therein are enforceable only within their and void.
respective territorial jurisdictions. The pertinent
provision reads: Also on a matter of procedure, the Court further
discerns that the Manila RTC should have
Sec. 21. Original jurisdiction in other cases. - dismissed the case outright for failure of Atlanta to
Regional Trial Courts shall exercise original exhaust administrative remedies.
jurisdiction:
Under RA 9184, the decisions of the BAC in all
(1) In the issuance of writs of certiorari: prohibition, stages of procurement may be protested. to the
mandamus, quo warranto, habeas corpus and head of the procuring entity through a verified
position paper and upon payment of a protest Section 4. Scope and Application of the IRR
fee.43 The necessity for the complaining bid
participant to complete the protest process before 4.1 This IRR shall apply to all procurement
resorting to court action cannot be overemphasized. of any branch, agency, department, bureau,
It is a condition precedent to the court's taking office or instrumentality of the GOP,
cognizance of an action that assails a bid including government-owned and/or -
process.44 When precipitately taken prior to the controlled corporations (GOCCs),
completion of the protest process, such case shall government financial institutions (GFis),
be dismissed for lack of jurisdiction.45 state universities and colleges (SUCs) and
local government units (LGUs).
While Atlanta may have written the BAC a letter
objecting to some of the terms and conditions 4.2 Any Treaty or International or Executive
contained in the bidding documents to be used for Agreement to which the GOP is a signatory
the re-bidding, its action fell short of the required affecting the subject matter of the Act and
protest. It failed to follow through with' its protest this IRR shall be observed. In case of
and opted instead to participate in the re-bidding conflict between the terms of the Treaty or
with full knowledge that the IBRD Procurement International or Executive Agreement and
Guidelines were to be followed throughout the this IRR, the former shall prevail.
conduct of the bid. Having failed to observe the
protest procedure required by law, Atlanta's case 4.3 Unless the Treaty or International or
should not have prospered with the RTC altogether. Executive Agreement expressly provides
use of foreign government/foreign or
With the procedural matters having been resolved, international financing institution
the Court now proceeds to discuss the substantive procurement procedures and guidelines, this
aspect of this case concerning the SLA and Land IRR shall apply to Foreign-funded
Bank's claimed exemption from the provisions of RA Procurement for goods, infrastructure
9184. projects, and consulting services by the
GOP.
B. SUBSTANTIVE ISSUES:
Consistent with the policies and principles set forth
The Applicability of the Bidding in Sections 2 and 3 of this IRR, the GOP negotiating
Procedure under RA 9184; and the panels shall adopt, as its default position, use of this
Nature of Loan No. 4833-PH · and its IRR, or at the very least, selection through
Relation to the SLA. competitive bidding, in all Foreign-funded
Procurement. If the Treaty or International or
While mandating adherence to the general policy of Executive Agreement states otherwise, then the
the government that contracts for the procurement negotiating panels shall explain in writing the
of civil works or supply of goods and equipment reasons therefor. (Emphasis supplied)
shall be undertaken only after competitive public
bidding, RA 9184 recognizes the country's While Atlanta admits that there are exceptions to the
commitment to abide by its obligations under any application of RA 9184, it posits that the City
treaty or international or executive agreement. This Government of Iligan could not claim to be exempt
is pertinently provided in Section 4 of RA 9184 under any of the enumerated instances because it is
which reads as follows: not a party to the IBRD Loan Agreement.46 It further
asserts that a provision in the SLA between Larid
Sec. 4. Scope and Application. - This Act shall apply Bank and the City Government of Iligan providing
to the Procurement of Infrastructure Projects, Goods for procurement procedures different from that
and Consulting Services, regardless of source of required under RA 9184 would not be valid since it
funds, whether local or foreign, by all branches and is not a treaty or an executive agreement in the way
instrumentalities of the government, its department, that Loan Agreement, No. 4833-PH is.
offices and agencies, including government owned
and/or -controlled corporations and local The argument lacks merit.
government units, subject to the provisions of
Commonwealth Act No. 138. Any treaty or
1âw phi 1
As the parties have correctly discerned, Loan
international or executive agreement affecting the Agreement No. 4833-PH is in the nature of an
subject matter of this Act to which the Philippine executive agreement. In Bayan Muna v.
government is a signatory shall be observed. Romulo47 (Bayan Muna) the Court defined an
(Emphasis supplied) international agreement as one concluded between
states in written form and governed by international
The IRR of RA 9184 further supplements the law's law, "whether embodied in a single instrument or in
treatment of treaties and international or executive two or more related instruments and whatever its
agreements as follows: particular designation,"48 and further expounded that
it may be in the form of either (a) treaties that conditions such that the character of one has
require legislative concurrence after executive likewise become the character of the other.
ratification; or ( b) executive agreements that are
similar to treaties, except that they do not require Considering that Loan Agreement No. 4833-PH
legislative concurrence and are usually less formal expressly provides that the procurement of the
and deal with a narrower range of subject matters goods to be financed from the loan proceeds shall
than treaties.49 Examining its features, Loan be in accordance with the IBRD Guidelines and the
Agreement No. 4833-PH between the IBRD and the provisions of Schedule 4, and that the accessory
Land Bank is an integral component of the SLA contract merely follows its principal 's terms
Guarantee Agreement executed by the Government and conditions, the procedure for competitive public
of the Philippines as a subject of international law bidding prescribed under RA 9184 therefore finds
possessed of a treaty-making capacity, and the no application to the procurement of goods for the
IBRD, which, as an international lending institution Iligan City Water Supply System Development and
organized by world governments to provide loans Expansion Project. The validity of similar
conditioned upon the guarantee of repayment by the stipulations in foreign loan agreements requiring the
borrowing sovereign state, is likewise regarded a observance of IBRD Procurement Guidelines in the
subject of international law and possessed of the procurement process has, in fact, been previously
capacity to enter into executive agreements with upheld by the Court in the case of Department of
sovereign states. Being similar to a treaty but Budget and Management Procurement Service
without requiring legislative concurrence, Loan (DBMPS) v. Kolonwel Trading,55 viz.:
Agreement No. 4833-PH - following the definition
given in the Bayan Muna case - is an executive The question as to whether or not foreign loan
agreement and is, thus, governed by international agreements with international financial institutions,
law. Owing to this classification, the Government of such as Loan No. 7118-PH, partake of an executive
the Philippines is therefore obligated to observe its or international agreement within the purview of
terms and conditions under the rule of pacta sunt Section 4 of R.A. No. 9184, has been answered by
servanda, a fundamental maxim of international law the Court in the affirmative in [Abaya v. Sec.
that requires the parties to keep their agreement in Ebdane, Jr., 544 Phil. 645 (2007)]. Significantly,
good faith.50 It bears pointing out that the pacta sunt Abaya declared that the RP-JBIC loan agreement
servanda rule has become part of the law of the was to be of governing application over the CP I
land through the incorporation clause found under project and that the JBIC · Procurement Guidelines,
Section 2, Article II of the 1987 Philippine as stipulated in the loan agreement, shall primarily
Constitution, which states that the Philippines govern the procurement of goods necessary to
"adopts the generally accepted principles of implement the main project.
international law as part of the law of the land and
adheres to the policy of peace, equality, justice,
Under the fundamental international law principle of
freedom, cooperation, and amity with all nations."
pacta sunt servanda, which is in fact embodied in
Keeping in mind the foregoing attributions,
the afore-quoted Section 4 of R.A. No. 9184, the
the .Court now examines the SLA and its relation
RP, as borrower, bound itself to perform in good
with Loan Agreement No. 4833-PH.
faith its duties and obligation under Loan No. 7118-
PH. Applying this postulate in the concrete to this
As may be palpably observed, the terms and case, the IABAC was legally obliged to comply with,
conditions of Loan Agreement No. 4833-PH, being a or accord, primacy to, the WB Guidelines on the
project-based and government-guaranteed loan conduct and implementation of the
facility, were incorporated and made part of the SLA bidding/procurement process in question.56
that was subsequently entered into by Land Bank
with the City Government of Iligan.51 Consequently,
With the nature and treatment of Loan Agreement
this means that the SLA cannot be treated as an
No. 4833-PH as well as its accessory SLA herein
independent and unrelated contract but as a
explained, the Court thus holds that the RTC
conjunct of, or having a joint and simultaneous
committed reversible error in ruling that the
occurrence with, Loan Agreement No. 4833-PH. Its
provisions of RA 9184 were to be applied in this
nature and consideration, being a mere accessory
case. Quite the contrary, it is the IBRD Guidelines
contract of Loan Agreement No. 4833-PH, are thus
and the provisions of Schedule 4 which should
the same as that of its principal contract from which
govern. As such, the procurement of water pipes by
it receives life and without which it cannot exist as
the BAC of the City Government of Iligan -as Land
an independent contract.52 Indeed, the accessory
Bank meritoriously submits in its petition - is beyond
follows the principal;53 and, concomitantly, accessory
the purview of RA 9184, yielding as it should to the
contracts should not be read independently of the
express stipulations found in the executive
main contract.54 Hence, as Land Bank correctly puts
agreement, to which the latter's accessory merely
it, the SLA has attained indivisibility with the Loan
follows.
Agreement and the Guarantee Agreement through
the incorporation of each other's terms and
In view of all these errors, both on procedural and among others, include the operation of lotto betting
substantive counts, the Court is hereby bound to stations and/or other gaming outlets as one of its
reverse the trial court's decision and accordingly secondary purposes.
grant the present petition.
Eventually, it applied with the Philippine Amusement
WHEREFORE, the petition is GRANTED. The and Gaming Corporation (P AGCOR) for an
Decision dated September 3, 2010 of the Regional authority to operate bingo games at the SM City
Trial Court of Manila, Branch 21 (Manila RTC) in Bacolod Mall (SM Bacolod), as well as with SM
Civil Case No. 09-122643 is hereby REVERSED Prime Holdings (SM Prime) for the lease of a space
and SET ASIDE. The Petition for Prohibition and in the said building. Phuture was issued a
Mandamus filed before the Manila RTC is provisional Grant of Authority (GOA) on December
DISMISSED. 5, 2006 by P AGCOR, subject to compliance with
certain requirements, and received an Award Notice
SO ORDERED. from SM Prime on January 10, 2007.4

MANDAMUS Thereafter, Phuture processed, completed and


submitted to the Permits and Licensing Division of
Rebadulla – PDF file the City Mayor of Bacolod City its Application for
Permit to Engage in Business, Trade or Occupation
to operate bingo games at SM Bacolod and paid the
fees therefor. It was then issued a claim slip for its
G.R. No. 190289
permit on February 19, 2007, which was to be
claimed on March 16, 2007.5 In the meantime,
THE CITY OF BACOLOD, HON. MAYOR EVELIO Phuture further amended its AOI on February 27,
R. LEONARDIA, ATTY. ALLAN L. ZAMORA and 2007 to reflect its engagement in bingo operations
ARCH. LEMUEL D. REYNALDO, in their personal as its primary purpose.
capacities and in their capacities as Officials of
the City of Bacolod, Petitioners
Phuture commenced bingo operations at SM
vs.
Bacolod on March 2, 2007, prior to the issuance of
PHUTURE VISIONS CO., INC., Respondent
the actual hard copy of the mayor's permit.
However, at around 6:10 a.m. of March 3, 2007,
DECISION respondent Phuture learned that its bingo outlet was
padlocked by agents of the Office of the City Legal
VELASCO, JR., J.: Officer and that a copy of a Closure Order dated
March 2, 2007 was posted at the entrance of the
Nature of the Case bingo outlet.6

Before the Court is a Petition for Review Phuture claimed that the closure of its bingo outlet
on Certiorari under Rule 45 of the Rules of Court of at SM Bacolod is tainted with malice and bad faith
the Decision1 dated February 27, 2009 and the and that petitioners did not have the legal authority
Resolution2 dated October 27, 2009 of the Court of to shut down said bingo operations, especially since
Appeals (CA) in CAG. R. SP No. 03322. The PAGCOR itself had already issued a provisional
assailed rulings reversed the dismissal of GOA in its favor.
respondent's Petition for Mandamus and Damages
with Prayer for Issuance of a Temporary Mandatory On March 7, 2007, the RTC conducted a summary
Order and/or Writ of Preliminary Mandatory hearing to determine the sufficiency of the form and
Injunction (Petition for Mandamus and Damages) by substance of the application for the issuance of a
the Regional Trial Court of Bacolod City, Branch 49.3 temporary mandatory order and/or preliminary
mandatory injunction to remove the padlock
The Facts installed at respondent's place of business at SM
Bacolod and allow it to conduct unhampered bingo
The instant case stems from the Petition for operations.7
Mandamus and Damages filed by respondent
Phuture Visions Co., Inc. (Phuture) on March 5, In the course of the summary hearing, specifically
2007 against petitioners City of Bacolod, Hon. on March 9, 2007, petitioners released in open court
Mayor Evelio R. Leonardia, Atty. Allan L. Zamora to respondent's counsel the hard copy of the
(now deceased) and Arch. Lemuel D. Reynaldo. In Mayor's Permit dated February 19, 2007 which
the Petition for Mandamus and Damages, Phuture indicated the kind of business allowed is
alleged the following: "Professional Services, Band/Entertainment
Services." Phuture's counsel, however, refused to
Phuture was incorporated in 2004. In May 2005, its receive the same, protesting that it was not the
Articles of Incorporation (AOI) was amended to, Mayor's Permit which respondent had applied for.8
On March 19, 2007, petitioners filed their Comment In a Decision16 dated March 20, 2007, the R TC
and Answer with Counterclaim, denying the denied the prayer for the issuance of a temporary
allegations set forth in the Petition for Mandamus mandatory order and dismissed the case for lack of
and Damages and presenting a slightly different set merit.
of facts,9 as follows:
WHEREFORE, in the light of all the foregoing
On January 10, 2007, Phuture applied for the discussions, the instant petition is ordered
renewal of its mayor's permit with "professional DISMISSED for lack of merit, without prejudice to
services, band/entertainment services" as its filing an application of a Mayor's Permit specifically
declared line of business, providing the address of for bingo operation. Respondents' counterclaim is
the business as "RH Building, 26 Lacson Street, ordered DISMISSED, without prejudice to filing
Barangay 5" instead of SM Bacolod where appropriate action with a court of competent
respondent's bingo operations was located.10 jurisdiction.

Upon submission of the requirements on February Without pronouncement as to costs.


19, 2007 and while the application was being
processed, Phuture was issued a "claim slip" for it to SO ORDERED.17
claim the actual mayor's permit on March 16, 2007 if
the requirements were found to be in Phuture filed an Urgent Motion for Partial
order.11 However, petitioners found discrepancies in Reconsideration on April 2, 2007, but the same was
Phuture's submitted requirements, wherein the denied by the RTC in its Order dated September 6,
application form was notarized earlier than the 2007.18 Thus, respondent elevated the matter to the
amendment of its AOI to reflect the company's CA on appeal.19
primary purpose for bingo operations. Aside from
this, respondent failed to pay the necessary permit
Ruling of the Court of Appeals
fee/assessment fee under the applicable tax
ordinances of the City of Bacolod.12
In the assailed Decision dated February 27, 2009,
the CA partially granted the appeal by affirming the
Also, without waiting for the release of the mayor's
trial court's denial of the application for a temporary
permit, respondent started the operation of its bingo
mandatory order but reversing the dismissal of the
outlet at SM Bacolod. This prompted the former City
suit for damages and ordering the case to be
Legal Officer, Atty. Allan Zamora, to issue a Closure
reinstated and remanded to the court of origin for
Order dated March 2, 2007, pursuant to City Tax
further proceedings.
Ordinance No. 93- 001, Series of 1993,13 which
declares unlawful for any person to operate any
business in the City of Bacolod without first The CA pronounced that the issue of whether
obtaining a permit therefor from the City Mayor and the RTC erred in dismissing the prayer for
paying the necessary permit fee and other charges temporary mandatory order for the removal of
to the City Treasurer. the padlock allegedly installed illegally at
respondent's place of business at SM Bacolod,
as well as the prayer ordering petitioners to
The Closure Order was presented by petitioners'
allow respondent to conduct unhampered bingo
representative to respondent's lawyers to negotiate
operations during the pendency of the case, had
a possible peaceful solution before its
already been rendered moot since, with the
implementation. However, respondent simply
onset of another year, it was necessary to apply
ignored the information relayed to them and thus, at
for another business permit with the Mayor's
around 6:00 a.m. on March 3, 2007, the Composite
Office.21
Enforcement Unit under the Office of the City Legal
Officer implemented the Closure Order.14
Nevertheless, the CA proceeded to rule on the
issue on whether the closure of respondent's
Petitioners contended that the claim slip so heavily
bingo operations at SM Bacolod was effected in
relied upon by respondent was a mere oversight or
a manner consistent with law. While it ruled that
human error of the City Government's employee
the Mayor's power to issue licenses and permits
who processed the same, who was likewise duped
is discretionary, and thus, cannot be compelled
by the tampered entries that respondent's
by mandamus, it found that respondent was not
application was for a permit for bingo operations
given due notice and hearing as to the closure
when, in tn1th, it was only for the renewal of a
of its business establishment at SM Bacolod.
previously-issued permit albeit for a different line of
business, i.e., "professional services,
band/entertainment services."15 Based on the CA's finding on the manner by which
the closure of the bingo operations was effected, it
concluded that respondent was denied its
Ruling of the Regional Trial Court
proprietary right without due process of law.
Accordingly, the CA ordered the case to be
reinstated and remanded to the RTC to determine if Stripped of the verbiage, the sole issue in this case
damages should be awarded.22 is whether petitioners can be made liable to pay
respondent damages.
Petitioners timely interposed a Motion for
Reconsideration,23 protesting the CA's order to The Court's Ruling
remand the case to the R TC for trial on the aspect
of damages. The CA, however, maintained its The petition is meritorious.
position, issuing the now assailed Resolution.
Petitioners have not given their
Agggrieved, petitioners brought the matter before consent to be sued
this Court through the present recourse.
The principle of immunity from suit is embodied in
The Petition Section 3, Article XVI of the 1987 Philippine
Constitution which states that "[t]he State cannot be
Petitioners again limit their argument to the CA's sued without its consent." The purpose behind this
order to remand the case to the R TC for trial on the principle is to prevent the loss of governmental
aspect of damages. According to petitioners, efficiency as a result of the time and energy it would
hearing the action for damages effectively violates require to defend itself against lawsuits.29 The State
the City's immunity from suit since respondent had and its political subdivisions are open to suit only
not yet obtained the consent of the City Government when they consent to it.
of Bacolod to be included in the claim for damages.
They also argue that the other petitioners, the City Consent may be express or implied, such as when
Mayor and other officials impleaded, are similarly the government exercises its proprietary functions,
immune from suit since the acts they performed or where such is embodied in a general or special
were within their lawful duty and law.30 In the present case, respondent sued
functions.24 Moreover, petitioners maintain that they petitioners for the latter's refusal to issue a mayor's
were merely performing governmental or sovereign permit for bingo operations and for closing its
acts and exercised their legal rights and duties to business on account of the lack of such permit.
implement the provisions of the City However, while the authority of city mayors to issue
Ordinance.25 Finally, petitioners contend that the or grant licenses and business permits is granted by
assailed Decision contained inconsistencies such the Local Government Code (LGC),31 which also
that the CA declared mandamus to be an vests local government units with corporate powers,
inappropriate remedy, yet allowed the case for one of which is the power to sue and be sued, this
damages to prosper.26 Court has held that the power to issue or grant
licenses and business permits is not an exercise of
In its Comment,27 respondent Phuture argues that the government's proprietary function. Instead, it is
the grounds raised by petitioners should not be in an exercise of the police power of the State, ergo
considered since these were only invoked for the a governmental act. This is clearly elucidated by the
first time on appeal. Aside from this, respondent Court in Acebedo Optical Company, Inc. v. The
asserts that the case for damages should proceed Honorable Court of Appeals:32
since petitioners allegedly caused the illegal closure
of its bingo outlet without proper notice and hearing The Court of Appeals erred in adjudging subject
and with obvious discrimination. business permit as having been issued by
respondent City Mayor in the performance of
In their Reply to the Comment dated August 26, proprietary functions of Iligan City. As hereinabove
2010, petitioners oppose respondent's arguments, elaborated upon, the issuance of business licenses
saying that the issues they raised in the instant and permits by a municipality or city is essentially
petition cannot be considered as having been raised regulatory in nature. The authority, which devolved
for the first time since they are intertwined and bear upon local government units to issue or grant such
relevance and close relation to the issues resolved licenses or permits, is essentially in the exercise of
by the trial court. They further reiterate that they the police power of the State within the
cannot be held liable for damages since they were contemplation of the general welfare clause of the
merely performing governmental or sovereign acts Local Government Code. (emphasis supplied)
in the issuance of a mayor's permit. Thus, they
argue that whatever damages that respondent may No consent to be sued and be liable for damages
have incurred belong to the concept of damnum can thus be implied from the mere conferment and
absque injuria for which the law provides no exercise of the power to issue business permits and
remedy.28 licences. Accordingly, there is merit in petitioners'
argument that they cannot be sued by respondent
The Issues since the City's consent had not been secured for
this purpose. This is notwithstanding petitioners'
failure to raise this exculpatory defense at the first
instance before the trial court or even before the lawyer or some other officer, hence, as a matter of
appellate court. public policy, the law must be understood as
insulating the state from such undesirable
As this Court has repeatedly held, waiver of contingencies and leaving it free to invoke its
immunity from suit, being in derogation of sovereign attributes at any time and at any stage of
sovereignty, will not be lightly inferred.33 Moreover, it a judicial proceeding, under the principle that the
deserves mentioning that the City of Bacolod as a mistakes and ommissions of its officers do not bind
government agency or instrumentality cannot be it.
estopped by the omission, mistake or error of its
officials or agents.34 Estoppel does not also lie Petitioners are not liable for damages
against the government or any of its agencies
arising from unauthorized or illegal acts of public As to the primary issue of whether petitioners are
officers.35 Hence, we cannot hold petitioners liable to respondent for damages, respondent
estopped from invoking their immunity from suit on Phuture alleged that petitioners are guilty of
account of having raised it only for the first time on surreptitiously padlocking its SM bingo outlet in a
appeal. On this score, Justice Barredo's Opinion "patently arbitrary, whimsical, capricious,
in Insurance Co. of North America v. Osaka Shosen oppressive, irregular, immoral and shamelessly
Kaisha36 is particularly illuminating: politically motivated" manner and with clear
discrimination since the majority owners of the
x x x [T]he real reason why, from the procedural company are the sons of petitioner Mayor
point of view, a suit against the state filed without its Leonardia's political rival, then Congressman
consent must be dismissed is because, necessarily, Monico Puentevella.37 Such contention is clearly
any such complaint cannot state a cause of action, but non sequitur, grounded as it is in pure
since, as the above decision confirms, "there can be conjecture.
no legal right as against the authority that makes the
law on which the right depends." x x x Sticking closely to the facts, it is best to recapitulate
that while the CA ruled that respondent was not
The question that arises now is, may failure to state given due notice and hearing as to the closure of its
a cause of action be alleged as a ground of business establishment at SM Bacolod, it
dismissal for the first-time on appeal? nevertheless remanded the issue of the award of
damages to the trial court for further proceedings.
xxx Such action would only be an exercise in futility, as
the trial court had already ruled in its September
x x x The requirement that this defense should be 6, 2007 Decision that respondent Phuture had
raised at the trial is only to give the plaintiff a chance no right and/or authority to operate bingo games
to cure the defect of his complaint, but if, as in this at SM Bacolod because it did not have a
case, the lack of consent of the state cannot be Business Permit and has not paid assessment
cured because it is a matter of judicial notice that for bingo operation. Thus, it held that petitioners
there is no law allowing the present suit, (only acted lawfully in stopping respondent's bingo
Congress that can give such consent) the reason for operation on March 2, 2007 and closing its
the rule cannot obtain, hence it is clear that such establishment for lack of any business permit.
non-suability may be raised even on appeal. After
all, the record on appeal can be examined to find The trial court further found that the Mayor's Office
out if the consent of the state is alleged in the had already decided and released a Business
complaint. Permit for "Professional Services,
Band/Entertainment Services" dated January 19,
xxxx 2007 to respondent, which cannot reasonably
expect to receive a Mayor's Permit for "Bingo
Operations" unless and until it files a new
x x x It is plain, however, that as far as the date is
application for bingo operations, submit the
concerned, this rule of waiver cannot apply, for the
necessary requirements therefor, and pay the
simple reason that in the case of the state as
corresponding assessment.38
already stated, the waiver may not be made by
anyone other than Congress, so any appearance in
any form made on its behalf would be ineffective Aside from this, the R TC had also found that
and invalid if not authorized by a law duly passed by respondent's reliance on the GOA issued by
Congress. Besides, the state has to act thru PAGCOR, the SM Award Notice, and the
subalterns who are not always prepared to act in the "questionable" Claim Slip and Application paper
premises with the necessary capability, and tainted with alteration/falsification did not appear to
instances there can be when thru ignorance, be a right that is clear and unmistakable. From this,
negligence or malice, the interest of the state may the trial court concluded that the right being claimed
not be properly protected because of the erroneous by respondent to operate bingo games at SM
appearance made on its behalf by a government Bacolod was, at the very least, doubtful.39
Based on the above observations made by the trial therefrom. Wrong without damage, or damage
court, it appears that respondent had no clear and without wrong, does not constitute a cause of
unmistakable legal right to operate its bingo action, since damages are merely part of the
operations at the onset. Respondent failed to remedy allowed for the injury caused by a breach or
establish that it had duly applied for the proper wrong.
permit for bingo operations with the Office of the
Mayor and, instead, merely relied on the xxxx
questionable claim stub to support its claim. The
trial court also found that the application form In order that a plaintiff may maintain an action for
submitted by respondent pertained to a renewal of the injuries of which he complains, he must
respondent's business for "Professional Services, establish that such injuries resulted from a breach of
Band/Entertainment Services" located at "RH Bldg., duty which the defendant owed to the plaintiff - a
26th Lacson St." and not at SM Bacolod. These concurrence of injury to the plaintiff and legal
factual findings by the trial court belie respondent's responsibility by the person causing it. The
claim that it had the right to operate its bingo underlying basis for the award of tort damages is
operations at SM Bacolod. the premise that an individual was injured in
contemplation of law. Thus, there must first be the
Certainly, respondent's claim that it had applied for breach of some duty and the imposition of liability
a license for bingo operations is questionable since, for that breach before damages may be awarded; it
as it had admitted in its Petition for Mandamus and is not sufficient to state that there should be tort
Damages, the primary purpose in its AOI was only liability merely because the plaintiff suffered some
amended to reflect bingo operations on February pain and suffering.
14, 2007 or more than a month after it had
supposedly applied for a license for bingo xxxx
operations with the Office of the Mayor. It is settled
that a judicial admission is binding on the person
In other words, in order that the law will give redress
who makes it, and absent any showing that it was
for an act causing damage, that act must be not
made through palpable mistake, no amount of
only hurtful, but wrongful. There must be damnum
rationalization can offset such admission.40 This
1âw phi 1

et injuria. If, as may happen in many cases, a


admission clearly casts doubt on respondent's so-
person sustains actual damage, that is, harm or loss
called right to operate its business of bingo
to his person or property, without sustaining any
operations.
legal injury, that is, an act or omission which the law
does not deem an injury, the damage is regarded
Petitioners, in ordering the closure of respondent's as damnum absque injuria.
bingo operations, were exercising their duty to
implement laws and ordinances which include the
Considering that respondent had no legal right to
local government's authority to issue licenses and
operate the bingo operations at the outset, then it is
permits for business operations in the city. This
not entitled to the damages which it is demanding
authority is granted to them as a delegated exercise
from petitioners.
of the police power of the State. It must be
emphasized that the nature of bingo operations is a
form of gambling; thus, its operation is a mere WHEREFORE, the petition is
privilege which could not only be regulated, but may hereby GRANTED. The Decision dated February
also very well be revoked or closed down when 27, 2009 and the Resolution dated October 27,
public interests so require.41 2009 of the Court of Appeals in CA-G.R. SP No.
03322 are hereby ANNULLED and SET
ASIDE. The Decision dated March 20, 2007 of the
In this jurisdiction, we adhere to the principle that
Regional Trial Court of Bacolod City, Branch 49 is
injury alone does not give respondent the right to
hereby REINSTATED.
recover damages, but it must also have a right of
action for the legal wrong inflicted by petitioners. In
order that the law will give redress for an act SO ORDERED.
causing damage, there must be damnum et
injuria that act must be not only hurtful, but wrongful. G.R. No. 217453
The case of The Orchard Golf & Country Club, Inc.,
et al. v. Ernesto V Yu and DENMARK S. V ALMORES, Petitioner
Manuel C. Yuhico,42 citing Spouses Custodio v. vs.
Court of Appeals,43 is instructive, to wit: DR. CRISTINA ACHACOSO, in her capacity as
Dean of the College of Medicine, and DR.
x x [T]he mere fact that the plaintiff suffered losses GIOVANNI CABILDO, Faculty of the Mindanao
does not give rise to a right to recover damages. To State University, Respondents
warrant the recovery of damages, there must be
both a right of action for a legal wrong inflicted by DECISION
the defendant, and damage resulting to the plaintiff
CAGUIOA, J.: The Certification dated September 15, 2014 reads
in part:
Before the Court is a petition for mandamus1filed
under Rule 65 of the Rules of Court (Petition), This is to certify that DENMARK S. V ALM ORES is
seeking the enforcement of Commission on Higher a bona fide member of the Seventh-day Adventist
Education (CHED) Memorandum2 dated November Church affiliated at Balongis, Balulang, Cagayan de
15, 2010 (2010 CHED Memorandum). by herein Oro City.
respondents Dr. Cristina Achacoso (Achacoso) and
Dr. Giovanni Cabildo (Cabildo) (collectively, As Seventh-day Adventists, we uphold our
"respondents"). Respondents are being sued in their observance of the Saturday Sabbath as a day of
respective capacities as Dean and faculty member worship and rest from labor, observing the
of the Mindanao State University (MSU)-College of sacredness of the Lord's day from sunset Friday to
Medicine.3 sunset Saturday. We do away [with] secular
activities like working in the office or field/attending
Antecedent Facts classes/participating/attending non-religious
functions during Saturday.
Petitioner Denmark S. Valmores (Valmores) is a
member of the Seventh-day Adventist This certification is issued to support his request for
Church,4 whose fundamental beliefs include the exemption from all his Sabbath (from sunset Friday
strict observance of the Sabbath as a sacred to sunset Saturday) classes, exams, and other non-
day.5 As such, petitioner Valmores joins the faithful religious activities.16
in worshipping and resting on Saturday, the seventh
day of the week, and refrains from non-religious On September 19, 2014, petitioner Valmores again
undertakings from sunset of Friday to sunset of wrote a letter17 to respondent Achacoso to seek
Saturday.6 reconsideration regarding his situation, reiterating
his willingness to take make-up classes or their
Prior to the instant controversy, petitioner Valmores equivalent in order to complete the requirements of
was enrolled as a first-year student at the MSU- his course.
College of Medicine for Academic Year 2014-
2015.7 To avoid potential conflict between his Despite the foregoing communications, petitioner
academic schedule and his church's Saturday Valmores' requests fell on deaf ears.18
worship, petitioner Valmores wrote a letter8 to
respondent Achacoso, requesting that he be Hence, aggrieved by respondents' lack of
excused from attending his classes in the event that consideration, petitioner Valmores elevated the
a regular weekday session is rescheduled to a matter before the CHED.19I
Saturday. At the same time, petitioner Valmores
expressed his willingness to make up for any
n an Indorsement dated January 6, 2015, the CHED
missed activity or session due to his absence.9
Regional Office, Region X, through Mr. Roy Roque
U. Agcopra, Chief Administrative Officer, referred
Between the months of June to August 2014, some the matter directly to the President of MSU as well
of petitioner Valmores' classes and examinations as respondent Achacoso and requested that the
were moved from weekdays to Saturdays.10 I office be advised of the action thus taken.20

In one instance, petitioner Valmores was unable to In response, Dr. Macapado Abaton Muslim (Dr.
take his Risto-Pathology laboratory examination Muslim), President of MSU, instructed respondent
held on September 13, 2015, a Achacoso to enforce the 2010 CHED
Saturday.11 Respondent Cabildo was his professor Memorandum.21 In doing so, Dr. Muslim sent a copy
for the said subject.12 Despite his request for of the said memorandum to respondent Achacoso
exemption, no accommodation was given by either with the following marginal note in his own
of the respondents. As a result, petitioner Valmores handwriting:
received a failing grade of 5 for that particular
module and was considered ineligible to retake the
Urgent!
exam.13
For: Dean Cristina Achacoso
Thereafter, several pastors and officers of the
College of Medicine
Seventh-day Adventist Church sent a letter14 to
respondent Achacoso, requesting for a possible
audience with the members of the MSU school You are hereby enjoined to enforce this CHED
board. In addition, the church, through Pastor memo re the case of MR. DENMARK S. V ALM
Hanani P. Nietes, issued a Certification15 dated ORES.
September 15, 2014 in connection with petitioner
Valmores' request for exemption. Thanks.22
Despite the foregoing correspondence, petitioner The Petition is impressed with merit.
Valmores' request still went ignored. Thus, in a
Letter23 dated March 25, 2015, petitioner Valmores, Strict adherence to the doctrine of
this time through his counsel on record, sought hierarchy of courts is not absolute
reconsideration from respondent Achacoso for the
last time and manifested his intention to resort to Before disposing of the substantial issue, although
appropriate legal action should no action be taken. not raised by respondents in their Comment, a
procedural matter warrants discussion.
Notwithstanding the lapse of several months, no
written or formal response was ever given by Under Rule 65 of the Rules, a petition
respondent Achacoso.24 for mandamus is directed against a tribunal,
corporation, board, officer or person who
Hence, the present Petition.
unlawfully neglects the performance of an act
Petitioner Valmores brings his cause before the specifically enjoined by law or
Court based on his constitutional right to freedom of
religion, which he argues was violated by unlawfully excludes another from the use and
respondents when they refused to enforce the 2010 enjoyment of a right or office to which such
CHED Memorandum, as follows: other is entitled.31
(i) by refusing to excuse petitioner Valmores from
attending classes and taking examinations on
If the petition relates to an act or omission of a
Saturdays, and
board, officer, or person, the same must be filed
(ii) by disallowing petitioner Valmores to take make-
with the Regional Trial Court exercising
up examinations in order to comply with the
jurisdiction over the territorial area as may be
academic requirements of his course.25
defined by the Court.32
Respondents, on the other hand, chiefly base their
In the case at bench, petitioner Valmores questions
defense on the fact that MSU had other students
the acts of respondents in their capacities as Dean
who were able to graduate from their College of
and faculty member of MSU-College of Medicine.
Medicine despite being members of the Seventh-
As such, by directly filing the Petition with the Court
day Adventist Church.26 On this claim, respondents
instead of the proper regional trial court, as required
argued that petitioner Valmores' case was not
by the Rules, petitioner Valmores was m error.
"unique" as to merit exceptional treatment.27
Strict adherence to the judicial hierarchy of courts
Respondents likewise claimed that the Certification
has been a longstanding policy of the courts in
dated September 15, 2014 submitted by petitioner
determining the appropriate forum for initiatory
Valmores was not the certification contemplated by
actions.33 While this Court has concurrent jurisdiction
the 2010 CHED Memorandum and therefore there
with the inferior courts to issue corrective writs
was no corresponding duty on their part to enforce
of certiorari, prohibition, and mandamus, a party's
the same.28 Lastly, respondents posited that the
choice of forum is by no means absolute.34
changes in schedule were not unreasonable as they
were due to unexpected declarations of holidays as
well as unforeseen emergencies of the professors in Needless to say, however, such rule is not without
their respective hospitals.29 exception. Recently, in Maza v. Turla,35the Court
emphasized that it possesses full discretionary
power to take cognizance and assume jurisdiction
Petitioner Valmores, in his Reply,30 reiterated his
over petitions filed directly with it for exceptionally
prayer for the issuance of a writ
compelling reasons or if warranted by the nature of
of mandamus against respondents and prayed for
the issues involved in the dispute.
the immediate resolution of the dispute.
Citing The Diocese of Bacolod v. Commission on
Issue
Elections,36the Court held therein that a direct
resort is allowed in the following instances, inter
whether mandamus lies to compel respondents alia:
to enforce the 2010 CHED Memorandum in the
case of petitioner Valmores. – YES
(i) when there are genuine issues of
constitutionality that must be
SC may entertain the said petition. This case addressed at the most immediate
falls under the exceptions where a prohibition time;
may be filed directly before SC. (ii) (ii) when the questions involved are
dictated by public welfare and the
The Court's Ruling advancement of public policy, or
demanded by the broader interest of civilizations. In the Philippines, the 1935, 1973, and
justice; and 1987 Constitutions were crafted in full
(iii) (iii) when the circumstances require acknowledgment of the contributions of religion to
an urgent resolution. the country through the enactment of various
benevolent provisions.41 In its present incarnation,
The above exceptions are all availing in this case. our fundamental law, by "imploring the aid of
Almighty God," makes manifest the State's respect
The freedom of religion enjoys a preferred status and recognition of the collective spirituality of the
among the rights conferred to each citizen by our Filipino.42 Such recognition is embodied in Section 5,
fundamental charter.37 In this case, no less than Article III of the Constitution:
petitioner Valmores' right to religious freedom is
being threatened by respondents' failure to SEC. 5. No law shall be made respecting an
accommodate his case.38 In this regard, when establishment of religion, or prohibiting the free
confronted with a potential infringement of exercise thereof. The free exercise and enjoyment
fundamental rights, the Court will not hesitate, as it of religious profession and worship, without
now does, to overlook procedural lapses in order to discrimination or preference, shall forever be
fulfill its foremost duty of satisfying the higher allowed. No religious test shall be required for the
demands of substantial justice. exercise of civil or political rights.

The Court is also aware of petitioner Valmores' plea In Centeno v. Villalon-Pornillos,43the Court
for the expedient resolution of his case, as he has discussed the two-fold nature of the free-exercise
yet to enroll in the MSU-College of Medicine and clause enshrined in the cited provision:
continue with his studies.39 Plainly enough, to
require petitioner Valmores to hold his education in [T]he constitution embraces two concepts, that is,
abeyance in the meantime that he is made to freedom to believe and freedom to act. The first is
comply with the rule on hierarchy of courts would be absolute but, in the nature of things, the second
unduly burdensome. It is a known fact that cannot be. Conduct remains subject to regulation for
education is a time-sensitive endeavor, where the protection of society. The freedom to act must
premium is placed not only on its completion, but have appropriate definitions to preserve the
also on the timeliness of its achievement. Inevitably, enforcement of that protection. In every case, the
justice in this case must take the form of a prompt power to regulate must be so exercised, in attaining
and immediate disposition if complete relief is to be a permissible end, as not to unduly infringe on the
accorded. protected freedom.

In a related matter, the Rules also require the Whence, even the exercise of religion may be
exhaustion of other plain, speedy, and adequate regulated, at some slight inconvenience, in order
remedies in the ordinary course of law before a that the State may protect its citizens from injury.
petition for mandamus is filed.40 Without doubt, a State may protect its citizens from
fraudulent solicitation by requiring a stranger in the
In this case, petitioner Valmores had exerted all community, before permitting him publicly to solicit
efforts to obtain relief from respondents, as funds for any purpose, to establish his identity and
clearly evidenced by the letters and other his authority to act for the cause which he purports
communications on record. Likewise, after to represent. The State is likewise free to regulate
respondents' repeated failure to enforce the the time and manner of solicitation generally, in the
2010 CHED Memorandum, petitioner Valmores interest of public safety, peace, comfort, or
elevated the matter before the CHED, which in convenience.44
turn directly indorsed the matter to the
President of MSU. Thus, prior to resorting to the In a nutshell, the Constitution guarantees the
instant Petition, the Court finds that petitioner freedom to believe absolutely, while the freedom to
Valmores had satisfactorily complied with the act based on belief is subject to regulation by the
requirement of availing himself of other remedies State when necessary to protect the rights of others
under Rule 65. and in the interest of public welfare.45

On these premises, the Court finds sufficient bases Today, religion has transcended mere rubric and
to relax the foregoing procedural rules in the has permeated into every sphere of human
broader interest of justice. undertaking. As a result, religious freedom, to a
limited extent, has come under the regulatory power
The freedom of religion vis-a-vis the of the State.
2010 CHED Memorandum
In 2010, the CHED institutionalized the :framework
Religion as a social institution is deeply rooted in for operationalizing Section 5, Article Ill of the 1987
every culture; it predates laws and survives Constitution vis-a-vis the academic freedom of
higher education institutions (HEis ), pursuant to its The enforcement of the 2010 CHED
statutory power to formulate policies, priorities, and Memorandum is compellable by writ
programs on higher education in both public and of mandamus
private HEIs.46
Mandamus is employed to compel the performance
In the 2010 CHED Memorandum, the CHED laid of a ministerial duty by a tribunal, board, officer, or
down guidelines for the exemption of teachers, person.48
personnel, and students from participating in school
or related activities due to compliance with religious Case law requires that the petitioner should have a
obligations, as follows: right to the thing demanded and that it must be the
imperative duty of the respondent to perform the act
FOR : ALL CHED REGIONAL OFFICE required; such duty need not be absolutely
DIRECTORS AND OFFICERS-IN-CHARGE expressed, so long as it is clear.49

SUBJECT : REMEDIAL WORK FOR TEACHERS, In this regard, a duty is considered ministerial where
PERSONNEL AND STUDENTS TO BE EXCUSED an officer is required to perform an act not requiring
DUE TO COMPLIANCE WITH RELIGIOUS the exercise of official discretion or judgment in a
OBLIGATIONS given state of facts.50 Conversely, if the law
imposes a duty upon a public officer and gives
DATE : November 15, 2010 him the right to decide how or when the duty
shall be performed, such duty is discretionary.51
xxxx
MSU is an HEI created by legislative charter under
Our fundamental Law explicitly provides under Republic Act No. 1387, as amended, and was
Section 5 of the Bill of Rights that "The free exercise established "to better implement the policy of the
and enjoyment of religious profession and worship, Government in the intensification of the education of
without discrimination or preference, shall forever be the Filipino youth, especially among the Muslims
allowed." In this regard, the Commission is obligated and others belonging to the national
to ensure that all higher education institutions minorities."52 Thus, respondents herein, as faculty
render proper respect and compliance to this members of MSU, fall under the policy-making
constitutional right, while at the same time authority of the CHED and therefore bound to
acknowledging the exercise of their academic observe the issuances promulgated by the latter.
freedom also guaranteed under the Constitution.
The crux of the dispute therefore lies in the
The Commission therefore clarifies that in interpretation of the 2010 CHED Memorandum, the
implementing the aforementioned policy, [higher contents of which are again reproduced below for
education institutions] shall be enjoined to: (1) closer scrutiny:
excuse students from attendance/participation in
school or related activities if such schedule conflicts SUBJECT: REMEDIAL WORK FOR TEACHERS,
with the exercise of their religious obligations, and PERSONNEL AND STUDENTS TO BE EXCUSED
(2) allow faculty, personnel and staff to forego DUE TO COMPLIANCE WITH RELIGIOUS
attendance during academic and related work and OBLIGATIONS
activities scheduled on days which would conflict
with the exercise of their religious freedom. Instead, xxxx
the affected students, faculty, personnel and staff
may be allowed to do remedial work to compensate Our fundamental Law explicitly provides under
for absences, within the bounds of school rules and Section 5 of the Bill of Rights that "The free exercise
regulations without their grades being affected, or and enjoyment of religious profession and worship,
with no diminution in their salaries or leave credits without discrimination or preference, shall forever be
or performance evaluation/assessment, provided allowed." In this regard, the Commission is obligated
they submit a certification or proof of to ensure that all higher education institutions
attendance/participation duly signed by their pastor, render proper respect and compliance to this
priest, minister or religious leader for periods of constitutional right, while at the same time
absence from classes, work or school activities. acknowledging the exercise of their academic
freedom also guaranteed under the Constitution.
For your guidance and strict compliance.47
The Commission therefore clarifies that in
Transposing the foregoing to this case, petitioner implementing the aforementioned policy, [higher
Valmores beseeches the Court to direct education institutions] shall be enjoined to: (1)
respondents to enforce the 2010 CHED excuse students from attendance/participation in
Memorandum, thus allowing him to continue taking school or related activities if such schedule conflicts
up his medical studies at MSU. with the exercise of their religious obligations, and
(2) allow faculty, personnel and staff to forego standards should HEIs decide to require remedial
attendance during academic and related work and work, i.e., that the same is within the bounds of
activities scheduled on days which would conflict school rules and regulations and that the grades of
with the exercise of their religious freedom. Instead, the students will not be affected.
the affected students, faculty, personnel and staff
may be allowed to do remedial work to compensate To evade liability, respondents, without delving into
for absences, within the bounds of school rules and the specifics, made the blanket assertion that the
regulations without their grades being affected, or Certification dated September 15, 2014 submitted
with no diminution in their salaries or leave credits by petitioner Valmores was improper:
or performance evaluation/assessment, provided
they submit a certification or proof of 8. That the Petitioner did submit a certification of his
attendance/participation duly signed by their pastor, church that he is baptized as Seventh day Adventist
priest, minister or religious leader for periods of which is clearly not the intention by the CHED
absence from classes, work or school activities. memorandum (sic).54

For your guidance and strict Against such deficient claim, petitioner Valmores
compliance.53 (Emphasis supplied) argues that the said certification issued by Pastor
Hanani P. Nietes on behalf of the Seventh-day
Analyzed, the following are derived: Adventist Church was sufficient to satisfy the
requirement in the 2010 CHED Memorandum.55The
(i) HEIs are enjoined to excuse students from Court agrees.
attending or participating in school or related
activities, if such schedule conflicts with the As a condition for exemption, the 2010 CHED
students' exercise of their religious obligations; Memorandum simply requires the submission of "a
certification or proof of attendance/participation duly
(ii) to compensate for absences, students may be signed by their pastor, priest, minister or religious
allowed to do remedial work, which in turn should be leader for periods of absence from classes, work or
within the bounds of school rules and regulations school activities."56 Again, the salient portions of the
and without affecting their grades; and Certification dated September 15, 2014 reads:

(iii) to be entitled to exemption, affected students As Seventh-day Adventists, we uphold our


must submit a certification of attendance duly observance of the Saturday Sabbath as a day of
signed by their respective minister. worship and rest from labor, observing the
sacredness of the Lord's day from sunset Friday to
At once, a plain reading of the memorandum sunset Saturday. We do away with secular activities
reveals the ministerial nature of the duty imposed like working in the office or field/attending
upon HEIs. Its policy is crystal clear: a student's classes/participating/attending non-religious
religious obligations takes precedence over his functions during Saturday.
academic responsibilities, consonant with the
constitutional guarantee of free exercise and This certification is issued to support his request for
enjoyment of religious worship. Accordingly, the exemption from all his Sabbath (from sunset Friday
CHED imposed a positive duty on all HEIs to to sunset Saturday) classes, exams, and other non-
exempt students, as well as faculty members, from religious activities.57 (Emphasis in the original
academic activities in case such activities interfere omitted; emphasis supplied)
with their religious obligations.
The cited certification needs little or no
Although the said memorandum contains the phrase interpretation: petitioner Valmores, as a bona
"within the bounds of school rules and regulations," fide member of the Seventh-day Adventist Church,
the same relates only to the requirement of remedial is expected to miss "all his Sabbath x x x classes
work, which, based on the language used, is merely [and] exams" due to his observance of the Sabbath
optional on the part of the HEI. Neither can such day as a day of worship. There is nothing in the
phrase be said to have conferred discretion as the 2010 CHED Memorandum that prohibits the
use of the words "shall be enjoined" and "strict certification from being issued before the period of
compliance" denote a mandatory duty on the part of absence from class. Even then, the Certification
the HEI to excuse its students upon submission of dated September 15, 2014 is broad enough to cover
the certification prescribed in the same both past and future Sabbath days for which
memorandum. petitioner Valmores would be absent.

Clearly, under the 2010 CHED Memorandum, HEIs It is likewise well to note that respondents, by
do not possess absolute discretion to grant or deny placing the sufficiency of the Certification dated
requests for exemption of affected students. September 15, 2014 in issue, in effect admitted the
Instead, the memorandum only imposes minimum ministerial nature of the duty imposed upon HEIs.
By raising such defense, respondents admitted to acquired the necessary tools or skills for a particular
the existence of a concomitant duty to exempt and profession or trade.
that such duty on their part would have been called
for had petitioner Valmores submitted a correct Thus, students expect that upon their payment of
certification. tuition fees, satisfaction of the set academic
standards, completion of academic requirements
Significantly, respondents never even asserted, and observance of school rules and regulations, the
much less mentioned, their right to academic school would reward them by recognizing their
freedom in any of their submissions before the "completion" of the course enrolled in.61
Court. Neither was there any resistance to exempt
petitioner Valmores from the CHED Regional Office, In the landmark case of Ebralinag v. The Division
Region X, or Dr. Muslim, the President of MSU, Superintendent of Schools of Cebu,62 the Court gave
grounded on MSU's institutional independence. In weight to the religious convictions of students who
fact, that Dr. Muslim explicitly ordered respondent were members of Jehovah's Witnesses that refused
Achacoso to enforce the 2010 CHED to participate in their school's flag ceremony.
Memorandum58 further underscores the ministerial Therein, the Court held that the expulsion of the
nature of the duty of HEIs to exempt affected affected students based on their religious beliefs
students. would run against the State's duty to protect and
promote the right of all its citizens to quality
Thus, to recapitulate, once the required certification education and to make such education accessible to
or proof is submitted, the concerned HEI is ordered all:
to exempt the affected student from attending or
participating in school-related activities if such We are not persuaded that by exempting the
activities are in conflict with their religious Jehovah's Witnesses from saluting the flag, singing
obligations. As to whether HEIs will require remedial the national anthem and reciting the patriotic
work or not, the Court finds the same to be already pledge, this religious group which admittedly
within their discretion, so long as the remedial work comprises a "small portion of the school population"
required is within the bounds of school rules and will shake up our part of the globe and suddenly
regulations and that the same will not affect the produce a nation "untaught and uninculcated in and
grades of the concerned students. unimbued with reverence for the flag, patriotism,
love of country and admiration for national heroes"
For these reasons, the Court finds that respondents (Gerona vs. Sec. of Education, 106 Phil. 2, 24 ).
were duty bound to enforce the 2010 CHED After all, what the petitioners seek only is exemption
Memorandum insofar as it requires the exemption of from the flag ceremony, not exclusion from the
petitioner Valmores from academic responsibilities public schools where they may study the
that conflict with the schedule of his Saturday Constitution, the democratic way of life and form of
worship. Their failure to do so is therefore government, and learn not only the arts, sciences,
correctible by mandamus. Philippine history and culture but also receive
training for a vocation or profession and be taught
Respondents violated Petitioner the virtues of "patriotism, respect for human rights,
Valmores' right to freedom of religion appreciation for national heroes, the rights and
duties of citizenship, and moral and spiritual
The importance of education cannot be overstated. values["] (Sec. 3 [2], Art. XIV, 1987 Constitution) as
The Court has, on many occasions, ruled that part of the curricula. Expelling or banning the
institutions of higher learning are bound to afford its petitioners from Philippine schools will bring about
students a fair opportunity to complete the course the very situation that this court had feared
they seek to pursue, barring any violation of school in Gerona. Forcing a small religious group, through
rules by the students concerned.59 In erudite fashion, the iron hand of the law, to participate in a
the Court, in Regino v. Pangasinan Colleges of ceremony that violates their religious beliefs, will
Science and Technology,60 discussed: hardly be conducive to love of country or respect for
duly constituted authorities.
Education is not a measurable commodity. It is not
possible to determine who is "better educated" than xxxx
another. Nevertheless, a student's grades are an
accepted approximation of what would otherwise be Moreover, the expulsion of members of Jehovah's
an intangible product of countless hours of study. Witnesses from the schools where they are enrolled
The importance of grades cannot be discounted in a will violate their right as Philippine citizens, under
setting where education is generally the gate pass the 1987 Constitution, to receive free education, for
to employment opportunities and better life; such it is the duty of the State to "protect and promote the
grades are often the means by which a prospective right of all citizens to quality education x x x and to
employer measures whether a job applicant has make such education accessible to all" (Sec. 1, Art.
XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 public safety, peace, comfort, or convenience
SCRA 54, 72- 75, we upheld the exemption of requires it.66 Thus, as faculty members of the MSU-
members of the Iglesia ni Cristo, from the coverage College of Medicine, respondents herein were duty-
of a closed shop agreement between their employer bound to protect and preserve petitioner Valmores'
and a union because it would violate the teaching of religious freedom.
their church not to join any labor group:
Even worse, respondents suggest that the
"x x x It is certain that not every conscience can be "sacrifices" of other students of the common faith
accommodated by all the laws of the land; but when justified their refusal to give petitioner Valmores
general laws conflict with scruples of conscience, exceptional treatment. This is non-
exemptions ought to be granted unless some sequitur. Respondents brush aside petitioner
'compelling state interests' intervenes." (Sherbert vs. Valmores' religious beliefs as if it were subject of
Bemer, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. compromise; one man's convictions and another
Ct. 1790.)" man's transgressions are theirs alone to bear. That
other fellow believers have chosen to violate their
We hold that a similar exemption may be accorded creed is irrelevant to the case at hand, for in
to the Jehovah's Witnesses with regard to the religious discipline, adherence is always the general
observance of the flag ceremony out of respect for rule, and compromise, the exception.
their religious beliefs, however "bizarre" those
beliefs may seem to others. x x x If they quietly While in some cases the Court has sustained
stand at attention during the flag ceremony while government regulation of religious rights, the Court
their classmates and teachers salute the flag, sing fails to see in the present case how public order and
the national anthem and recite the patriotic pledge, safety will be served by the denial of petitioner
we do not see how such conduct may possibly Valmores' request for exemption. Neither is there
disturb the peace, or pose "a grave and present any showing that petitioner Valmores' absence from
danger of a serious evil to public safety, public Saturday classes would be injurious to the rights of
morals, public health or any other legitimate public others. Precisely, the 2010 CHED Memorandum
interest that the State has a right (and duty) to was issued to address such conflicts and prescribes
prevent" (German vs. Barangan, 135 SCRA 514, the action to be taken by HEIs should such
517).63 circumstance arise.

Here, in seeking relief, petitioner Valmores argues What is certain, as gathered from the foregoing, is
that he is bound by his religious convictions to that respondents' concerted refusal to
refrain from all secular activities on Saturdays, a day accommodate petitioner Valmores rests mainly on
that is deemed holy by his church. extralegal grounds, which cannot, by no stretch of
legal verbiage, defeat the latter's constitutionally-
On the other hand, respondents' refusal to excuse enshrined rights. That petitioner Valmores is being
petitioner Valmores from Saturday classes and made by respondents to choose between honoring
examinations fundamentally rests only on the fact his religious obligations and finishing his education
that there were other Seventh-day Adventists who is a patent infringement of his religious freedoms.
had successfully completed their studies at the As the final bulwark of fundamental rights, this Court
MSU-College of Medicine.64 Respondents, in their will not allow such violation to perpetuate any
Comment, stated thus: further.

14. That there are many successful doctors who are Conclusion
members of the Seventh day Adventist and surely
they have sacrificed before they succeeded in their Every person is free to tread the far territories of
calling as many Filipinos who shone in their their conscience, no matter where they may lead -
respective fields of study. for the freedom to believe and act on one's own
convictions and the protection of such freedom
15. That we ask ourselves, is the case of Mr. extends to all people, from the theistic to the
Valmores unique in (sic) its own? Certainly it is not godless. The State must, as a matter of duty rather
because we have had students who are member than consequence, guarantee that such pursuit
(sic) of the Seventh-Day Adventist and our College remains unfettered.
did not have a problem with them. x x x65
As representatives of the State, educational
Without more, respondents' bare arguments institutions are bound to safeguard the religious
crumble against constitutional standards. As freedom of their students. Thus, to such end, our
discussed above, the Bill of Rights guarantees schools carry the responsibility to restrict its own
citizens the freedom to act on their individual beliefs academic liberties, should they collide with
and proscribes government intervention unless constitutionally preferred rights.
necessary to protect its citizens from injury or when
WHEREFORE, the Petition declared as an anthropological or archeological area. Neither
is GRANTED. Respondents Dr. Cristina Achacoso has it been categorically designate.
and Dr. Giovanni Cabildo are DIRECTED to enforce
the Commission on Higher Education Memorandum National Historical Commission of the Philippines Dr.
dated November 15, 2010 in the case of petitioner Maria Serena I. Diokno maintained that the Torre de Manila
Denmark S. Valmores. project site is outside the boundaries of the Rizal Park and
well to the rear of the Rizal Monument, and thus, cannot
possibly obstruct the frontal view of the National
SO ORDERED. Monument.

On 26 November 2013, following an online petition against


Remedial Law. Mandamus only issues when there is a clear the Torre de Manila project that garnered about 7,800
legal duty imposed upon the office or the officer sought to signatures, the City Council of Manila issued Resolution
be compelled to perform an act, and when the party seeking No. 146, reiterating its directive in Resolution No. 121
mandamus has a clear legal right to the performance of such enjoining the City of Manila’s building officials to
act. temporarily suspend DMCI-PDI’s Building Permit.

Remedial Law.Injunctive reliefs are meant to preserve Manila Zoning Board of Adjustments and Appeals
substantive rights and prevent further injury until final (MZBAA) issued Zoning Board Resolution No. 06, Series
adjudication on the merits of the case. of 2013, recommending the approval of DMCI-PDI’s
application for variance, which was later on amended.
In the present case, since the legal rights of the KOR are not
well-defined, clear, and certain, the petition for mandamus The City Council resolution later states that “the City
must be dismissed and the TRO lifted. Council of Manila find[s] no cogent reason to deny and/or
reverse the aforesaid recommendation of the [MZBAA] and
There is no law prohibiting the construction of the Torre de hereby ratifies] and confirm[s] all previously issued permits,
Manila. What is not expressly or impliedly prohibited by licenses and approvals issued by the City [Council] of
law may be done, except when the act is contrary to morals, Manila for Torre de Manila[.]”
customs and public order.” This principle is fundamental in
a democratic society, to protect the weak against the strong, On 12 September 2014, the Knights Of Rizal, a “civic,
the minority against the majority, and the individual citizen patriotic, cultural, non- partisan, non-sectarian and non-
against the government. In essence, this principle, which is profit organization”18 created under Republic Act No.
the foundation of a civilized society under the rule of law, 646,19 filed a Petition for Injunction seeking a temporary
prescribes that the freedom to act can be curtailed only restraining order, and later a permanent injunction, against
through law. the construction of DMCI- PDI’s Torre de Manila
condominium project.
Facts
The KOR argues that the subject matter of the present suit is
DMCI started construction of Torre De Manila one of “transcendental importance, paramount public
Condominium, after it was issued Building permit by the interest, of overarching significance to society, or with far-
City Of Manila Office allowing it to build a 49 Storey with reaching implication” involving the desecration of the Rizal
Basement & 2 penthouse Level Residential Conduminium. Monument.

However the City Council of Manila issued Resolution No.


121 enjoining the Office of the Building Official to
temporarily suspend the Building Permit og DMC citing Issues
among others, that “the Torre de Manila Condominium,
based on their development plans, upon completion, will Whether or not the Court can issue a writ of mandamus
rise up high above the back of the national monument, to against the officials of the City of Manila to stop the
clearly dwarf the statue of our hero, and with such towering construction of DMCI-PDI’s Torre de Manila Project; and
heights, would certainly ruin the line of sight of the Rizal Whether or not Torre De Manila is a nuisance per se.
Shrine from the frontal Roxas Boulevard vantage point.” Ruling

Building Official Melvin Q. Balagot then sought the opinion The petition for mandamus lacks merit and must be
of the City of Manila’s City Legal Officer on whether he is dismissed.
bound to comply with Resolution No. 121.
Mandamus does not lie against the City of Manila.
In his letter dated 12 September 2012, City Legal Officer
Renato G. Dela Cruz stated that there is “no legal The Constitution states that “[n]o person shall be deprived
justification for the temporary suspension of the Building of life, liberty or property without due process of law x x
Permit issued in favor of [DMCI-PDI]” since the x.”61 It is a fundamental principle that no property shall be
construction “lies outside the Luneta Park” and is “simply taken away from an individual without due process, whether
too far to be a repulsive distraction or have an objectionable substantive or procedural. The dispossession of property, or
effect on the artistic and historical significance” of the Rizal in this case the stoppage of the construction of a building in
Monument.9 He also pointed out that “there is no showing one’s own property, would violate substantive due process.
that the [area of] subject property has been officially
The Rules on Civil Procedure are clear that mandamus only all for this Court to exercise its extraordinary certiorari
issues when there is a clear legal duty imposed upon the power.
office or the officer sought to be compelled to perform an
act, and when the party seeking mandamus has a clear legal Moreover, the exercise of this Court’s extraordinary
right to the performance of such act. certiorari power is limited to actual cases and controversies
that necessarily involve a violation of the Constitution or the
In the present case, nowhere is it found in Ordinance No. determination of the constitutionality or validity of a
8119 or in any law, ordinance, or rule for that matter, that governmental act or issuance.
the construction of a building outside the Rizal Park is
prohibited if the building is within the background sightline Specific violation of a statute that does not raise the issue of
or view of the Rizal Monument. Thus, there is no legal duty constitutionality or validity of the statute cannot, as a rule,
on the part of the City of Manila “to consider,” in the words be the subject of the Court’s direct exercise of its expanded
of the Dissenting Opinion, “the standards set under certiorari power. Thus, the KOR’s recourse lies with other
Ordinance No. 8119” in relation to the applications of judicial remedies or proceedings allowed under the Rules of
DMCI-PDI for the Torre de Manila since under the Court.
ordinance these standards can never be applied outside the
boundaries of Rizal Park. While the Rizal Park has been In Association of Medical Clinics for Overseas Workers,
declared a National Historical Site, the area where Torre de Inc. v. GCC Approved Medical Centers Association, Inc.,66
Manila is being built is a privately-owned property that is we held that in cases where the question of constitutionality
“not part of the Rizal Park that has been declared as a of a governmental action is raised, the judicial power that
National Heritage Site in 1995,” and the Torre de Manila the courts exercise is likewise identified as the power of
area is in fact “well-beyond” the Rizal Park, according to judicial review– the power to review the constitutionality of
NHCP Chairperson Dr. Maria Serena I. Diokno.62 Neither the actions of other branches of government. As a rule, as
has the area of the Torre de Manila been designated as a required by the hierarchy of courts principle, these cases are
“heritage zone, a cultural property, a historical landmark or filed with the lowest court with jurisdiction over the subject
even a national treasure.”63 matter. The judicial review that the courts undertake
requires:
Also, to declare that the City of Manila failed to consider the
standards under Ordinance No. 8119 would involve making 1) there be an actual case or controversy calling for the
a finding of fact. A finding of fact requires notice, hearing, exercise of judicial power;
and the submission of evidence to ascertain compliance with
the law or regulation. In such a case, it is the Regional Trial 2) the person challenging the act must have “standing” to
Court which has the jurisdiction to hear the case, receive challenge; he must have a personal and substantial interest
evidence, make a proper finding of fact, and determine in the case such that he has sustained, or will sustain, direct
whether the Torre de Manila project properly complied with injury as a result of its enforcement;
the standards set by the ordinance. In Meralco v. Public
Service Commission,64 we held that it is the cardinal right 3) the question of constitutionality must be raised at the
of a party in trials and administrative proceedings to be earliest possible opportunity; and
heard, which includes the right of the party interested or
affected to present his own case and submit evidence in 4) the issue of constitutionality must be the very lis mota of
support thereof and to have such evidence presented the case.
considered by the proper court or tribunal.
The lower court’s decision under the constitutional scheme
To compel the City of Manila to consider the standards reaches the Supreme Court through the appeal process,
under Ordinance No. 8119 to the Torre de Manila project through a petition for review on certiorari under Rule 45 of
will be an empty exercise since these standards cannot apply the Rules of Court.
outside of the Rizal Park- and the Torre de Manila is outside
the Rizal Park. In the present case, the KOR elevated this case immediately
to this Court in an original petition for injunction which we
Mandamus will lie only if the officials of the City of Manila later on treated as one for mandamus under Rule 65.
have a ministerial duty to consider these standards to
buildings outside of the Rizal Park. There can be no such There is, however, no clear legal duty on the City of Manila
ministerial duty because these standards are not applicable to consider the provisions of Ordinance No. 8119 for
to buildings outside of the Rizal Park. applications for permits to build outside the protected areas
of the Rizal Park. Even if there were such legal duty, the
The KOR also invokes this Court’s exercise of its determination of whether the City of Manila failed to abide
extraordinary certiorari power of review under Section 1, by this legal duty would involve factual matters which have
Article VIII65 of the Constitution. However, this Court can not been admitted or established in this case. Establishing
only exercise its extraordinary certiorari power if the City of factual matters is not within the realm of this Court.
Manila, in issuing the required permits and licenses, gravely Findings of fact are the province of the trial courts.
abused its discretion amounting to lack or excess of
jurisdiction. Tellingly, neither the majority nor minority There is no standard in Ordinance No. 8119 for defining or
opinion in this case has found that the City of Manila determining the background sightline that is supposed to be
committed grave abuse of discretion in issuing the permits protected or that is part of the “physical integrity” of the
and licenses to DMCI-PDI. Thus, there is no justification at Rizal Monument. How far should a building like the Torre
de Manila be from the Rizal Monument- one, two, three,
four, or five kilometers? Even the Solicitor General, during It is the policy of the courts not to interfere with the
the Oral Arguments, conceded that the ordinance does not discretionary executive acts of the executive branch unless
prescribe how sightline is determined, neither is there any there is a clear showing of grave abuse of discretion
way to measure by metes and bounds whether a construction amounting to lack or excess of jurisdiction. And subject to
that is not part of the historic monument itself or is outside well-settled exceptions, mandamus does not lie against the
the protected area can be said to violate the Rizal legislative and executive branches or their members acting
Monument’s physical integrity, except only to say “when in the exercise of their official ministerial functions. This
you stand in front of the Rizal Monument, there can be no emanates from the respect accorded by the judiciary to said
doubt that your view is marred and impaired.” This kind of a branches as co-equal entities under the principle of
standard has no parameters and can include a sightline or a separation of powers.
construction as far as the human eyes can see when standing
in front of the Rizal Monument. Obviously, this Court In De Castro v. Salas,71 we held that no rule of law is better
cannot apply such a subjective and non-uniform standard established than the one that provides that mandamus will
that adversely affects property rights several kilometers not issue to control the discretion of an officer or a court
away from a historical sight or facility. when honestly exercised and when such power and authority
is not abused.
The Dissenting Opinion claims that “the City, by reason of a
mistaken or erroneous construction of its own Ordinance, In exceptional cases, the Court has granted a prayer for
had failed to consider its duties under [Ordinance No. 8119] mandamus to compel action in matters involving judgment
when it issued permits in DMCI-PDI’s favor.” However, and discretion, only “to act, but not to act one way or the
MZBAA Zoning Board Resolution Nos. 06 and 06-A67 other,”72 and only in cases where there has been a clear
easily dispel this claim. According to the resolutions, the showing of grave abuse of discretion, manifest injustice, or
City of Manila, through the MZBAA, acted on DMCI-PDI’s palpable excess of authority.73
application for variance under the powers and standards set
forth in Ordinance No. 8119. In this case, there can be no determination by this Court that
the City of Manila had been negligent or remiss in its duty
Without further proof that the MZBAA acted whimsically, under Ordinance No. 8119 considering that this
capriciously, or arbitrarily in issuing said resolution, the determination will involve questions of fact. DMCI- PDI
Court should respect MZBAA’s exercise of discretion. The had been issued the proper permits and had secured all
Court cannot “substitute its judgment for that of said approvals and licenses months before the actual construction
officials who are in a better position to consider and weigh began. Even the KOR could not point to any law that
the same in the light of the authority specifically vested in respondent City of Manila had violated and could only point
them by law.”68 Since the Court has “no supervisory power to declarations of policies by the NHCP and the Venice
over the proceedings and actions of the administrative Charter which do not constitute clear legal bases for the
departments of the government,” it “should not generally issuance of a writ of mandamus.
interfere with purely administrative and discretionary
functions.”69 The power of the Court in mandamus petitions The Venice Charter is merely a codification of guiding
does not extend “to direct the exercise of judgment or principles for the preservation and restoration of ancient
discretion in a particular way or the retraction or reversal of monuments, sites, and buildings. It brings together
an action already taken in the exercise of either”70 principles in the field of historical conservation and
restoration that have been developed, agreed upon, and and
Still, the Dissenting Opinion insists on directing the re- laid down by experts over the years. Each country, however,
evaluation by the City of Manila, through the CPDO, of the remains “responsible for applying the plan within the
permits previously issued in favor of the Torre de Manila framework of its own culture and traditions.”74
project to determine compliance with the standards under
Ordinance No. 8119. It also declares that the circumstances The Venice Charter is not a treaty and therefore does not
in this case warrant the pro hac vice conversion of the become enforceable as law. The Philippines is not legally
proceedings in the issuance of the permits into a “contested bound to follow its directive, as in fact, these are not
case” necessitating notice and hearing with all the parties directives but mere guidelines- a set of the best practices and
involved. techniques that have been proven over the years to be the
most effective in preserving and restoring historical
Pro hac vice means a specific decision does not constitute a monuments, sites and buildings.
precedent because the decision is for the specific case only,
not to be followed in other cases. A pro hac vice decision The City of Manila concedes that DMCI-PDI’s Zoning
violates statutory law- Article 8 of the Civil Code- which Permit was granted without going through the process under
states that “judicial decisions applying or interpreting the Ordinance No. 8119. However, the same was properly
laws or the Constitution shall form part of the legal system rectified when, faced with mounting opposition, DMCI-PDI
of the Philippines.” The decision of the Court in this case itself sought clarification from the City of Manila and
cannot be pro hac vice because by mandate of the law every immediately began complying with the procedure for
decision of the Court forms part of the legal system of the applying for a variance. The MZBAA did subsequently
Philippines. If another case comes up with the same facts as recommend the approval of the variance and the City
the present case, that case must be decided in the same way Council of Manila approved the same, ratifying the licenses
as this case to comply with the constitutional mandate of and permits already given to DMCI-PDI. Such ratification
equal protection of the law. Thus, a pro hac vice decision was well within the right of the City Council of Manila. The
also violates the equal protection clause of the Constitution. City Council of Manila could have denied the application
had it seen any reason to do so. Again, the ratification is a
function of the City Council of Manila, an exercise of its hearing thereon in a tribunal authorized to decide whether
discretion and well within the authority granted it by law such a thing in law constitutes a nuisance.”90
and the City’s own Ordinance No. 8119.
It can easily be gleaned that the Torre de Manila is not a
The main purpose of zoning is the protection of public nuisance per se. The Torre de Manila project cannot be
safety, health, convenience, and welfare. There is no considered as a “direct menace to public health or safety.”
indication that the Torre de Manila project brings any harm, Not only is a condominium project commonplace in the City
danger, or hazard to the people in the surrounding areas of Manila, DMCI-PDI has, according to the proper
except that the building allegedly poses an unsightly view government agencies, complied with health and safety
on the taking of photos or the visual appreciation of the standards set by law. DMCI-PDI has been granted the
Rizal Monument by locals and tourists. In fact, the Court following permits and clearances prior to starting the
must take the approval of the MZBAA, and its subsequent project: (1) Height Clearance Permit from the Civil Aviation
ratification by the City Council of Manila, as the duly Authority of the Philippines;91 (2) Development Permit
authorized exercise of discretion by the city officials. Great from the HLURB;92 (3) Zoning Certification from the
care must be taken that the Court does not unduly tread upon HLURB;93 (4) Certificate of Environmental Compliance
the local government’s performance of its duties. It is not for Commitment from the Environment Management Bureau of
this Court to dictate upon the other branches of the the Department of Environment and Natural Resources;94
government how their discretion must be exercised so long (5) Barangay Clearance;95 (6) Zoning Permit;96 (7)
as these branches do not commit grave abuse of discretion Building Permit;97 (8) and Electrical and Mechanical
amounting to lack or excess of jurisdiction. Permit.98

Likewise, any violation of Ordinance No. 8119 must be Later, DMCI-PDI also obtained the right to build under a
determined in the proper case and before the proper forum. variance recommended by the MZBAA and granted by the
It is not within the power of this Court in this case to make City Council of Manila. Thus, there can be no doubt that the
such determination. Without such determination, this Court Torre de Manila project is not a nuisance per se.
cannot simply declare that the City of Manila had failed to
consider its duties under Ordinance No. 8119 when it issued On the other hand, the KOR now claims that the Torre de
the permits in DMCI-PDI’s favor without making a finding Manila is a nuisance per accidens.
of fact how the City of Manila failed “to consider” its duties
with respect to areas outside the boundaries of the Rizal By definition, a nuisance per accidens is determined based
Park. In the first place, this Court has no jurisdiction to on its surrounding conditions and circumstances. These
make findings of fact in an original action like this before conditions and circumstances must be well established, not
this Court. Moreover, the City of Manila could not legally merely alleged. The Court cannot simply accept these
apply standards to sites outside the area covered by the conditions and circumstances as established facts as the
ordinance that prescribed the standards. With this, taken in KOR would have us do in this case.99 The KOR itself
light of the lack of finding that there was grave abuse of concedes that the question of whether the Torre de Manila is
discretion on the part of the City of Manila, there is no basis a nuisance per accidens is a question of fact.100
to issue the writ of mandamus against the City of Manila.
The authority to decide when a nuisance exists is an
authority to find facts, to estimate their force, and to apply
rules of law to the case thus made.101 This Court is no such
Torre de Manila is Not a Nuisance Per Se. authority. It is not a trier of facts. It cannot simply take the
In its petition, the KOR claims that the Torre de Manila is a allegations in the petition and accept these as facts, more so
nuisance per’ se that deserves to be summarily abated even in this case where these allegations are contested by the
without judicial proceedings.87 However, during the Oral respondents.
Arguments, counsel for the KOR argued that the KOR now
believes that the Torre de Manila is a nuisance per accidens The task to receive and evaluate evidence is lodged with the
and not a nuisance per se.88 trial courts. The question, then, of whether the Torre de
Manila project is a nuisance per accidens must be settled
Article 694 of the Civil Code defines a nuisance as any act, after due proceedings brought before the proper Regional
omission, establishment, business, condition of property, or Trial Court. The KOR cannot circumvent the process in the
anything else which: (1) injures or endangers the health or guise of protecting national culture and heritage.
safety of others; (2) annoys or offends the senses; (3)
shocks, defies or disregards decency or morality; (4) The TRO must be lifted.
obstructs or interferes with the free passage of any public
highway or street, or any body of water; or (5) hinders or Injunctive reliefs are meant to preserve substantive rights
impairs the use of property. and prevent further injury102 until final adjudication on the
merits of the case. In the present case, since the legal rights
The Court recognizes two kinds of nuisances. The first, of the KOR are not well-defined, clear, and certain, the
nuisance per se, is one “recognized as a nuisance under any petition for mandamus must be dismissed and the TRO
and all circumstances, because it constitutes a direct menace lifted.
to public health or safety, and, for that reason, may be
abated summarily under the undefined law of necessity.”89 The general rule is that courts will not disturb the findings of
The second, nuisance per accidens, is that which “depends administrative agencies when they are supported by
upon certain conditions and circumstances, and its existence substantial evidence. In this case, DMCI-PDI already
being a question of fact, it cannot be abated without due acquired vested rights in the various permits, licenses, or
even variances it had applied for in order to build a 49- community. On the contrary, the City of Manila has
storey building which is, and had been, allowed by the City determined that DMCI-PDI complied with the standards set
of Manila’s zoning ordinance. under the pertinent laws and local ordinances to construct its
Torre de Manila project.
As we have time and again held, courts generally hesitate to
review discretionary decisions or actions of administrative There is one fact that is crystal clear in this case. There is no
agencies in the absence of proof that such decisions or law prohibiting the construction of the Torre de Manila due
actions were arrived at with grave abuse of discretion to its effect on the background “view, vista, sightline, or
amounting to lack or excess of jurisdiction. setting” of the Rizal Monument.

In JRS Business Corp. v. Montesa,103 we held that Zoning, as well as land use, in the City of Manila is
mandamus is the proper remedy if it could be shown that governed by Ordinance No. 8119. The ordinance provides
there was neglect on the part of a tribunal in the for standards and guidelines to regulate development
performance of an act which the law specifically enjoins as projects of historic sites and facilities within the City of
a duty, or there was an unlawful exclusion of a party from Manila.
the use and enjoyment of a right to which he is clearly
entitled. Only specific legal rights may be enforced by Specifically, Section 47 reads:
mandamus if they are clear and certain. If the legal rights of
the petitioner are not well-defined, definite, clear, and SEC. 47. Historical Preservation and Conservation
certain,104 the petition must be dismissed. Stated otherwise, Standards.- Historic sites and facilities shall be conserved
the writ never issues in doubtful cases. It neither confers and preserved. These shall, to the extent possible, be made
powers nor imposes duties. It is simply a command to accessible for the educational and cultural enrichment of the
exercise a power already possessed and to perform a duty general public.
already imposed.105
The following shall guide the development of historic sites
In sum, bearing in mind the Court does not intervene in and facilities:
discretionary acts of the executive department in the absence
of grave abuse of discretion,106 and considering that Sites with historic buildings or places shall be developed to
mandamus may only be issued to enforce a clear and certain conserve and enhance their heritage values.
legal right,107 the present special civil action for mandamus Historic sites and facilities shall be adaptively re-used.
must be dismissed and the TRO issued earlier must be lifted. Any person who proposes to add, to alter, or partially
demolish a designated heritage property will require the
approval of the City Planning and Development Office
(CPDO) and shall be required to prepare a heritage impact
There is no law prohibiting the construction of the Torre de statement that will demonstrate to the satisfaction of CPDO
Manila. that the proposal will not adversely impact the heritage
significance of the property and shall submit plans for
In Manila Electric Company v. Public Service review by the CPDO in coordination with the National
Commission,53 the Court held that “what is not expressly or Historical Institute (NHI).
impliedly prohibited by law may be done, except when the Any proposed alteration and/or re-use of designated heritage
act is contrary to morals, customs and public order.” This properties shall be evaluated based on criteria established by
principle is fundamental in a democratic society, to protect the heritage significance of the particular property or site.
the weak against the strong, the minority against the Where an owner of a heritage property applies for approval
majority, and the individual citizen against the government. to demolish a designated heritage property or properties, the
In essence, this principle, which is the foundation of a owner shall be required to provide evidence to satisfaction
civilized society under the rule of law, prescribes that the that demonstrates that rehabilitation and re-use of the
freedom to act can be curtailed only through law. Without property is not viable.
this principle, the rights, freedoms, and civil liberties of Any designated heritage property which is to be demolished
citizens can be arbitrarily and whimsically trampled upon by or significantly altered shall be thoroughly documented for
the shifting passions of those who can shout the loudest, or archival purposes with a history, photographic records, and
those who can gather the biggest crowd or the most number measured drawings, in accordance with accepted heritage
of Internet trolls. In other instances,54 the Court has allowed recording guidelines, prior to demolition or alteration.
or upheld actions that were not expressly prohibited by Residential and commercial infill in heritage areas will be
statutes when it determined that these acts were not contrary sensitive to the existing scale and pattern of those areas,
to morals, customs, and public order, or that upholding the which maintains the existing landscape and streetscape
same would lead to a more equitable solution to the qualities of those areas, and which does not result in the loss
controversy. However, it is the law itself- Articles 130655 of any heritage resources.
and 1409(1 )56 of the Civil Code- which prescribes that acts Development plans shall ensure that parking facilities
not contrary to morals, good customs, public order, or public (surface lots, residential garages, stand-alone parking
policy are allowed if also not contrary to law. garages and parking components as parts of larger
developments) are compatibly integrated into heritage areas,
and/or are compatible with adjacent heritage resources.
Local utility companies (hydro, gas, telephone, cable) shall
In this case, there is no allegation or proof that the Torre de be required to place metering equipment, transformer boxes,
Manila project is “contrary to morals, customs, and public power lines, conduit, equipment boxes, piping, wireless
order” or that it brings harm, danger, or hazard to the telecommunication towers and other utility equipment and
devices in locations which do not detract from the visual vibration-producing machinery. Noise levels shall be
character of heritage resources, and which do not have a maintained according to levels specified in DENR DAO No.
negative impact on its architectural integrity. 30- Abatement of Noise and Other Forms of Nuisance as
Design review approval shall be secured from the CPDO for Defined by Law.
any alteration of the heritage property to ensure that design Glare and heat from any operation or activity shall not be
guidelines and standards are met and shall promote radiated, seen or felt from any point beyond the limits of the
preservation and conservation of the heritage property. property.
(Emphasis supplied) No large commercial signage and/or pylon, which will be
It is clear that the standards laid down in Section 47 of detrimental to the skyline, shall be allowed.
Ordinance No. 8119 only serve as guides, as it expressly Design guidelines, deeds of restriction, property
states that “the following shall guide the development of management plans and other regulatory tools that will
historic sites and facilities.” A guide simply sets a direction ensure high quality developments shall be required from
or gives an instruction to be followed by property owners developers of commercial subdivisions and condominiums.
and developers in order to conserve and enhance a These shall be submitted to the City Planning and
property’s heritage values. Development Office (CPDO) for review and approval.
(Emphasis supplied)
On the other hand, Section 48 states: Section 47 of Ordinance No. 8119 specifically regulates the
“development of historic sites and facilities.” Section 48
SEC. 48. Site Performance Standards.- The City considers it regulates “large commercial signage and/or pylon.” There is
in the public interest that all projects are designed and nothing in Sections 47 and 48 of Ordinance No. 8119 that
developed in a safe, efficient and aesthetically pleasing disallows the construction of a building outside the
manner. Site development shall consider the environmental boundaries of a historic site or facility, where such building
character and limitations of the site and its adjacent may affect the background of a historic site. In this case, the
properties. All project elements shall be in complete Torre de Manila stands 870 meters outside and to the rear of
harmony according to good design principles and the the Rizal Monument and “cannot possibly obstruct the front
subsequent development must be visually pleasing as well view of the [Rizal] Monument.”57 Likewise, the Torre de
as efficiently functioning especially in relation to the Manila is not in an area that has been declared as an
adjacent properties and bordering streets. “anthropological or archeological area” or in an area
designated as a heritage zone, cultural property, historical
The design, construction, operation and maintenance of landmark, or a national treasure by the NHCP.58
every facility shall be in harmony with the existing and
intended character of its neighborhood. It shall not change Section 15, Article XIV of the Constitution, which deals
the essential character of the said area but will be a with the subject of arts and culture, provides that “[t]he State
substantial improvement to the value of the properties in the shall conserve, promote and popularize the nation’s
neighborhood in particular and the community in general. historical and cultural heritage and resources x x x.” Since
this provision is not self-executory, Congress passed laws
Furthermore, designs should consider the following: dealing with the preservation and conservation of our
cultural heritage.
Sites, buildings and facilities shall be designed and
developed with regard to safety, efficiency and high One such law is Republic Act No. 10066,59 or the National
standards of design. The natural environmental character of Cultural Heritage Act of 2009, which empowers the
the site and its adjacent properties shall be considered in the National Commission for Culture and the Arts and other
site development of each building and facility. cultural agencies to issue a cease and desist order “when the
The height and bulk of buildings and structures shall be so physical integrity of the national cultural treasures or
designed that it does not impair the entry of light and important cultural properties [is] found to be in danger of
ventilation, cause the loss of privacy and/or create destruction or significant alteration from its original
nuisances, hazards or inconveniences to adjacent state.”60 This law declares that the State should protect the
developments. “physical integrity” of the heritage property or building if
Abutments to adjacent properties shall not be allowed there is “danger of destruction or significant alteration from
without the neighbor’s prior written consent which shall be its original state.” Physical integrity refers to the structure
required by the City Planning and Development Office itself- how strong and sound the structure is. The same law
(CPDO) prior to the granting of a Zoning Permit (Locational does not mention that another project, building, or property,
Clearance). not itself a heritage property or building, may be the subject
The capacity of parking areas/ lots shall be per the minimum of a cease and desist order when it adversely affects the
requirements of the National Building Code. These shall be background view, vista, or sightline of a heritage property or
located, developed and landscaped in order to enhance the building. Thus, Republic Act No. 10066 cannot apply to the
aesthetic quality of the facility. In no case, shall parking Torre de Manila condominium project.
areas/ lots encroach into street rights-of- way and shall
follow the Traffic Code as set by the City.
Developments that attract a significant volume of public
modes of transportation, such as tricycles, jeepneys, buses, A FINAL WORD
etc., shall provide on-site parking for the same. These shall
also provide vehicular loading and unloading bays so as It had been Rizal’s wish to die facing the rising sun. In his
street traffic flow will not be impeded. Mi Ultimo Adios, the poem he left for his family the night
Buffers, silencers, mufflers, enclosures and other noise- before he was executed, Rizal wrote:
absorbing materials shall be provided to all noise and
Yo muero cuando veo que el cielo se colora Y al fin anuncia MANILA, NATIONAL COMMISSION FOR CULTURE
el dia tras lobrego capuz108 AND THE ARTS, NATIONAL MUSEUM, AND
NATIONAL HISTORICAL COMMISSION OF THE
[Ako y mamamatay, ngayong namamalas na sa Silanganan PHILIPPINES, Respondents.
ay namamanaag yaong maligayang araw na sisikat sa likod
ng luksang nagtabing na ulap.]109 DECISION

[I die just when I see the dawn break, Through the gloom of CARPIO, J.:
night, to herald the day]110

Yet at the point of his execution, he was made to stand Bury me in the ground, place a stone
facing West towards Manila Bay, with his back to the firing and a cross over it.
squad, like the traitor the colonial government wished to �My name, the date of my birth, and of
portray him. He asked to face his executioners, facing the
East where the sun would be rising since it was early my death. Nothing more.
morning, but the Spanish captain did not allow it. As he was If you later wish to surround my grave
shot and a single bullet struck his frail body, Rizal forced with a fence, you may do so.
himself, with his last remaining strength, to turn around to No anniversaries. I prefer Paang
face the East and thus he fell on his back with his face to the
sky and the rising sun. Then, the Spanish captain Bundok.
approached Rizal and finished him off with one pistol shot �
to his head.

Before his death, Rizal wrote a letter to his family. He asked � - Jose Rizal �
for a simple tomb, marked with a cross and a stone with
only his name and the date of his birth and death; no
anniversary celebrations; and interment at Paang Bundok
(now, the Manila North Cemetery). Rizal never wanted his The Case
grave to be a burden to future generations.
Before this Court is a Petition for Injunction, with
The letter never made it to his family and his wishes were
Applications for Temporary Restraining Order, Writ of
not carried out. The letter was discovered many years later,
Preliminary Injunction, and Others1 filed by the Knights
in 1953. By then, his remains had been entombed at the of Rizal (KOR) seeking, among others, for an order to
Rizal Monument, countless anniversaries had been stop the construction of respondent DMCI Homes, Inc.'s
celebrated, with memorials and monuments built throughout condominium development project known as the Torre
the world. de Manila. In its Resolution dated 25 November 2014,
the Court resolved to treat the petition as one for
Rizal’s wish was unmistakable: to be buried without pomp mandamus.2
or pageantry, to the point of reaching oblivion or obscurity
in the future.111 For Rizal’s life was never about fame or The Facts
vainglory, but for the country he loved dearly and for which
he gave up his life. On 1 September 2011, DMCI Project Developers, Inc.
(DMCI-PDI)3 acquired a 7,716.60-square meter lot in
The Rizal Monument is expressly against Rizal’s own the City of Manila, located near Taft Avenue, Ermita,
wishes. That Rizal’s statue now stands facing West towards beside the former Manila Jai-Alai Building and Adamson
Manila Bay, with Rizal’s back to the East, adds salt to the University.4 The lot was earmarked for the construction
wound. If we continue the present orientation of Rizal’s of DMCI-PDI's Torre de Manila condominium project.
statue, with Rizal facing West, we would be like the Spanish
captain who refused Rizal’s request to die facing the rising On 2 April 2012, DMCI-PDI secured its Barangay
sun in the East. On the other hand, if Rizal’s statue is made Clearance to start the construction of its project. It then
to face East, as Rizal had desired when he was about to be obtained a Zoning Permit from the City of Manila's City
shot, the background- the blue sky above Manila Bay- Planning and Development Office (CPDO) on 19 June
would forever be clear of obstruction, and we would be 2012.5
faithful to Rizal’s dying wish.
Then, on 5 July 2012, the City of Manila's Office of the
WHEREFORE, the petition for mandamus is DISMISSED Building Official granted DMCI-PDI a Building Permit,
for lack of merit. The Temporary Restraining Order issued allowing it to build a "Forty�-Nine (49) Storey w/
by the Court on 16 June 2015 is LIFTED effective Basement & 2 penthouse Level Res'l./Condominium" on
immediately. the property.6

On 24 July 2012, the City Council of Manila issued


SO ORDERED.
Resolution No. 121 enjoining the Office of the Building
Official to temporarily suspend the Building Permit of
G.R. No. 213948, April 25, 2017 DMCI-PDI, citing among others, that "the Torre de
Manila Condominium, based on their development
KNIGHTS OF RIZAL, Petitioner, v. DMCI HOMES, plans, upon completion, will rise up high above the back
INC., DMCI PROJECT DEVELOPERS, INC., CITY OF of the national monument, to clearly dwarf the statue of
our hero, and with such towering heights, would
certainly ruin the line of sight of the Rizal Shrine from On 16 January 2014, the City Council of Manila issued
the frontal Roxas Boulevard vantage point[.]"7 Resolution No. 5, Series of 2014,17 adopting Zoning
Board Resolution Nos. 06 and 06-A. The City Council
Building Official Melvin Q. Balagot then sought the resolution states that "the City Council of Manila find[s]
opinion of the City of Manila's City Legal Officer on no cogent reason to deny and/or reverse the aforesaid
whether he is bound to comply with Resolution No. recommendation of the [MZBAA] and hereby ratif1ies]
121.8 In his letter dated 12 September 2012, City Legal and confirm[s] all previously issued permits, licenses
Officer Renato G. Dela Cruz stated that there is "no and approvals issued by the City [Council] of Manila for
legal justification for the temporary suspension of the Torre de Manila[.]"
Building Permit issued in favor of [DMCI-PDI]" since the
construction "lies outside the Luneta Park" and is Arguments of the KOR
"simply too far to be a repulsive distraction or have an
objectionable effect on the artistic and historical On 12 September 2014, the KOR, a "civic, patriotic,
significance" of the Rizal Monument.9 He also pointed cultural, non�partisan, non-sectarian and non-profit
out that "there is no showing that the [area of] subject organization"18 created under Republic Act No.
property has been officially declared as an 646,19 filed a Petition for Injunction seeking a temporary
anthropological or archeological area. Neither has it restraining order, and later a permanent injunction,
been categorically designated by the National Historical against the construction of DMCI-PDI's Torre de Manila
Institute as a heritage zone, a cultural property, a condominium project. The KOR argues that the subject
historical landmark or even a national treasure." matter of the present suit is one of "transcendental
importance, paramount public interest, of overarching
Subsequently, both the City of Manila and DMCI-PDI significance to society, or with far-�reaching
sought the opinion of the National Historical Commission implication" involving the desecration of the Rizal
of the Philippines (NHCP) on the matter. In the Monument.
letter10 dated 6 November 2012 from NHCP Chairperson
Dr. Maria Serena I. Diokno addressed to DMCI-PDI and The KOR asserts that the completed Torre de Manila
the letter11 dated 7 November 2012 from NHCP structure will "[stick] out like a sore thumb, [dwarf] all
Executive Director III Ludovico D. Badoy addressed to surrounding buildings within a radius of two kilometer/s"
then Manila Mayor Alfredo S. Lim, the NHCP maintained and "forever ruin the sightline of the Rizal Monument in
that the Torre de Manila project site is outside the Luneta Park: Torre de Manila building would loom at the
boundaries of the Rizal Park and well to the rear of the back and overshadow the entire monument, whether up
Rizal Monument, and thus, cannot possibly obstruct the close or viewed from a distance."20
frontal view of the National Monument.
Further, the KOR argues that the Rizal Monument, as a
On 26 November 2013, following an online petition National Treasure, is entitled to "full protection of the
against the Torre de Manila project that garnered about law"21 and the national government must abate the act
7,800 signatures, the City Council of Manila issued or activity that endangers the nation's cultural heritage
Resolution No. 146, reiterating its directive in Resolution "even against the wishes of the local government
No. 121 enjoining the City of Manila's building officials hosting it."22
to temporarily suspend DMCI-PDI's Building Permit.12
Next, the KOR contends that the project is a
In a letter to Mayor Joseph Ejercito Estrada dated 18 nuisance per se23 because "[t]he despoliation of the
December 2013, DMCI-PDI President Alfredo R. Austria sight view of the Rizal Monument is a situation that
sought clarification on the controversy surrounding its 'annoys or offends the senses' of every Filipino who
Zoning Permit. He stated that since the CPDO granted honors the memory of the National Hero Jose Rizal. It is
its Zoning Permit, DMCI-PDI continued with the a present, continuing, worsening and aggravating status
application for the Building Permit, which was granted, or condition. Hence, the PROJECT is a nuisance per se.
and did not deem it necessary to go through the process It deserves to be abated summarily, even without need
of appealing to the local zoning board. He then of judicial proceeding."24
expressed DMCI-PDI's willingness to comply with the
process if the City of Manila deemed it necessary.13 The KOR also claims that the Torre de Manila project
violates the NHCP's Guidelines on Monuments Honoring
On 23 December 2013, the Manila Zoning Board of National Heroes, Illustrious Filipinos and Other
Adjustments and Appeals (MZBAA) issued Zoning Board Personages, which state that historic monuments should
Resolution No. 06, Series of 2013,14 recommending the assert a visual "dominance" over its surroundings,25 as
approval of DMCI-PDI's application for variance. The well as the country's commitment under
MZBAA noted that the Torre de Manila project "exceeds the International Charter for the Conservation and
the prescribed maximum Percentage of Land Occupancy Restoration of Monuments and Sites, otherwise known
(PLO) and exceeds the prescribed Floor Area Ratio (FAR) as the Venice Charter.26
as stipulated in Article V, Section 17 of City Ordinance
No. 8119[.]" However, the MZBAA still recommended Lastly, the KOR claims that the DMCI-PDI's construction
the approval of the variance subject to the five was commenced and continues in bad faith, and is in
conditions set under the same resolution. violation of the City of Manila's zoning ordinance.27

After some clarification sought by DMCI-PDI, the MZBAA Arguments of DMCI-PDI


issued Zoning Board Resolution No. 06-A, Series of
2013,15 on 8 January 2014, amending condition (c) in
the earlier resolution.16
Third, DMCI-PDI argues that the Torre de Manila is not a
In ts Comment, MCI-PDI argues that the KOR's petition nuisance per se. DMCI-PDI reiterates that it obtained all
should be dismissed, on the following grounds: chanRob lesvi rtual Lawli bra ry the necessary permits, licenses, clearances, and
certificates for its construction.37 It also refutes the
I. KOR's claim that the Torre de Manila would dwarf all
other structures around it, considering that there are
other tall buildings even closer to the Rizal Monument
THIS HONORABLE COURT HAS NO JURISDICTION OVER
itself, namely, the Eton Baypark Tower at the corner of
THIS ACTION.
Roxas Boulevard and T.M. Kalaw Street (29 storeys;
235 meters from the Rizal Monument) and Sunview
II.
Palace at the corner of M.H. Del Pilar and T.M. Kalaw
Streets (42 storeys; 250 meters from the Rizal
KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR
Monument).38
PROSECUTE THIS ACTION.
Fourth, DMCI-PDI next argues that it did not act in bad
III
faith when it started construction of its Torre de Manila
project. Bad faith cannot be attributed to it since it was
TORRE DE MANILA IS NOT A NUISANCE PER SE.
within the "lawful exercise of [its] rights."39 The KOR
failed to present any proof that DMCI-PDI did not follow
IV. the proper procedure and zoning restrictions of the City
of Manila. Aside from obtaining all the necessary permits
DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING from the appropriate government agencies,40 DMCI-PDI
TORRE DE MANILA; AND also sought clarification on its right to build on its site
from the Office of the City Legal Officer of Manila, the
V. Manila CPDO, and the NHCP.41 Moreover, even if the
KOR proffered such proof, the Court would be in no
KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING position to declare DMCI-PDI's acts as illegal since the
ORDER AND/OR A WRIT OF PRELIMINARY Court is not a trier of facts.42
INJUNCTION.28
Finally, DMCI-PDI opposes the KOR's application for a
First, DMCI-PDI asserts that the Court has no original
Temporary Restraining Order (TRO) and writ of
jurisdiction over actions for injunction.29 Even assuming
preliminary injunction. DMCI-PDI asserts that the KOR
that the Court has concurrent jurisdiction, DMCI-PDI
has failed to establish "a clear and unmistakable right to
maintains that the petition should still have been filed
enjoin the construction of Torre de Manila, much less
with the Regional Trial Court under the doctrine of
request its demolition."43 DMCI-PDI further argues that
hierarchy of courts and because the petition involves
it "has complied with all the legal requirements for the
questions of fact.30
construction of Torre de Manila x x x [and] has violated
no right of KOR that must be protected. Further, KOR
DMCI-PDI also contends that the KOR's petition is in
stands to suffer no damage because of its lack of direct
actuality an opposition or appeal from the exemption
pecuniary interest in this petition. To grant the KOR's
granted by the City of Manila's MZBAA, a matter which
application for injunctive relief would constitute an
is also not within the jurisdiction of the Court.31 DMCI-
unjust taking of property without due process of law."44
PDI claims that the proper forum should be the MZBAA,
and should the KOR fail there, it should appeal the same
to the Housing and Land Use Regulatory Board Arguments of the City of Manila
(HLURB).32
In its Comment, the City of Manila argues that the writ
DMCI-PDI further argues that since the Rizal Monument of mandamus cannot issue "considering that no property
or substantive rights whatsoever in favor of [the KOR] is
has been declared a National Treasure, the power to
being affected or x x x entitled to judicial
issue a cease and desist order is lodged with the
protection[.]"45
"appropriate cultural agency" under Section 25 of
Republic Act No. 10066 or the National Cultural Heritage
The City of Manila also asserts that the "issuance and
Act of 2009.33 Moreover, DMCI-PDI asserts that the KOR
availed of the wrong remedy since an action for revocation of a Building Permit undoubtedly fall under
injunction is not the proper remedy for abatement of a the category of a discretionary act or duty performed by
nuisance.34 the proper officer in light of his meticulous appraisal and
evaluation of the pertinent supporting documents of the
Second, DMCI-PDI maintains that the KOR has no application in accordance with the rules laid out under
the National Building Code [and] Presidential Decree No.
standing to institute this proceeding because it is not a
1096,"46 while the remedy of mandamus is available
real party in interest in this case. The purposes of the
only to compel the performance of a ministerial duty.47
KOR as a public corporation do not include the
preservation of the Rizal Monument as a cultural or
Further, the City of Manila maintains that the
historical heritage site.35 The KOR has also not shown
that it suffered an actual or threatened injury as a result construction of the Torre de Manila did not violate any
of the alleged illegal conduct of the City of Manila. If existing law, since the "edifice [is] well behind (some
there is any injury to the KOR at all, the same was 789 meters away) the line of sight of the Rizal
caused by the private conduct of a private entity and Monument."48 It adds that the City of Manila's
not the City of Manila.36 "prevailing Land Use and Zoning Ordinance [Ordinance
No. 8119] x x x allows an adjustment in Floor Area
Ratios thru the [MZBAA] subject to further final
approval of the City Council."49 The City Council adopted
the MZBAA's favorable recommendation in its Resolution There is one fact that is crystal clear in this case. There
No. 5, ratifying all the licenses and permits issued to is no law prohibiting the construction of the Torre de
DMCI-PDI for its Torre de Manila project. Manila due to its effect on the background "view, vista,
sightline, or setting" of the Rizal Monument.
In its Position Paper dated 15 July 2015, the City of
Manila admitted that the Zoning Permit issued to DMCI- Zoning, as well as land use, in the City of Manila is
PDI was "in breach of certain provisions of City governed by Ordinance No. 8119. The ordinance
Ordinance No. 8119."50 It maintained, however, that the provides for standards and guidelines to regulate
deficiency is "procedural in nature and pertains mostly development projects of historic sites and facilities
to the failure of [DMCI-PDI] to comply with the within the City of Manila.
stipulations that allow an excess in the [FAR]
provisions."51 Further, the City of Manila argued that the Specifically, Section 47 reads: chanRoble svirtual Lawlib ra ry

MZBAA, when it recommended the allowance of the


project's variance, imposed certain conditions upon the SEC. 47. Historical Preservation and Conservation
Torre de Manila project in order to mitigate the possible Standards. - Historic sites and facilities shall be
adverse effects of an excess FAR.52 conserved and preserved. These shall, to the extent
possible, be made accessible for the educational and
The Issue cultural enrichment of the general public.

The issues raised by the parties can be summed up into The following shall guide the development of historic
one main point: Can the Court issue a writ of sites and facilities:
mandamus against the officials of the City of Manila to
stop the construction of DMCI-PDI's Torre de Manila 1. Sites with historic buildings or places shall be
project? developed to conserve and enhance their heritage
values.
The Court's Ruling
2. Historic sites and facilities shall be adaptively re-
used.
The petition for mandamus lacks merit and must be
dismissed.
3. Any person who proposes to add, to alter, or partially
demolish a designated heritage property will require the
There is no law prohibiting the construction of the
approval of the City Planning and Development Office
Torre de Manila.
(CPDO) and shall be required to prepare a heritage
impact statement that will demonstrate to the
In Manila Electric Company v. Public Service
satisfaction of CPDO that the proposal will not adversely
Commission,53 the Court held that "what is not
impact the heritage significance of the property and
expressly or impliedly prohibited by law may be
shall submit plans for review by the CPDO in
done, except when the act is contrary to morals,
coordination with the National Historical Institute (NHI).
customs and public order." This principle is
fundamental in a democratic society, to protect the
4. Any proposed alteration and/or re-use of designated
weak against the strong, the minority against the
heritage properties shall be evaluated based on criteria
majority, and the individual citizen against the
established by the heritage significance of the particular
government. In essence, this principle, which is the
property or site.
foundation of a civilized society under the rule of law,
prescribes that the freedom to act can be curtailed only
5. Where an owner of a heritage property applies for
through law. Without this principle, the rights,
approval to demolish a designated heritage property or
freedoms, and civil liberties of citizens can be arbitrarily
properties, the owner shall be required to provide
and whimsically trampled upon by the shifting passions
evidence to satisfaction that demonstrates that
of those who can shout the loudest, or those who can
rehabilitation and re-use of the property is not viable.
gather the biggest crowd or the most number of
Internet trolls. In other instances,54 the Court has
6. Any designated heritage property which is to be
allowed or upheld actions that were not expressly
demolished or significantly altered shall be thoroughly
prohibited by statutes when it determined that these
documented for archival purposes with a history,
acts were not contrary to morals, customs, and public
photographic records, and measured drawings, in
order, or that upholding the same would lead to a more
accordance with accepted heritage recording guidelines,
equitable solution to the controversy. However, it is the
prior to demolition or alteration.
law itself - Articles 130655 and 1409(1)56 of the Civil
Code - which prescribes that acts not contrary to
7. Residential and commercial infill in heritage areas will
morals, good customs, public order, or public policy are
be sensitive to the existing scale and pattern of those
allowed if also not contrary to law.
areas, which maintains the existing landscape and
streetscape qualities of those areas, and which does not
In this case, there is no allegation or proof that the
result in the loss of any heritage resources.
Torre de Manila project is "contrary to morals, customs,
and public order" or that it brings harm, danger, or
8. Development plans shall ensure that parking facilities
hazard to the community. On the contrary, the City of
(surface lots, residential garages, stand-alone parking
Manila has determined that DMCI-PDI complied with the
garages and parking components as parts of larger
standards set under the pertinent laws and local
developments) are compatibly integrated into heritage
ordinances to construct its Torre de Manila project.
areas, and/or are compatible with adjacent heritage
resources. minimum requirements of the National Building Code.
These shall be located, developed and landscaped in
9. Local utility companies (hydro, gas, telephone, cable) order to enhance the aesthetic quality of the facility. In
shall be required to place metering equipment, no case, shall parking areas/lots encroach into street
transformer boxes, power lines, conduit, equipment rights-of�-way and shall follow the Traffic Code as set
boxes, piping, wireless telecommunication towers and by the City.
other utility equipment and devices in locations which
do not detract from the visual character of heritage 5. Developments that attract a significant volume of
resources, and which do not have a negative impact on public modes of transportation, such as tricycles,
its architectural integrity. jeepneys, buses, etc., shall provide on-site parking for
the same. These shall also provide vehicular loading and
10. Design review approval shall be secured from the unloading bays so as street traffic flow will not be
CPDO for any alteration of the heritage property to impeded.
ensure that design guidelines and standards are met
and shall promote preservation and conservation of the 6. Buffers, silencers, mufflers, enclosures and other
heritage property. (Emphasis supplied) noise-absorbing materials shall be provided to all noise
and vibration-producing machinery. Noise levels shall be
It is clear that the standards laid down in Section 47 of maintained according to levels specified in DENR DAO
Ordinance No. 8119 only serve as guides, as it expressly No. 30 - Abatement of Noise and Other Forms of
states that "the following shall guide the development Nuisance as Defined by Law.
of historic sites and facilities." A guide simply sets a
direction or gives an instruction to be followed by 7. Glare and heat from any operation or activity shall
property owners and developers in order to conserve not be radiated, seen or felt from any point beyond the
and enhance a property's heritage values. limits of the property.

On the other hand, Section 48 states: chanRoblesvi rtua lLawl ibra ry

8. No large commercial signage and/or pylon,


which will be detrimental to the skyline, shall be
SEC. 48. Site Performance Standards. - The City
allowed.
considers it in the public interest that all projects are
designed and developed in a safe, efficient and
9. Design guidelines, deeds of restriction, property
aesthetically pleasing manner. Site development shall
management plans and other regulatory tools that will
consider the environmental character and limitations of
ensure high quality developments shall be required from
the site and its adjacent properties. All project elements
developers of commercial subdivisions and
shall be in complete harmony according to good design
condominiums. These shall be submitted to the City
principles and the subsequent development must be
Planning and Development Office (CPDO) for review and
visually pleasing as well as efficiently functioning
approval. (Emphasis supplied)
especially in relation to the adjacent properties and
bordering streets. Section 47 of Ordinance No. 8119 specifically regulates
the "development of historic sites and facilities."
1 The design, construction, operation and maintenance Section 48 regulates "large commercial signage
of every facility shall be in harmony with the existing and/or pylon." There is nothing in Sections 47 and 48
and intended character of its neighborhood. It shall not of Ordinance No. 8119 that disallows the construction of
change the essential character of the said area but will a building outside the boundaries of a historic site
be a substantial improvement to the value of the or facility, where such building may affect the
properties in the neighborhood in particular and the background of a historic site. In this case, the Torre de
community in general. Manila stands 870 meters outside and to the rear of the
Rizal Monument and "cannot possibly obstruct the front
Furthermore, designs should consider the following: view of the [Rizal] Monument."57 Likewise, the Torre de
Manila is not in an area that has been declared as an
1. Sites, buildings and facilities shall be designed and "anthropological or archeological area" or in an area
developed with regard to safety, efficiency and high designated as a heritage zone, cultural property,
standards of design. The natural environmental historical landmark, or a national treasure by the
character of the site and its adjacent properties shall be NHCP.58
considered in the site development of each building and
facility. Section 15, Article XIV of the Constitution, which deals
with the subject of arts and culture, provides that "[t]he
2. The height and bulk of buildings and structures shall State shall conserve, promote and popularize the
be so designed that it does not impair the entry of light nation's historical and cultural heritage and resources x
and ventilation, cause the loss of privacy and/or create x x." Since this provision is not self-executory, Congress
nuisances, hazards or inconveniences to adjacent passed laws dealing with the preservation and
developments. conservation of our cultural heritage.

3. Abutments to adjacent properties shall not be allowed One such law is Republic Act No. 10066,59 or
without the neighbor's prior written consent which shall the National Cultural Heritage Act of 2009, which
be required by the City Planning and Development empowers the National Commission for Culture and the
Office (CPDO) prior to the granting of a Zoning Permit Arts and other cultural agencies to issue a cease and
(Locational Clearance). desist order "when the physical integrity of the
national cultural treasures or important cultural
4. The capacity of parking areas/lots shall be per the properties [is] found to be in danger of destruction
or significant alteration from its original support thereof and to have such evidence presented
state."60 This law declares that the State should protect considered by the proper court or tribunal.
the "physical integrity" of the heritage property or
building if there is "danger of destruction or significant To compel the City of Manila to consider the standards
alteration from its original state." Physical integrity under Ordinance No. 8119 to the Torre de Manila
refers to the structure itself - how strong and project will be an empty exercise since these standards
sound the structure is. The same law does not cannot apply outside of the Rizal Park - and the Torre de
mention that another project, building, or property, not Manila is outside the Rizal Park. Mandamus will lie only
itself a heritage property or building, may be the subject if the officials of the City of Manila have a ministerial
of a cease and desist order when it adversely affects the duty to consider these standards to buildings outside of
background view, vista, or sightline of a heritage the Rizal Park. There can be no such ministerial duty
property or building. Thus, Republic Act No. 10066 because these standards are not applicable to buildings
cannot apply to the Torre de Manila condominium outside of the Rizal Park.
project.
The KOR also invokes this Court's exercise of its
Mandamus does not lie against the City of Manila. extraordinary certiorari power of review under Section
1, Article VIII65 of the Constitution. However, this Court
The Constitution states that "[n]o person shall be can only exercise its extraordinary certiorari power if the
deprived of life, liberty or property without due process City of Manila, in issuing the required permits and
of law x x x."61 It is a fundamental principle that no licenses, gravely abused its discretion amounting
property shall be taken away from an individual without to lack or excess of jurisdiction. Tellingly, neither
due process, whether substantive or procedural. The the majority nor minority opinion in this case has found
dispossession of property, or in this case the stoppage that the City of Manila committed grave abuse of
of the construction of a building in one's own property, discretion in issuing the permits and licenses to DMCI-
would violate substantive due process. PDI. Thus, there is no justification at all for this Court to
exercise its extraordinary certiorari power.
The Rules on Civil Procedure are clear that mandamus
only issues when there is a clear legal duty imposed Moteover, the exercise of this Court's
upon the office or the officer sought to be compelled to extraordinary certiorari power is limited to actual cases
perform an act, and when the party seeking mandamus and controversies that necessarily involve a violation of
has a clear legal right to the performance of such act. the Constitution or the determination of the
constitutionality or validity of a governmental act or
In the present case, nowhere is it found in Ordinance issuance. Specific violation of a statute that does inot
No. 8119 or in any law, ordinance, or rule for that raise the issue of constitutionality or validity of the
matter, that the construction of a building outside the statute cannot, as a rule, be the subject of the Court's
Rizal Park is prohibited if the building is within the direct exercise of its expanded certiorari power. Thus,
background sightline or view of the Rizal Monument. the KOR's recourse lies with other judicial remedies or
Thus, there is no legal duty on the part of the City of proceedings allowed under the Rules of Court.
Manila "to consider," in the words of the Dissenting
Opinion, "the standards set under Ordinance No. In Association of Medical Clinics for Overseas Workers,
8119" in relation to the applications of DMCI-PDI for Inc. v. GCC Approved Medical Centers Association,
the Torre de Manila since under the ordinance these Inc.,66 we held that in cases where the question of
standards can never be applied outside the constitutionality of a governmental action is raised, the
boundaries of Rizal Park. While the Rizal Park has judicial power that the courts exercise is likewise
been declared a National Historical Site, the area where identified as the power of judicial review - the power to
Torre de Manila is being built is a privately-owned review the constitutionality of the actions of other
property that is "not part of the Rizal Park that has been branches of government. As a rule, as required by
declared as a National Heritage Site in 1995," and the the hierarchy of courts principle, these cases are filed
Torre de Manila area is in fact "well-beyond" the Rizal with the lowest court with jurisdiction over the subject
Park, according to NHCP Chairperson Dr. Maria Serena matter. The judicial review that the courts undertake
I. Diokno.62 Neither has the area of the Torre de Manila requires:chanRob lesvi rtual Lawl ibra ry

been designated as a "heritage zone, a cultural


property, a historical landmark or even a national
treasure."63
1) there be an actual case or
controversy calling for the exercise
Also, to declare that the City of Manila failed to consider of judicial power;
the standards under Ordinance No. 8119 would involve
making a finding of fact. A finding of fact requires
notice, hearing, and the submission of evidence to 2) the person challenging the act must
ascertain compliance with the law or regulation. In such
have "standing" to challenge; he
a case, it is the Regional Trial Court which has the
jurisdiction to hear the case, receive evidence, make a must have a personal and
proper finding of fact, and determine whether the Torre substantial interest in the case such
de Manila project properly complied with the standards that he has sustained, or will
set by the ordinance. In Meralco Public Service
Commission,64 we held that it is the cardinal right of a
sustain, direct injury as a result of
party in trials and administrative proceedings to be its enforcement;
heard, which includes the right of the party interested or
affected to present his own case and submit evidence in
vested in them by law."68 Since the Court has "no
3) the question of constitutionality supervisory power over the proceedings and actions of
must be raised at the earliest the administrative departments of the government," it
possible opportunity; and "should not generally interfere with purely
administrative and discretionary functions."69 The power
of the Court in mandamus petitions does not extend "to
4) the issue of constitutionality must be direct the exercise of judgment or discretion in a
particular way or the retraction or reversal of an
the very lis mota of the case. action already taken in the exercise of either."70

The lower court's decision under the constitutional Still, the Dissenting Opinion insists on directing the re-
scheme reaches the Supreme Court through the appeal evaluation by the City of Manila, through the CPDO, of
process, through a petition for review the permits previously issued in favor of the Torre de
on certiorari under Rule 45 of the Rules of Court. Manila project to determine compliance with the
standards under Ordinance No. 8119. It also declares
In the present case, the KOR elevated this case that the circumstances in this case warrant the pro hac
immediately to this Court in an original petition for vice conversion of the proceedings in the issuance of the
injunction which we later on treated as one for permits into a "contested case" necessitating notice and
mandamus under Rule 65. There is, however, no clear hearing with all the parties involved.
legal duty on the City of Manila to consider the
provisions of Ordinance No. 8119 for applications for Pro hac vice means a specific decision does not
permits to build outside the protected areas of the Rizal constitute a precedent because the decision is for the
Park. Even if there were such legal duty, the specific case only, not to be followed in other cases.
determination of whether the City of Manila failed to A pro hac vice decision violates statutory law - Article 8
abide by this legal duty would involve factual matters of the Civil Code - which states that "judicial decisions
which have not been admitted or established in this applying or interpreting the laws or the Constitution
case. Establishing factual matters is not within the realm shall form part of the legal system of the Philippines."
of this Court. Findings of fact are the province of the The decision of the Court in this case cannot be pro hac
trial courts. vice because by mandate of the law every decision of
the Court forms part of the legal system of the
There is no standard in Ordinance No. 8119 for defining Philippines. If another case comes up with the same
or determining the background sightline that is facts as the present case, that case must be decided in
supposed to be protected or that is part of the "physical the same way as this case to comply with the
integrity" of the Rizal Monument. How far should a constitutional mandate of equal protection of the law.
building like the Torre de Manila be from the Rizal Thus, a pro hac vice decision also violates the equal
Monument - one, two, three, four, or five kilometers? protection clause of the Constitution.
Even the Solicitor General, during the Oral Arguments,
conceded that the ordinance does not prescribe how It is the policy of the courts not to interfere with the
sightline is determined, neither is there any way to discretionary executive acts of the executive branch
measure by metes and bounds whether construction unless there is a clear showing of grave abuse of
that is not part of the historic monument itself or is discretion amounting to lack or excess of jurisdiction.
outside the protected area can be said to violate the Mandamus does not lie against the legislative and
Rizal Monument's physical integrity, except only to executive branches or their members acting in the
say "when you stand in front of the Rizal Monument, exercise of their official discretionary functions. This
there can be no doubt that your view is marred and emanates from the respect accorded by the judiciary to
impaired." This kind of a standard has no parameters said branches as co-equal entities under the principle of
and can include a sightline or a construction as far as separation of powers.
the human eyes can see when standing in front of the
Rizal Monument. Obviously, this Court cannot apply In De Castro v. Salas,71 we held that no rule of law is
such a subjective and non-uniform standard that better established than the one that provides that
adversely affects property rights several kilometers mandamus will not issue to control the discretion of an
away from a historical sight or facility. officer or a court when honestly exercised and when
such power and authority is not abused.
The Dissenting Opinion claims that "the City, by reason
of a mistaken or erroneous construction of its own In exceptional cases, the Court has granted a prayer for
Ordinance, had failed to consider its duties under mandamus to compel action in matters involving
[Ordinance No. 8119] when it issued permits in DMCI- judgment and discretion, only "to act, but not to act one
PDI's favor." However, MZBAA Zoning Board Resolution way or the other,"72 and only in cases where there
Nos. 06 and 06-A67 easily dispel this claim. According to has been a clear showing of grave abuse of
the resolutions, the City of Manila, through the MZBAA, discretion, manifest injustice, or palpable excess
acted on DMCI-PDI's application for variance under the of authority.73
powers and standards set forth in Ordinance No. 8119.
In this case, there can be no determination by this
Without further proof that the MZBAA acted whimsically, Court that the City of Manila had been negligent or
capriciously, or arbitrarily in issuing said resolution, the remiss in its duty under Ordinance No. 8119 considering
Court should respect MZBAA's exercise of discretion. that this determination will involve questions of fact.
The Court cannot "substitute its judgment for that of DMCI-PDI had been issued the proper permits and had
said officials who are in a better position to consider and secured all approvals and licenses months before the
weigh the same in the light of the authority specifically actual construction began. Even the KOR could not point
to any law that respondent City of Manila had violated areas outside the boundaries of the Rizal Park. In the
and could only point to declarations of policies by the first place, this Court has no jurisdiction to make
NHCP and the Venice Charter which do not constitute findings of fact in an original action like this before this
clear legal bases for the issuance of a writ of Court. Moreover, the City of Manila could not legally
mandamus. apply standards to sites outside the area covered by the
ordinance that prescribed the standards. With this,
The Venice Charter is merely a codification of guiding taken in light of the lack of finding that there was grave
principles for the preservation and restoration of ancient abuse of discretion on the part of the City of Manila,
monuments, sites, and buildings. It brings together there is no basis to issue the writ of mandamus against
principles in the field of historical conservation and the City of Manila.
restoration that have been developed, agreed upon, and
and laid down by experts over the years. Each country, During the Oral Arguments, it was established that the
however, remains "responsible for applying the plan granting of a variance s neither uncommon nor
within the framework of its own culture and irregular. On the contrary, current practice has made
traditions."74 granting of a variance the rule rather than the
exception: cha nRoblesvi rt ual Lawlib rary

The Venice Charter is not a treaty and therefore does


not become enforceable as law. The Philippines is not JUSTICE CARPIO: Let's go to Ordinance 8119. For
legally bound to follow its directive, as in fact, these are residential condominium that stand alone, in other
not directives but mere guidelines a set of the best words not part of a commercial complex or an industrial
practices and techniques that have been proven over complex...
the years to be the most effective in preserving and ATTY. FLAMINIANO: Yes, Your Honor.
restoring historical monuments, sites and buildings.
JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is
The City of Manila concedes that DMCI-PDI's Zoning uniform for the entire City of Manila, the FAR 4, correct?
Permit was granted without going through the process ATTY. FLAMINIANO: I believe so, Your Honor, it's FAR 4.
under Ordinance No. 8119. However,the same was
properly rectified when, faced with mounting opposition, JUSTICE CARPIO: So it's FAR 4 for all residential
DMCI-PDI itself sought clarification from the City of condominium complex or industrial projects.
Manila and immediately began complying with the ATTY. FLAMINIANO: There might be, the FAR might be
procedure for applying for a variance. The MZBAA did different when it comes to condominiums in commercial
subsequently recommend the approval of the variance areas, Your Honor.
and the City Council of Manila approved the same,
ratifying the licenses and permits already given to JUSTICE CARPIO: Yes, I'm talking of stand-alone...
DMCI-PDI. Such ratification was well within the right of ATTY. FLAMINIANO: Yes, Your Honor.
the City Council of Manila. The City Council of Manila
could have denied the application had it seen any JUSTICE CARPIO: ...residential condominiums...
reason to do so. Again, the ratification is a function of ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.
the City Council of Manila, an exercise of its discretion
and well within the authority granted it by law and the JUSTICE CARPIO: And the percentage of land occupancy
City's own Ordinance No. 8119. is always 60 percent.
ATTY. FLAMINIANO: 60 percent, correct, Your Honor.
The main purpose of zoning is the protection of public
safety, health, convenience, and welfare. There is no JUSTICE CARPIO: Okay...how many square meters is
indication that the Torre de Manila project brings any this Torre de Manila?
harm, danger, or hazard to the people in the xxxx
surrounding areas except that the building allegedly ATTY. FLAMINIANO: The land area, Your Honor, it's
poses an unsightly view on the taking of photos or the almost 5,000...5,556.
visual appreciation of the Rizal Monument by locals and
tourists. In fact, the Court must take the approval of the JUSTICE CARPIO: So, it's almost half a hectare.
MZBAA, and its subsequent ratification by the City ATTY. FLAMINIANO: Yes, Your Honor.
Council of Manila, as the duly authorized exercise of
discretion by the city officials. Great care must be taken JUSTICE CARPIO: And at FAR 4, it can only build up to
that the Court does not unduly tread upon the local 18 storeys, I mean at FAR 4, is that correct?
government's performance of its duties. It is not for this ATTY. FLAMINIANO: If the 60 percent of the lot...
Court to dictate upon the other branches of the
government how their discretion must be exercised so JUSTICE CARPIO: Yes, but that is a rule.
long as these branches do not commit grave abuse of ATTY. FLAMINIANO: That is a rule, that's the rule, Your
discretion amounting to lack or excess of jurisdiction. Honor.

Likewise, any violation of Ordinance No. 8119 must be JUSTICE CARPIO: 60 percent of...
determined in the propel case and before the proper ATTY. FLAMINIANO: Of the land area.
forum. It is not within the power of this Court in this
case to make such determination. Without such JUSTICE CARPIO: ...buildable, the rest not buildable.
determination, this Court cannot simply declare that the ATTY. FLAMINIANO: Yes, Your Honor.
City of Manila had failed to consider its duties under
Ordinance No. 8119 when it issued the permits in DMCI- JUSTICE CARPIO: Okay, so if you look around here in
PDI's favor without making a finding of fact how the City the City of Manila anywhere you go, you look at stand
of Manila failed "to consider" its duties with respect to alone residential condominium buildings...
ATTY. FLAMINIANO: There's a lot of them, Your Honor. its back along P. Burgos Street.78

JUSTICE CARPIO: It's always not FAR 4, it's more than However, several sectors voiced their objections to the
FAR 4. construction for various reasons. Among them, the need
ATTY. FLAMINIANO: Yes, Your Honor. to preserve the open space of the park, the high cost of
construction, the desecration of the park's hallowed
JUSTICE CARPIO: And the buildable area is to the edge grounds, and the fact that the proposed cultural
of the property...it's not 60 percent, correct? center including the 29.25 meter high national
ATTY. FLAMINIANO: Yes, Your Honor. theater proposed by the KOR would dwarf the
12.7 meter high Rizal Monument.79 The JRNCC
JUSTICE CARPIO: So, if you look at all revised the plan and only the National Library - which
the...residential buildings in the last ten years, still stands today - was built.80
they [have] all variances. They did not follow the
original FAR 4 or the 60 percent (of land According to the NHCP, the KOR even proposed to build
occupancy). Every residential building that stand a Rizal Center on the park as recently as 2013.81The
alone was a variance. proposal was disapproved by the NHCP and the
ATTY. FLAMINIANO: That's correct, Your Honor. Department of Tourism.

JUSTICE CARPIO: So the rule really in the City of Surely, as noble as the KOR's intentions were, its
Manila is variance, and the exception which is proposed center would have dwarfed the Rizal
never followed is FAR 4. Monument with its size and proximity.
ATTY. FLAMINIANO: FAR 4, it appears to be that
way, Your Honor. In contrast, the Torre de Manila is located well outside
the Rizal Park, and to the rear of the Rizal Monument -
xxxx approximately 870 meters from the Rizal Monument and
30 meters from the edge of Rizal Park.82
JUSTICE CARPIO: Every developer will have to get
a variance because it doesn't make sense to follow It is a basic principle that "one who seeks equity and
FAR 4 because the land is so expensive and if you justice must come to court with clean
can build only two storeys on a 1,000-square hands."83 In Jenosa v. Delariarte,84 the Court reiterated
meter lot, you will surely lose money, correct? that he who seeks equity must do equity, and he who
ATTY. FLAMINIANO: Exactly, Your comes into equity must come with clean hands. This
Honor.75 (Emphasis supplied) "signifies that a litigant may be denied relief by a court
of equity on the ground that his conduct has been
Thus, the MZBAA's grant of the variance cannot be inequitable, unfair and dishonest, or fraudulent, or
used as a basis to grant the mandamus petition deceitful as to the controversy in issue."85 Thus, the
absent any clear finding that said act amounted to KOR, having earlier proposed a national theater a mere
"grave abuse of discretion, manifest injustice, or 286 meters in distance from the back of the Rizal
palpable excess of authority." Monument that would have dwarfed the Rizal
Monument, comes to this Court with unclean hands. It is
The KOR is Estopped from Questioning the Torre now precluded from "seeking any equitable
de Manila Construction. refuge"86 from the Court. The KOR's petition should be
dismissed on this ground alone.
The KOR is now estopped from questioning the
construction of the Torre de Manila project. The KOR Torre de Manila is Not a Nuisance Per Se.
itself came up with the idea to build a structure right
behind the Rizal Monument that would dwarf the Rizal In its petition, the KOR claims that the Torre de Manila
Monument. is a nuisance per se that deserves to be summarily
abated even without judicial proceedings.87 However,
In the mid-1950s, the Jose Rizal National Centennial during the Oral Arguments, counsel for the KOR argued
Commission (JRNCC) formulated a plan to build an that the KOR now believes that the Torre de Manila is a
Educational Center within the Rizal Park. In July 1955, nuisance per accidens and not a nuisance per se.88
the KOR proposed the inclusion of a national theater on
the site of the Educational Center. The JRNCC adopted Article 694 of the Civil Code defines a nuisance as any
the proposal. The following year, a law - Republic Act act, omission, establishment, business, condition of
No. 142776 - authorized the establishment of the Jose property, or anything else which: (1) injures or
Rizal National Cultural Shrine consisting of a national endangers the health or safety of others; (2) annoys or
theater, a national museum, and a national library on a offends the senses; (3) shocks, defies or disregards
single site.77 decency or morality; (4) obstructs or interferes with the
free passage of any public highway or street, or any
To be built on the open space right behind the 12.7 body of water; or (5) hinders or impairs the use of
meter high Rizal Monument were: the KOR's property.
proposed national theater, standing 29.25 meters high
and 286 meters in distance from the Rizal Monument; The Court recognizes two kinds of nuisances. The first,
the national library, standing 25.6 meters high and 180 nuisance per se, is one "recognized as a nuisance under
meters in distance from the Rizal Monument, with its any and all circumstances, because it constitutes a
rear along San Luis Street (now T.M. Kalaw Street); and direct menace to public health or safety, and, for that
facing it, the national museum, at 19.5 meters high and reason, may be abated summarily under the undefined
190 meters in distance from the Rizal Monument, with law of necessity."89 The second, nuisance per accidens,
is that which "depends upon certain conditions and findings of administrative agencies when they are
circumstances, and its existence being a question of supported by substantial evidence. In this case, DMCI-
fact, it cannot be abated without due hearing thereon in PDI already acquired vested rights in the various
a tribunal authorized to decide whether such a thing in permits, licenses, or even variances it had applied for in
law constitutes a nuisance."90 order to build a 49-storey building which is, and had
been, allowed by the City of Manila's zoning ordinance.
It can easily be gleaned that the Torre de Manila is not a
nuisance per se. The Torre de Manila project cannot be As we have time and again held, courts generally
considered as a "direct menace to public health or hesitate to review discretionary decisions or actions of
safety." Not only is a condominium project administrative agencies in the absence of proof that
commonplace in the City of Manila, DMCI-PDI has, such decisions or actions were arrived at with grave
according to the proper government agencies, complied abuse of discretion amounting to lack or excess of
with health and safety standards set by law. DMCI-PDI jurisdiction.
has been granted the following permits and clearances
prior to starting the project: (1) Height Clearance Permit In JRS Business Corp. v. Montesa,103 we held that
from the Civil Aviation Authority of the Philippines;91 (2) mandamus is the proper remedy if it could be shown
Development Permit from the HLURB;92 (3) Zoning that there was neglect on the part of a tribunal in the
Certification from the HLURB;93 (4) Certificate of performance of an act which the law specifically enjoins
Environmental Compliance Commitment from the as a duty, or there was an unlawful exclusion of a party
Environment Management Bureau of the Department of from the use and enjoyment of a right to which he is
Environment and Natural Resources;94 (5) Barangay clearly entitled. Only specific legal rights may be
Clearance;95 (6) Zoning Permit;96 (7) Building enforced by mandamus if they are clear and certain. If
Permit;97 (8) and Electrical and Mechanical Permit.98 the legal rights of the petitioner are not well-defined,
definite, clear, and certain,104 the petition must be
Later, DMCI-PDI also obtained the right to build under a dismissed. Stated otherwise, the writ never issues in
variance recommended by the MZBAA and granted by doubtful cases. It neither confers powers nor imposes
the City Council of Manila. Thus, there can be no doubt duties. It is simply a command to exercise a power
that the Torre de Manila project is not a nuisance per already possessed and to perform a duty already
se. imposed.105

On the other hand, the KOR now claims that the Torre In sum, bearing in mind the Court does not intervene in
de Manila is a nuisance per accidens. discretionary acts of the executive department in the
absence of grave abuse of discretion,106 and considering
By definition, a nuisance per accidens is determined that mandamus may only be issued to enforce a clear
based on its surrounding conditions and circumstances. ahd certain legal right,107 the present special civil action
These conditions and circumstances must be well for mandamus must be dismissed and the TRO issued
established, not merely alleged. The Court cannot earlier must be lifted.
sinlply accept these conditions and circumstances as
established facts as the KOR would have us do in this A FINAL WORD
case.99 The KOR itself concedes that the question of
whether the Torre de Manila is a nuisance per It had been Rizal's wish to die facing the rising sun. In
accidens is a question of fact.100 his Mi Ultimo Adios, the poem he left for his family the
night before he was executed, Rizal wrote: c hanRoble svirtual Lawlib ra ry

The authority to decide when a nuisance exists is an


authority to find facts, to estimate their force, and to Yo muero cuando veo que el cielo se colora Y al fin
apply rules of law to the case thus made.101 This Court anuncia el dia tras lobrego capuz108
is no such authority. It is not a trier of facts. It cannot
simply take the allegations in the petition and accept [Ako'y mamamatay, ngayong namamalas na sa
these as facts, more so in this case where these Silanganan ay namamanaag yaong maligayang araw na
allegations are contested by the respondents. sisikat sa likod ng luksang nagtabing na ulap.]109

The task to receive and evaluate evidence is lodged with [I die just when I see the dawn break, Through the
the trial courts. The question, then, of whether the gloom of night, to herald the day]110
Torre de Manila project is a nuisance per accidens must
Yet at the point of his execution, he was made to stand
be settled after due proceedings brought before the
facing West towards Manila Bay, with his back to the
proper Regional Trial Court. The KOR cannot circumvent
firing squad, like the traitor the colonial government
the process in the guise of protecting national culture
wished to portray him. He asked to face his
and heritage.
executioners, facing the East where the sun would be
rising since it was early morning, but the Spanish
The TRO must be lifted. captain did not allow it. As he was shot and a single
bullet struck his frail body, Rizal forced himself, with his
Injunctive reliefs are meant to preserve substantive last remaining strength, to turn around to face the East
rights and prevent further injury102 until final and thus he fell on his back with his face to the sky and
adjudication on the merits of the case. In the present the rising sun. Then, the Spanish captain approached
case, since the legal rights of the KOR are not well- Rizal and finished him off with one pistol shot to his
defined, clear, and certain, the petition for mandamus head.
must be dismissed and the TRO lifted.
Before his death, Rizal wrote a letter to his family. He
The general rule is that courts will not disturb the
asked for a simple tomb, marked with a cross and a Subsequently, however, we issued a resolution:3 (a)
stone with only his name and the date of his birth and treating the instant case as a mandamus petition and
death; no anniversary celebrations; and interment (b) impleading-as public respondents herein-the City of
at Paang Bundok (now, the Manila North Cemetery). Manila, the National Commission for Culture and the
Rizal never wanted his grave to be a burden to future Arts (NCCA), the National Museum (NM) and the
generations. National Historical Commission of the Philippines
(NHCP).
The letter never made it to his family and his wishes
were not carried out. The etter was discovered many The conversion of the instant case to
years later, in 1953. By then, his remains had been a mandamus petition and the addition of public
entombed at the Rizal Monument, countless respondents, to my mind, made clear what ought to be
anniversaries had been celebrated, with memorials and the central issue of the case, whether any or all of
monuments built throughout the world. the respondents may be compelled to perform one
or both acts sought to be enjoined in the original
Rizal's wish was unmistakable: to be buried without petition for injunction. The main iuquiry, in other
pomp or pageantry, to the point of reaching oblivion or words. is whether any or all of the respondents may be
obscurity in the future.111 For Rizal's life was never compelled (1) to stop or prohibit the continued
about fame or vainglory, but for the country he loved construction of the Torre de Manilabuilding and/or (2) to
dearly and for which he gave up his life. demolish so much of the said building that already
stands.
The Rizal Monument is expressly against Rizal's own
wishes. That Rizal's statue now stands facing West In order to answer the foregoing query, it is necessary
towards Manila Bay, with Rizal's back to the East, adds to make a parallel determination on whether any of the
salt to the wound. If we continue the present orientation respondents has the legal duty to perform one or both
of Rizal's statue, with Rizal facing West, we would be of the mentioned acts. It is rudimentary, after all, that a
like the Spanish captain who refused Rizal's request to writ of mandamus will only lie to compel the
die facing the rising sun in the East. On the other hand, performance of an act if such act is one "which the law
if Rizal 's statue is made to face East, as Rizal had specifically enjoins as a duty resulting from an office,
desired when he was about to be shot, the background - trust or station"4 on the part of the respondent/s.
the blue sky above Manila Bay would forever be clear of
obstruction, and we would be faithful to Rizal's dying During the course of this case, various arguments were
wish. proffered in favor of the view that the respondents have
the legal duties to stop or prohibit the continued
WHEREFORE, the petition for mandamus construction of the Torre de Manilabuilding and/or to
is DISMISSED for lack of merit. The Temporary demolish it in its present state. I find that these
Restraining Order issued by the Court on 16 June 2015 arguments may generally be subdivided into three (3)
is LIFTED effective immediately. kinds.

SO ORDERED. The first argument is premised on the claim that


the Torre de Manila building-visible as it is in the
CONCURRING OPINION backdrop of the Rizal Monument to anyone facing such
monument at or from a certain distance-had impaired
VELASCO, JR., J.: the view of dominance of the Rizal Monument in
relation to its background (view of dominance),
which view is supposedly protected by the following
laws and guidelines:
I concur with the majority decision. I submit this opinion
only to aticulate the nuances of my position and to
address several points raised by the minority through 1. Sections 15 and 16, Article XIV of the
the dissent of Justice Francis H. Jardeleza (Justice Constitution,
Jardeleza).
2. Republic Act (RA) Nos. 4846, 7356 and 10066,
I
3. the Venice Charter, and
This case started out as a petition for injunction filed
directly before us by the petitioner Knights of Rizal 4. the 2012 NHCP Guidelines on Monuments
against the respondent DMCI Project Developers, Inc. Honoring National Heroes, Illustrious Filipinos
and Other Personages (NHCP Guidelines).
(DMCI-PDI).1 In it, petitioner primarily prayed for the
following reliefs:2
The theory of the first argument is that the illegal
impairment of the view of dominance of the Rizal
1. The issuance of an order enjoining the DMCI-
Monument gives rise to the duty of the respondents-
PDI from continuing with the
particularly the DMCI-PDI (as the builder of the
construction of the Torre de
Manila building; and offending structure), as well as the NCCA, NM and NHCP
(as the cultural agencies tasked by RA No. 10066 to
2. The issuance of an order directing protect the nation's cultural properties)5-to perform the
the demolition of so much of the said subject acts.
building already erected by the DMCI-PDI.
The second argument, on the other hand, rests on the
notion that the construction of the Torre de Manilawas any clear and definite protection to a view of
carried out by DMCI-PDI in bad faith with the use of dominance for any of the country's historical
void permits, viz: and cultural sites, let alone one for the Rizal
Monument.
1. The zoning permit issued to DMCI-PDI for the
c. The Venice Charter does not rise to the level of
construction of the Torre de Manila is void for
enforceable law. There is no showing that the
exceeding the maximum number of floors
Philippines has legally committed to observe
allowed for buildings within the Institutional
such charter. Neither was it established that the
University Cluster per Section 17 of Ordinance
principles contained therein are norms of
No. 8119 of the City of Manila.
general or customary international law. At any
rate, the Venice Charter, by its own words, only
2. The building permit for the Torre de Manila is seems to be hortatory.
also void as a necessary consequence of the
nullity of the zoning permit, pursuant to Section
d. The NHCP Guidelines is neither law nor an
69 of Ordinance No. 8119.
enforceable regulation. It appears that it has
never been published nor filed with the Law
3. The variance granted to DMCI-PDI by Center of the University of the Philippines.
the Sangguniang Panglungsod of the City of Moreover, like the Venice Charter, the NHCP
Manila, which exempted the Torre de Manila Guidelines appears to be merely hortatory.
from the floor and height limits of Ordinance
No. 8119, is also void due to it not being
obtained in accordance with the procedure The inquiry of the majority, however, did not stop there.
prescribed under Section 61 of the same
ordinance. According to the minority, even though no national law
categorically guarantees a view of dominance to any of
4. All of the foregoing irregularities in its permits the nation's cultural properties, there exists a local
were known to DMCI-PDI yet it still pushed Manila legislation that actually extends such a guarantee
through with the construction of the Torre de to at least the city's historical sites and facilities.8 To
Manila. this end, they cited Sections 47 and 48 of Ordinance No.
8119 of the City of Manila. As the minority explained:9
The theory of the second argument is that the nullity of
the permits coupled by the bad faith of DMCI-PDI gives 1. Section 47 of Ordinance No. 8119 provides
rise to the duty of the DMCI�-PDI and of the City of standards that aim to protect Manila's historical
Manila to perform the subject acts. sites and facilities from impairment that may be
caused by development projects. The protection
Lastly, the third argument is premised on the afforded by Section 47 extends even to
assumption that the Torre de Manila building constitutes the view of the city's historical sites and
as a nuisance for it apparently annoys or offends the facilities, as two of the standards therein make
senses of anyone viewing the Rizal Monument. explicit reference to: (a) the maintenance of the
"landscape and streetscape" qualities of such
sites and facilities as well as (b) the
The theory of the third argument is that the character of
preservation of the "visual character" of the
the Torre de Manila building as a nuisance gives rise to
same.
the duty of DMCI-PDI and the City of Manila to cause
the summary abatement of the said building.
2. Section 48 of Ordinance No. 8119, on the other
hand, prescribes standards that aim to protect
II properties and neighborhoods that are adjacent
to a proposed development project. Two
The minority, through the dissent of Justice Jardeleza, standards therein make explicit reference to:
confined themselves in addressing only the first (a) an obligation of property developers to
argument.6 consider, in the design of their projects, the
"natural environmental character" of adjacent
As to the first argument, the minority essentially held properties as well as (b) a prohibition against
that the view of dominance of the Rizal Monument is not certain projects that could be detrimental to the
"skyline."
afforded any legal protection under: (a) Sections 15 and
16 of Article XIV of the Constitution, (b) RA Nos. 4846,
7356 and 10066, (c) the Venice Charter or (d) the NHCP Be that as it may, the minority withheld themselves
Guidelines. The minority elucidated thusly:7 from determining: (a) whether the Rizal Monument and
Park is a historical site or facility in contemplation of
Ordinance No. 8119, (b) whether the abovementioned
a. Sections 15 and 16 of Article XIV of the
standards in Sections 47 and 48 apply to the DMCI-PDI
Constitution are not self-executing provisions;
both are mere expressions of general state and the Torre de Manila building and, if so, (c) whether
policies and so, by themselves and without the DMCI-PDI, in erecting the said building, had breached or
aid of any enabling law, they cannot be the impaired any of such standards. They implicitly
source of any enforceable right or claim of considered the City of Manila as the entity in the best
protection. position to make such determinations; pointing out that
it was supposedly the latter's duty do so, as, in fact, it
b. Though RA Nos. 4846, 7356 and 10066 all should have already done so, prior to issuing permits to
implement to some extent the broad policies of DMCI�-PDI.
Sections 15 and 16 of Article XIV of the
Constitution, none of the said statutes provides In this case, however, the majority found that the City
of Manila had failed to consider the abovementioned argument.
standards in Sections 47 and 48 of Ordinance No. 8119
when it issued the permits for the construction of An inviolable view of dominance is not an inherent
the Torre de Manila to DMCI-PDI.10 attribute of any kind of property-not even of our
monuments and national shrines.11 To merit
And so, the minority posited that to a writ of mandamus inviolability, there must he a law that guarantees and
compelling the City of Manila to re-evaluate the permits protects it.
it issued to DMCI-PDI ought to be issued in the present
case. A law that purports to protect the view of dominance of
a particular property, such as a historical site or facility,
III must necessarily be a law that either prohibits the
construction of buildings and other structures within a
I share the minority's disregard of the second and third certain area outside of the premises of the site or facility
arguments. The second and third arguments actually or prescribes specific limitations on any such
pose factual questions that are more properly settled in construction. Without such express prohibition or
the first instance, not by the Court, but by an limitation, there can be no effective assurance that the
appropriate office, administrative agency or trial court. view of dominance of a historical site or facility would
not be impaired.
I even agree with their position that the Rizal
Monument's view of dominance is neither protected nor The nature of a law protecting a view of dominance,
guaranteed by: (a) Sections 15 and 16 of Article XIV of therefore, is similar to one that establishes an
the Constitution, (b) RA Nos. 4846, 7356 and 10066, (c) easement; it imposes a burden (in this case, a building
the Venice Charter or (d) the NHCP Guidelines. prohibition or restriction) upon certain properties so as
to ensure that the prominent view of another property
I disagree, however, with the majority's interpretation in relation to its background remains unimpaired.
that the view �that is, the view of dominance-of
Manila's historical sites and facilities are protected by Section 47 Does Not Prohibit or Regulate the
Sections 47 and 48 of Ordinance No. 8119. A careful Construction of Buildings and Other Structures Outside
reading of both sections, in their proper contexts, easily of the Premises of Manila's Historical Sites and Facilities;
disproves such interpretation. Its Standards Do Not Apply to DMCI-PDI and the Torre
de Manila
Hence, I cannot but disagree with the minority's
proposition compelling the City of Manila, through a writ Section 47 of Ordinance No. 8119, true enough,
of mandamus, to re-evaluate the permits of DMCI-PDI. enumerates standards that aim to protect Manila's
Such a re-evaluation will serve no useful purpose given historical sites and facilities from impairment. Those
that none of the standards enumerated under Sections standards, however, do not extend protection to the
47 and 48 of Ordinance No. 8119 can have any view of dominance of such sites and facilities.
application to the present dispute.
A reading of Section 47 reveals that the standards
I remain convinced that there is no law, whether enumerated thereunder only apply to construction
national or local, that protects the view of dominance of projects involving the "development of historic sites and
the Rizal Monument. Verily, I am constrained to follow facilities" themselves, to wit:chanRoble svirtual Lawli bra ry

the only logical conclusion of that finding, i.e., there


is no compellable duty on the part of any of the SEC. 47. Historical Preservation and Conservation
respondents to stop or prohibit the construction of Standards. - Historic sites and facilities shall be
the Torre de Manila building or to otherwise conserved and preserved. These shall, to the extent
destroy so much of the said building already possible, be made accessible for the educational and
constructed. cultural enrichment of the general public.

I, therefore, join the majority and vote to dismiss The following shall guide the development of historic
the mandamus petition. sites and facilities:

x x x x (emphasis supplied)
A. Sections 47 and 48 of Ordinance No. 8119 Do
Not Protect View of Dominance of Rizal Monument The clear import of the foregoing is that Section 47 only
applies to development projects that are
Contrary to the minority's finding, Sections 47 and implemented within the historical sites or facilities. The
48 do not protect the view-particularly, the view of section, in other words, has absolutely no application to
dominance-of Manila's historical sites and facilities. projects that are constructed outside of such site or
facility.
View of Dominance
Since Section 47 does not regulate, much less prohibit,
The view of dominance of a property, at least for construction projects that surrounds the city's historical
purposes of the dispute at hand, refers to a sites and facilities, it cannot be said that the said section
characteristic of a property that permits it to be viewed provides any protection or guarantee to the view of
as the sole or most prominent element vis-a-visits dominance of such sites and facilities. The standards
background. This is the attribute of the Rizal Monument under Section 47 could not be invoked so as to prohibit
that was supposedly impaired by the construction of a building-standing on private land and without the
the Torre de Manila, per the proponents of the first premises of a historical site or facility-from rising and
becoming visible in the background of such site or the Torre de Manila) and are intended to protect any
facility. kind of properties or neighborhoods adjacent thereto
(such as the Rizal Monument).
Hence, even assuming that the Rizal Monument is a
historical site or facility in contemplation of Ordinance Be that as it may, Section 48 does not prescribe any
No. 8119, it is manifest that none of the standards concrete building prohibition or restriction on
under Section 47-much less those pointed out by the construction projects that are specially geared towards
minority-can conceivably apply to the case of the DMCI- the preservation of the view of dominance of properties
PDI and the Torre de Manila. Indeed, a thorough look at or neighborhoods adjacent thereto. The standards under
some of those standards will quickly expose their Section 48 that were invoked by the majority are
inaptness: mere general norms that, per se, are insufficient to
guarantee such view. The said standards do not
First. Section 47(3) of the ordinance, which requires establish operable norms by themselves and so, to gain
the submission of a heritage impact statement and of substance, should be read with other provisions of the
construction plans to the City Planning and Development ordinance or of other laws:
Office and the NHCP for review, only applies to property
developers who propose to "to add, to alter or partially First. The second paragraph of Section 48, which
demolish" a heritage property. This cannot apply to the requires every construction project to be "in harmony
DMCI-PDI because the Torre de Manila building is built with the existing and intended character of its
on private property well outside the premises of the neighborhoods," obviously has reference to the
Rizal Monument and even of the Rizal Park, and does provisions of Ordinance No. 8119 that demarcates the
not add to, alter or partially demolish the said different zoning areas of the City of Manila.14 This does
monument and park. not guarantee the view of dominance of neighborhoods
adjacent to a construction project, but only requires the
Second. Section 47(7) of the ordinance, which requires latter to adhere to the "character" of such
residential and commercial infill in heritage areasto neighborhoods as "intended" by the zoning regulations.
maintain the existing "landscape and streetscape"
qualities of such area, cannot apply to DMCI-PDI simply Second. Section 48(1), which requires construction
because the Torre de Manila does not stand on any such projects to consider the "natural environmental
"heritage area." character" of adjacent properties, has perceptible
reference to the provisions of the National Building Code
Apropos to this point is the uncontroverted fact that on sanitation15 as well as to our different environmental
the Torre de Manila building stands on an area that has laws and regulations. This provision actually has no
not been declared as an "anthropological or connection whatsoever with protecting the view of
archeological area," nor designated as a "heritage zone, dominance of a property adjacent to a construction
cultural property, historical landmark or a national project.
treasure" by the NHCP.12
Third. Section 48(7), which prohibits large commercial
Third. Section 47(9) of the ordinance, which requires signages that are detrimental to the "skyline," is an
power and communication equipment13 to be placed in adjunct of Section 36 of Ordinance No. 8119 that, in
locations that do not detract from the "visual character" turn, states that all "advertising, business signs and
of the heritage resources and which do not have billboards" must comply with "existing laws, rules and
negative impact on its architectural integrity, can never regulations."16 This is not a direct guarantee of the view
apply to DMCI-PDI because it is not a "local utility of dominance of any property, but a general prohibition
company" and its Torre de Manila project is not involved against certain kinds of signages. Moreover, for obvious
with the installation of any power and communication reasons, this provision cannot apply to the Torre de
equipment in or within the Rizal Monument and Park. Manila.

Verily, none of the standards under Section 47 of Verily, none of the standards under Section 48 of
Ordinance No. 8119 may be considered as protective of Ordinance No. 8119 may be considered as protective of
the view of dominance of any of Manila's historical sites the view of dominance of any of property within the city,
and facilities. Such standards are clearly meant to apply much less of the Rizal Monument.
only to development projects within the historical sites
or facilities themselves. None of them, consequently, B. Mandamus to Compel Re-evaluation Does Not
can have any possible application to DMCI-PDI and Lie
the Torre de Manila.
The minority's proposition compelling the City of Manila
Standards Under Section 48 Cited By the Majority to re�evaluate the permits it issued to DMCI-PDI is
Are Mere General Norms on Construction Projects premised on the claim that the former, in so issuing the
That Do Not Guarantee the View of Dominance of said permits, overlooked certain standards under
Adjacent Properties Sections 47 and 48 of Ordinance No. 8119 that
supposedly protects the view of dominance of Manila's
Section 48 of Ordinance No. 8119, on the other hand, historical sites and facilities. The underlying purpose of
enumerates standards that aim to protect the character, the re-evaluation was to allow the City of Manila to
environmental limitation, convenience and safety of determine, in essence, the following: (a) whether the
properties and neighborhoods that are adjacent to a Rizal Monument and Park is a historical site or facility in
construction project. The section, by its terms, is meant contemplation of Ordinance No. 8119, (b) whether the
to have universal application, i.e., its standards apply to abovementioned standards in Sections 47 and 48 apply
all construction projects within the city (such as to the DMCI-PDI and the Torre de Manila building and, if
so, (c) whether DMCI�-PDI, in erecting the said V
building, had breached or impaired any of such
standards. Now, I vote.

My discussion in the immediately preceding segment, It has been said that a writ of mandamus only lies in the
however, established that none of the standards under enforcement of a clear legal right on the part of the
Sections 47 and 48 of Ordinance No. 8119 actually petitioner and in the compulsion of a clear legal duty on
extends protection to the view of dominance of any the part of the respondent.18 Here, it has been
property within Manila. It cannot be said, therefore, that established that there is no law, whether national or
the City of Manila had overlooked, misinterpreted or local, that protects the view of dominance of the Rizal
misapplied any pertinent standards when it issued the Monument or prohibits DMCI-PDI from constructing in
permits to DMCI-PDI. The need for a re-evaluation is its land a building such as the Torre de Manila. The
thereby also negated as the possibility that the same conclusion, to my mind, is inevitable-petitioner is not
would yield an outcome different from the original entitled to the writ inasmuch as there is no compellable
evaluation is but reduced to nil. duty on the part of any of the respondents to stop or
prohibit the construction of the Torre de Manila building
Hence, the directive compelling the City of Manila to re- or to otherwise destroy so much of the said building
evaluate the permits of DMCI-PDI must fail. A re- already constructed.
evaluation will only waste resources, further delay the
final resolution of the case and defeat the very purpose IN VIEW WHEREOF, I vote to DISMISS the instant
why we took cognizance of the petition in the first place. petition for mandamus.
The compulsion of such an act is certainly not the office
of the writ of mandamus.

IV

This case has been pending with us for more than two
SEPARATE CONCURRING OPINION
(2) years. In that time I certainly had ample
opporttmity to scour our statute books for any pertinent
law or regulation that could be considered as protective PERLAS-BERNABE, J.:
of the Rizal Monument's view of dominance. And scour I
did. Yet, I found none.
Before this Court is a petition for injunction1 -
The absence of law protecting the view of dominance of subsequently and uncontestedly converted by this Court
the Rizal Monument strips the first argument of any into one for mandamus - filed by herein petitioner
semblance it might have first had as a bona fide legal Knights of Rizal (petitioner), seeking to compel
dispute. Without the backing of law, the only query the respondents2 to stop the construction of the Torre de
argument actually brings to the fore is whether the Rizal Manila, a high-rise condominium project situated about
Monument is still pleasing to look at or to take picture of 870 meters outside and to the rear of the Rizal Park, as
in light of the Torre de Manila looming in its background. it allegedly obstructs the sightline, setting, or backdrop
To my mind, that is not a question that the Court may of the Rizal Monument, which is claimed to be a
dabble into, much less settle in the exercise of its historical or cultural heritage or resource protected by
judicial power. the Constitution and various laws. Owing to the nature
of the action, the resolution of this case therefore
For whatever it is worth, however, may I just add that depends on whether or not petitioner has satisfied the
not all viewing and photographic opportunities17 of the requirements necessary for a writ of mandamus to
Rizal Monument have been lost as a consequence of the issue.
construction of the Torre de Manila. From my own
personal observation, the visibility Torre de "Mandamus is defined as a writ commanding a tribunal,
Manila building in the backdrop of the Rizal Monument is corporation, board or person to do the act required to
highly dependent on the distance and angle from which be done when it or he unlawfully neglects the
the monument is viewed. performance of an act which the law specifically enjoins
as a duty resulting from an office, trust or station, or
Thus, while one vantage point does expose the Torre de unlawfully excludes another from the use and
Manila in the background of the Rizal Monument: enjoyment of a right or office or which such other is
entitled, there being no other plain, speedy, and
(see image) adequate remedy in the ordinary course of law."3

Other vantage points permit a view of the Rizal Section 3, Rule 65 of the Rules of Court lays down under
Monument with only a minimum of, if not totally what circumstances a petition for mandamusmay be
without, the Torre de Manila building in sight: filed:
chanRob lesvi rtual Lawli bra ry

SEC. 3. Petition for mandamus. - When any tribunal,


(see image)
corporation, board, officer or person unlawfully neglects
the performance of an act which the law specifically
Hence, even from a lay perspective, it cannot be
enjoins as a duty resulting from an office, trust, or
gainsaid that the construction of the Torre de
station, or unlawfully excludes another from the use and
Manilabuilding had deprived anyone of the chance to
enjoyment of a right or office to which such other is
view or photograph the Rizal Monument without the said
entitled, and there is no other plain, speedy and
building looming in the background.
adequate remedy in the ordinary course of law, the conserve the nation's historical and cultural heritage and
person aggrieved thereby may file a verified petition in resources. However, none of them adequately map out
the proper court, alleging the facts with certainty and the boundaries of protection and/or conservation, at
praying that judgment be rendered commanding the least to the extent of providing this Court with a
respondent, immediately or at some other time to be reasonable impression that sightlines, vistas, and the
specified by the court, to do the act required to be done like of historical monuments are indeed covered by
to protect the rights of the petitioner, and to pay the compulsive limitations.
damages sustained by the petitioner by reason of the
wrongful acts of the respondent. The closest to a statutory regulation of this kind would
appear to be Section 25 of Republic Act No. (RA) 10066,
xxxx which provides that: chanRoble svirtual Lawli bra ry

Based on jurisprudence, the peremptory writ SEC. 25. Power to Issue a Cease and Desist Order.
of mandamus is characterized as "an extraordinary - When the physical integrity of the national
remedy that is issued only in extreme necessity, and cultural treasures or important cultural
[because] the ordinary course of procedure is powerless properties are found to be in danger of destruction
to afford an adequate and speedy relief to one who has or significant alteration from its original state, the
a clear legal right to the performance of the act to be appropriate cultural agency shall immediately
compelled."4 Thus, it is a basic principle that "[a] writ issue a Cease and Desist Order ex
of mandamus can be issued only when petitioner's parte suspending all activities that will affect the
legal right to the performance of a particular act cultural property. The local government unit which
which is sought to be compelled is clear and has the jurisdiction over the site where the immovable
complete. A clear legal right is a right which is cultural property is located shall report the same to the
indubitably granted by law or is inferable as a appropriate cultural agency immediately upon discovery
matter of law."5 Stated otherwise, "mandamus will and shall promptly adopt measures to secure the
issue only when the petitioner has a clear legal integrity of such immovable cultural property.
right to the performance o(the act sought to be Thereafter, the appropriate cultural agency shall give
compelled and the respondent has an imperative notice to the owner or occupant of the cultural property
duty to perform the same."6 and conduct a hearing on the propriety of the issuance
of the Cease and Desist Order. The suspension of the
As a corollary, it is fundamental that "[t]he remedy activities shall be lifted only upon the written authority
of mandamus lies [only] to compel the of the appropriate cultural agency after due notice and
performance of a ministerial duty. A purely hearing involving the interested parties and
ministerial act or duty is one that an officer or tribunal stakeholders. (Emphasis and underscoring supplied)
performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of a legal However, it is unclear whether "physical integrity," as
authority, without regard to or the exercise of its used in this provision, covers sightlines, vistas, settings,
own judgment upon the propriety or impropriety and backdrops. The concept of "physical integrity" is
of the act done. If the law imposes a duty upon a glaringly undefined in the law, and in fact, as
public officer, and gives him the right to decide the ponencia aptly points out, the reasonable inference
how or when the duty shall be performed, such is that "physical integrity [equates] to the structure
duty is discretionary and not ministerial."7 itself - how strong and sound it is."13

In this case, the clarity and completeness of petitioner's For another, petitioner claims that the Torre de Manila
legal right to the compulsion prayed for - i.e., to stop project violates the National Historical Commission of
the construction of the Torre de Manila - remains the Philippines (NHCP) Guidelines on Monuments
suspect in view of the present lack of established Honoring National Heroes, Illustrious Filipinos and Other
and binding legal standards on the protection of Personages, as well as the International Charter for the
sightlines and vistas of historical monuments, as Conservation and Restoration of Monuments and Sites,
well as heritage sites and/or areas. otherwise known as the Venice Charter.14 However, the
NHCP Guidelines is neither a law nor an enforceable rule
Primarily, petitioner cites Sections 158 and 16,9 Article or regulation, considering the lack of showing that the
XIV of the 1987 Constitution as basis for the relief requirements of publication and filing with the Law
prayed for.10 However, it is quite apparent that these Center of the University of the Philippines were complied
are not self-executing provisions; thus, Congress must with. Meanwhile, as the ponencia aptly points out, the
first enact a law that would provide guidelines for the Venice Charter is not a treaty but "merely a codification
regulation of heritage conservation, as well as the of guiding principles for preservation and restoration of
penalties for violations thereof. Otherwise stated, there ancient monuments, sites[,] and buildings[,]" which,
is a need for supplementary statutory implementation to however, defers to each country the "responsib[ility] for
give effect to these provisions. applying the plan within the framework of its own
culture and traditions."15 Hence, the guidelines stated
In this light, I join the ponencia in finding that there is therein have no binding effect in this jurisdiction.
currently no such law which specifically prohibits the
construction of any structure that may obstruct the Neither can Manila Ordinance No. 8119 be considered
sightline, setting, or backdrop of a historical or cultural as an existing local legislation that provides a clear and
heritage or resource.11 This prohibition is neither explicit specific duty on the part of respondent City of Manila
nor deducible from any of the statutory laws discussed (the City of Manila) to regulate development projects
in the present petition.12 There are several laws which insofar as these may adversely affect the view, vista,
consistently reiterate the State's policy to protect and sightline or setting of a cultural property within the city.
While I find this ordinance to be a binding regulation
which not merely sets forth a tentative direction or The design, construction, operation and maintenance of
instruction for property development within the city,16 it every facility shall be in harmony with the existing and
is my view that none of its provisions justify the intended character of its neighborhood. It shall not
issuance of a writ of mandamus in favor of petitioner. change the essential character of the said area but will
be a substantial improvement to the value of the
The minority proposes that a writ of mandamus be properties in the neighborhood in particular and the
issued to re�evaluate with dispatch the permits and community in general.
variance issued in favor of DMCI Project Developers,
Inc. (DMCI-PDI)'s Torre de Manila project, and thereby Furthermore, designs should consider the following:
determine the applicability and/or compliance with the
standards under Sections 45, 53, 47, 48, and 60 (in 1. Sites, buildings and facilities shall be designed
relation to the grant of a variance) of Ordinance and developed with regard to safety, efficiency
No. 8119, and eventually, grant the appropriate reliefs and high standards of design. The natural
and sanctions under the law.17 environmental character of the site and its
adjacent properties shall be considered in
However, Sections 45 and 53 of Ordinance No. the site development of each building and
8119 respectively pertain to environmental facility.
conservation and protection standards, and the
requirement of Environmental Compliance Certificates, 2. The height and bulk of buildings and structures
and thus, are only relevant when there is an alleged shall be so designed that it does not impair the
violation of an environmental law affecting the natural entry of light and ventilation, cause the loss of
privacy and/or create nuisances, hazards or
resources within the City's premises:
inconveniences to adjacent developments.
c hanRoblesv irtual Lawlib rary

SEC. 45. Environmental Conservation and Protection


Standards. � It is the intent of the City to protect its xxxx
natural resources. In order to achieve this objective, all
development shall comply with the following 8. No large commercial signage and/or
regulations: pylon, which will be detrimental to the
skyline, shall be allowed.

1. Views shall be preserved for public enjoyment


9. Design guidelines, deeds of restriction, property
especially in sites with high scenic quality by
management plans and other regulatory tools
closely considering building orientation, height,
that will ensure high quality developments shall
bulk, fencing and landscaping.
be required from developers of commercial
subdivisions and condominiums. These shall be
xxxx submitted to the City Planning and
Development Office (CPDO) for review and
SEC. 53. Environmental Compliance Certificate (ECC). - approval. (Emphases and underscoring
Notwithstanding the issuance of zoning permit supplied)
(locational clearance) Section 63 of this Ordinance, no
environmentally critical projects nor projects located in It is not inferable whether the "aesthetics" requirement
environmentally critical areas shall be commenced, under this provision precludes any form of obstruction
developed or operated unless the requirements of ECC on the sightline and vista of any historical monument
have been complied with. within the City. It also does not account for a situation
In this case, the Rizal Monument is not claimed to be a where the assailed development and historical
natural resource whose view should be preserved in monument are located in different cluster zones.
accordance with Section 45 (1) above. Neither was it
claimed that the Torre de Manila project is covered by It has not also been claimed that the natural
and/or has breached the ECC requirement under Section environmental character of the adjacent properties
53. Therefore, none of these provisions should apply to within the Torre de Manila's cluster zone, per Section
this case. 48, paragraph 3 (1) above, has been negatively
impacted by the latter's construction. As worded, this
In the same vein, Section 48 of Ordinance No. 8119 provision regulates only environmental and not
provides for site performance standards, which, among historical considerations; thus, it is premised with the
others, only require that developments within the City requirement that "[s]ites, buildings and facilities [be]
be designed in a safe, efficient, and aesthetically designed and developed with regard to safety, efficiency
pleasing manner: chanRoblesvirtual Lawli bra ry
and high standards of design."

SEC. 48. Site Performance Standards. - The City Likewise, Section 48, paragraph 3 (8) is inapplicable,
considers it in the public interest that all projects are considering that the Torre de Manila project is not a
designed and developed in a safe, efficient large commercial signage and/or pylon (or claimed to be
and aesthetically pleasing manner. Site development an equivalent thereof) that would prove to be
shall consider the environmental character and detrimental to the City's skyline.
limitations of the site and its adjacent properties. All
project elements shall be in complete harmony Meanwhile, Section 60 of Ordinance No. 8119 governs
according to good design principles and the subsequent the grant of variances from the prescribed Land Use
development must be visually pleasing as well as Intensity Control (LUIC) standards (among others, the
efficiently functioning especially in relation to the Floor Area Ratio [FAR]) on buildings within a specific
adjacent properties and bordering streets. zone:chanRob lesvi rtua lLawl ibra ry
SEC. 60. Deviations. - Variances and exceptions from
the provisions of this Ordinance may be allowed by What remains undisputed is the fact that DMCI-PDI
the Sangguniang Panlungsod as per recommendation applied for a variance, which application, upon due
from the Manila Zoning Board of Adjustment and deliberation of the City's MZBAA, has been granted.
Appeals (MZBAA) through the Committee on Housing, Again, whether proper or not, the fact remains that
Urban Development and Resettlements only when all discretion has already been exercised by the City of
the following terms and conditions are obtained/ Manila. Thus, mandamus is not the appropriate remedy
existing:c hanRoblesv irtual Lawlib rary to enjoin compliance with the provisions on variance.
Needless to state, erring public officials who are found
1. Variance - all proposed projects which do not to have irregularly exercised their functions may,
conformed [sic] with the prescribed allowable however, be subjected to administrative/criminal
Land Use Intensity Control (LUIC) in the zone. sanctions in the proper proceeding therefor.
a. The property is unique and different
from other properties in the adjacent Finally, Section 47 of Ordinance No. 8119, which
locality and, because of its uniqueness, enumerates several historical preservation and
the owner/s cannot obtain a reasonable conservation standards, was supposedly not considered
return on the property. by the City of Manila when it allowed the construction of
the Torre de Manila: chanRoblesv irtual Lawlib rary

This condition shall include at least three (3) of the


following provisions: c hanRoble svirtual Lawlib ra ry
SEC. 47. Historical Preservation and Conservation
- Conforming to the provisions of the Ordinance will Standards. - Historic sites and facilities shall be
cause undue hardship on the part of the owner or conserved and preserved. These shall, to the extent
occupant of the property due to physical conditions of possible, be made accessible for the educational and
the property (topography, shape, etc.), which is not cultural enrichment of the general public.
self�-created.
The following shall guide the development of historic
- The proposed variance is the mm1mum deviation sites and facilities:
necessary to permit reasonable use of the property.
1. Sites with historic buildings or places shall be
- The variance will not alter the physical character of the developed to conserve and enhance their
district/zone where the property for which the variance heritage values.
sought is located, and will not substantially or
permanently injure the use of the other properties in the 2. Historic sites and facilities shall be
same district or zone. adaptively re-used.

- That the variance will not weaken the general purpose 3. Any person who proposes to add, to alter, or
of the Ordinance and will not adversely affect the public partially demolish a designated heritage
health, safety, and welfare. property will require the approval of the City
Planning and Development Office (CPDO) and
shall be required to prepare a heritage impact
- The variance will be in harmony with the spirit of this
statement that will demonstrate to the
Ordinance.
satisfaction of CPDO that the proposal will
not adversely impact the heritage
xxxx significance of the property and shall
submit plans for review by the CPDO in
In this case, the City of Manila had already exercised its
coordination with the National Historical
discretion to grant a variance in favor of DMCI-PDI's Institute (NHI).
Torre de Manila project. The factors taken into account
by the City of Manila in the exercise of such discretion 4. Any proposed alteration and/or re-use of
are beyond the ambit of a mandamus petition. As designated heritage properties shall be
above�mentioned, "[t]he remedy of mandamus lies evaluated based on criteria established by the
[only] to compel the performance of a ministerial heritage significance of the particular property
duty" which is "one that an officer or tribunal performs or site.
in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without 5. Where an owner of a heritage property applies
regard to or the exercise of its own judgment for approval to demolish a designated heritage
upon the propriety or impropriety of the act property or properties, the owner shall be
done."18 It is settled that "[m]andamus is employed to required to provide evidence to satisfaction [sic]
compel the performance, when refused, of a ministerial that demonstrates that rehabilitation and re-use
duty, this being its chief use and not a discretionary of the property is not viable.
duty. It is nonetheless likewise available to compel
action, when refused, in matters involving judgment and 6. Any designated heritage property which is to be
demolished or significantly altered, shall be
discretion, but not to direct the exercise of
thoroughly documented for archival purposes
judgment or discretion in a particular way or the
with a history, photographic records, and
retraction or reversal of an action already taken in measured drawings, in accordance with
the exercise of either."19 Further, while it has not accepted heritage recording guidelines, prior to
been shown whether the conditions stated in Section 60 demolition or alteration.
were complied with, it remains unclear whether or not
these provisions can be - as it has been previously been 7. Residential and commercial infill in heritage
- suspended due to justifiable reasons.20 areas will be sensitive to the existing scale and
pattern of those areas, which maintains the conclusion that the realm of setting preservation is a
existing landscape and streetscape new frontier of law that is yet to be charted by our
qualities of those areas, and which does not lawmakers. It is therefore a political question left for
result in the loss of any heritage resources. Congress and not for this Court to presently decide.
Verily, our function as judges is to interpret the law; it is
8. Development plans shall ensure that parking not for us to conjure legal niceties from general policies
facilities (surface lots, residential garages, yet undefined by legislature. Until such time that our
stand-alone parking garages and parking legal system evolves on this subject, I believe that this
components as parts of larger developments)
Court is unprepared to grant a mandamus petition to
are compatibly integrated into heritage areas,
compel the stoppage of the Torre De Manila project
and/or are compatible with adjacent heritage
resources. simply on the premise that the Torre de Manila "visually
obstructs the vista and adds an unattractive sight to
9. Local utility companies (hydro, gas, telephone, what was once a lovely public image."21 In fact, this
cable) shall be required to place metering bare claim even appears to be in serious dispute,
equipment, transformer boxes, power lines, considering that the NHCP itself confirmed that the
conduit, equipment boxes, piping, wireless Torre de Manila was "outside the boundaries of the Rizal
telecommunication towers and other utility Park and well to the rear x x x of the Rizal National
equipment and devices in locations which do Monument; hence, it cannot possibly obstruct the
not detract from the visual character of front view of the said National
heritage resources, and which do not have Monument."22 Likewise, the City Legal Officer of Manila
a negative impact on its architectural City confirmed that the area on which the Torre de
integrity. Manila is situated "lies outside the Luneta Park" and that
it was "simply too far from the Rizal Monument to
10. Design review approval shall be secured from be a repulsive distraction or have an objectionable
the CPDO for any alteration of the heritage effect on the artistic and historical significance of
property to ensure that design guidelines and
the hallowed resting place of the national
standards are met and shall promote
hero."23 And finally, DMCI-PDI had demonstrated that
preservation and conservation of the heritage
property. (Emphases and underscoring the Rizal Monument can be viewed/photographed at
supplied) certain angles to avoid or at least minimize the Torre de
Manila's presence;24 thus, the obstructive effects of the
building on the monument's sightline are not only
However, the fact that Section 47 speaks of the
questionable but at most, insubstantial.
preservation of existing landscape and streetscape
qualities (Section 47, paragraph 2 [7]), or conveys a
To reiterate, case law exhorts that for mandamus to
mandate to local utility companies not to detract from
issue, it must be shown that the petitioner has a clear
the visual character of heritage resources (Section 47,
legal right to the performance of the act sought to
paragraph 2 [9]) should not be enough for this Court to
be compelled and the respondent has an
conclude that Ordinance No. 8119 imposes a prohibition
imperative duty to perform the same.25 The
against the obstruction of sightlines and vistas of a
jurisprudential attribution is, in fact, exacting: "[a]
claimed heritage property via the construction of
clear legal right is a right which is indubitably
buildings at a particular distance therefrom. The
granted by law or is inferable as a matter of
operable norms and standards of protecting vistas and
law."26 No such right of petitioner exists in this case.
sightlines are not only undefined; it is also doubtful
Neither do any of the respondents have the imperative
whether or not the phrases "landscape or streetscape
duty to stop the Torre de Manila's construction.
qualities" and "visual character of heritage resources" as
used in the provision even include the aspects of vistas
Accordingly, for the reasons discussed herein, I vote
and sightlines, which connote regulation beyond the
to DISMISS the mandamus petition.
boundaries of a heritage site, building or place, as
in this case.
Endnotes:
In the same light, it is also unclear whether or not a
purported obstruction of a heritage property's vista and
sightline would mean an "addition", "alteration", and/or
"demolition" of the said property so as to trigger the
1
See rollo, Vol. I, pp. 3-28.
application of Section 47, paragraph 2 (3) (which
requires the prior submission of a heritage impact
2
Original respondent, DMCI Homes, Inc., was
statement and the approval of the CPDO) and Section subsequently substituted by respondent DMCI Project
47, paragraph 2 (4) (requiring evaluation based on the Developers, Inc., as the owner and developer of the
criteria of heritage significance) of Ordinance No. 8119. Torre de Manila project (see Manifestation and Motion of
In fact, it would be sensible to conclude that these DMCI-PDI dated October 14, 2014; rollo, Vol. I, pp.
concepts of "addition", "alteration", and/or "demolition" 240-242). Later on respondents the City of Manila, the
relate to the concept of "physical integrity" in Section 25 National Historical Commission of the Philippines, the
of RA 10066, which as above-discussed pertains only to National Museum and the National Commission on
the architectural stability of the structure. Culture and the Arts were impleaded as respondents to
this case (see Court's Resolution dated November 25,
Plainly speaking, there is no discernible reference from 2014; id. at 418-C-418-D).
our existing body of laws from which we can gather any
legal regulation on a heritage property's vista and
3
Systems Plus Computer College v. Local Government of
sightline. After a careful study of this case, it is my Caloocan City, 455 Phil. 956, 962 (2003), citing Section
3, Rule 65 of the Rules of Court. (1997); emphases and underscoring supplied.

4
Special People, Inc. Foundation v. Canda, 701 Phil. 20
During the oral arguments, it was established that the
365, 369 (2013); underscoring supplied. granting of a variance is neither uncommon or irregular.
On the contrary, current practice has made granting the
5
Carolina v. Senga, G.R. No. 189649, April 20, 2015, variance the rule rather than the exception.
756 SCRA 55, 70; Calim v. Guerrero, 546 Phil. 240, 252 (See ponencia, pp. 19-20, citing TSN, August 25, 2015,
(2007); and Manila International Airport Authority v. pp. 18-22.)
Rivera Village Lessee Homeowners Association, Inc.,
508 Phil. 354, 371 (2005); emphasis and underscoring Rollo, Vol. I, p. 172.
21

supplied.
22
See DMCI-PDI's Comment Ad Cautelam dated
6
Special People, Inc. Foundation v. Canda, supra note 4, November 11, 2014; id. at 301-302; emphasis and
at 386; emphasis, italics, and underscoring supplied. underscoring supplied.

7
Carolina v. Senga, supra note 5, at 70-71; emphases 23
Id. at 302; emphasis and underscoring supplied.
and underscoring supplied.
24
See id. at 329-332.
8
Sec. 15. Arts and letters shall enjoy the patronage of
the State. The State shall conserve, promote, and 25
See Special People, Inc. Foundation v. Canda, supra
popularize the nation's historical and cultural heritage note 4, at 386.
and resources, as well as artistic creations.
Carolina v. Senga, supra note 5, at 70.
26

9
Sec. 16. All the country's artistic and historic wealth
constitutes the cultural treasure of the nation and shall
be under the protection of the State which may regulate
its disposition.

10
See rollo, Vol. I, pp. 15-16.
CONCURRING OPINION
11
See ponencia, pp. 8 and 9.

� "To my family,
12
Particularly: (1) Republic Act No. (RA) 4846 entitled
"AN ACT TO REPEAL ACT NUMBERED THIRTY EIGHT
HUNDRED SEVENTY FOUR, AND TO PROVIDE FOR THE
� �
PROTECTION AND PRESERVATION OF PHILIPPINE
CULTURAL PROPERTIES," otherwise known as
"CULTURAL PROPERTIES PRESERVATION AND
I ask you for forgiveness for the pain
PROTECTION ACT" (June 18, 1966); (2) RA 7356
entitled "AN ACT CREATING THE NATIONAL I caused you, but some day I shall
COMMISSION FOR CULTURE AND THE ARTS, � have to die and it is better that I die
ESTABLISHING A NATIONAL ENDOWMENT FUND FOR
now in the plentitude of my
CULTURE AND THE ARTS, AND FOR OTHER PURPOSES,"
otherwise known as "LAW CREATING THE NATIONAL conscience.
COMMISSION OF CULTURE AND THE ARTS" (April 3,
1992); and (3) RA 10066 entitled "AN ACT PROVIDING
FOR THE PROTECTION AND CONSERVATION OF THE �
NATIONAL CULTURAL HERITAGE, STRENGTHENING THE
NATIONAL COMMISSION FOR CULTURE AND THE ARTS
(NCCA) AND ITS AFFILIATED CULTURAL AGENCIES, Dear parents and brothers: Give
AND FOR OTHER PURPOSES," otherwise known as the thanks to God that I may preserve
"NATIONAL CULTURAL HERITAGE ACT OF 2009," my tranquility before my death. I die
approved on March 26, 2010. (See rollo, Vol. I, pp. 16-
17.)
� resigned, hoping that with my death
you will be left in peace. Ah! It is
13
Ponencia, p. 12. better to die than to live suffering.
Console yourself.
14
See rollo, Vol. I, pp. 19-20.

15
Ponencia, pp. 17-18.

16
See ponencia, pp. 9-10.

17
See Dissenting Opinion of Justice Francis H. Jardeleza.
I enjoin you to forgive one another
� the little meanness of life and try to
18
See Carolino v. Senga, supra note 5, at 70; emphases live united in peace and good
and underscoring supplied.
harmony. Treat your old parents as
19
Anchangco, Jr. v. Ombudsman, 335 Phil. 766, 771-772
The Solicitor General and the petitioners are motivated
you would like to be treated by your by their passion, which can be summed up in a
children later. Love them very much statement and which they want this Court to believe as
in my memory. a truism: a view of the monument with a tall building as
background destroys the "soul of our nation." They
claim that this gaze with a "photobomber" so
� undermines every conceivable narrative we can have of
Rizal that there will be no way that our collective history
as a people can be redeemed if we do not order the
Bury me in the ground. Place a stone building to be tom down. They wish this Court of 15
unelected public servants to read this specific version of
and a cross over it. My name, the history into the Constitution of this Republic. They want
date of my birth and of my death. us to declare that the monument of Rizal is so sacred
� Nothing more. If later you wish to that it should dwarf any other human structure without
any other judicially discernible standard.
surround my grave with a fence, you
can do it. No anniversaries. I prefer I do not agree.
Paang Bundok.
There is no law which inscribes such narrative. There is
no law that empowers any majority of the 15 members
� of this Supreme Court to impose our own narrative of
our country's own history.

� Have pity on poor Josephine." History, like every other cultural understanding of who
we are, is the dynamic product of constant democratic
deliberation. To impose only a single version is akin to
� � installing a dictatorship or disempowering present and
future generations. Our history as a people is always in
flux: always being written and always being reread in
� - Jose Rizal1 the light of contemporary challenges.

The Petition for Injunction, amended by this Court into a


Petition for Mandamus, should fail.
LEONEN, J.:
I

The soul of this nation and the story of the gallantry of This Petition should have been dismissed outright. The
our many peoples are more resilient than a bad petitioners did not have standing and this Court had no
photograph. jurisdiction over the subject matter of this case that the
Petition, originally for injunction, had to be converted
The Rizal Monument will not be physically altered. to mandamus.
Adjoining properties owned by others have not been
declared as national shrines. Section 1, Article VIII of the Constitution provides: chanRob lesvi rtua lLawl ibra ry

Together with the Solicitor General, the petitioners Section 1. The judicial power shall be vested in one
argue that a specific view of the Rizal Monument is a Supreme Court and in such lower courts as may be
legally protected right. They insist that even if the Rizal established by law.
Monument is clearly in the foreground, the existence of
the building of private respondents in the background Judicial power includes the duty of the courts of justice
violates that legally protected right. They insist that that to settle actual controversies involving rights which are
background amounts to an alteration of the monument. legally demandable and enforceable, and to determine
They, however, fail to point to any clear text found in whether or not there has been a grave abuse of
the Constitution, a statute, or an ordinance which discretion amounting to lack or excess of jurisdiction on
contains this prestation. They have not succeeded in the part of any branch or instrumentality of the
convincing this Court that there is precedent supporting Government.
their aesthetic propositions.
For this Court to exercise its power of judicial review,
four (4) requisites must be satisfied. First, there must
The dissent also acknowledges this. They agree that the
exist "an actual and appropriate case."2 Second, the
temporary restraining order should be lifted. The
party bringing suit must have a "personal and
dissent, however, insists that the matter be remanded
substantial interest ... in raising the constitutional
to the Sangguniang Panlungsod of Manila to allow them,
question."3 Third, "the exercise of judicial review is
again, to deliberate as to whether to allow the
pleaded at the earliest opportunity."4 Lastly, "the
construction or to cause its demolition.
constitutional question is the lis mota of the case."5

I concur with the ponencia of Senior Associate Justice


The second requisite is absent in this case.
Antonio T. Carpio. There is no such law which mandates
that the Rizal Monument, at a specific angle, should
Legal standing requires that the party bringing suit has
have only a specific background.
"sustained or will sustain direct injury as a result of the
governmental act that is being challenged."6 There must
be "a personal stake in the outcome of the In Integrated Bar of the Philippines v. Zamora,20 this
controversy"7 on the part of the petitioner so as not to Court denied legal standing to the Integrated Bar of the
unnecessarily impede the judicial process. "For courts to Philippines (IBP) for the organization's lack of direct and
indiscriminately open their doors to all types of suits and personal injury in the deployment of the Marines in
suitors is for them to unduly overburden their dockets, select areas in Metro Manila. "[The IBP's] alleged
and ultimately render themselves ineffective dispensers responsibility to uphold the rule of law and the
of justice."8 Constitution,"21 this Court said, was not sufficient an
interest considering the lack of allegation that the civil
There are exceptions to the rule on standing. Non- liberties of any of its individual members were violated.
traditional suitors - taxpayers,9 voters,10 concerned Explained the Court: chanRoblesv irt ual Lawlib rary

citizens,11 and legislators12 - have been granted


standing to question the constitutionality of In the case at bar, the IBP primarily anchors its
governmental acts. The "transcendental standing on its alleged responsibility to uphold the rule
importance"13 of the issues raised is often cited as basis of law and the Constitution. Apart from this declaration,
for granting standing. however, the IBP asserts no other basis in support of
its locus standi. The mere invocation by the IBP of its
Petitioner Knights of Rizal anchors its legal standing on duty to preserve the rule of law and nothing more, while
its charter, Republic Act No. 646, Section 2 of which undoubtedly true, is not sufficient to clothe it with
provides:c hanRoble svirtual Lawli bra ry
standing in this case. This is too general an interest
which is shared by other groups and the whole citizenry.
SECTION 2. The purposes of this corporation shall be to Based on the standards above-stated, the IBP has failed
study the teachings of Dr. Jose Rizal, to inculcate and to present a specific and substantial interest in the
propagate them in and among all classes of the Filipino resolution of the case. Its fundamental purpose which,
people, and by words and deeds to exhort our citizenry under Section 2, Rule 139-A of the Rules of Court, is to
to emulate and practice the examples and teachings of elevate the standards of the law profession and to
our national hero; to promote among the associated improve the administration of justice is alien to, and
knights the spirit of patriotism and Rizalian chivalry; to cannot be affected by the deployment of the Marines. It
develop a perfect union among the Filipinos in revering should also be noted that the interest of the National
the memory of Dr. Jose Rizal; and to organize and hold President of the IBP who signed the petition, is his
programs commemorative of Rizal 's nativity and alone, absent a formal board resolution authorizing him
martyrdom. to file the present action. To be sure, members of the
BAR, those in the judiciary included, have varying
Petitioner further cites as basis Section 7 of Republic No. opinions on the issue. Moreover, the IBP, assuming that
7356 or the Law Creating the National Commission for it has duly authorized the National President to file the
Culture and the Arts: chanRoblesvi rt ual Lawlib rary

petition, has not shown any specific injury which it has


suffered or may suffer by virtue of the questioned
SECTION 7. Preservation of the Filipino Heritage. - It is
governmental act. Indeed, none of its members, whom
the duty of every citizen to preserve and conserve the
the IBP purportedly represents, has sustained any form
Filipino historical and cultural heritage and resources.
of injury as a result of the operation of the joint visibility
The retrieval and conservation of artifacts of Filipino
patrols. Neither is it alleged that any of its members has
culture and history shall be vigorously pursued.
been arrested or that their civil liberties have been
However, like any other corporation, petitioner Knights violated by the deployment of the Marines. What the IBP
of Rizal may only exercise its corporate powers, projects as injurious is the supposed "militarization" of
specifically, its power to sue,14 through its Board of law enforcement which might threaten Philippine
Directors.15 There must be a duly issued Secretary's democratic institutions and may cause more harm than
Certificate attached to the petition stating that the good in the long run. Not only is the presumed "injury"
corporation's board allowed the filing of the suit in not personal in character, it is likewise too vague, highly
behalf of the corporation.16 speculative and uncertain to satisfy the requirement of
standing. Since petitioner has not successfully
Here, the Secretary's Certificate was not duly established a direct and personal injury as a
accomplished. There was no indication of petitioner's consequence of the questioned act, it does not possess
Corporate Secretary Maximo Salazar's community tax the personality to assail the validity of the deployment
certificate number and competent evidence of identity. of the Marines. This Court, however, does not
These were left blank in the Acknowledgment categorically rule that the IBP has absolutely no
page.17 The date of the alleged special meeting when standing to raise constitutional issues now or in the
Diosdado Santos, Deputy Supreme Commander of future. The IBP must, by way of allegations and proof,
petitioner, was authorized by the Board to file the case, satisfy this Court that it has sufficient stake to obtain
was also left blank.18 judicial resolution of the controversy.22

With petitioner Knights of Rizal having no direct and


Moreover, there was no showing of a direct injury to
personal interest in this case, it has no legal standing.
petitioner or a specific member of Knights of Rizal
On this ground alone, this Petition should have been
caused by the construction of Torre de Manila. "[Losing]
dismissed outright.
its moral authority and capacity 'to inculcate and
propagate... [the teaching of] Dr. Jose Rizal'"19 is too
The liberality in granting legal standing to those who
general and vague an interest to grant Knights of Rizal
have none should be tempered especially when the
legal standing to sue. Further, Knights of Rizal is not
party suing is a corporation, the composition and nature
a citizen with the duty to preserve and conserve
of which inherently make the determination of direct
historical and cultural heritage.
and personal interest difficult. This is especially true in of new circumstances or in the light of some confusions
cases involving alleged violations of provisions under the of bench or bar existing precedents. Rather than a court
Bill of Rights, which primarily involves of first instance or as a repetition of the actions of the
"fundamental individual rights."23 Court of Appeals, this court promulgates these doctrinal
devices in order that it truly performs that
The constitutional issue raised here is indeed novel. This role.30 (Citation omitted)
Court has yet to decide on the extent of protection the
State has to afford to our nation's historical and cultural II
heritage and resources, specifically, whether a declared
national cultural treasure's sightlines and settings are
This Court also has no subject matter jurisdiction over
part of its physical integrity.
this case.

Nevertheless, novelty, in it itself, does not equate to the


Jurisdiction over the subject matter is the "power to
transcendental importance of the issues involved.
hear and determine cases of the general class to which
Constitutional issues, however novel, may likewise be
the proceedings in question belong."31 For this Court, its
resolved by regional trial courts at the first instance.
subject matter jurisdiction is provided in the first
Regional trial courts and this Court share concurrent
paragraph of Section 5 of Article VIII of the
original jurisdiction over issues involving constitutional
Constitution:
questions.24
chanRoblesvi rtu alLaw lib rary

SECTION 5. The Supreme Court shall have the following


As pointed out in the majority opinion, factual powers: (1) Exercise original jurisdiction over cases
issues25 were raised in this Petition.26 This Court, not affecting ambassadors, other public ministers and
being a trier of facts,27 the Petition should have been consuls, and over petitions for certiorari,
filed before the regional trial court. This is also prohibition, mandamus, quo warranto, and habeas
consistent with the doctrine of hierarchy of courts. corpus.
Recourse must first be obtained from lower courts
sharing concurrent jurisdiction with a higher court.28 As for cases for injunction such as that originally filed by
petitioner Knights of Rizal, this Court has no jurisdiction.
Clarifying this concept in Diocese of Bacolod v. Actions for injunction have subject matters incapable
Commission on Elections,29 we said: chanRoble svi rtual Lawli bra ry
ofpecuniary estimation.32 Therefore, such actions are
under the exclusive original jurisdiction of regional trial
The doctrine that requires respect for the hierarchy of courts.33 Actions for injunction cannot be commenced
courts was created by this court to ensure that every before any other court.
level of the judiciary performs its designated roles in an
effective and efficient manner. Trial courts do not only The present Petition was converted into mandamus as a
determine the facts from the evaluation of the evidence matter of "[relaxing] procedural rules."34 The dissent of
presented before them. They are likewise competent to Justice Francis H. Jardeleza cites as legal bases Gamboa
determine issues of law which may include the validity v. Teves,35Salvacion v. Central Bank of the
of an ordinance, statute, or even an executive issuance Philippines,36 and Alliance of Government Workers v.
in relation to the Constitution. To effectively perform Minister of Labor and Employment37 where the petitions,
these functions, they are territorially organized into as originally filed, were for declaratory relief. Despite
regions and then into branches. Their writs generally lack of jurisdiction to take cognizance of the
reach within those territorial boundaries. Necessarily, petitions,38 this Court resolved the purely legal
they mostly perform the all-important task of inferring questions involved in Gamboa, Salvacion, and Alliance
the facts from the evidence as these are physically of Government Workers because of the issues' alleged
presented before them. In many instances, the facts "far-�reaching implications."39
occur within their territorial jurisdiction, which properly
present the 'actual case' that makes ripe a Gamboa, Salvacion, and Alliance of Government
determination of the constitutionality of such action. The Workers should be the exception rather than the rule.
consequences, of course, would be national in scope. Subject matter jurisdiction is a matter of law.40 It
There are, however, some cases where resort to courts cannot be "conferred by the acquiescence of the
at their level would not be practical considering their courts."41 A court must not change the relief and
decisions could still be appealed before the higher remedy to accommodate a petition over which it has no
courts, such as the Court of Appeals. subject matter jurisdiction the same way that parties
cannot choose, consent to, or agree as to which court or
The Court of Appeals is primarily designed as an tribunal should decide their disputes.42 Accommodating
appellate court that reviews the determination of facts a petition which, on its face, this Court cannot resolve
and law made by the trial courts. It is collegiate in for lack of jurisdiction, undermines the impartiality and
nature. This nature ensures more standpoints in the independence of this Court. It ultimately erodes the
review of the actions of the trial court. But the Court of public trust in our court system.
Appeals also has original jurisdiction over most special
civil actions. Unlike the trial courts, its writs can have a III
nationwide scope. It is competent to determine facts
and, ideally, should act on constitutional issues that Even if the present Petition is treated as one for
may not necessarily be novel unless there are factual mandamus, it does not satisfy the requirements under
questions to determine. Rule 65, Section 3. of the Rules of Court. There is no
law that "specifically enjoins as a duty" the protection of
This court, on the other hand, leads the judiciary by sightlines and settings of historical or cultural
breaking new ground or further reiterating - in the light properties.
statements of principles and policy"49 and that "[t]he
Rule 65, Section 3 of the Rules of Court provides: cha nRoblesvi rt ual Lawlib rary constitutional exhortation to 'conserve, promote, and
popularize the nation's historical and cultural heritage
SECTION 3. Petition for Mandamus. - When any and resources' lacks 'specific, operable norms and
tribunal, corporation, board, officer or person unlawfully standards' by which to guide its enforcement."50
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, As examples of other non-self-executing provisions in
trust, or station, or unlawfully excludes another from the Constitution, the dissent enumerates Sections
the use and enjoyment of a right or office to which such 11,51 12,52 and 13,53 Article II; Sections 154 and
other is entitled, and there is no other plain, speedy and 13,55 Article XIII; and Sections 156 and 2,57 Article XIV.
adequate remedy in the ordinary course of law, the Further cited is Kilosbayan v. Morato58 where, according
person aggrieved thereby may file a verified petition in to the dissent, this Court held that the provisions in
the proper court, alleging the facts with certainty and Article II on the Declaration of Principles and State
praying that the judgment be rendered commanding the Policies were not self-executing.
respondent, immediately or at some other time to be
specified by the court, to do the act required to be done Sections 15 and 16, Article XIV of the Constitution are
to protect the rights of the petitioner, and to pay the not legal bases for stopping the construction of Torre de
damages sustained by the petitioner by reason of the Manila. Textually, nothing in Sections 15 and 16
wrongful acts of the respondent. indicates that the sightlines and setting surrounding a
historical and cultural heritage or resource is subject to
The petition shall also contain a sworn certification of protection. Sections 15 and 16 contain substantive
non-forum shopping as provided in the third paragraph standards too general to serve as basis for courts to
of Section 3, Rule 46. grant any relief to petitioner Knights of Rizal. To attempt
to operate with these general substantive standards will
The following are required for mandamus to lie: first,
"propel courts into uncharted ocean of social and
"the plaintiff has a clear legal right to the act
economic policy making,"59 encroaching on the functions
demanded";43 second, "it must be the duty of the
properly belonging to the legislative and executive
defendant to perform the act, because it is mandated by
branches.
law";44 third, "the defendant unlawfully neglects the
performance of the duty enjoined by law";45fourth, "the
I do not agree, however, in making distinctions between
act to be performed is ministerial, not
self�executing and non-self-executing provisions.
discretionary";46 and, lastly, "there is no appeal or any
other plain, speedy and adequate remedy in the
A self-executing provtston of the Constitution is one
ordinary course of law."47
"complete in itself and becomes operative without the
aid of supplementary or enabling legislation."60 It
IV
"supplies [a] sufficient rule by means of which the right
it grants may be enjoyed or protected."61 "[I]f the
The first requisite is absent in this case. Petitioner
nature and extent of the right conferred and the liability
Knights of Rizal has no clear legal right to an injunction
imposed are fixed by the constitution itself, so that they
against the construction of Torre de Manila. Petitioners
can be determined by an examination and construction
failed to point to a law that specifically prohibits the
of its terms, and there is no language indicating that the
construction of any structure that may obstruct the
subject is referred to the legislature for action,"62 the
sightline, setting, or backdrop of a historical or cultural
provision is self-executing.
heritage or resource.
On the other hand, if the provision "lays down a general
Petitioner Knights of Rizal mainly argues that the
principle,"63 or an enabling legislation is needed to
sightlines and setting of the Rizal Monument are
implement the provision, it is not self�executing.
protected under Sections 15 and 16, Article XIV of the
Constitution:
To my mind, the distinction creates false second-order
chanRoblesvi rtu alLaw lib rary

SECTION 15. Arts and letters shall enjoy the patronage constitutional provisions. It gives the impression that
of the State. The State shall conserve, promote, and only self-executing provisions are imperative.
popularize the nation's historical and cultural heritage
and resources, as well as artistic creations. All constitutional provisions, even those providing
general standards, must be followed. Statements of
SECTION 16. All the country's artistic and historic general principles and policies in the Constitution are
wealth constitutes the cultural treasure of the nation frameworks within which branches of the government
and shall be under the protection of the State which are to operate. The key is to examine if the provision
may regulate its disposition. contains a prestation and to which branch of the
government it is directed. If addressed either to the
It is argued that Sections 15 and 16, Article XIV of the legislature or the executive, the obligation is not for this
Constitution are not self-executing provisions and, Court to fulfill.
therefore, cannot be made basis to stop the
construction of Torre de Manila. The dissenting opinion V
considers that Sections 15 and 16 "do not create any
judicially enforceable right and obligation for the There are no second-order provisions in the
preservation, protection or conservation of the Constitution. We create this category when we classify
prominence, dominance, vista points, vista corridors, the provisions as "self-executing" and "non�-self
sightlines and setting of the Rizal Park and the Rizal executing." Rather, the value of each provision is
Monument."48 It adds that Sections 15 and 16 are "mere implicit in their normative content.
generation. While history is a contemporary narration of
For instance, Sections 14, 15, 16, and 17, Article XIV of our past, culture is always contemporary with
the Constitution must be read as provisions that inspiration from both our past and our ambitions
contribute to each other's coherence. That is, we must towards a common future.
interpret them holistically to understand the concepts
labeled as culture and history. None of these provisions History can explain or reflect on our culture. Culture, on
deserve to be read in isolation. the other hand, provides the frame for understanding
our history. They both relate to each other. Being
Section 14 reads: chanRoblesv irt ual Lawlib rary aspects of social consciousness, they also both evolve.

SECTION 14. The State shall foster the preservation, History and culture produce material things which can
enrichment, and dynamic evolution of a Filipino national be preserved because they serve the purpose of
culture based on the principle of unity in diversity in a symbolism. Historical heritage may consist of the
climate of free artistic and intellectual expression. monuments that will cause collective reflection.
Historical resources are the materials which can be used
The object of the provision is a "Filipino national
to understand and perhaps clarify narratives of our past.
culture." In relation to this object, it is the State's duty
to foster its "preservation, enrichment," and
Of course, Section 16 also acknowledges artistic
development. Our Filipino national culture should be
creations, which may not be the product of historical
based on the "principle of unity in diversity." It grows
narrative or of culture. It thus provides an opening for
"in a climate of free artistic and intellectual expression."
the introduction of present understandings of culture.
Artists are not necessarily bound by a view of the past.
Clearly, the Constitution acknowledges that culture
Art can also be an insight to our future.
exists at various levels and with many dimensions. In
terms of social space, there is a "national" culture and
Section 17 provides for acknowledgement of indigenous
local ones. There is diversity also among cultures. Ours
culture, thus:
is a multi-ethnic, multi-vocal, and multi-lingual state.
chanRoblesvi rt ualLaw lib rary

SECTION 17. The State shall recognize, respect, and


The Constitutional provision further implies that there protect the rights of indigenous cultural communities to
can be unity both in the diversity of our culture as well preserve and develop their cultures, traditions, and
as in their commonalities. Thus, the cultures that vary in institutions. It shall consider these rights in the
terms of their spatial, ethnic, or linguistic applications formulation of national plans and policies.
are not mutually exclusive of each other. They interact
and reflect each other. This provision implies that culture may be indigenous,
but not entirely so. By giving protection to the culture of
Significantly, culture evolves. It is not only to be indigenous communities in terms of their traditions and
preserved; it should also be enriched. It is not to institutions, it impliedly also acknowledges that there
archaically retard; it must develop. Intrinsic in the very are portions of our culture borrowed from our
concept of culture is that it is dynamic. "Free artistic and interaction with the outside world. In this view, culture
intellectual expression" ensures its malleability so that it is assumed to be dynamic. It is not unchanging.
becomes appropriate to the contemporary world while at
the same time maintaining the values embedded in a In a democracy, dominant social, historical, and even
common framework that defines the implicit ways of life cultural understanding is and will always be contested.
that we transmit through generations. Present generations are imbued with intrinsic rights to
give their own reading of past events. They are not
Section 15 provides: cha nRoblesvi rt ual Lawlib rary passive receptacles of cultural transmissions of their
ancestors. It is they who live through the challenges of
SECTION 15. Arts and letters shall enjoy the patronage their generation and it is they, who armed with their
of the State. The State shall conserve, promote, and variations on culture and their reading of history,
popularize the nation's historical and cultural heritage contribute to our sense of nationhood.
and resources, as well as artistic creations.
Thus, our Constitution acknowledges the importance of
Section 16 provides:
freedom of expression. Nuance and dissent provide a
cha nRoblesvi rt ual Lawlib rary

SECTION 16. All the country's artistic and historic rich but continuous stream of contestation. Dominant
wealth constitutes the cultural treasure of the nation understanding is always challenged by newer ones. It is
and shall be under the protection of the State which through these challenges to understanding of the past
may regulate its disposition. that history and culture undergo constant enrichment
and development. There is the constant problem of the
These provisions recognize the importance of arts and real significance of events as well as personalities that
letters as cultural artifact. This provision, thus, animate our history. History becomes more
acknowledges the State's duty to "conserve, promote, contemporarily legible to the present generation.
and popularize" five (5) artifacts: (a) historical heritage,
(b) historical resources, (c) cultural heritage, (d) Historians constantly discover more evidence and
cultural resources, and (e) artistic creations. factual detail in past events which produce better
insights of ourselves.
Section 15 distinguishes between history and culture.
History is a narrative of our past. Culture, on the other In this context, no hero can be venerated as unchanging
hand, encompasses the implicit social understanding of nor as eternal god. No narrative of a hero should be
the ways of life that we transmit from generation to accepted as more impervious than religious truth. No
hero should be venerated exclusively as the "soul of the Maximino Paterno, Ramon Genato, Tomas del Rosario,
nation." and Ariston Bautista. The Philippine Commission then
passed Act No. 89368 in 1903, appropriating
Similarly, no monument is so sacred that the way that it US$15,000.00 to augment the fund.69
is seen and the meaning of such gaze should be kept
unchanging. The committee was also tasked to oversee the
international design competition from 1905 to 1907.
The argument that the background of the Rizal European and American sculptors were invited to join
Monument should be unchanging would be to attempt to the competition. The materials, however, would be
impose several layers of inference that cumulate into an produced in the Philippines. The estimated cost of the
unreasonable view of how we should understand Jose project was P100,000.00.70
Rizal, the extent that he was a protagonist during his
historical period, and the significance of the events for There were 40 entries for the competition. On January
us at present. 8, 1908, another committee composed of Governor-
General James F. Smith, John T. Macleod, and Maximino
For instance, Jose Rizal's humility can be inferred M. Paterno announced their decision to the press and
through a letter he wrote and which was discovered declared the Al Martir de Bagumbayan (To the Martyr of
posthumously. In a letter to his brother, he expressed Bagumbayan) by Carlos Nicoli of Carrara, Italy as the
his desire to be buried in an unmarked grave in a winner of the competition.71
cemetery in Paco, Manila. This humility in public service
may be lost when we insist that a monument, which The committee was dominated by foreigners. The top
Jose Rizal never imagined, commissioned to a Swiss two winners were foreigners.
artist, depicting him as dominant over all others who
bled for our freedom, is profusely venerated. Carlos Nicoli could not post the required bond during the
construction period. Thus, the second prize winner,
This veneration amounts to a dominant narrative that the Motto Stella (Guiding Star) by Richard Kissling of
petitioner wishes to impose. More troubling is that the Switzerland, was instead built. It consisted of a bronze
petitioner wants to do so undemocratically: through a statue of Rizal dressed in an overcoat facing west and
judicial writ. holding a book, two boys reading a book facing south, a
mother and child facing north, and a granite obelisk in
Symbols mark a consensus which can change through the middle.72
time. By itself, it has no intrinsic value. It is not the
material that should be protected. Rather, it is the The monument was constructed 100 meters southeast
values implicit in the symbolism which take part in a from Rizal's execution site. On December 29, 1912, the
narrative. urn of Rizal's remains was brought to the Marble Hall of
the Ayuntamiento de Manila. "After lying in state for a
Jose Rizal fought for a democratic society where every day, [it] was carried by funeral procession to Luneta."
citizen could be educated and therefore critical of the "The remains were buried at the base of the
dominant understandings imposed by the powerful. We monument." The monument was inaugurated the
deny him that vision when we impose on others a view following year.73
of the aesthetic by judicial fiat.
In the year of Rizal's centenary in 1961, Kissling's
VI original design was altered by Juan Nakpil and
commissioned by the Jose Rizal National Centennial
Before Rizal was executed on December 30, 1896, he Commission, in response to the concern that new
wrote his family expressing his wishes for his burial. The structures in Luneta would dwarf the monument. A
letter reads, in part:
cha nRoblesvi rt ualLaw lib rary
stainless steel pylon was superimposed over the obelisk,
increasing the structure's height from 41 feet and 8
Bury me in the ground. Place a stone and a cross over inches to 100 feet.74
it. My name, the date of my birth and of my death.
Nothing more. If later you wish to surround my grave The stainless steel pylon, however, divided public
with a fence, you can do it. No anniversaries. I prefer opinion. Some artists, such as Napoleon Abueva,
Paang Bundok.64 supported it, while others were critical of it.75 The pylon
was removed two (2) years later "to avoid a temporary
After his execution, his body was secretly buried in Paco
restraining order from a court that shared Nakpil's
Cemetery. His sister, Narcisa, was able to convince the
aesthetic sense."76 The design of the monument remains
gravedigger to place a small marble slab on the
unchanged to this day.
gravesite.65
In 2013, the Rizal Monument was declared a National
Rizal's family had his body exhumed on August 17,
Monument77 and a National Cultural Treasure.78
1898 and placed in an ivory urn. The urn was kept in his
mother's house in Binondo.66
The value we now put on a monument designed by a
Swiss, and chosen by a panel dominated by our
It was on September 28, 1901 when Act No. 243 was 67
American colonialists was weaved as part of our
passed. Act No. 243 authorized the use of Luneta for the
narrative. The monument is not a material artifact that
building of a monument in honor of Rizal. The cost
was created by the hands of our anti-imperialist
would be from publicly-raised funds am supervised by a
revolutionaries.
committee composed of Paciano Rizal, Pascual Poblete,
Juan Tuason, Teodoro Yangco, Mariano Limjap,
It would be reasonable to consider that the significance
of the Rizal Monument is a postcolonial reflection of conservation in an integrated and holistic manner,
those in power. cutting across all relevant disciplines and technologies.
The State shall further administer the heritage
VII resources in a spirit of stewardship for the inspiration
and benefit of the present and future generations.
The statutes cited by petitioner Knights of Rizal are
Republic Act No. 4846 or the "Cultural Properties VIII
Preservation and Protection Act"; Republic Act No. 7356
or the "Law Creating the National Commission for In case the physical integrity of a national cultural
Culture and the Arts"; and Republic Act No. 10066 or treasure or important cultural property is in danger of
the "National Cultural Heritage Act of 2009." destruction or significant alteration from its original
state, Republic Act No. 10066 grants the "appropriate
Enacted in 1966, Republic Act No. 4846 declares it the cultural agency" the power to issue a cease and desist
policy of the State "to preserve and protect the cultural order. Section 25 of Republic Act No. 10066
properties of the nation and to safeguard their intrinsic provides:
value."79 With respect to Republic Act No. 7356, it
c hanRoble svirtual Lawli bra ry

provides:c hanRoble svirtual Lawli bra ry


SECTION 25. Power to Issue a Cease and Desist
Order. - When the physical integrity of the national
SECTION 7. Preservation of the Filipino Heritage. - It is cultural treasures or important cultural properties are
the duty of every citizen to preserve and conserve the found to be in danger of destruction or significant
Filipino historical and cultural heritage and resources. alteration from its original state, the appropriate cultural
The retrieval and conservation of artifacts ofFilipino agency shall immediately issue a Cease and Desist
culture and history shall be vigorously pursued. Order ex parte suspending all activities that will affect
Similar to the State policy declared in Republic Act No. the cultural property. The local government unit which
4846, Section 2 of Republic Act No. 10066 more has the jurisdiction over the site where the immovable
elaborately provides: cultural property is located shall report the same to the
appropriate cultural agency immediately upon discovery
chanRo blesvi rtua lLaw lib rary

SECTION 2. Declaration of Principles and Policies. - and shall promptly adopt measures to secure the
Sections 14, 15, 16 and 17, Article XIV of the 1987 integrity of such immovable cultural property.
Constitution declare that the State shall foster the Thereafter, the appropriate cultural agency shall give
preservation, enrichment and dynamic evolution of a notice to the owner or occupant of the cultural property
Filipino culture based on the principle of unity in and conduct a hearing on the propriety of the issuance
diversity in a climate of free artistic and intellectual of the Cease and Desist Order. The suspension of the
expression. The Constitution likewise mandates the activities shall be lifted only upon the written authority
State to conserve, develop, promote and popularize the of the appropriate cultural agency after due notice and
nation's historical and cultural heritage and resources, hearing involving the interested parties and
as well as artistic creations. It further provides that all stakeholders.
the country's artistic and historic wealth constitutes the
cultural treasure of the nation and shall be under the Petitioner Knights of Rizal argues that a national cultural
protection of the State, which may regulate its treasure's "physical integrity" includes its "vista points"
disposition. and "visual corridors" as well as its "site" or its
"surrounding areas." As basis for its argument,
In the pursuit of cultural preservation as a strategy for petitioner Knights of Rizal cites the National Historical
maintaining Filipino identity, this Act shall pursue the Commission of the Philippines' Guidelines on Monuments
following objectives: Honoring National Heroes, Illustrious Filipinos and Other
Personages: chanRoblesv irt ual Lawlib rary

1. DOMINANCE
(a) Protect, preserve, conserve and
promote the nation's cultural Monuments are landmarks of our cities, towns and
heritage, its property and histories, provinces. They must be honored, preserved and
protected. Monuments should be given due prominence
and the ethnicity of local
since they symbolize national significance. For the
communities; purposes of these guidelines, the Rizal National
Monument in Luneta (Rizal Park, Manila) and the
Bonifacio National Monument (Caloocan City) are
(b) Establish and strengthen cultural established as objects of reference ...
institutions; and
....

(c) Protect cultural workers and ensure Facade of buildings around a monument, particularly on
a rotunda or circle can be retrofitted with a uniform
their professional development and
design to enhance the urban renewal of the site and the
well-being. prominence and dominance of the monument. Likewise,
building heights, volume and design should be
regulated.
The State shall likewise endeavor to create a balanced
atmosphere where the historic past coexists in harmony Measures by which dominance could be achieved
with modem society. It shall approach the problem of are the following:
a. Maintain a clean and neat environment; or the Venice Charter, petitioner argues, also require
b. Keep vista points and visual corridors to the conservation of a monument's setting: chanRoble svirtual Lawli bra ry

monuments clear for unobstructed viewing ARTICLE 1. The concept of a historic monument
appreciation and photographic opportunities; embraces not only the single architectural work but also
c. Maintain a simple and environmental-friendly the urban or rural setting in which is found the evidence
landscape. Provide plants and trees wherever of a particular civilization, a significant development or a
appropriate, to enhance and soften the built
historic event. This applies not only to great works of art
areas;
but also to more modest works of the past which have
d. Commercial billboards should not proliferate in
a town center where a dominant monument is acquired cultural significance with the passing of time.
situated; Limit building signage throughout the
second level of buildings around the monument; ....
Cities, municipalities and provinces shall adopt
these billboard and building signage regulations ARTICLE 6. The conservation of a monument implies
by passing local ordinances; preserving a setting which is not out of scale. Wherever
e. Introduce creative design devices such as paved the traditional setting exists, it must be kept. No new
walkways, attractive ground cover and rows of construction, demolition or modification which would
tall trees to make the monument the main alter the relations of mass and colour must be allowed.
attraction of the site;
f. The monument may be elevated on a mound or Again, textually, nothing in Republic Act Nos. 4846,
a platform to emphasize its importance; 7356, and 10066 provides that the "physical integrity"
g. Use strong contrast between the of a historical or cultural property includes its sightlines
monument .and its background. This will and settings. As for the National Historical Commission
enhance the monument as a focal point of site;
of the Philippines' Guidelines on Monuments Honoring
and,
National Heroes, Illustrious Filipinos and Other
h. Enclosing structures may be used to emphasize
and protect the monument. Personages, they do not have any legal effect. It has
not been shown that these Guidelines were
published80 or that a copy was deposited in the
The scale of the figure of an outdoor monument should
University of the Philippines Law Center.81
be kept to an ideal standard, which may be governed by
the following:
Assuming that these Guidelines have the force of law,
chanRoble svirtual Lawli bra ry

they allow for "urban renewal" of the site surrounding a


Minimum : Life-size
monument. In this case, there is resistance against this
"urban renewal" considering that Torre de Manila is the
first high-rise building visible at the Rizal Monument's
: Twice the
Maximum backdrop. However, as submitted by the National
life-size Historical Commission of the Philippines during the
hearing on August 27, 2014 conducted by the Senate
Committee on Education, Arts and Culture, there is no
Landmark/Monumental : More than law prohibiting the construction of Torre de Manila.
structures the life-size
Further, the Venice Charter has not been concurred in
by at least two�thirds of all the members of the
The scale would depend on the size of the open space
Senate.82 Hence, its provisions have no legal effect in
where the monument shall be placed in relation to
this jurisdiction.
human perception. The larger the open space, the taller
the monument. As a rule of thumb, no full-bodied
IX
monument must be smaller than life-size. The scales
used by sculptors are usually one-and-a-half times the
Curiously, however, in spite of an acknowledgement
life-size or twice the life-size. These sizes, when placed
that neither the National Historical Commission of the
on corresponding proportional pedestals, would appear
Philippines' Guidelines nor the Venice Charter has legal
life-size at an appropriate viewing distance. The over-all
effect, the dissent of Justice Jardeleza suggests that the
effect of the site should be an overwhelming experience.
Venice Charter should be given weight in legal
This feeling, thus, contributes to the effectiveness of the
interpretation. Thus:
learning message the monument conveys.
chanRoblesv irt ual Lawlib rary

Similarly, neither can the Venice Charter be invoked to


2. SITE AND ORIENTATION prohibit the construction of the Torre de Manila project.
The Venice Charter provides, in general terms, the steps
A. SITE/SETTING the area or territory where a that must be taken by State Parties for the conservation
monument is found or located. The setting is and restoration of monuments and sites, including these
not only limited with the exact area that is properties' setting. It does not, however, rise to a level
directly occupied by the monument, but it of enforceable law. There is no allegation that the
extends to the surrounding areas whether open Philippines has legally committed to observe the Venice
space or occupied by other structures as may Charter. Neither are we prepared to declare that its
be defined by the traditional or juridical
principles are norms of general or customary
expanse of the property.
international law which are binding on all states. We
further note that the terms of both the NHCP Guidelines
Articles 1 and 6 of the International Charter for the and the Venice Charter appear hortatory and do not
Conservation and Restoration of Monuments and Sites claim to be sources of legally enforceable rights. These
documents only urge (not require) governments to
adopt the principles they espouse through implementing Unless we are ready to supplant the Congress or the
laws. National Historical Commission of the Philippines' efforts
to discharge their legal process, we cannot impose an
Nevertheless, the Venice Charter and the NHCP interpretation which precisely has not ripened into a
Guidelines, along with various conservation conventions, legal obligation. Neither can we create international
recommendations and resolutions contained in norm of a binding character. We are not the part of the
multilateral cooperation and agreements by State and State that participates in the articulation of opinio
non� state entities, do establish a significant fact: At juris for purposes of international customary law.
the time of the enactment of our Constitution in Neither do we, as a Court, participate in the crafting or
1987, there has already been concurrence of treaties. To do all these in the guise of
a consistentunderstanding of the term the Latin principle verba artis in arte is to misplace the
"conservation" in the culture, history and heritage use of that canon. Terms of art will apply only when
context as to cover not only a heritage property's there is an art or profession to which it belongs. "Terms
physical/tangible attributes, but also of art" is jargon to a profession or art mediums. It does
its settings (e.g., its surrounding neighborhood, not apply for a normative interpretation that is still
landscapes, sites, sight lines, skylines, visual contested.
corridors and vista points).
X
The setting of a heritage culture, site or area is defined
as "the immediate and extended environment that is The core of the dissent is built on the interpretation that
part of, or contributes to, its significance and distinctive the Comprehensive Land Use Plan and Zoning
character." It is also referred to as "the surroundings in Ordinance, or Ordinance No. 8119, "provides for a clear
which a place is experienced, its local context, specific duty on the part of the City of Manila to regulate
embracing present and past relationships to the development projects insofar as these may adversely
adjacent landscape." It is further acknowledged as one affect the view, vista, sightline or setting of a cultural
of the sources from which heritage structures, sites and property within the city."84 Specifically cited were
areas "derive their significance and distinctive Sections 47 and 48 of Ordinance No. 8119, which
character." Thus, any change to the same can allegedly require that the sightlines and settings of a
"substantially and irretrievably affect" the significance of "heritage resource" be free from visual obstruction, as
the heritage property. well as Sections 45 and 53 dealing with environmental
conservation and protection standards.
The concept of settings was first formalized with the
Xi'an Declaration on the Conservation of the Settings of I disagree.
Heritage Structures, Sites and Areas adopted by the
15th General Assembly of ICOMOS on October 21, 2005. Section 47 provides: cha nRoblesvi rt ual Lawlib rary

The concept itself, however, has been acknowledged


decades before, with references to settings, landscapes, SEC. 47. Historical Preservation and Conservation
and surroundings appearing as early as 1962. Standards. - Historic sites and facilities shall be
conserved and preserved. These shall, to the extent
To reiterate, our examination of the various multilateral possible, be made accessible for the educational and
and international documents on the matter shows a cultural enrichment of the general public.
generally-accepted and oft�repeated understanding of
"heritage conservation" as covering more than a cultural The following shall guide the development ofhistoric
property's physical attributes to include its surroundings sites and facilities:
and settings. This "understanding" had, unarguably,
already acquired "term of art" status even before the 1. Sites with historic buildings or places shall be
enactment of our Constitution in 1987. Verba artis ex developed to conserve and enhance their
arte. Terms of art should be explained from their usage heritage values.
in the art to which they belong.
2. Historic sites and facilities shall be adaptively
We hold, absent proof of a clear constitutional re-used.
expression to the contrary, that the foregoing
understanding of heritage conservation provide more 3. Any person who proposes to add, to alter, or
than sufficient justification against a priori limiting the partially demolish a designated heritage
plenary power of Congress to determine, through the property will require the approval of the City
enactment of laws, the scope and extent of heritage Planning and Development Office (CPDO) and
shall be required to prepare a heritage impact
conservation in our jurisdiction. Otherwise put, the
statement that will demonstrate to the
Congress can choose to legislate that protection of a
satisfaction of CPDO that the proposal will not
cultural property extends beyond its physical attributes adversely impact the heritage significance of
to include its surroundings, settings, view, landscape, the property and shall submit plans for review
dominance and scale. This flows from the fundamental by the CPDO in coordination with the National
principle that the Constitution's grant of legislative Historical Institute (NHI).
power to Congress is plenary, subject only to certain
defined limitations, such as those found in the Bill of 4. Any proposed alteration and/or re-use of
Rights and the due process clause of the designated heritage properties shall be
Constitution.83 (Emphasis in the original, citations evaluated based on criteria established by the
omitted) heritage significance of the particular property
or site.
5. Where an owner of a heritage property applies designed and developed in a safe, efficient and
for approval to demolish a designated heritage aesthetically pleasing manner. Site development shall
property or properties, the owner shall be consider the environmental character and limitations of
required to provide evidence to satisfaction that the site and its adjacent properties. All project elements
demonstrates that rehabilitation and re-use of shall be in complete harmony according to good design
the property is not viable. principles and the subsequent development must be
visually pleasing as well as efficiently functioning
6. Any designated heritage property which is to be especially in relation to the adjacent properties and
demolished or significantly altered, shall be
bordering streets.
thoroughly documented for archival purposes
with a history, photographic records, and
measured drawings, in accordance with The design, construction, operation and maintenance of
accepted heritage recording guidelines, prior to every facility shall be in harmony with the existing and
demolition or alteration. intended character of its neighborhood. It shall not
change the essential character of the said area but will
7. Residential and commercial infill in heritage be a substantial improvement to the value of the
areas will be sensitive to the existing scale and properties in the neighborhood in particular and the
pattern of those areas, which maintains the community in general.
existing landscape and streetscape qualities of
those areas, and which does not result in the Furthermore, designs should consider the following:
loss of any heritage resources.
1. Sites, buildings and facilities shall be designed
8. Development plans shall ensure that parking and developed with regard to safety, efficiency
facilities (surface lots, residential garages, and high standards of design. The natural
stand-alone parking garages and parking environmental character of the site and its
components as parts of larger developments) adjacent properties shall be considered in the
are compatibly integrated into heritage areas, site development of each building and facility.
and/or are compatible with adjacent heritage
resources.
2. The height and bulk of buildings and structures
shall be so designed that it does not impair the
9. Local utility companies (hydro, gas, telephone, entry of light and ventilation, cause the loss of
cable) shall be required to place metering privacy and/or create nuisances, hazards or
equipment, transformer boxes, power lines, inconveniences to adjacent developments.
conduit, equipment boxes, piping, wireless
telecommunication towers and other utility
3. Abutments to adjacent properties shall not be
equipment and devices in locations which do
allowed without the neighbor's prior written
not detract from the visual character of heritage
consent which shall be required by the City
resources, and which do not have a negative
Planning and Development Office (CPDO) prior
impact on its architectural integrity.
to the granting of a Zoning Permit (Locational
Clearance).
10. Design review approval shall be secured from
the CPDO for any alteration of the heritage
4. The capacity of parking areas/lots shall be per
property to ensure that design guidelines and
the m1mmum requirements of the National
standards are met and shall promote
Building Code. These shall be located,
preservation and conservation of the heritage
developed and landscaped in order to enhance
property.
the aesthetic quality of the facility. In no case,
shall parking areas/lots encroach into street
Section 47, paragraph 7 does not apply in this case. The rights-of-way and shall follow the Traffic Code
provision requires that "residential and commercial as set by the City.
infill in heritage areas will be sensitive to the existing
scale and pattern of those areas which maintains the 5. Developments that attract a significant volume
existing landscape and streetscape qualities of those of public modes of transportation, such as
areas, and which does not result in the loss of any tricycles, jeepneys, buses, etc., shall provide
heritage resources." Torre de Manila is not within a on-site parking for the same. These shall also
heritage area but within a university cluster zone. provide vehicular loading and unloading bays so
as street traffic flow will not be impeded.
Neither does Section 47, paragraph 9 apply. It is
addressed to "local utility companies (hydro, gas, 6. Buffers, silencers, mufflers, enclosures and
telephone, cable)" who are "required to place metering other noise-absorbing materials shall be
provided to all noise and vibration-producing
equipment, transformer boxes, power lines, conduit,
machinery. Noise levels shall be maintained
equipment boxes, piping, wireless telecommunication
according to levels specified in DENR DAO No.
towers and other utility equipment and devices in 30 - Abatement of Noise and Other Forms
locations which do not detract from the visual character ofNuisance as Defined by Law.
of heritage resources, and which do no have negative
impact on its architectural integrity." DMCI Project 7. Glare and heat from any operation or activity
Developers, Inc. is not a local utility company. Neither is shall not be radiated, seen or felt from any
it placing any equipment within a historic site or facility. point beyond the limits of the property.

Section 48, on the other hand, provides: cha nRoblesv irt ual Lawlib rary
8. No large commercial signage and/or pylon,
SEC. 48. Site Performance Standards. - The City which will be detrimental to the skyline, shall be
considers it in the public interest that all projects are allowed.
9. Design guidelines, deeds of restriction, property private corporation with no legal obligation to petitioner
management plans and other regulatory tools Knights of Rizal. As for public respondents National
that will ensure high quality developments shall Historical Commission of the Philippines, the National
be required from developers of commercjal Museum, the National Commission for Culture and the
subdivisions and condominiums. These shall be Arts, and the City of Manila, they are under no legal
submitted to the City Planning and obligation to stop the construction of Torre de Manila
Development Office (CPDO) for review and
for, as discussed, there is no law requiring the
approval.
protection of a historical or cultural property's sightline
or setting.
With respect to Section 48, it sets standards for project
development to be followed within a "specific site" and
XII
its "adjacent properties," i.e., within a specific cluster
zone. Torre de Manila and the Rizal Monument are not
Likewise absent is the fourth requisite. The act sought
adjacent or contiguous properties, nor do they belong to
to be performed in this case is not ministerial.
the same cluster zone. Neither is there an existing
complaint that DMCI Project Developers, Inc. violated
An act is ministerial if the "duty is one which an officer
the "environmental character or limitations" of the
or tribunal performs in a given state of facts, in a
cluster zone where Torre de Manila is constructed.
prescribed manner, in obedience to the mandate of a
Section 48, therefore, is inapplicable.
legal authority, without regard to or the exercise of his
[or her] own judgment upon the propriety or
The dissent also adds as legal bases for
impropriety of the act done."86 On the other hand, an
granting mandamus paragraph 1 of Section 45 as well
act is discretionary if it "gives [the public officer] the
as Section 53 of Ordinance No. 8119 which allegedly
right to decide how or when the duty shall be
provide for "specific operable norms and standards that
performed."87
protect 'views' with 'high scenic quality'":85
SEC. 45. Environmental Conservation and Protection
For respondent DMCI Project Developers, Inc., it is a
Standards. - It is the intent of the City to protect its
private corporation not legally or contractually bound to
natural resources. In order to achieve this objective, all
perform any act in favor of petitioner Knights of Rizal.
development shall comply with the following
regulations:
For respondents National Historical Commission of the
Philippines, National Commission for Culture and the
1. Views shall be preserved for public enjoyment Arts, and the National Museum, they have no duty
especially in sites with high scenic quality by under our present laws to stop the construction of any
closely considering building orientation, height, structure that obstructs the sightline, setting, or
bulk, fencing and landscaping. backdrop of a historical or cultural heritage or resource.
There is no act, whether ministerial or discretionary,
....
that can be required of them.

SEC. 53. Environmental Compliance Certificate (ECC). - For respondent City of Manila, the act sought to be
Notwithstanding the issuance of zoning permit performed is discretionary, not ministerial. Under
(locational clearance) Section 63 of this Ordinance, no Ordinance No. 8119, the City of Manila is empowered to
environmentally critical projects nor projects located in decide whether or not to grant project developers, such
environmentally critical areas shall be commenced, as DMCI Project Developers, Inc., a variance allowing
developed or operated unless the requirements of ECC the construction of a structure beyond the prescribed
have been complied with. floor-to-area ratio for a specific cluster zone.88 Here, the
Sections 45 and 53 of Ordinance No. 8119 concern City of Manila, through its Sangguniang Panlungsod,
environmental conservation and protection standards, decided to grant DMCI Homes, Inc. a variance that
specifically, the protection of natural resources. Section allowed the developer to construct a building beyond
45, paragraph 1 relates to protecting views of natural the floor-to-area ratio of four (4) for structures within a
resources. Section 53 requires project developers to university cluster zone.
secure environmental compliance certificates before
commencing or developing environmentally critical Therefore, I disagree with the proposed disposition of
projects or projects located in environmentally critical this case by the dissent. Justice Jardeleza proposed to
areas. dispose of the case with this fallo:chanRob lesvi rtua lLawl ibra ry

The Rizal Monument is not a natural resource. There is WHEREFORE, let a writ of mandamus be issued in this
no allegation that Torre de Manila is an environmentally case. Public respondent City of Manila, through its
critical project or is located in an environmentally critical representatives, is directed to RE-EVALUATE WITH
area. To apply Sections 45 and 53 of Ordinance No. DISPATCH the permits and variance issued in favor of
8119, as the dissent suggests, is patently strained. DMCI-PDI's Torre de Manila project, DETERMINE
APPLICABILITY AND/OR COMPLIANCE WITH the
XI standards under Sections 45, 53, 47 and 48, and the
provisions under Section 60 (in relation to the grant of a
The second and third requisites for the issuance of a variance), of Ordinance No. 8119 and GRANT THE
writ of mandamus are likewise absent in this case. APPROPRIATE RELIEFS/SANCTIONS under the law.
Respondents have no legal duty to petitioner Knights of The TRO issued by this Court shall REMAIN
Rizal. EFFECTIVE until the issuance of the final decision in the
re-evaluation proceeding to be conducted by the
The respondent, DMCI Project Developers, Inc. is a appropriate officials of the City of Manila.89
First, ordering the City of Manila to "re-evaluate with
dispatch the permits issued in favor of [DMCI Project Yes, Your Honor.
Developers, Inc.]" is a futile exercise. It does not solve
the constitutional issue presented in this case: whether JUSTICE LEONEN:
the sightlines and settings of historical or cultural
heritage or resources are protected under Sections 15 Yes, and therefore, when the zoning permit was issued,
and 16, Article XIV of the Constitution. there was already a variance that was acknowledged by
the City Planning Development Office of the City of
Second, the grant of a building permit or variance is a Manila, is that correct?
discretionary act and, in this case, the discretion has
already been exercised. ATTY. LAZATIN:

Third, in awaiting the final decision on the re-evaluation That's right, Your Honor.
process, we are leaving to the City of Manila the
effectivity of the temporary restraining order we issued. JUSTICE LEONEN:
We are effectively delegating our power to a local
government unit, in avoidance of our duty to finally So, in other words, Mr. Resty Rebong approved the
decide this case. application because it fell within four and the variance,
is this correct?
XIII
ATTY.LAZATIN:
There were other plain, speedy, and adequate remedies
in the ordinary course of law available to petitioner That's our impression, Your Honor.
Knights of Rizal. As earlier discussed, the Petition should
have been filed before the regional trial court to resolve JUSTICE LEONEN:
the factual issues involved and for a more adequate and
exhaustive resolution of this case. May I know what the Ordinance No. or resolution was
that authorized Resty Rebong to approve the variance?
For instance, questions that can be raised regarding the
approval of the variance of the construction from the ATTY. LAZATIN:
standard Floor Area Ratio were contained in existing
ordinances. These questions were revealed during the My recollection, Your Honor, it is Section 77 of the ...
oral arguments in this case. Thus: chanRoblesvi rtua lLawl ibra ry

JUSTICE LEONEN:
JUSTICE LEONEN:
No, I'm sorry, June 19, 2012, is there a Sangguniang
You are not aware. Okay, now, in the zoning permit if Panlungsod Resolution as of June 19, 2012 because
you look at the floor area, it says, "97,549 square Resty Rebong already said that the variance is okay. Is
meters," do you confirm this Counsel? there a resolution from the City Council on June 19,
2012 approving the variance?
ATTY. LAZATIN:
ATTY. LAZATIN:
I confirm that, Your Honor.
There was none, Your Honor.
JUSTICE LEONEN:
JUSTICE LEONEN:
And the land area is 7,475 square meters. I understand
that this includes right of way? Again, here, I'm confused. The City Planning and
Development Officer approved 97,549 which already
ATTY. LAZATIN: includes a variance, but [o]n June 19 when he approved
it in 2012, there was no resolution, nor ordinance from
That's correct, Your Honor, until an additional lot was the City Council allowing the variance.
added that made the total project area to be 7,556.
ATTY. LAZATIN:
JUSTICE LEONEN:
There was none yet at that time, Your Honor.
Okay. So, the floor area divided by the land area is
13.05, is that correct? You can get a calculator and JUSTICE LEONEN:
compute it, it's 13.05 correct?
As a matter of fact the variance was not there the
ATTY. LAZATIN: following month, correct?

That's correct, Your Honor. ATTY. LAZATIN:

JUSTICE LEONEN: No, Your Honor.

That is called the FAR? JUSTICE LEONEN:

ATTY. LAZATIN: In November 2012, there was no variance approval,


correct?
That's correct, Your Honor.
ATTY. LAZATIN:
JUSTICE LEONEN:
None ...
And prior to means "prior to," "before," "antecedent to,"
JUSTICE LEONEN: conducting any business activity or construction on their
property or lot, correct, Counsel?
When DMCI was building the building there was no
variance, was that not correct? ATTY. LAZATIN:

ATTY. LAZATIN: Yes, Your, Honor, may I be?

That's correct, Your Honor. JUSTICE LEONEN:

JUSTICE LEONEN: Did you sell your property before the action of the
Sangguniang Panlungsod?
And the only time that there was a variance that was
granted, was in 2013, I am sorry 20... ? ATTY. LAZATIN:

ATTY. LAZATIN: Your Honor, there is a difference between the approval


of the ... (interrupted)
2014, Your Honor ...
JUSTICE LEONEN:
JUSTICE LEONEN:
Did you build prior to the approval of the Sangguniang
2014? Panlungsod as per recommendation of the Manila
Zoning Board of Adjustment Appeals?
ATTY. LAZATIN:
ATTY. LAZATIN:
Yes, Your Honor.
Your Honor, if I may be allowed to ... ?
JUSTICE LEONEN:
JUSTICE LEONEN:
So, two years after this Resty Rebong approved the
zoning permit with the variance but the approval of the No, I have a pending question, did you build prior to the
variance came later? issuance of that resolution or ordinance allowing the
variance?
ATTY. LAZATIN:
ATTY. LAZATIN:
That's correct, Your Honor. Ifl may be allowed to
explain ... We build, Your Honor, in accordance with what was
permitted, Your Honor.
JUSTICE LEONEN:
JUSTICE LEONEN:
Can we go to Section 62 of the Ordinance, I am sorry
Section 63, you mentioned 62 awhile ago but I think I am again a bit curious. Section 3(J) of Republic Act
you meant Section 63 of the Manila Comprehensive 3019, the Anti-Graft and Corruption Practices Law, it
Land Use Plan and Zoning Ordinance of 2006. There it says, "knowingly approving or granting any license,
is, it's projected counsel, because I was confused based permit, privilege or benefit in favor of any person not
upon the questioning of Justice Dado Peralta and I am qualified for or not legally entitled to such license,
always confused when he asked questions, that's why I permit, privilege or advantage," that's a crime, correct?
am asking. Now in Section 63 of the Ordinance, it
clearly says there, "City Planning Development Officer ATTY. LAZATIN:
provides a clearance for all conforming uses and, in
cases of variances and exception from the Sangguniang Your Honor, may I be allowed to explain?
Panlungsod as per recommendation from the MZBAA
through the committee on Housing Urban Development JUSTICE LEONEN:
and Resettlement prior to conducting any business
activity or construction on their property/land." So, in No, I'm just confirming if there is such a Section 3,
other words, the Ordinance, said that it will not only be paragraph (J)?
forthcoming from the Sangguniang Panlungsod, there
has to be a recommendation from the Manila Zoning ATTY. LAZATIN:
Board of Adjustment Appeals who in turn will get a
recommendation through the Committee on Housing Your Honor, right now I cannot confirm that, Your
Urban Development and Resettlement, is this not Honor.
correct?
JUSTICE LEONEN:
ATTY. LAZATIN:
Okay. However, due process requires that these matters be
properly pleaded, alleged, and traversed in the proper
ATTY. LAZATIN: action.

May I just be allowed to explain, Your Honor ... Petitioner Knights of Rizal could not effectively assail the
issuance of a variance to DMCI Project Developers, Inc.
JUSTICE LEONEN: in an action in the Supreme Court. Under Section 77 of
Ordinance No. 8119, the remedy of filing an opposition
Just to clarify the way it went, there was a zoning to the application for variance before the Manila Zoning
clearance, on June 2012, the zoning clearance granted a Board of Adjustments and Appeals was available to
variance, that variance had not yet been approved by petitioner Knights of Rizal. Section 77 of the Manila
the MZBAA, nor the Sangguniang Panlungsod, and DMCI Zoning Ordinance provides: chanRo blesvi rtual Lawli bra ry

sold property, mobilized in October, pre-sold. And you


built starting November, but the Ordinance approving SEC. 77. Action on Complaints and Opposition. - A
the variance only came in 2013, is that correct? verified complaint for any violations of any provision of
the Zoning Ordinance or of any clearance or permits
ATTY. LAZATIN: issued pursuant thereto shall be filed with the [Manila
Zoning Board of Adjustments and Appeals].
That's correct, Your Honor, but may Ibe allowed to
explain, Your Honor, please? However, oppositions to application for clearance,
variance or exception shall be treated as a complaint
JUSTICE LEONEN: and dealt with in accordance with the provision of this
section.
Yes.
Given the foregoing, a writ of mandamus against the
construction of Torre de Manila does not lie.
ATTY. LAZATIN:
With petitioner having no clear legal right to the relief
Your Honor, one, you only go to the MZBAA, Your
sought, there can be no great or irreparable injury91 to
Honor, when your permit request for zoning permit or
petitioners and the temporary restraining order issued
locational clearance is denied. In this case, it was
by this Court has no solid ground. Thus, the temporary
granted so, there was no opportunity for us to go to the
restraining order must be lifted.
MZBAA ... (interrupted)
XIV
JUSTICE LEONEN:
Even with the consciousness of his impending death,
Counsel ... (interrupted)
Jose Rizal did not want to be aggrandized. He did not
want to be buried and remembered in the way that the
ATTY. LAZATIN:
petitioner wants him remembered. He wanted a simple
grave in Paang Bundok marked with his name, a simple
Secondly, allow me to complete, Your Honor, allow me
cross and possibly a fence. He did not give instructions
to complete, please, very important, Your Honor.
for foreign artists to erect his likeness. He probably did
not want that likeness to be clothed in an overcoat so
JUSTICE LEONEN:
that we remember him in the bosom of our colonial
masters. He did not leave instructions that his name be
Allow me to ask questions because I am the one that is
used for a national shrine.
going to vote on this case. Now, the second part of
Section 63 it says there, "prior to conducting any
Jose Rizal did not even want his death anniversary
business activity," can you [c]ite to me an ordinance or
celebrated.
a section in an Ordinance which says, "the only time
that you go to the MZBAA, is when the zoning permit is
Like Elias in El Filibusterismo, Rizal wanted to be
denied" because I am showing you Section 63?
remembered as an ordinary person, whose death was
meaningful because it was the result of his courage to
ATTY. LAZATIN:
do what was right no matter how fatal the
consequences.
Your Honor, you appeal to the MZBAA, Your Honor, for a
variance. So if it is granted, what will you appeal? And
Rizal should be valorized because of his humility. He
here, in addition, Your Honor, if I may be allowed to
should not be venerated like a saint or a god whose
complete my answer, Your Honor, also the records that
shrines erected in his honor is so sacred that it is
we have submitted it was the position of the City
protected by putative knights in a country that prohibits
Planning Development Officer that the executive branch
titles of royalty or nobility.
of Manila suspended the Ordinance and they were
implementing the Building Code and in fact, Your Honor,
I suspect that Jose Rizal would have been
they submitted and gave us a copy, Your Honor, of the
uncomfortable being in a pantheon of heroes and with a
opinion of the City Legal Officer that it was not
stature that, in the submissions of the petitioner and the
necessary and at that time, Your Honor, all the
Solicitor General, approaches that of a divinity.
objections to the project were based on heritage, Your
Honor.90
The memory of our heroes symbolized by shrines
erected in their honor should not be granted so imperial
a status so as to arbitrarily waste the material and fosa con un cerco, lo podreis hacer.-Nada de
physical spaces and natural resources of adjoining aniversarios.-Preferio Paang Bundok.
properties. This is inconsistent with the egalitarian
society they may have imagined. It does not square Tened compasion de la pobre Josefina.
with a more egalitarian view of social justice.
2
Integrated Bar of the Philippines v. Zamora, 392 Phil.
We cannot immortalize our heroes by privileging an 618, 632 (2000) [Per J. Kapunan, En Banc], citing
angle for a photograph of our shrines while sacrificing Philippine Constitution Association v. Enriquez, 235
the value of the rule of law for the society at present. SCRA 506 (1994), citing Luz Farms v. Secretary of the
Good citizenship requires that we never venerate our Department of Agrarian Reform, 192 SCRA 51
heroes without any understanding of their context. Rizal (1990); Dumlao v. Commission on Elections, 95 SCRA
was a Filipino, whose principles and convictions gave 392 (1980); and, People v. Vera, 65 Phil. 56 (1937).
them the courage to speak truth to power no matter
how fatal the consequences. He will still only be one 3
Id.
among many.
4
Id.
It is this courage and this humility that we should
remember from Rizal's life. These values should be 5
Id.
lived. They should persist and survive beyond the frame
of a bad photograph. 6
Integrated Bar of the Philippines v. Zamora, 392 Phil.
618, 632-633 (2000) [Per J. Kapunan, En Banc], citing
ACCORDINGLY, I vote to LIFT the Temporary Joya v. Presidential Commission on Good Government,
Restraining Order and DISMISS the Petition. 225 SCRA 568, 576 (1993).

Endnotes:
7
Integrated Bar of the Philippines v. Zamora, 392 Phil.
618, 633 (2000) [Per J. Kapunan, En Banc], citing Baker
v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663,
678 (1962).
1
The penultimate paragraph was cited in rollo, p. 2491,
National Historical Commission of the Philippines
8
Lozano v. Nograles, 607 Phil. 334, 343-344 (2009) [Per
Historical Notes on the Rizal Monument and Park, NHCP C.J. Puno, En Banc].
Memorandum, Annex C, citing Jose Rizal's letter to his
family, "A mi familia," undated, believed to have been
9
Funa v. Villar, 686 Phil. 571, 586(2012) [Per J. Velasco,
written in Fort Santiago in December 1896, National Jr., En Banc], citing David v. Macapagal-Arroyo, G.R.
Library of the Philippines. Translation by Jose Rizal No. 171396, May 3, 2006, 489 SCRA 161.
National Centennial Commission (1964).
10
Id.
For the original text, see rollo, p. 2491, National
Historical Commission of the Philippines Historical Notes
11
Id.
on the Rizal Monument and Park, NHCP Memorandum,
Annex C, citing Documentos Rizalinos (Manila: Imprenta
12
Id.
Publica, 1953), pp. 89-90. See also Cartas Entre Rizal y
Los Miembros de la Familia, available at Araneta v. Dinglasan, 84 Phil. 368, 373 (1949) [Per J.
13

<http://www.cervantesvirtual.com/descargaPdf/caras- Tuason, En Banc].


entre-rizal-y-los-miembros�de-la-familia-segunda-
parte-780268>. (Last accessed on May 22, 2017). The
14
CORP. CODE, sec. 36(1) provides:
Spanish text reads:
SECTION 36. Corporate Powers and Capacity. - Every
A mi familia corporation incorporated under this Code has the power
and capacity:
Os pido perdon del dolor que os ocasiono, pero un dia u
otro yo tenia que morir y mas vale que muera hoy en 1. To sue and be sued in its corporate name.
toda la plenitud de mi conciencia.
15
CORP. CODE, sec. 23 provides:
Queridos padres y hermanos: Dad gracias a Dios que
me conserva la tranquilidad, antes de mi muerte. Muero SECTION 23. The Board of Directors or Trustees. -
resignado, esperando que con mi muerte os dejen en Unless otherwise provided in this Code, the corporate
paz. Ah! es major morir que vivir sufriendo. Consolaos. powers of all corporations formed under this Code shall
be exercised, all business conducted and all property of
Os recomiendo que os perdoneis, unos a otros las such corporations controlled and held by the board of
peque�eces de la vida y tratad de vivir unidos en paz y directors or trustees to be elected from among the
en buena armonia. Tratad nuestros ancianos padres holders of stocks, or where there is no stock, from
como quisierais ser tratados por vuestros hijos despues. among the members of the corporation, who shall hold
Amadlos mucho, en memoria mia. office for one (1) year until their successors are elected
and qualified.
Enterradme en tierra, ponedme una piedra encima y
una cruz. Mi nombre, la fecha de mi nacimiento y la de Every director must own at least one (1) share of the
mi muerte. Nada mas. Si quereis despues rodear mi capital stock of the cqrporation of which he is a director,
which share shall stand in his name on the books of the
corporation. Any director who ceases to be the owner of 35
668 Phil. 1 (2011) [Per J. Carpio, En Banc].
at least one (1) share of the capital stock of the
corporation of which he is a director shall thereby cease 36
343 Phil. 539 (1997) [Per J. Torres, Jr., En Banc].
to be a director. Trustees of non-stock corporations
must be members thereof. A majority of the directors or 37
209 Phil. 1(1983) [Per J. Gutierrez, Jr., En Banc].
trustees of all corporations organized under this Code
must be residents of the Philippines. 38
Petitions for declaratory relief involve subject matters
incapable of pecuniary estimation and, therefore, are
See The Executive Secretary v. Court of Appeals, 473
16
under the exclusive original jurisdiction of the Regional
Phil. 27, 51 (2004) [Per J. Calleja, Sr., Second Division]. Trial Courts. See City of Lapu-Lapu v. Philippine
Economic Zone Authority, G.R. No. 184203, November
Rollo, p. 36, Secretary's Certificate.
17
26, 2014, [Per J. Leonen, Second Division].

18
Id. at 35, Secretary's Certificate. Gamboa v. Teves, 668 Phil. 1, 36 (2011) [Per J.
39

Carpio, En Banc]; Salvacion v. Central Bank of the


19
Id. at 2575-2576, Memorandum for Petitioner. Philippines, 343 Phil. 539, 556 (1997) [Per J. Torres, Jr.,
En Banc]; Alliance of Government Workers v. Minister of
20
392 Phil. 618 (2000) [Per J. Kapunan, En Banc]. Labor and Employment, 209 Phil. 1, 12 (1983) [Per J.
Gutierrez, Jr., En Banc].
21
Id. at 633.
Republic v. Estipular, 391 Phil. 211, 218 (2000) [Per J.
40

22
Id. at 633-634. Panganiban, Third Division].

23
See Justice Ynares-Santiago's Dissenting Opinion 41
Id.
in People v. Lacson, 459 Phil. 330, 372 (2003) [Per J.
Callejo, Sr., En Banc]. 42
Id.

24
See Ynot v. Intermediate Appellate Court, 232 Phil. De Castro v. Judicial and Bar Council, 629 Phil.
43

615, 621 (1987) [Per J. Cruz, En Banc]. 629,705 (2010) [Per J. Bersamin, En Banc].

25
For instance, on page 17-19 of its Petition for 44
Id.
Injunction, petitioner Knights of Rizal raises the issue of
whether the Torre de Manila is a nuisance per se. See 45
Id.
Ramcar, Inc. v. Millar, 116 Phil. 825, 828-829 (1962)
[Per J. J.B.L. Reyes, En Banc] where this Court held that 46
Id.
"[w]hether a particular thing is or is not a nuisance is a
question of fact[.]" 47
Id.

26
Ponencia, p. 15. 48
J. Jardeleza's Dissenting Opinion.

Kalipunan ng Mahihirap, Inc. v. Robredo, G.R. No.


27 49
J. Jardeleza's Dissenting Opinion.
200903, July 22, 2014 [Per J. Brion, En Banc].
50
J. Jardeleza's Dissenting Opinion.
28
See People v. Cuaresma, 254 Phil. 418, 426-428
(1989) [Per J. Narvasa, First Division]. 51
CONST. art. II, sec. 11 provides:

29
G.R. No. 205728, January 21, 2015 SECTION 11. The State values the dignity of every
<http:/Isc.judiciary.gov.ph/pdf/web/viewer.html?file=/j human person and guarantees full respect for human
urisprudence/2015/january2015/205728.pdf> [Per J. rights.
Leonen, En Banc].
Basco v. Philippine Amusement and Gaming
30
Id. at 14. Corporation, 274 Phil. 323, 343 (1991) [Per J. Paras, En
Banc].
Reyes v. Diaz, 73 Phil. 484,486 (1941) [Per J. Moran,
31

En Banc]. 52
CONST. art. II, sec. 12 provides:

See Bokingo v. Court of Appeals, 523 Ph1l. 186, 196-


32
SECTION 12. The State recognizes the sanctity of family
197 (2006) [Per J. Callejo, Sr., First Division]. life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally
33
Batas Blg. 129, sec. 19(1) provides: protect the life of the mother and the life of the unborn
from conception. The natural and primary right and duty
SECTION 19. Jurisdiction in Civil Cases. - Regional Trial of parents in the rearing of the youth for civic efficiency
Courts shall exercise exclusive original jurisdiction: and the development of moral character shall receive
the support of the Government.
(1) In all civil actions in which the subject of the
litigation is incapable of pecuniary estimation. Basco v. Philippine Amusement and Gaming
Corporation, 274 Phil. 323, 343 (1991) [Per J. Paras, En
34
J. Jardeleza's Dissenting Opinion. Banc].
53
CONST. art. II, sec. 13 provides: and out-of-school study programs particularly those that
respond to community needs; and
SECTION 13. The State recognizes the vital role of the
youth in nation-building and shall promote and protect (5) Provide adult citizens, the disabled, and out-of-
their physical, moral, spiritual, intellectual, and social school youth with training in civics, vocational efficiency,
well-being. It shall inculcate in the youth patriotism and and other skills.
nationalism, and encourage their involvement in public
and civic affairs. 58
316 Phil. 652 (1995) [Per J. Mendoza, En Banc], cited
by Justice Jardeleza in his Dissenting Opinion.
Basco v. Philippine Amusement and Gaming
Corporation, 274 Phil. 323, 343 (1991) [Per J. Paras, En 59
Justice Feliciano's Separate Concurring Opinion
Banc]. in Oposa v. Factoran, G.R. No. 101083, July 30, 1993,
224 SCRA 792, 818 [Per J. Davide, Jr., En Banc].
54
CONST. art. XIII, sec. 1 provides:
Manila Prince Hotel v. Government Service Insurance
60

SECTION 1. The Congress shall give highest priority to System, 335 Phil. 82, 102 (1997) [Per J. Bellosillo, En
the enactment of measures that protect and enhance Banc).
the right of all the people to human dignity, reduce
social, economic, and political inequalities, and remove 61
Id.
cultural inequities by equitably diffusing wealth and
political power for the common good. 62
Id.

Tolentino v. Secretary of Finance, G.R. No. 115455, 63


Id.
August 25, 1994, 235 SCRA 630, 685 [Per J. Mendoza,
En Banc]. 64
Rollo, p. 2491, National Historical Commission of the
Philippines Historical Notes on the Rizal Monument and
55
CONST. art. XIII, sec. 13 provides: Park, NHCP Memorandum, Annex C, citing Jose Rizal,
letter to his family, "A mi familia," undated, believed to
SECTION 13. The State shall establish a special agency have been written in Fort Santiago in December 1896,
for disabled persons for rehabilitation, National Library of the Philippines; translation by Jose
self�development and self-reliance, and their Rizal National Centennial Commission, 1964.
integration into the mainstream of society.
65
Id. at 2492, National Historical Commission of the
Basco v. Philippine Amusement and Gaming Philippines Historical Notes on the Rizal Monument and
Corporation, 274 Phil. 323, 343 (1991) [Per J. Paras, En Park, NHCP Memorandum, Annex C, citing Asuncion
Banc]. Lopez Bantug, Lolo Jose (Manila: Asuncion Lopez
Bantug, Vibal Foundation, Inc., and Intramuros
56
CONST. art. XIV, sec. 1 provides: Administration, 2008), p. 165.

SECTION 1. The State shall protect and promote the 66


Id. at 2492, National Historical Commission of the
right of all citizens to quality education at all levels and Philippines Historical Notes on the Rizal Monument and
shall take appropriate steps to make such education Park, NHCP Memorandum, Annex C, citing Bantug, pp.
accessible to all. 168-169 and "Jose Rizal (Remains Interred)," in
National Historical Institute, Historical Markers, Metro
Tolentino v. Secretary of Finance, G.R. No. 115455, Manila (Manila: National Historical Institute, 1993), p.
August 25, 1994, 235 SCRA 630, 685 [Per J. Mendoza, 274.
En Banc].
67
An Act granting the right to use public land upon the
57
CONST. art. XIV, sec. 2 provides: SECTION 2. The Luneta in the city of Manila upon which to erect a statue
State shall: of Jose Rizal, from a fund to be raised by public
subscriptions, and prescribing as a condition the method
(1) Establish, maintain, and support a complete, by which such subscription shall be collected and
adequate, and integrated system of education relevant disbursed.
to the needs of the people and society;
68
An Act Appropriating Fifteen Thousand Dollars, United
(2) Establish and maintain a system of free public States Currency, For The Purpose Of Contributing To
education in the elementary and high school levels. The Erection Of The Rizal Monument, And Authorizing
Without limiting the natural right of parents to rear their The Insular Treasurer To Deposit The Funds Already
children, elementary education is compulsory for all Collected In A Bank To Draw Interest.
children of school age;
69
Rollo, p. 2492, National Historical Commission of the
(3) Establish and maintain a system of scholarship Philippines Historical Notes on the Rizal Monument and
grants, student loan programs, subsidies, and other Park, NHCP Memorandum, Annex C, citing Act No. 243
incentives which shall be available to deserving students (1901) and Act No. 893 (1903).
in both public and private schools, especially to the
underprivileged; 70
Id. at 2492, National Historical Commission of the
Philippines Historical Notes on the Rizal Monument and
(4) Encourage non-formal, informal, and indigenous Park, NHCP Memorandum, Annex C.
learning systems, as well as self-learning, independent,
71
Id. at 2492, National Historical Commission of the 81
ADM. CODE, Book VII, Chapter 2, sec. 3(1) provides:
Philippines Historical Notes on the Rizal Monument and
Park, NHCP Memorandum, Annex C, citing "Prize SECTION 3. Filing. - (1) Every agency shall file with the
Winners," Manila Times, 8 January 1908; "The Rizal University of the Philippines Law Center three (3)
Monument: Story of its Own Erection," Philippines certified copies of every rule adopted by it. Rules in
International 8, 2 (June-July 1964): 4-8 and Ambeth R. force on the date of effectivity of this Code which are
Ocampo, "Much Ado about Torre: Rizal Asked Only for not filed within three (3) months from that date shall
Cross on Tombstone," Philippine Daily Inquirer, 23 not thereafter be the basis of any sanction against any
August 2015, A 1. party or persons.

72
Id. at 2492-2493, National Historical Commission of 82
CONST. art. VII, sec. 21 provides:
the Philippines Historical Notes on the Rizal Monument
and Park, NHCP Memorandum, Annex C, citing Prize SECTION 21. No treaty or international agreement shall
Winners," Manila Times, 8 January 1908; Ambeth R. be valid and effective unless concurred in by at least
Ocampo, "Much Ado about Torre: Rizal Asked Only for two-thirds of all the Members of the Senate.
Cross on Tombstone," Philippine Daily Inquirer, 23
August 2015, A 1; and Juan F. Nakpil and Sons, 83
J. Jardeleza's Dissenting Opinion.
Proposed Improvement of the Rizal Monument, Sheet A-
1, Set 1/3,20 April 1961, NHCP Library. 84
J. Jardeleza's Dissenting Opinion.

73
Id. at 2493, National Historical Commission of the 85
J. Jardeleza's Dissenting Opinion.
Philippines Historical Notes on the Rizal Monument and
Park, NHCP Memorandum, Annex C, citing Ambeth R. 86
De Castro v. Judicial and Bar Council, 629 Phil. 629,
Ocampo, "Much Ado about Torre: Rizal Asked Only for 707 (2010) [Per J. Bersamin, En Banc], citing Espiridion
Cross on Tombstone," Philippine Daily Inquirer, 23 v. Court of Appeals, G.R. No. 146933, June 8, 2006,
August 2015, A 1; Bantug, p. 169; footnote to "De Rizal 490 SCRA 273.
a su familia (sin firma ni fecha)," in Oficina de
Bibliotecas Publicas, Documentos Rizalinos Regalados 87
Id.
Por El Pueblo Espa�ol Al Pueblo Filipino (Manila:
Imprenta Publica, 1953), p. 91; Austin Craig, Rizal's Life 88
Manila Ordinance 8119, sec. 60 provides:
and Minor Writings (Manila: Philippine Education Co.,
Inc., 1927), p. 215; and Sunday Times, 28 December SEC. 60. Deviations. - Variances and exceptions from
1947, p. 12. the provisions of this Ordinance may be allowed by the
Sangguniang Panlungsod as per recommendation from
74
Id. at 2493, National Historical Commission of the the Manila Zoning Board of Adjustment and Appeals
Philippines Historical Notes on the Rizal Monument and (MZBAA) through the Committee on Housing, Urban
Park, NHCP Memorandum, Annex C, citing The Manila Development and Resettlements only when all the
Times, 16 April 1963; The Chronicle magazine, 27 April following terms and conditions are obtained/existing:
1963; and Juan F. Nakpil and Sons, Proposed
Improvement of the Rizal Monument, Sheet A-1, Set 1. Variance - all proposed projects which do not
1/3,20 April 1961, NHCP Library. conformed with the prescribed allowable Land Use
Intensity Control (LUIC) in the zone.
75
Id. at 2494, National Historical Commission of the
Philippines Historical Notes on the Rizal Monument and a. The property is unique and different from other
Park, NHCP Memorandum, Annex C, citing A. Ocampo, properties in the adjacent locality and because
"Torre de Manila, Flap Repeats Itself," Philippine Daily of its uniqueness, the owner/s cannot obtain a
Inquirer, 30 August 2015. reasonable return on the property.

76
Id. This condition shall include at least three (3) of the
following provisions:
77
Id. at 2494, National Historical Commission of the
Philippines Historical Notes on the Rizal Monument and
Park, NHCP Memorandum, Annex C, citing NHCP Board - Conforming to the provisions of the
Resolution No. 5 s. 2013, "Declaring the Rizal
Ordinance will cause undue hardship
Monument in Rizal Park a National Monument," 15 April
2013, NHCP Records Section. on the part of the owner or occupant
of the property due to physical
78
Id. at 2494, National Historical Commission of the conditions of the property
Philippines Historical Notes on the Rizal Monument and
Park, NHCP Memorandum, Annex C, citing National (topography, shape, etc.), which is
Museum, Declaration No. 9 2013, "Declaration of the not self created.
Monument to Dr. Jose Rizal in Rizal Park, City of Manila
as a National Cultural Treasure," 14 November 2013.
- The proposed variance is the
79
Rep. Act. No. 4846, sec. 2. minimum deviation necessary to
Ta�ada v. Tuvera, 230 Phil. 528, 535 (1986) [Per J.
80

Cruz, En Banc].
permit reasonable use of the Our cultural and natural heritage are
property. both irreplaceable sources of life and
inspiration.1
- The variance will not alter the
physical character of the district/zone �
where the property for which the
variance sought is located, and will
The concept of the public welfare is
not substantially or permanently
broad and inclusive. The values it
injure the use of the other properties
represents are spiritual as well as
in the same district or zone.
physical, aesthetic as well as
monetary. It is within the power of
- That the variance will not weaken the � the legislature to determine that the
general purpose of the Ordinance and community should be beautiful as
will not adversely affect the public well as healthy, spacious as well as
health, safety, and welfare. clean, well�balanced as well as
carefully patrolled. - Justice William
- The variance will be in harmony with O. Douglas in Berman v. Parker2
the spirit of this Ordinance.

89
J. Jardeleza's Dissenting Opinion.
To make us love our country, our
90
TSN dated August 11, 2015, pp. 48-54. � country ought to be lovely. -
91
RULES OF COURT, Rule 58, sec. 5 partly provides:
Edmund Burke

SECTION 5. Preliminary Injunction Not Granted Without


Notice; Exception. - No preliminary injunction shall be The Rizal Park and the Rizal Monument lie at the heart
granted without hearing and prior notice to the party or of this controversy. Petitioner Knights of Rizal (KOR)
person sought to be enjoined. If it shall appear from instituted this original action for injunction to stop what
facts shown by affidavits or by the verified application it views as "an impending permanent desecration of a
that great or irreparable injury would result to the National Cultural Treasure that is the Rizal Monument
applicant before the matter can be heard on notice, the and a historical, political, socio-cultural landmark that is
court to which the application for preliminary injunction the Rizal Park."3 According to KOR, once finished at its
was made, may issue ex parte a temporary restraining highest level, the Torre de Manila will dwarf all
order to be effective only for a period of twenty (20) surrounding buildings within a radius of two kilometers
days from service on the party or person sought to be and "completely dominate the vista and
enjoined, except as herein provided. Within the said consequently, substantially diminish in scale and
twenty-day period, the court must order said party or importance the most cherished monument to the
person to show cause, at a specified time and place, National Hero."4 Further alleging that the project is a
why the injunction should not be granted, determine nuisance per seand constructed in bad faith and in
within the same period whether or not the preliminary violation of the zoning ordinance of the City of Manila,
injunction shall be granted, and accordingly issue the KOR prayed, among others, for the issuance of an
corresponding order. injunction to restrain construction of the Torre de
Manila, and for an order for its demolition.5

In this case of first impression, the Court was asked to


determine the constitutional dimensions of Sections 15
and 16, Article XIV of the Constitution. These Sections
mandate the State to conserve and protect our nation's
DISSENTING OPINION
historical and cultural heritage and resources. We
should decide this case conscious that we here exercise
JARDELEZA, J.: our symbolic function as an aspect of our power of
judicial review.6 Ours is a heavy burden; how we decide
today will define our judicial attitude towards the
constitutional values of historic and cultural preservation
and protection, involving as they often do fragile and
Heritage is our legacy from the past,
irreplaceable sources of our national identity.
� what we live with today, and what
we pass on to future generations. The majority has voted to dismiss the petition.
seek to enforce a public right and to compel the
With respect, I dissent. performance of a public duty, most especially when the
public right involved is mandated by the Constitution."13
I
More importantly, a relaxation of procedural rules is
I shall first discuss the procedural issues. warranted considering the significance of the threshold
and purely legal question involved in this case. As
A. identified in the Court's Advisory, this threshold and
purely legal question is: "whether the definition of
Petitioner KOR filed a petition for injunction, an action the Constitutional mandate to conserve, promote
not embraced within our original jurisdiction.7 As and popularize the nation's historical and cultural
correctly pointed out by DMCI-PDI, actions for injunction heritage and resources, includes, in the case of
lie within the jurisdiction of the RTC pursuant to the Rizal Monument, the preservation of its
Sections 19 and 21 of Batas Pambansa Blg. 129, prominence, dominance, vista points, vista
otherwise known as the "Judiciary Reorganization Act of corridors, sightlines and setting."14 Apropos to this,
1980," as amended.8 I proposed that the Court also decide: (2) whether there
are laws, statutes, ordinances, and international
Nevertheless, I submit that the circumstances of this covenants that implement this mandate and which were
case warrant a relaxation of the rule. breached as a result of the construction of the Torre de
Manila; and (3) whether mandamus lies against public
First. KOR's petition appears to make a case respondents.
for mandamus.
In Gamboa v. Teves,15 an original petition for
Section 3, Rule 65 of the Rules of Court provides: cha nRoblesvi rt ual Lawlib rary
prohibition, injunction, declaratory relief, and
Sec. 3. Petition for mandamus. - When any tribunal, declaration of nullity was filed to stop the sale of shares
corporation, board, officer or person unlawfully neglects of Philippine Telecommunications Investment
the performance of an act which the law specifically Corporation (PTIC) stock to Metro Pacific Assets
enjoins as a duty resulting from an office, trust, or Holdings, Inc. (MPAH), a foreign owned corporation. The
station, or unlawfully excludes another from the use and sale, if allowed, would increase to 81% the common
enjoyment of a right or office to which such other is shareholdings of foreigners in Philippine Long Distance
entitled, and there is no other plain, speedy and Telephone Company (PLDT), beyond the allowed
adequate remedy in the ordinary course of law, the constitutional limit on foreign ownership of a public
person aggrieved thereby may file a verified petition in utility. In Gamboa, this Court acknowledged that it had
the proper court, alleging the facts with certainty and no original jurisdiction over the petition for declaratory
praying that judgment be rendered commanding the relief, injunction, and annulment of sale filed by
respondent, immediately or at some other time to be petitioners therein.16 Nevertheless, in view of the
specified by the court, to do the act required to be done threshold and purely legal issue on the definition of the
to protect the rights of the petitioner, and to pay the term "capital" in Section 11, Article XII of the
damages sustained by the petitioner by reason of the Constitution which had far-�reaching implications to
wrongful acts of the respondent. the national economy, this Court treated the petition
as one for mandamus.17
A writ of mandamus is a command issuing from a court
of law of competent jurisdiction, directed to some Gamboa cited two other precedents where we had
inferior court, tribunal, or board, requiring the relaxed procedural rules and assumed jurisdiction over a
performance of a particular duty therein specified, which petition for declaratory relief� Salvacion v. Central Bank
duty results from the official station of the party to of the Philippines18 and Alliance of Government Workers
whom the writ is directed or from operation of law.9For v. Minister of Labor and Employment.19
a petition for mandamus to prosper, petitioner must
establish the existence of a clear legal right to the thing Salvacion presented the issue of whether the protection
demanded and it must be the imperative duty of the afforded to foreign currency deposits can be made
respondent to perform the act required.10In University applicable to a foreign transient. Alliance of Government
of San Agustin, Inc. v. Court of Appeals,11 we stated: chanRoble svi rtual Lawli bra ry
Workers, on the other hand, involved the issue of
whether government agencies are considered
While it may not be necessary that the duty be "employers" under a law requiring payment of
absolutely expressed, it must however, be 13thmonth pay to certain employees. As in Gamboa, in
clear. The writ will not issue to compel an official to do both cases, we ruled that while we had no original
anything which is not his duty to do or which is his duty jurisdiction over the petitions as filed, "exceptions to
not to do, or give to the applicant anything to which he this rule have been recognized." In Salvacion, we
is not entitled by law. The writ neither confers powers declared: "where the petition has far-reaching
nor imposes duties. It is simply a command to exercise implications and raises questions that should be
a power already possessed and to perform a duty resolved, it may be treated as one
already imposed.12(Emphasis supplied). for mandamus."20 More, as in Alliance of Government
Here, KOR's case is essentially founded on Sections 15 Workers, "considering the important issues propounded
and 16, Article XIV of the Constitution giving rise to an and the fact that constitutional principles are involved,"
alleged duty on the part of respondent DMCI-PDI to we decided "to give due course to the petition, to
protect (or, at the very least, refrain from despoiling) consider the various comments as answers and to
the nation's heritage. In Uy Kiao Eng v. Lee, we held resolve the questions raised through a full length
decision in the exercise of this Court's symbolic function
that mandamus is a "proper recourse for citizens who
as an aspect of the power of judicial review."21Alliance
of Government Workers, in turn, cited as precedent the direct injury may be rooted on the destruction of "the
earlier cases Nacionalista Party v. Bautista22 and Aquino, scenery, natural and historic objects and wildlife of the
Jr. v. Commission on Elections.23 There we also relaxed park, and would impair the enjoyment of the park for
the application of procedural rules and treated the future generations."34While the US Supreme Court
petition for prohibition filed as one for quo warranto in refused to grant standing to Sierra Club due to the
view of "peculiar and extraordinary circumstances" and latter's failure to allege that "it or its members would be
"far-reaching implications" attendant in both cases. affected in any of their activities or pastimes by the
[challenged] Disney development,"35 the same is not
Here, the Court's judicial power has been invoked to true here. KOR has sufficiently demonstrated that it has
determine the extent of protection afforded by the suffered (or stands to suffer) a direct injury on account
Constitution and our laws, if any, over cultural heritage of the allegedly "illegal" condominium project insofar as
properties. Our resolution of this issue will settle KOR's regular commemorative activities in the Park
whether the Constitution's heritage conservation have been (and continues to be) marred by the
provisions are self-executing, and if not, whether the allegedly unsightly view of the Torre de Manila.
State has translated them into judicially enforceable
norms through enabling legislation. Similar to Gamboa, In any case, where compelling reasons exist, such as
Salvacion, and Alliance of Government Workers, I find when the matter is of common and general interest to
that this case presents serious constitutional issues of all citizens of the Philippines;36 when the issues are of
far-reaching implications and significance warranting a paramount importance and constitutional
liberal application of procedural rules. significance;37 when serious constitutional questions are
involved;38 or there are advance constitutional issues
B. which deserve our attention in view of their seriousness,
novelty, and weight as precedents,39 this Court, in the
Legal standing (locus standi) is defined as "a right of exercise of its sound discretion, has brushed aside
appearance in a court of justice on a given procedural barriers and taken cognizance of the
question."24 In Belgica v. Ochoa, Jr., we explained that petitions before us. The significant legal issues raised in
"[t]he gist of the question of standing is whether a party this case far outweigh any perceived impediment in the
alleges such personal stake in the outcome of the legal personality of petitioner KOR to bring this suit.40
controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which II
the court depends for illumination of difficult
constitutional questions."25 I shall now discuss the substantive issues raised in the
petition.
While rules on standing in public suits have in some
cases been relaxed especially in relation to non- A.
traditional plaintiffs like citizens, taxpayers, and
legislators,26 we have generally adopted the "direct Petitioner KOR invokes Sections 15 and 16, Article XIV
injury test" to determine whether a party has the of the Constitution as bases for its claim that there is a
requisite standing to file suit. Under this test, for a party constitutional "obligation of the State" to protect the
to have legal standing, it must be shown that he has Rizal Monument.41 The Court has consequently identified
suffered or will suffer a direct injury as a result of the the threshold legal issue to be whether Sections 15 and
act being challenged,27 that is, he must show that: (1) 16, Article XIV of the Constitution extend protection to
he has personally suffered some actual or threatened the Rizal Monument and/or its prominence, dominance,
injury because of the allegedly illegal conduct of the vista points, vista corridors, sightlines, and setting. To
government; (2) the injury is fairly traceable to the me, the resolution of this issue largely depends on
challenged action; and (3) the injury is likely to be whether these sections are self-executing and thus
redressed by a favorable action.28 judicially enforceable "in their present form."42 I will
thus discuss these issues together.
I am of the view that petitioner KOR sufficiently meets
the requirements of the direct injury test. Sections 15 and 16, Article XIV of the Constitution
read:chanRob lesvi rtual Lawli bra ry

Petitioner KOR is a public, non-profit organization


created under Republic Act No. 646,29 one of whose Sec. 15. Arts and letters shall enjoy the patronage of
main purposes include the organization and holding of the State. The State shall conserve, promote, and
programs to commemorate Rizal's nativity and popularize the nation's historical and cultural heritage
martyrdom.30 These programs honoring the birth and and resources, as well as artistic creations.
death of our national hero are held by KOR at the Rizal
Park at least twice a year.31 During oral arguments, Sec. 16. All the country's artistic and historic wealth
counsel for KOR asserted that there is a violation constitutes the cultural treasure of the nation and shall
ofKOR's legal mandate, as stated in its articles of be under the protection of the State which may regulate
incorporation, to celebrate the life of Jose Rizal at the its disposition.
Rizal Park insofar as the Torre de Manila mars the Park's
In constitutional construction, it is presumed that
previously "unhampered" and "unobstructed"
constitutional provisions are self-executing. The reason
panorama.32
is that "[i]f the constitutional provisions are treated as
requiring legislation instead of self-executing, the
Sierra Club v. Morton33 recognized that "[a]esthetic and
legislature would have the power to ignore and
environmental wellbeing, like economic wellbeing, are
practically nullify the mandate of the fundamental
important ingredients of the quality of life in our
law."43This, however, does not make all constitutional
society," similarly deserving of legal protection such that
provisions immediately self-executing. submitted, to propel courts into the uncharted
ocean of social and economic policy making. At
In Basco v. Philippine Amusement and Gaming least in respect of the vast area of environmental
Corporation,44 we held that Sections 11 (Personal protection and management, our courts have no claim
Dignity), 12 (Family), and 13 (Role of Youth) of Article to special technical competence and experience and
II; Section 12 (Social Justice and Human Rights) of professional qualification. Where no specific,
Article XIII and Section 2 (Educational Values) of Article operable norms and standards are shown to exist,
XIV of the 1987 Constitution are merely statements of then the policy making departments-the
principles and policies. They are not self-executing and legislative and executive departments-must be
would need a law to be passed by Congress to clearly given a real and effective opportunity to fashion
define and effectuate such principles. and promulgate those norms and standards, and
to implement them before the courts should
Three years later, in the 1994 case of Tolentino v. intervene.53(Emphasis supplied.)
Secretary of Finance,45 we held that the constitutional
directives under Section 1, Article XIII (Social Justice Foilowing this test, I am of the view that Sections 15
and Human Rights) and Section 1, Article XIV and 16, Article XIV of the Constitution invoked by
(Education) to give priority to the enactment of laws for petitioner KOR are not self-executing provisions. These
the e.nhancement of human dignity, the reduction of provisions relied upon by KOR, textually and standing
social, economic and political inequalities, and the alone, do not create any judicially enforceable right and
promotion of the right to "quality education" were put in obligation for the preservation, protection or
the fundamental law "as moral incentives to legislation, conservation of the "prominence, dominance, vista
not as judicially enforceable rights."46 In the subsequent points, vista corridors, sightlines and setting" of the
case of Kilosbayan, Inc. v. Morato,47 we held that the Rizal Park and the Rizal Monument.
provisions under Article II (Declaration of State
Principles and Policies) of the Constitution are not self- Similar to those constitutional provisions we have
executing provisions, "the disregard of which can give previously declared to be non-self-executing, Sections
rise to a cause of action in the courts. They do not 15 and 16 are mere statements of principle and policy.
embody judicially enforceable constitutional rights but The constitutional exhortation to "conserve, promote,
guidelines for legislation."48 In Ta�ada v. Angara,49 we and popularize the nation's historical and cultural
affirmed that far from being provisions ready for heritage and resources," lacks "specific, operable norms
enforcement through the courts, the sections found and standards" by which to guide its
under Article II are there to be "used by the judiciary as enforcement.54 Enabling legislation is still necessary to
aids or as guides in the exercise of its rcower of judicial define, for example, the scope, permissible measures,
review, and by the legislature in its enactment of and possible limitations of the State's heritage
laws."50 conservation mandate. Congress, in the exercise of its
plenary power, is alone empowered to decide whether
To determine whether a provision is self-executory, the and how to conserve and preserve historical and cultural
test is to see whether the provision is "complete in itself property. As in the situation posed by Justice Feliciano,
as a definitive law, or if it needs future legislation for Sections 15 and 16, by themselves, will be of no help to
completion and enforcement."51 In other words, the a defendant in an actual case for purposes of preparing
provision must set forth "a specific, operable legal right, an intelligent and effective defense. These sections also
rather than a constitutional or lack any comprehensible standards by which to guide a
statutory policy."52 Justice Feliciano, in his Separate court in resolving an alleged violation of a right arising
Opinion in the landmark case of Oposa v. Factoran, from the same.
explained:c hanRoble svirtual Lawlib ra ry

The view that Sections 15 and 16 are not self-executing


It seems to me important that the legal right which is an provisions is, in fact, supported by the deliberations of
essential component of a cause of action be a specific, the Constitutional Commission, insofar as they reveal an
operable legal right, rather than a constitutional or intent to direct Congress to enact a law that would
statutory policy, for at least two (2) reasons. One is that provide guidelines for the regulation as well as penalties
unless the legal right claimed to have been violated or for violations thereof.55In particular, during the
disregarded is given specification in operational terms, interpellation of Commissioner Felicitas Aquino, one of
defendants may well be unable to defend themselves the proponents of the provision on heritage
intelligently and effectively; in other words, there are conservation, she conceded that there is a need for
due process dimensions to this matter. supplementary statutory implementation of these
provisions.56
The second is a broader-gauge consideration-where a
specific violation of law or applicable regulation is not Petitioner KOR also claimed that the Torre de Manila
alleged or proved, petitioners can be expected to fall project (1) "violates" the National Historical Commission
back on the expanded conception ofjudicial power in the of the Philippines (NHCP) "Guidelines on Monuments
second paragraph of Section 1 of Article VIII of the Honoring National Heroes, Illustrious Filipinos and Other
Constitution x x x. Personages" which "guidelines have the force of law"
and (2) "runs afoul" an "international commitment" of
When substantive standards as general as "the the Philippines under the International Charter for the
right to a balanced and healthy ecology" and "the Conservation and Restoration of Monuments and Sites,
right to health" are combined with remedial otherwise known as the Venice Charter.57
standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of I disagree.
jurisdiction," the result will be, it is respectfully
The NHCP Guidelines is neither law nor an enforceable property's physical attributes to include its surroundings
rule or regulation. Publication58 and filing with the Law and settings.68 This "understanding" had, unarguably,
Center of the University of the Philippines59 are already acquired "term of art" status even before the
indispensable requirements for statutes, including enactment of our Constitution in 1987. Verba artis ex
administrative implementing rules and regulations, to arte. Terms of art should be explained from their usage
have binding force and effect.60 As correctly pointed out in the art to which they belong.69
by respondent DMCI-PDI, no showing of compliance
with these requirements appears in this case. The NHCP To me, absent proof of a clear constitutional expression
Guidelines cannot thus be held as binding against to the contrary, the foregoing understanding of heritage
respondent. conservation provide more than sufficient justification
against a priori limiting the plenary power of Congress
Similarly, neither can the Venice Charter be invoked to to determine, through the enactment of laws, the scope
prohibit the construction of the Torre de Manila project. and extent of heritage conservation in our jurisdiction.
The Venice Charter provides, in general terms, the steps Otherwise put, the Congress can choose to legislate that
that must be taken by State Parties for the conservation protection of a cultural property extends beyond its
and restoration of monuments and sites, including these physical attributes to include its surroundings, settings,
properties' setting. It does not, however, rise to a level view, landscape, dominance, and scale. This flows from
of an enforceable law. There is no allegation that the the fundamental principle that the Constitution's grant
Philippines has legally committed to observe the Venice of legislative power to Congress is plenary, subject only
Charter. Neither am I prepared to declare that its to certain defined limitations, such as those found in the
principles are norms of general or customary Bill of Rights and the due process clause of the
international law which are binding on all states.61 I Constitution.70
further note that the terms of both the NHCP Guidelines
and the Venice Charter appear hortatory and do not B.
claim to be sources of legally enforceable rights. These
documents only urge (not require) governments to Having established that Sections 15 and 16, Article XIV
adopt the principles they espouse through implementing of the Constitution invoked by petitioner KOR are not
laws.62 self-executing constitutional provisions, I will discuss
the existing laws or statutes that can be sources of
Nevertheless, the Venice Charter and the NHCP judicially demandable rights for purposes of the ends
Guidelines, along with various conservation conventions, sought to be attained by petitioner.
recommendations, and resolutions contained in
multilateral cooperation and agreements by State and a.
non-state entities, do establish a significant fact: At the
time of the enactment of our Constitution in 1987, Over the years, Congress has passed a number of laws
there has already been a consistent understanding to carry out the constitutional policy expressed in
of the term "conservation" in the culture, history, Sections 15 and 16, Article XIV of the Constitution.
and heritage context as to cover not only a Conservation and preservation have, notably, been
heritage property's physical/tangible attributes, recurring themes in Philippine heritage laws.
but also its settings (e.g., its surrounding
neighborhood, landscapes, sites, sight lines, Republic Act No. 4368,71 enacted in 1965 and which
skylines, visual corridors, and vista points). created the National Historical Commission, declared it
the duty, among others, of the Commission to "identify,
The setting of a heritage structure, site, or area is designate, and appropriately mark historic places in the
defined as "the immediate and extended environment Philippines and x x x to maintain and care for national
that is part of, or contributes to, its significance and monuments, shrines and historic markets x x x."72 A
distinctive character."63 It is also referred to as "the year later, Republic Act No. 4846, otherwise known as
surroundings in which a place is experienced, its local the "Cultural Properties Preservation and Protection
context, embracing present and past relationships to the Act," was passed declaring it an explicit state policy to
adjacent landscape."64 It is further acknowledged as one "preserve and protect the important x x x cultural
of the sources from which heritage structures, sites, and properties x x x of the nation and to safeguard their
areas "derive their significance and distinctive intrinsic value."73
character."65 Thus, any change to the same can
"substantially or irretrievably affect" the significance of Republic Act No. 735674 (RA 7356) later declared that
the heritage property.66 culture is a "manifestation of the freedom of belief and
of expression," and "a human right to be accorded due
The concept of settings was first formalized with the respect and allowed to flourish."75 Thus, it was provided
Xi'an Declaration on the Conservation of the Setting of that:chanRoblesvi rtua lLawl ibra ry

Heritage Structures, Sites and Areas adopted by the


15th General Assembly of International Council on Sec. 3. National Identity. - Culture reflects and shapes
Monuments and Sites (ICOMOS) on October 21, 2005. values, beliefs, aspirations, thereby defining a people's
The concept itself, however, has been acknowledged national identity. A Filipino national culture that
decades before, with references to settings, landscapes, mirrors and shapes Philippine economic, social
and surroundings appearing as early as 1962.67 and political life shall be evolved, promoted
and conserved.
To reiterate, my examination of the various multilateral
and international documents on the subject shows a Sec. 7. Preservation of the Filipino Heritage. - It is the
generally-accepted and oft�repeated understanding of duty of every citizen to preserve and conserve the
"heritage conservation" as covering morethan a cultural Filipino historical and cultural heritage and
resources.The retrieval and conservation of artifacts heritage resources in a spirit of stewardship for the
of Filipino culture and history shall be vigorously inspiration and benefit of the present and future
pursued. (Emphasis and underscoring supplied.) generations. (Emphasis and underscoring supplied.)

With RA 7356, Congress created the National According to the City of Manila, "[u]nobstructed viewing
Commission for Culture and the Arts (NCCA) which had, appreciation and photographic opportunities have not
among its principal mandates, the conservation and risen to the level of a legislated right or an imposable
promotion of the nation's historical and cultural obligation in connection with engineering works or even
heritage.76 Later on, Republic Act No. 849277 (RA 8492) cultural creations."83 The NHCP, for its part, claims that
was enacted, converting the National Museum (NM) into there is "no law or regulation [which] imposes a specific
a trust of the government whose primary mission duty on [the part of] the NHCP to issue a Cease and
includes the acquisition, preservation, and exhibition Desist Order (CDO) to protect the view of the Rizal
of works of art, specimens and cultural and historical Monument and Rizal Park."84 Even assuming that views
artifacts.78 Our National Building Code also prohibits the are protected, the NHCP claims that it is the City of
construction of signboards which will "obstruct the Manila in the exercise of its police power-not the NHCP-
natural view of the landscape x x x or otherwise defile, that should pass legislation to protect the Rizal Park and
debase, or offend the aesthetic and cultural Rizal Monument.85
values and traditions of the Filipino people."79
DMCI-PDI maintains that there is "absolutely no law,
Republic Act No. 1006680 (RA 10066) and Republic Act ordinance or rule prohibiting the construction of a
No. 1008681 (RA 10086) are heritage laws of recent building, regardless of height, at the background of the
vintage which further affirm the mandate to Rizal Monument and the Rizal Park."86 It argues that RA
protect, preserve, conserve, and promote the nation's 10066, the law passed by Congress to implement the
historical and cultural heritage and resources.82 Section constitutional mandate of heritage conservation, "does
2 of RA 10066, for example, reads: chanRoble svirtual Lawlib ra ry not include provisions on the preservation of the
prominence, dominance, vista points, vista corridors,
Sec. 2. Declaration of Principles and Policies. - Sections sightlines, and settings of historical monuments like the
14, 15, 16 and 17, Article XIV of the 1987 Constitution Rizal Monument."87 It further claims that what RA 10066
declare that the State shall foster the preservation, protects is merely the physical integrity of national
enrichment and dynamic evolution of a Filipino cultqre cultural treasures and important cultural properties "by
based on the principle of unity in diversity in a climate authorizing the issuance of CDOs pursuant to Section 25
of free artistic and intellectual expression. The of the law."88
Constitution likewise mandates the State to conserve,
develop, promote and popularize the nation's historical In my view, respondents are only PARTLY correct.
and cultural heritage and resources, as well as artistic
creations. It further provides that all the country's My reading of the foregoing statutes shows no clear and
artistic and historic wealth constitutes the cultural specific duty on the part of public respondents NCCA,
treasure of the nation and shall be under the protection NM, or NHCP to regulate, much less, prohibit the
of the State, which may regulate its disposition. construction of the Torre de Manila project on the
ground that it adversely affects the view, vista,
In the pursuit of cultural preservation as a strategy sightline, or setting of the Rizal Monument and the Rizal
for maintaining Filipino identity, this Act shall Park.89
pursue the following objectives:
Nevertheless, there is to me
existing local legislation implementing the
(a) Protect, preserve, constitutional mandate of heritage conservation.
conserve and promote the Ordinance No. 8119 provides for a clear and
nation's cultural heritage, its specific duty on the part of the City of Manila to
regulate development projects insofar as these
property and histories, and the may adversely affect the view, vista, sightline, or
ethnicity of local communities; setting of a cultural property within the city.

b.
(b) Establish and strengthen cultural
institutions; and Republic Act No. 7160, otherwise known as the Local
Government Code, vests local government units with
the powers to enact ordinances to promote the general
(c) Protect cultural workers and ensure welfare, which it defines to include:chanRob lesvi rtua lLawl ibra ry

their professional development and Sec. 16. General Welfare. - Every local government unit
well-being. shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
The State shall likewise endeavor to create a balanced
the promotion of the general welfare. Within their
atmosphere where the historic past coexists in harmony
respective territorial jurisdictions, local
with modem society. It shall approach the problem
government units shall ensure and support,
of conservation in an integrated and holistic
among other things, the preservation and
manner, cutting across all relevant disciplines and
enrichment of culture, promote health and
technologies. The State shall further administer the
safety, enhance the right of the people to a
balanced ecology, encourage and support the Ordinance No. 8119, by its terms, contains specific,
development of appropriate and self-reliant scientific operable norms and standards that implement the
and technological capabilities, improve public morals, constitutional mandate to conserve historical and
enhance economic prosperity and social justice, promote cultural heritage and resources. A plain reading of the
full employment among their residents, maintain peace Ordinance would show that it sets forth specific
and order, and preserve the comfort and convenience of historical preservation and conservation standards
their inhabitants. (Emphasis supplied.) which textually reference "landscape and
streetscape,"100and "visual character"101in specific
It also provides that zoning ordinances serve as the relation to the conservation of historic sites and
primary and dominant bases for the use of land facilities located within the City of Manila. We
resources.90 These are enacted by the local legislative quote: chanRoble svi rtual Lawli bra ry

council as part of their power and duty to promote


general welfare,91 which includes the division of a Sec. 47. Historical Preservation and Conservation
municipality/city into districts of such number, shape, Standards. - Historic sites and facilities shall be
and area as may be deemed best suited to carry out the conserved and preserved. These shall, to the extent
stated purposes, and within such districts "regulate and possible, be made accessible for the educational and
restrict the height, number of stories, and size of cultural enrichment of the general public.
buildings and other structures, the percentage of lot
that may be occupied x x x."92 The following shall guide the development of historic
sites and facilities:
Ordinance No. 8119 is a general zoning ordinance
similar to the one upheld by the United States Supreme 1. Sites with historic buildings or places shall be
Court in the case of Village of Euclid v. Ambler Realty developed to conserve and enhance
Co.93 as a valid exercise of police power. The validity of their heritage values.
a municipal ordinance dividing the community into
zones was challenged in that case on the ground that "it 2. Historic sites and facilities shall be adaptively
violates the constitutional protection to the right of re-used.
property x x x by attempted regulations under the guise
of the police power, which are unreasonable and 3. Any person who proposes to add, to alter, or
confiscatory."94 The US Supreme Court there stated partially demolish a designated heritage
that:chanRoblesvi rtua lLawl ibra ry
property will require the approval of the City
Planning and Development Office (CPDO) and
Building zone laws are of modem origin. They began in shall be required to prepare a heritage impact
this country about twenty-five years ago. Until recent statement that will demonstrate to the
years, urban life was comparatively simple; but with the satisfaction of the CPDO that the proposal
great increase and concentration of population, will notadversely impact the heritage
problems have developed, and constantly are significance of the property and shall
developing, which require, and will continue to require, submit plans for review by the CPDO in
coordination with the National Historical
additional restrictions in respect of the use and
Institute (NHI).
occupation of private lands in urban communities.
Regulations the wisdom, necessity and validity of which,
4. Any proposed alteration and/or re-use of
as applied to existing conditions, are so apparent that
designated heritage properties shall be
they are now uniformly sustained a century ago, or even
evaluated based on criteria established by
half a century ago, probably would have been rejected the heritage significance of the particular
as arbitrary and oppressive. Such regulations are property or site.
sustained, under the complex conditions of our day, for
reasons analogous to those which justify traffic 5. Where an owner of a heritage property applies
regulations, which, before the advent of automobiles for approval to demolish a designated heritage
and rapid transit street railways, would have been property or properties, the owner shall be
condemned as fatally arbitrary and unreasonable. And in required to provide evidence to satisfaction that
this there is no inconsistency, for, while the meaning of demonstrates that rehabilitation and re-use of
constitutional guaranties never varies, the scope of their the property is not viable.
application must expand or contract to meet the new
and different conditions which are constantly coming 6. Any designated heritage property which is to be
within the field of their operation. In a changing world, demolished or significantly altered shall be
it is impossible that it should be otherwise. x x x95 thoroughly documented for archival purposes
with a history, photographic records, and
This Court has similarly validated the constitutionality of measured drawings, in accordance with
zoning ordinances in this jurisdiction.96 In Victorias accepted heritage recording guidelines, prior to
Milling Co., Inc. v. Municipality of Victorias, Negros demolition or alteration.
Occidental,97 we held that an ordinance carries with it
the presumption of validity. In any case, the validity of 7. Residential and commercial infill in heritage
Ordinance No. 8119, while subsequently raised by areas will be sensitive to the existing scale and
pattern of those areas, which maintains the
petitioner KOR as an issue, can be challenged only in a
existing landscape and streetscape
direct action and not collaterally.98 While the question of
qualities of those areas, and which does not
its reasonableness may still be subject to a possible result in the loss of any heritage resources.
judicial inquiry in the future,99 Ordinance No. 8119 is
presumptively valid and must be applied.
8. Development plans shall ensure that parking designed and developed in a safe, efficient
facilities (surface lots, residential garages, and aesthetically pleasing manner. Site development
stand-alone parking garages and parking shall consider the environmental character and
components as parts of larger developments) limitations of the site and its adjacent properties. All
are compatibly integrated into heritage areas, project elements shall be in complete harmony
and/or are compatible with adjacent heritage according to good design principles and the subsequent
resources.
development must be pleasing as well as efficiently
functioning especially in relation to the adjacent
9. Local utility companies (hydro, gas, telephone,
properties and bordering streets.
cable) shall be required to place metering
equipment, transformer boxes, power lines,
conduit, equipment boxes, piping, wireless The design, construction, operation and maintenance of
telecommunication towers ahd other utility every facility shall be in harmony with the existing and
equipment and devices in locations which do intended character of its neighborhood. It shall not
not detract from the visual character of change the essential character of the said area but will
heritage resources, and which do not have be a substantial improvement to the value of the
negative impact on its architectural properties in the neighborhood in particular and the
integrity. community in general.

10. Design review approval shall be secured Furthermore, designs should consider the following:
from the CPDO for any alteration of the
heritage property to ensure that design
1. Sites, buildings and facilities shall be designed
guidelines and standards are met and shall
and developed with regard to safety, efficiency
promote preservation and conservation of the
and high standards of design. The natural
heritage property. (Emphasis and underscoring
environmental character of the site and its
supplied.)
adjacent properties shall be considered in
the site development of each building and
Section 47, by its terms, provides the standards by facility.
which to "guide the development of historic sites and
facilities," which include, among others, consideration of 1. The height and bulk of buildings and structures
the "existing landscape, streetscape and visual shall be so designed that it does not impair the
character" of heritage properties and resources. Under entry of light and ventilation, cause the loss of
Section 47, the following matters are issues for privacy and/or create nuisances, hazards or
consideration: (1) whether a certain property is inconveniences to adjacent developments.
considered a historic site, area and facility which has
heritage value and significance; (2) whether the xxx
proposed development adds to or alters a historic site,
area and facility; (3) whether a proposed development
8. No large commercial signage and/or pylon,
adversely impacts the heritage significance of a historic
which will be detrimental to the skyline, shall
site, area or facility; (4) whether a project proponent be allowed.
needs to submit a heritage impact statement (HIS) and
plans for review; and (5) whether the CPDO is required 9. Design guidelines, deeds of restriction, property
to coordinate with the respondent NHCP in assessing a management plans and other regulatory tools
proposed development's adverse impact, if any, to the that will ensure high quality developments shall
heritage significance of a historic site, area, and facility. be required from developers of commercial
subdivisions and condominiums. These shall be
Petitioner KOR asserted that the Rizal Park is "sacred submitted to the City Planning and
ground in the historic struggle for freedom"102 and the Development Office (CPDO) for review and
Rizal Monument is a "National Cultural Treasure."103 It approval. (Emphasis and underscoring
alleged that respondent DMCI-PDI's Torre de Manila supplied.)
condominium project will have an "adverse impact" by
ruining the sightline of the Rizal Park and Rizal Under the pertinent provisions of Section 48, the
Monument thereby diminishing its value,104 scale, and following items must be considered: (1) whether a
importance.105 To my mind, petitioner's foregoing proposed development was designed in an aesthetically
allegations should be sufficiently addressed by the City pleasing manner in relation to the environmental
upon due consideration of the standards expressed character and limitations of its site, adjacent properties,
under Section 47. and bordering streets; (2) whether the proposed
development's design (including height, bulk and
In fact, Ordinance No. 8119 contains another provision orientation) is in harmony with the existing and
that declares it in "the public interest" that all projects intended character of its neighborhood; (3) whether the
be designed in an "aesthetically pleasing" manner. It development will change the essential character of the
makes express and specific reference to "existing and area; and (4) whether the development would be akin
intended character of [a] neighborhood,"106 "natural to a large commercial signage and/or pylon that can be
environmental character" of its neighborhood, and detrimental to the skyline.
"skyline,"107 among others. Section 48 mandates
consideration of skylines as well as "the existing and I find that Section 48 appears relevant especially
intended character of the neighborhood" where the considering petitioner KOR's allegations that the Torre
proposed facility is to be located, thus: chanRoblesvirtual Lawli bra ry
de Manila sticks out "like a sore thumb"108 and
Sec. 48. Site Performance Standards. - The City respondent NHCP's statement to the Senate that the
considers it in the public interest that all projects are Commission does find that the condominium structure
(Torre de Manila) "look[s] ugly,"109 and "visually their terms, provide standards by which "views" with
obstructs the vista and adds an unattractive sight to "high scenic quality" enjoyed by the public should be
what was once a lovely public image x x x."110 The preserved, i.e., "all developments shall comply with x x
foregoing allegations should likewise be sufficiently x regulations" including those relating to "building
addressed by the City of Manila upon due consideration orientation, height, [and] bulk x x x."
of the standards stated under Section 48.
To me, these Sections thus present the following
Finally, Ordinance No. 8119, by its terms, contains questions for the City of Manila to consider and decide:
specific operable norms and standards that protect (1) whether the Rizal Park and the Rizal Monument
"views" with "high scenic quality," separately and generate a view of high scenic quality that is enjoyed by
independently of the historical preservation, the public;114 (2) whether this view comes within the
conservation, and aesthetic standards discussed under purview of the term "natural resources;" (3) whether
Sections 47 and 48. Sections 45 and 53 obligate the the orientation, height, and bulk of the Torre de Manila,
City of Manila to protect views of "high scenic quality" as prescribed in its LUIC rating under the University
which are the objects of "public enjoyment," under Cluster Zone, or as approved by the variance granted by
explicit "environmental conservation and protection the City of Manila, will impair the protection of this
standards:" view; and (4) whether the Torre de Manila is an
Sec. 45. Environmental Conservation and Protection environmentally critical project or is a project located in
Standards. - It is the intent of the City to protect an environmentally critical area, as to require
its natural resources. In order to achieve this compliance with the requirements of an ECC.115
objective, all development shall comply with the
following regulations: C.

1. Views shall be preserved for public enjoyment The majority states that the main purpose of zoning is
especially in sites with high scenic quality by the protection of public safety, health, convenience, and
closely considering building orientation, welfare. It is argued that there is no indication that the
height, bulk, fencing and landscaping. Torre de Manila project brings any harm, danger or
hazard to the people in the surrounding areas except
xxx that the building allegedly poses an unsightly view on
the taking of photos or the visual appreciation of the
Sec. 53. Environmental Compliance Certificate (ECC). - Rizal Monument by locals and tourists.
Notwithstanding the issuance of zoning permit
(locatioQal clearance) Section 63 of this Ordinance, I disagree.
no environmentally critical projects nor projects
located in environmentally critical areas shall be The modern view is that health and public safety do not
commenced, developed or operated unless the exhaust or limit the police power purposes of zoning. It
requirements of ECC have been complied with. is true that the concept of police power (in general) and
(Emphasis and italics supplied.) zoning (in particular) traditionally developed alongside
the regulation of nuisance and dangers to public health
I note that the Torre de Manila is in a University Cluster or safety. The law on land development and control,
Zone (INS-U), which is assigned a permissible however, has since dramatically broadened the reach of
maximum Percentage Land Occupancy (PLO) of 0.6 and the police power in relation to zoning.
a maximum Floor-Area Ratio (FAR) of 4. Applying these
Land Use Intensity Controls (LUICs), petitioner KOR The protection of cultural, historical, aesthetic, and
claims that the City of Manila violated the zoning architectural assets as an aspect of the public welfare
restrictions of Ordinance No. 8119 when it: (1) that a State is empowered to protect pursuant to the
permitted respondent DMCI-PDI to build a structure police power would find its strongest support in Berman
beyond the seven-floor limit allowed within an v. Parker.116 This 1954 landmark case broke new and
"institutional university cluster;" and (2) granted important ground when it recognized that public safety,
respondent DMCI-PDI a variance to construct a building health, morality, peace and quiet, law and order-which
"almost six times the height limit."111 Petitioner KOR are some of the more conspicuous examples of the
asserts that even at 22.83% completion, or at a height traditional application of the police power-merely
of 19 floors as of August 20, 2014, the Torre de Manila illustrate the scope of the power and do not limit
already obstructs the "view" of the "background of blue it.117 Justice William O. Douglas in his opinion famously
sky" and the "vista" behind the Rizal Park and the Rizal said:chanRoble svi rtual Lawli bra ry

Monument.112
We deal, in other words, with what traditionally has
I am aware that KOR does not in its petition invoke the been known as the police power. An attempt to define
constitutional right of the people to a balanced and its reach or trace its outer limits is fruitless, for each
healthful ecology,113 other environmental protection case must turn on its own facts. The definition is
statutes, or Sections 45 and 53 of Ordinance No. 8119. essentially the product of legislative determinations
Considering, however, the language of the petition's addressed to the purposes of government, purposes
allegations, the texts of Sections 45 and 53, and the neither abstractly nor historically capable of complete
greater public interest in the just and complete definition. Subject to specific constitutional limitations,
determination of all issues relevant to the disposition of when the legislature has spoken, the public interest has
this case, I include the following consideration of been declared in terms well nigh conclusive. x x x
Sections 45 and 53 in my analysis.
The concept of public welfare is broad and
In my view, Section 45 in relation to Section 53, by inclusive. The values it represents are spiritual as
well as physical, aesthetic as well as monetary. It others, the acquisition of land to preserve the lines of
is within the power of the legislature to determine the historic Battle of Gettysburg. This law was
that the community should be beautiful as well as challenged on constitutional grounds and gave rise to
healthy, spacious as well as clean, well-balanced the landmark decision in United States v. Gettysburg
as well as carefully patrolled.118(Emphasis supplied. Elec. Ry. Co.130
Citations omitted.)
Gettysburg Electric Railway Co., a railroad company
Building on Berman and later statutes, courts would, which acquired property for its railroad tracks that later
over time, accept newer definitions of the public welfare became subject of condemnation, filed a case
in support of expansive zoning laws. Some of the most questioning the kind of public use for which its land is
significant applications of this expansion will occur in the being condemned. In unanimously ruling in favor of the
use of zoning to effect public welfare interests in federal government, the United States Supreme Court
historical preservation, protection of the environment held that the taking of the property "in the name and for
and ecology, and aesthetics.119 the benefit of all the citizens of the country x x x seems
x x x not only a public use, but one so closely connected
At this juncture, I would like to put into historical with the welfare of the republic itself x x x"131 With this
perspective the development of, and inter-relation Decision, historic preservation law was "canonized by
between, town planning, police power and zoning. the legislative, executive, and judicial branches of the
Federal Government"132 and given "a constitutional
a. foundation."133

Town planning, at least in the United States, traces its On the other hand, environmental aspects of land use
origins from early colonial days. Civil engineers and land control were scarcely a concern before the
surveyors dominated the design of frontier 1960s.134 This, however, would change in 1969 with the
settlements.120 The advent of widespread land passage of the federal National Environmental Policy
speculation then triggered the era of city-building. When Act135 (NEPA) which mandated that federal agencies
unplanned growth led to disease, poor sanitation, and consider the environmental effects of their actions. The
problems of drainage and disposal of waste, the policy goals as specified in the NEPA include
"water�carriage sewerage system" was invented, "responsibilities of each generation as trustee of the
paving the way for what we now know as the era of the environment for succeeding generations"136 and to
Sanitary Reform Movement.121 "assure for all Americans safe, healthful, productive,
and aesthetically and culturally pleasing
After the Civil War, American cities rapidly grew, leading surroundings"137 through the preparation of
to "an increased awareness of the need for civic beauty environmental impact statements on major federal
and amenities in America's unplanned urban actions which may have a significant impact on the
areas."122 With the growing agitation for "greater environment, natural or built.138
attention to aesthetics in city planning" came the City
Beautiful Movement, whose debut is commonly The NEPA later led to the adoption of similar laws in
attributed to the Chicago World Fair of 1893.123 This over 75 countries.139 In the Philippines, President
Movement is considered the precursor to modem urban Marcos in 1977 issued Presidential Decree No. 1151,
planning whose hallmarks include "[w]ell-kept streets, entitled "Philippine Environmental Policy," declaring it
beautiful parks, attractive private residences, fresh air the responsibility of the government to, among others,
and sanitary improvements."124 In the 1890s, "preserve important historic and cultural aspects of the
townspeople formed ad hoc "village improvement Philippine heritage." It declared that an impact
associations" to propagate the movement.125 Over time, statement shall be filed in every action, project, or
the village improvement associations would give way to undertaking that significantly affects the quality of the
planning commissions. Much later, local governments environment. Presidential Decree No. 1586,140 issued in
adopted city plans which they eventually incorporated 1978, then authorized the President to declare certain
into comprehensive zoning ordinances.126 Thereafter, projects, undertaking, or areas in the country as
the United States Supreme Court in 1926 would uphold "environmentally critical." Pursuant to this authority,
the constitutionality of a general zoning ordinance President Marcos, under Proclamation No. 1586,
in Village of Euclid. declared areas of unique historic, archaeological, or
scientific interests as among the areas declared to be
b. environmentally critical and within the scope of the
Environmental Impact Statement System.141
Historic preservation and conservation has a long
history. It is said to have started in the United States in The broadening concept of the public welfare would also
the mid 1800's, with efforts to save Mt. Vernon, the extend to considerations of aesthetics. The traditional
home of George Washington. Before the Civil War, the rule has been that the authority for statutes and
United States (US) Congress initially harbored "strong ordinances is the state's police power to promote the
doubts" as to the constitutional basis of federal public safety, health, morals, or general
involvement in historic preservation.127 Since the welfare.142 Aesthetic considerations as a "primary
government at the time was not financing the motivation" to the enactment of ordinances are
acquisition of historic property,128 a group of ladies "insufficient" where they are only "auxiliary or
organized a private effort to acquire the property and incidental" to the interests in health, morals and
save it from ruin.129 The US Congress injected itself into safety.143
the preservation field only when it began purchasing
Civil War battlefield sites. Sometime in 1893, the US In early court decisions concerning aesthetic regulation,
Congress passed a law which provided for, among the US Supreme Court viewed aesthetics as "not
sufficiently important in comparison with traditional appearance of the community."160 In that case, we
police power uses."144 At that time, the US Supreme invalidated an ordinance that empowered the Municipal
Court would hold that aesthetic values were not Mayor to refuse to grant a building permit to a proposed
important enough to warrant an infringement of more building that "destroys the view of the public plaza." In
highly valued property rights.145 Aesthetic regulations the more recent case of Fernando v. St. Scholastica's
were perceived to carry "great a danger of unbridled College,161 this Court struck down a Marikina City
subjectivity, unlike other areas of state regulation, ordinance which provided, among others, a six-meter
where objective evaluation of the governmental purpose setback requirement for beautification purposes. There,
is possible."146 The lack of any objective standard to we held: "the State may not, under the guise of police
determine what is aesthetically pleasing created a real power, permanently divest owners of the beneficial use
danger that the state will end up imposing its values of their property solely to preserve or enhance the
upon the society which may or may not agree with it. aesthetic appearance of the community."162

As earlier noted, this would change in 1954 with Of course, Churchill and Fajardo were decided under the
Berman. Courts would thereafter take a more liberal and 1935 Constitution which simply provided that arts and
hospitable view towards aesthetics.147 "The modem letters shall be under the State's patronage.163 The 1973
trend of judicial decision x x x is to sanction aesthetic and 1987 Constitutions would change this. The 1973
considerations as the sole justification for legislative Constitution provided that "Filipino culture shall be
regulation x x x."148 Writers and scholars would preserved and developed for national identity."164 Then,
articulate the bases for extending to aesthetic stand- in 1987, the Constitution devoted a whole new sub-
alone acceptance as a public welfare consideration. section to arts and culture, including Sections 15 and 16
Newton D. Baker, a noted authority in zoning of Article XIV, which are subjects of this case. More than
regulations, argued that beauty is a valuable property that, it provided for a right of the people to a balanced
right.149 Professor Paul Sayre argued that since and healthy ecology, which spawned Oposa v. Factoran,
"aesthetics maintains property values," the greater the Jr.165
aesthetic value of property the more it is worth,
therefore it will generate more taxes to fund public As also previously noted, Congress in 1991 enacted the
needs "thereby making aesthetics a community need Local Government Code which specifically defined as
worthy of the protection of the police power."150 DiCello concerns of the public welfare, the preservation and
would make the formulation thus: "consequently, the enrichment of culture and enhancing the rights of the
general welfare may be defined as the health, safety people to a balanced ecology.
and morals or aesthetics of the
public."151 Costonis152 proposed that the legal Then in 2006, the City of Manila enacted Ordinance No.
justification for aesthetic laws is not beauty but rather 8119, which amended Ordinance No. 81-01166 of the
our individual and group psychological well- Metropolitan Manila Commission. A "City Beautiful
being.153 Bobrowski argued that visual resource Movement," appears as one of the five-item "Plan Hi-
protection supports tourism which has undeniable �Lights" of Ordinance No. 8119 and includes, among
economic benefits to the society; the protection of the others, "city imageability."167 I quote:
chanRoblesvirtual Lawlib ra ry

visual resource is related to the preservation of property


values.154 "Scenic quality is an important consideration This promotes the visual "imageability" of the City
for prospective purchasers. Obstruction of views, and according to the Burnham Plan of 1905. As per plan
noxious or unaesthetic uses of land plainly decrease recommendation from Daniel Burnham, it gives
market value."155 Coletta explained that "an individual's emphasis on the creation and enhancement of wide
aesthetic response to the visual environment is founded boulevards, public buildings, landscaped parks
on the cognitive and emotional meanings that the visual and pleasant vistas. It also encourages the
patterns convey."156 connectivity of spaces and places through various
systems/networks (transport/parkways). But most of
c. all, it is the establishment of a symbolic focusthat
would identify the City of Manila as well as
become its unifying element. These are the main
In the Philippines, this Court, in the 1915 seminal case
themes for Place Making revolving around creating a
of Churchill v. Rafferty,157 declared that objects which
"sense of place" and distinction within the City.
are offensive to the sight fall within the category of
(Emphasis and underscoring supplied.)
things which interfere with the public safety, welfare,
and comfort, and therefore, within the reach of the I have compared the provisions of Ordinance No. 8119
State's police power. Thus:chanRoblesv irtua lLawl ibra ry

with those of Ordinance No. 81-01 and find that they


Without entering into the realm of psychology, we think are both general zoning ordinances. Both similarly
it quite demonstrable that sight is as valuable to a divide the City of Manila into zones, prescribe height,
human being as any of his other senses, and that the bulk and orientation standards applicable to the zones,
proper ministration to this sense conduces as much to and provide for a procedure for variance in case of non-
his contentment as the care bestowed upon the senses conforming uses. They, however, differ in one very
of hearing or smell, and probably as much as both significant respect relevant to the determination of this
together. x x x Man's [a]esthetic feelings are constantly case. Ordinance No. 8119 provides for three
being appealed to through his sense of sight. x x x158 completely new standards not found in Ordinance
No. 81-01, or for that matter, in any of the other
Forty years later, in People v. Fajardo,159` we would
current zoning ordinances of major cities within
hold that "the State may not, under the guise of police
Metro Manila, such as Marikina,168Makati,169or
power, permanently divest owners of the beneficial use
Quezon City.170 These, as discussed, are: (a) the
of their property and practically confiscate
historical preservation and conservation standards
them solely to preserve or assure the aesthetic
under Section 47; (b) the environmental conservation or capricious, or based on personal, selfish, or
and protection standards under Sections 45 and 53; and fraudulent motives, or on false information, or on
(c) the aesthetic/site performance standards under a total lack of authority to act, or where it
Section 48. To my mind, these sets of distinctive amounts to an evasion of a positive duty, or there
provisions introduced into Ordinance No. 8119 has been a refusal to consider pertinent evidence,
constitute indubitable and irrefutable proof that hear the parties when so required, or to entertain
the City of Manila has aligned itself with any proper question concerning the exercise of
jurisdictions that have embraced the modern view the discretion, or where the exercise of the
of an expanded concept of the public welfare. For discretion is in a manner entirely futile and known
this reason, I cannot accept the majority's view that by the officer to be so and there are other
zoning as an aspect of police power covers only methods which if adopted would be effective. If by
"traditional" concerns of public safety, health, reason of a mistaken view of the law or otherwise
convenience, and welfare. there has been in fact no actual and bona
fideexercise of judgment and discretion, as, for
I am also of the view that mandamus lies against instance, where the discretion is made to turn upon
respondents. matters which under the law should not be considered,
or where the action is based upon reasons outside the
Generally, the writ of mandamus is not available to discretion imposed, mandamus will lie. So where the
control discretion nor compel the exercise of discretion is as to the existence of the facts entitling the
discretion.171 The duty is ministerial only when its relator to the thing demanded, if the facts are admitted
discharge requires neither the exercise of official or clearly proved, mandamus will issue to compel action
discretion nor judgment.172 Indeed, the issuance of according to law. x x x178 (Emphasis and underscoring
permits per se is not a ministerial duty on the part of supplied.)
the City. This act involves the exercise of judgment and
discretion by the CPDO who must determine whether a I find that the aforementioned provisions of Ordinance
project should be approved in light of many No. 8119 set out clear duties on the part of public
considerations, not excluding its possible impact on any respondent City of Manila for purposes of resolving
protected cultural property, based on the documents to whether the Torre de Manila construction project should
be submitted before it. be allowed and that the City, by reason of a mistaken or
erroneous construction of its own Ordinance, had failed
Performance of a duty which involves the exercise of to consider its duties under this law when it issued
discretion may, however, be compelled by mandamus in permits in DMCI-PDI's favor.179Thus, while a writ
cases where there is grave abuse of discretion, manifest of mandamus generally only issues to compel the
injustice, or palpable excess of authority.173 In De performance of a ministerial duty, where, as in this
Castro v. Salas,174 a writ of mandamus was issued case, there is a neglect or failure on the part of the City
against a lower court which refused to go into the merits to consider the standards and requirements set forth
on an action "upon an erroneous view of the law or under the law and its own comprehensive land use plan
practice."175 There, it was held: c hanRoblesv irtual Lawlib rary
and zoning ordinance, mandamus may lie to compel it
to consider the same for purposes of the exercise of the
No rule of law is better established than the one that City's discretionary power to issue permits.
provides that mandamus will not issue to control the
discretion of an officer or a court, when honestly I have earlier shown that Ordinance No. 8119 contains
exercised and when such power and authority is not three provisions which, by their terms, must be
abused. A distinction however must be made between a considered in relation to the determination by the City
case where the writ of mandamus is sought to control of Manila of the issue of whether the Torre de Manila
the decision of a court upon the merits of the cause, and condominium project should be allowed to stand as is.
cases where the court has refused to go into the merits Article VII (Performance Standards) of Ordinance No.
of the action, upon an erroneous view of the law or 8119 provides the standards under which "[a]ll land
practice. If the court has erroneously dismissed an uses, developments or constructions shall conform to x
action upon a preliminary objection and upon an x x." The Ordinance itself provides that in the
erroneous construction of the law, then mandamus is construction or interpretation of its provisions, "the term
the proper remedy to compel it .to reinstate the action 'shall' is always mandatory."180 These standards, placed
and to proceed to hear it upon its merits.176 in the Ordinance for specific, if not already expressed,
reasons must be seriously considered for purposes of
In Association of Beverage Employees v. Figueras,177 the issuance of building permits by the City of Manila.
Court en banc explained: chanRoblesvi rtua lLaw lib rary

Sections 43 in relation to 53, and 47 and 48, however,


That mandamus is available may be seen from the
were not considered by the City of Manila when it
following summary in 38 C. J. 598-600, of American
decided to grant the different permits applied for by
decisions on the subject, including a U. S. Supreme
DMCI-PDI. The City has, in fact, adamantly maintained
Court decision:
that there is no law which regulates, much less
chanRob lesvi rtua lLawl ibra ry

While the contrary view has been upheld, the great prohibits, such construction projects.181 While I hesitate
weight of authority is to the effect that an exception to to find grave abuse of discretion on the part of the City
the general rule that discretionary acts will not be of Manila in its actuations relating to its issuance of the
reviewed or controlled exists when the discretion has permits and the variance, this is due to the disputed
been abused. The discretion must be exercised facts respecting these issues. There is, for example, a
under the established rules of law, and it may be serious allegation of non-compliance with FAR and
said to be abused within the foregoing rule variance requirements under the Ordinance; this issue
where the action complained of has been arbitrary was, in fact, discussed and debated at great length
during oral arguments.182 While I believe that the Court discretion. The JBC cannot be allowed to create a
should refrain from making a determination of this rule and at the same time and without justifiable
particular issue, involving as it does findings of fact and reason, choose when and to whom it shall apply,
technical matters, I do not hesitate to find that the City particularly when the application of these rules
was mistaken in its view that there was no law which affects third persons who have relied on
regulates development projects in relation to views, it.186 (Emphasis and underscoring supplied.)
vista points, landscape, and settings of certain
properties. The City of Manila may have been of the honest belief
that there was no law which requires it to regulate
This law, as I have earlier sought to demonstrate, is developments within the locality following the standards
Ordinance No. 8119, whose purposes include the under Sections 45, 47, and 48. Still, the Court, without
protection of the "character" of areas within the locality offending its bounden duty to interpret the law and
and the promotion of the general welfare of its administer justice, should not permit a disregard of an
inhabitants.183 The standards and requirements under Ordinance by diminishing the duty imposed by
Ordinance No. 8119 were included in the law to ensure Congress, through the local legislature, to effectuate the
that any proposed development to be approved be general welfare of the citizens of the City of Manila. The
mindful of the numerous public welfare considerations protection of general welfare for all citizens through the
involved. Ordinance No. 8119 being the primary protection of culture, health and safety, among others,
and dominant basis for all uses of land resources is "an ambitious goal but over time, x x x something
within the locality, the City of Manila, through the that is attainable."187 To me, such mandate is as much
CPDO, knows or ought to know the existence of addressed to this Court, as it is to the other branches of
these standards and ought to have considered the Government. For this reason, I hesitate for the Court to
same in relation to the application of DMCI-PDI to allow the resulting effective disregard of the Ordinance
construct the Torre de Manila project. (on the guise of technicalities) and be ourselves a
stumbling block to the realization of such a laudable
Worse, the City has apparently been "suspending" the state goal.
application of several provisions of the Ordinance
purportedly to follow the more desirable standards Under Section 75 of Ordinance No. 8119, responsibility
under the National Building Code. In a letter dated for the administration and enforcement of the same
October 10, 2012, the Manila CPDO wrote DMCI-PDI shall be with the City Mayor, through the CPDO.188 For
stating that while Torre de Manila exceeded the FAR as long as it has not been repealed by the
allowed under the Manila Zoning Ordinance, it granted local sanggunian or annulled by the courts, Ordinance
DMCI-PDI a zoning permit "because the FAR restriction No. 8119 must be enforced.189 The City of Manila cannot
was suspended by the executive branch, for the City simply, and without due justification, disregard its
Planning Office opted to follow the National Building obligations under the law and its own zoning ordinance.
Code."184 Neither does it appear that compliance was Officers of the government from the highest to the
made pursuant to the requirements of Section 47(b) of lowest are creatures of the law and are bound to obey
Ordinance No. 8119 on the submission of a heritage it.190 In this specific sense, enforcement of the
impact statement (i.e., that the project will not ordinance has been held to be a public duty,191 not only
adversely impact the heritage significance of the cultural ministerial,192 the performance of which is enforceable
property) for review by the CPDO in coordination with by a writ of mandamus.
the NHCP.
I hasten to clarify that, by so doing, the Court
Ordinance No. 8119's inclusion of standards would not be directing the City of Manila to exercise its
respecting historic preservation, environmental discretion in one way or another. That is not the
protection, and aesthetics puts the City of Manila province of a writ of mandamus.193 Lest I be
at the forefront of local governments that have misconstrued, I propose that the writ
embraced the expanded application of the public of mandamus issued in this case merely compel the City
welfare. It is thus a major source of bafflement for of Manila, through the CPDO, to consider the standards
me as to how the City of Manila could have missed set out under Ordinance No. 8119 in relation to the
these distinctive features of Ordinance No. 8119 applications of DMCI-PDI for its Torre de Manila project.
when it processed DMCI�PDI's applications, up to It may well be that the City of Manila, after exercising
and including its grant of the variance. The City of its discretion, finds that the Torre de Manila meets any
Manila's selective attitude towards the application of or all of the standards under the Ordinance. The Court
its own rules reminds of Justice Brion's statement will not presume to preempt the action of the City of
in Jardeleza v. Sereno:185 Manila, through the CPDO, when it re-evaluates DMCI-
PDI's application with particular consideration to the
The JBC, however, has formulated its own rules, which guidelines provided under the standards.
even commanded that a higher standard for procedural
process be applied to Jardeleza. But even so, by opting The majority makes much of the grant of a variance in
to selectively apply its own rules to the prejudice of respondent DMCI-PDI's favor and views the same as the
Jardeleza, the JBC not only violated the precepts of exercise of discretion by the City of Manila which can
procedural due process; it also violated the very rules it only be corrected where there is a showing of grave
has set for itself and thus violated its own standards. abuse of discretion. This is inaccurate on two counts.

This kind of violation is far worse than the First, the rule that mandamus only lies to compel the
violation of an independently and externally performance of a ministerial duty has several
imposed rule, and cannot but be the violation exceptions; it is not limited to a case of grave abuse of
contemplated by the term grave abuse of discretion. As I have tried to discuss in detail, where
respondent's exercise of discretion was based on an one-half of the buildable area, a four-story building can
erroneous or mistaken view of the law, mandamus may cover one-fourth of the buildable area and so on. In
be the proper remedy to compel it to reinstate the commercial office building areas in large cities the ratios
action and to proceed to hear it upon its merits.194 may be 10:1, which would permit a twenty[-]story
building on half of the buildable area of the lot.
Second, the majority's view fails to appreciate the
province of a variance, which is, essentially an FAR may be used in conjunction with maximum height
exemption, under certain specified and stringent limits and other bulk controls, so that in a 10:1 area, it
conditions, from compliance with the corresponding land may not be possible to build a 200-story building on
use intensity controls (LUICs) provided for a specific 1/20th of the buildable area of a lot or to eliminate yards
zone, in this case, an institutional university cluster entirely and build a 10-story building up to all lot lines.
zone. Nevertheless, FAR does give the builder some flexibility.
In effect[,] it provides an inducement to the builder to
Ordinance No. 8119 seeks to "[p]rotect the character leave more of his lot open by permitting him to build
and stability of residential, commercial, industrial, higher.200
institutional, urban, open spaces and other functional
areas within the locality "195 and "[p]romote and protect Following this, a zoning ordinance can prescribe a
public health, safety, peace, morals, comfort, maximum height for buildings: (1) directly, that is, by
convenience and general welfare of the inhabitants of expressly providing for height limits in terms of feet or
the City."196 It divided the City of Manila into 11 types of number of stories or both; or (2) indirectly, by
zones or districts,197 each assigned with their employing a combination of bulk and floor limits.
corresponding LUIC ratings.198 LUICs, in turn,
specifically relate/pertain to percentages of land Ordinance No. 8119 does not provide for an express
occupancy (PLO), floor-area ratios (FAR), and building BHL.201 Neither, for that matter, does the Building
height limits (BHL). Code.202 Instead, Ordinance No. 8119 sets up a system
whereby building height is controlled by
At this point, some discussion of the zoning concepts of the combined use of a prescribed maximum FAR and a
orientations, height, and bulk of buildings will be prescribed maximum PLO. Theoretically, a property
helpful. owner can maximize the allowed height of his building
by reducing the area of the land which the building will
Building height limits can be regulated in several ways. occupy (PLO). This process, however, can only achieve
One involves the prescription of maximum building an allowed height up to a certain point as the allowable
heights in terms of feet or stories or both: cha nRoblesv irt ual Lawlib rary
number of floors is, at the same time, limited by the
FAR. Beyond the allowable maximum PLO or FAR, the
Height regulations state maximum heights either in property owner must avail of a mitigating device known
terms of feet or number of stories or both. Their general in zoning parlance as a variance.
validity was accepted by Welch v. Swasey, and most
litigation questions their validity as applied. The Variances are provided under zoning ordinances to meet
regulations are imposed to effectuate some of the challenges posed by so-called "nonconforming uses," a
purposes, as stated in the Standard Act, namely "to generic term covering both nonconforming buildings and
secure safety frqm fire," "to provide adequate light and nonconforming activities.203 A nonconforming building,
air" and "to prevent the overcrowding of land." They in the context of Ordinance No. 8119, is one that
also are adopted for aesthetic reasons.199 (Citation exceeds the LUIC rating, i.e., PLO and FAR limits,
omitted.) assigned to its zone. The Ordinance allows the City of
Manila to grant a variance, provided the project
Building height can also be regulated through a proponent complies with the stringent conditions and
combination of bulk and floor limits. The PLO, for the procedure prescribed by Sections 60 to
example, sets the maximum bulk of the building, or how 62.204 Section 60 provides in pertinent part: chanRob lesvi rtua lLawl ibra ry

much of the land a proposed building can occupy. The


FAR, on the other hand, provides the maximum number Sec. 60. Deviations. - Variances and exceptions from
of floors a building can have relative to its area. The the provisions of this Ordinance may be allowed by the
zoning control devices for bulk (PLO) and floor (FAR) Sangguniang Panlungsod as per recommendation from
limits jointly determine height. These concepts are the Manila Zoning Board of Adjustment and Appeals
explained as follows: c hanRoblesv irtual Lawlib rary (MZBAA) through the Committee on Housing, Urban
Development and Resettlements only when all the
Bulk zone regulations are those which provide a zoning following terms and conditions are obtained/existing:
envelope for buildings by horizontal measurement. They
include such regulations as minimum lot size, minimum
1. Variance - all proposed projects which do riot
frontage of lots, the area of a lot that may be covered,
conformed (sic) with the prescribed allowable
yard requirements and setbacks. FAR, meaning floor-
Land Use Intensity Control (LUIC) in the zone.
area ratio, is a device that combines height and bulk a. The property is unique and different
provisions. from other properties in the adjacent
locality and because of its uniqueness,
xxx the owner/s cannot obtain a reasonable
return on the property.
Under the FAR, the ordinance designates a floor-area
ratio for a particular zone. If the ratio is 1:1, for This condition shall include at least three (3) of the
example, a one-story building can cover the entire following provisions:
buildable area of the lot, a two-story building can cover
- Conforming to the provisions of the The first set of considerations governs the determination
Ordinance will cause undue hardship of the question of whether a property, in the first
instance, is so physically "unique" in terms of its
on the part of the owner or occupant
topography and shape that a strict enforcement of the
of the property due to physical standard LUICs in the area will deprive its owner from
conditions of the property obtaining a "reasonable return" on the property. The
(topography, shape, etc.), which is second set of considerations, on the other hand,
pertains to the standards of heritage conservation,
not self created. environmental protection, and aesthetics required from
a developer as conditions to the issuance of a zoning
and building permit. Compliance with one does not
necessarily presuppose compliance with the other. For
these reasons, I cannot accept the majority's view that
the grant of a variance in this case should be treated as
- The proposed variance is the the City's exercise of discretion insofar as the standards
minimum deviation necessary to under Section 45 in relation to Section 53, and Sections
permit reasonable use of the 47 and 48 are concerned.

property. Nevertheless, I wish to emphasize that while different,


these two sets of considerations work to further general
welfare concerns as seen fit by the local legislature. To
my mind, these standards are inextricably intertwined
and mutually reinforcing zoning concepts that operate
as enforcement mechanisms of Ordinance No. 8119.
- The variance will not alter the Where the standards contained under these Sections
physical character of the district/zone represent the rule, a variance defines the exception. In
where the property for which the the context of an actual case, such as the litigation
before us, where a deviation (i.e., variance) from
variance sought is located, and will
prescribed standards is invoked, its legality as based on
not substantially or permanently the facts must be established. Variances exist to
injure the use of the other properties mitigate the harsh application of the rule, but they were
in the same district or zone. not invented to operate as ruses to render the rule
inutile. The determination of how the balance is struck
between law and equity will require a judicious
appreciation of the attendant facts.

The record, however, is absolutely bereft of evidence


supporting the City of Manila's approval of the variance.
- That the variance will not weaken the
By its terms, Section 60 of Ordinance No. 8119 allows
general purpose of the Ordinance and for only a single instance when a variance from the
will not adversely affect the public prescribed LUICs can be allowed: the property must be
health, safety, and welfare. "unique and different from other properties in the
adjacent locality and because of its uniqueness, the
owners cannot obtain a reasonable return on the
property." To hurdle this, an applicant for the variance
must show at least three of the express qualifications
under Section 60. These qualifications, we reiterate, are
- The variance will be in harmony with as follows: (1) conforming to the provisions of the
Ordinance will cause undue hardship on the part of the
the spirit of this Ordinance. property owner or occupant due to physical conditions
of the property (i.e., topography, shape, etc.) which are
Thus, "deviations," "variances and exceptions" from the not self�-created; (2) the proposed variance is the
standard LUICs of the Ordinance may be allowed by minimum deviation necessary to permit reasonable use
the Sangguniang Panlungsod as per "recommendation" of the property; (3) the variance will not alter the
from the Manila Zoning Board of Adjustment and physical character of the district/zone where the
Appeals (MZBAA) through the Committee on Housing, property for which the variance sought is located, and
Urban Development and Resettlements only when will not substantially or permanently injure the use of
specified conditions are obtained. the other properties in the same district or zone; (4)
that the variance will not weaken the general purpose of
As earlier explained, LUICs specifically relate and the Ordinance and will not adversely affect the public
pertain to PLOs, FARs, and BHLs. Variances, on the health, safety, and welfare; and (5) the variance will be
other hand, are essentially exemptions from the in harmony with the spirit of this Ordinance.
prescribed LUICs within a specific zone. By their terms,
these standards and the considerations for the grant of Significantly, none of the documents submitted by
a variance from the same are starkly different from the DMCI-PDI show compliance with any of the foregoing
heritage, environmental, and aesthetic factors for qualifications. The record does not refer to any piece of
consideration under Section 45 in relation to Sections evidence to show how: (1) the DMCI-PDI's property is
53, 47, and 48. physically "different" in topography and shape from the
other properties in its zone; and (2) the DMCI-PDI
cannot obtain a "reasonable return" on its property if it That's correct. That's why I'm
was compelled to comply with the prescribed LUICs in saying your maximum building
the area. footprint is 4,845. So, your gross
While I hesitate, at this time, to find the City of Manila's
floor area of 29,000 over 4,000...
grant of the zoning and building permits and the 'yun nanga ang maximum, eh,
variance to be unlawful or made in grave abuse of unless you want to rewrite it down,
discretion, I do not endorse a finding that the City of
where will you get the figure? Yan
Manila, under the facts of the case, acted in compliance
with the requirements of Ordinance No. 8119. On the na nga angmaximum, eh. So, you
contrary, I would like to note a concern raised by Justice got 6.6 storeys rounded up to 7
Peralta, during the oral arguments, that the grant of the storeys. That's my own
permits for the Torre de Manila development may have
violated the LUIC requirements of Ordinance No. 8119 computation. I do not know if you
from the very beginning. His concern is expressed in the have your own computation.
following exchanges he had with respondent DMCI-PDI's
counsel:chanRoble svi rtual Lawli bra ry

(a) On the allowable seven-storey


building based on FAR 4 without a ATTY. LAZATIN:
variance:
Your Honor, that is correct but that
is the maximum footprint.205

JUSTICE PERALTA:

Allowable storeys, so, you have (b) On the resulting 49-storey building
gross floor area divided by building based on FAR 13, with the
footprint or 29,900 square meter in variance:
slide number 4, over 4,485 square
meters, you are only allowed to
build 6.6 storeys rounded up to 7
storeys. My computation is still
correct? JUSTICE PERALTA:

So, the building permit official here


knew already from the very
beginning that he was constructing,
ATTY. LAZATIN:
that DMCI was constructing a 49-
storey?
On the assumption that your
building footprint is 4,485, Your
Honor. Meaning, your building is fat
and squat.
ATTY. LAZATIN:

That's correct, Your Honor.

xxx

xxx

JUSTICE PERALTA:
JUSTICE PERALTA:

It's even bigger no. So, your FAR, ATTY. LAZATIN:


your FAR is 13, based on [these]
documents, I'm basing this from That is correct, Your Honor. The
your own documents, eh, because height will be dependent on the so
the zoning permit is based on the called building footprint. We can
application of the builder, eh, diba? have like in the example that we
Am I correct, Atty. Lazatin? gave, Your Honor, if you have a
building of what they call the
maximum allowable footprint, then
the building that you will build is
ATTY. LAZATIN: short ahd squat. But if you have a
smaller building footprint, then you
can have a thin and tall building,
That's correct, Your Honor, except Your Honor.
that ...

JUSTICE PERALTA:
JUSTICE PERALTA:

A higher building?
So your FAR exceeded the
prescribed FAR of 4 because your
FAR is now [13.05]?206

ATTY. LAZATIN:

ATTY. LAZATIN: Yes, Your Honor. That's exactly ...

Without any variance, that is


correct, Your Honor.207
JUSTICE PERALTA:

So, it's not accurate to say that just


(c) How adjusting the building footprint because there is a proposed 30-
enables a developer, by means of a storey building, we will be violating
variance, to increase height of a this ordinance, is it right?
building from FAR 4 to FAR 13:

ATTY. LAZATIN:
JUSTICE PERALTA:
That's exactly our point, Your
I think there is no prohibition to Honor.208
build a 30-storey as long as you do
Certainly, the variance cannot be declared legal simply
not violate the FAR. because it was already issued. On the contrary, the
circumstances thus far shown appear to support a view
that the general presumption of regularity in the
performance of official duties should not be applied Torre de Manila" or up to 25 actual floors if we add the
here:cha nRoblesvi rtua lLaw lib rary seven floors allotted as parking areas, even without a
variance.212 The OSG, on the other hand, would argue
JUSTICE PERALTA: that DMCI-PDI is entitled to build only up to seven floors
You include that in the memorandum. It should be able without a variance.213 Meanwhile, Acting Executive
to convince me that your computation is accurate and Director Johnson V. Domingo of the Department of
correct. Now, so, after all, from the zoning permit up to Public Works and Highways computes the BHL at 7, 19,
the building permit, the public officials here already or 56 storeys, depending on the factors to be
knew that the DMCI was actually asking for permission considered.214 All told, the issue as to the correct
to build 49-storeys although it is covered by the application of the FAR provisions and the resulting
university cluster zone? maximum allowable building height of the Torre de
Manila sans variance is a technical issue which this
ATTY. LAZATIN: Court is not equipped to answer at this time. This issue
Yes, Your Honor. All the plans submitted to all the is separate and distinct (albeit, admittedly related) to
regulatory agencies show that it was for a 49-storey the issue regarding the propriety of the grant of the
building, Your Honor. variance, which as earlier explained also involves the
resolution of certain factual issues attending its grant.
JUSTICE PERALTA: Thus, I find that a remand to the City of Manila is all the
But using the computation in the building code, I mean, more appropriate and necessary in view of the critical
in the city ordinance, it could seem that the application questions of fact and technical issues still to be
should not have been approved from the very beginning resolved.
because it violates the zoning law of the [C]ity of
Manila? In any case, the City of Manila would be well advised to
note that many of the textual prescriptions of Sections
ATTY. LAZATIN: 45, 53, 47, ahd 48 are also textually imbedded in the
The client DMCI was aware, Your Honor, that there have terms of Section 60.
been other developers who have been able to get a
variance, Your Honor. The first condition requires a showing that conforming
to the provisions of the Ordinance will cause "undue
JUSTICE PERALTA: hardship" on the part of the owner due to the physical
You know I'm not talking about the variance .... conditions of the property, e.g., topography,
shape, etc., which are not "self-created." Petitioner KOR
ATTY. LAZATIN: has alleged that the Torre de Manila, because of its
That's why there are so many buildings in Manila, Your height, will have an "adverse impact" on the Rizal Park
Honor, that are almost 50-storeys high, Your Honor. and the Rizal Monument by "diminishing its value,"
"scale and importance." Section 47 of Ordinance No.
JUSTICE PERALTA: 8119, on the other hand, prohibits any development
I wi11 go into that. I will go into the variance later. My that will "adversely impact" the heritage significance of
only concern is this, presumption of regularity in the a property. Correlating the foregoing to this first
performance of duty is not conclusive, you understand condition of Section 60, the City of Manila
that, right? Presumption of regularity in the should consider what is it in the physical (and not self�-
performance of duty is not conclusive, that is always created) conditions of the lot on which the Torre de
disputable. Manila stands will cause undue hardship to DMCI-PDI
unless a variance is granted. The City of Manila should
ATTY. LAZATIN: also considerwhether granting the variance will be
Agree, Your Honor, but .... consistent with the heritage, environmental and
aesthetic standards of the Ordinance, including Section
JUSTICE PERALTA: 47.
If the public officials themselves do not follow the
procedure, the law or the ordinance, are they presumed The second condition requires a showing that the
to [] have performed their duties in the regular proposed variance is the "minimum deviation necessary
manner?209 to permit reasonable use of the property." Petitioner
KOR alleges that the Torre de Manila, at 19 floors,
Justice Leonen would have even stronger words,
obstructs the view of the Rizal Monument, among its
suggesting that the grant of the permits, long prior to
other allegations relating to the height of the Torre de
the grant of the variance, violated not only Ordinance
Manila. The City of Manila should thus consider what the
No. 8119 but even Republic Act No. 3019, the Anti-Graft
minimum deviation from the prescribed FAR 4 may be
and Corrupt Practices Act.210
allowed the project, again consistent with the heritage,
environmental, and aesthetic standards of Ordinance
More importantly, I would like to emphasize the
No. 8119. This includes a determination of the
difference in opinions as to the correct application of the
maximum number of storeys Torre de Manila may be
FAR provisions of Ordinance No. 8119. For example,
allowed to have that would cause: (1) minimum
respondent DMCI-PDI, during the oral arguments,
deviation from the prescribed FAR; and (2) minimal to
claimed that it is allowed to build up to 66 storeys under
no adverse effect on the heritage significance of nearby
the National Building Code and 18 storeys under the
cultural properties.
Ordinance even without a variance.211Amicus
curiae Architect Emmanuel Cuntapay posits that with
The third condition requires a showing that the variance
the maximum FAR of 4, respondent DMCI-PDI "is
will not "alter the physical character of the zone, or
allowed to construct 18.24 habitable stories or floors for
substantially or permanently injure the use of the other
properties in the zone." Petitioner KOR has alleged that
the Torre de Manila has diminished the scale and I also do not propose a pro hac vice conversion of the
importance of the Rizal Park and the Rizal Monument. proceedings into a "contested case" under the terms of
Section 48, on aesthetic considerations, requires that all the Administrative Code.215 I do, however, believe that
projects be designed in an "aesthetically pleasing notice and hearing requirements216must be observed,
manner" and that their "natural environmental with all concerned parties given the opportunity to
character" be considered especially in relation to present evidence and argument on all issues.217 Section
"adjacent properties." In these lights, the City of Manila 77 of Ordinance No. 8119 allows for the filing of a
should consider the FAR variance that may be allowed verified complaint before the MZBAA for any violation of
the Torre of Manila, if any, which will not injure or alter any provision of the Ordinance or of any clearance or
the physical character of the zone and its adjacent permits issued pursuant thereto, including oppositions
properties, pursuant to the standards both laid down by to applications for clearances, variance, or exception.
Section 48. Otherwise put, I believe that the requirements of Ang
Tibay v. Court of Industrial Relations218 and Alliance for
The fourth condition requires a showing that the the Family Foundation, Philippines, Inc. v. Garin219 are
variance will not "weaken the general purpose of the deemed written into Section 77.
Ordinance" or "adversely affect the public health, safety,
and welfare." The fifth condition requires that the With these clarifications, I vote that the City, through
variance will be in "harmony with the spirit of the the Mayor and his representatives, be compelled
Ordinance." These two conditions encapsulate my view by mandamus to consider its own conservation
that the City of Manila has purposively embraced the standards and LUIC requirements.
modem, expanded concept of police power in the
context of zoning ordinances. To my mind, they stand I find the concern about estoppel irrelevant inasmuch as
as shorthand instructions to the City of Manila in petitioner KOR's alleged development proposals appear
deciding the balance between enforcing the standards to have been made more than five decades ago, and
set forth in Sections 45, 53, 47 and 48; and Sections 60 long before either the 1987 Constitution or Ordinance
to 62, to consider the Ordinance's overriding heritage, No. 8119 were ever conceived.
environmental, and aesthetic objectives.
Finally, it may well have been Rizal's wish to be buried a
Further, I would like to emphasize that my view and certain place and in a certain way. If we were to pursue
proposed disposition of the case do not entail a finding this line of reasoning to its logical conclusion, this
that Section 45, in relation to Section 53, and Sections argument would forbid the establishment of a Rizal
47 and 48, are already applicable for purposes of Monument, a Rizal Park, and celebration of Rizal Day. In
prohibiting the Torre de Manila construction project. On any case, and while not blind to history, we must be
the contrary, the proposed ruling is limited to this: that reminded that this Court, in the words of Justice Tinga,
Section 45 in relation to Sections 53, 47, and 48, by is a judge not of history but of the Constitution and the
their terms and express intent, must be considered by law.220
the City of Manila in making its decisions respecting the
challenged development. I propose that the City of To reiterate, I do not propose to resolve the factual
Manila must consider DMCI-PDI's proposal against the issues raised by the parties regarding DMCI-PDI's
standards clearly set by the provisions before it makes alleged violation of existing regulations under Ordinance
its decisions. The standard under Section 47 is clear: No. 8119 (including compliance with the FAR and
that the proposed development will not adversely variance requirements), whether the Torre de Manila is
impact the heritage significance of the heritage a nuisance, and whether DMCI-PDI acted in good faith
property. Section 48 is also clear when it states that it is in the construction of the project. The constitutional
"in the public interest that all projects are designed and guarantee of due process requires that such matters
developed in a safe, efficient and aesthetically first be heard and resolved by the City of Manila, the
pleasing manner." Section 53 also clearly appropriate administrative agency, or the courts.
characterizes the protection of view enjoyed by the
public as a "regulation." These are standards textually I realize that, for all the debates during the oral
operating as regulations and not mere guidelines. arguments, it was only after the case has been
submitted for resolution that the Court was first made
To clarify, I do not propose that the Court rule on the aware, through the writer of this Dissenting Opinion, of
legality or propriety of the variance granted to DMCI- the existence of Section 45 in relation to 53, and
PDI under Section 60. Rather, I propose that the ruling Sections 47 and 48 of Ordinance No. 8119, and their
be limited thus: the City of Manila relevance in the resolution of this case. No party to
must consider whether DMCI-PDI's proposed project the case or member of this Court had previously
meets the definition and conditions of a "unique" raised the applicability of these Sections of
property under Section 60, standing alone by the terms Ordinance No. 8119. I argued to remand the case to
of Section 60, but also in relation to the heritage, the City of Manila precisely for it to re-evaluate the
environmental, and aesthetic standards of Sections 45, grant of the permits to DMCI-PDI in light of the cited
53, 47 and 48. Without controlling how its discretion will Sections and to hear the parties thereon.
thereafter be exercised, I vote that the Court direct
the re�evaluation by the City of Manila, through the A careful reading of the Decision would show that the
CPDO, of the permits previously issued in favor of the majority concedes that there is a law that "provides for
Torre de Manila project, including conducting a hearing, standards and guidelines to regulate development
receiving evidence, and deciding compliance with the projects x x x within the City of Manila."221However,
foregoing standards/requirements under Ordinance No. instead of a remand, they went on to find that the
8119. standards and guidelines do not apply to "the
construction of a building outside the boundaries of a Constitution for the State to conserve the nation's
historic site or facility, where such building may affect historical and cultural heritage is as much addressed to
the background of a historic site."222 With respect, I this Court, as it is to Congress and to the Executive. We
disagree with the majority's peremptory dismissal of should heed this command by ordering a remand, more
the case on the basis of such finding, considering that so where there is an obvious intent on the part of the
none of the parties were ever heard on this specific City of Manila, in the exercise of its delegated police
issue, i.e., the application of Section 45 in relation to power from Congress, to incorporate heritage
53, and Sections 47 and 48 of Ordinance No. 8119 conservation, aesthetics, and environment protection of
based on the facts of the case. views into its zoning ordinance.

The constitutional guarantee of due process dictates In this modem world, heritage conservation has to
that parties be given an opportunity to be heard before constantly compete with other equally important values
judgment is rendered. Here, the parties were not heard such as property and property development. In
on the specific subject of the performance standards litigations involving such clash of values, this Court sets
prescribed by Ordinance No. 8119, insofar as they the tone on the judicial solicitude it is duty-bound to
appear relevant to this case. A remand would have been display towards aspirational constitutional values,
the just course of action. The absence of such a hearing, especially when implemented by specific and operable
I would like to emphasize, is precisely the reason why I legislation. Here, we had the unique opportunity to give
hesitate to attribute bad faith or grave abuse of the value of heritage conservation, involving as it does
discretion, at this point, on the part of any one party. A the preservation of fragile and vulnerable resources, all
remand would have allowed for the building of a factual the breathing space226 to make its case. This Decision,
foundation of record with respect to underlying however, seems to have achieved the complete'
questions of fact (and even policy) not appropriate to be opposite.
decided, in the first instance, by the Court. I imagine
that a remand would provide the opportune venue to For all the foregoing reasons, I vote to PARTIALLY
hear and receive evidence over alternate/moderate GRANT the petition.
views, including, as I said, the maximum number of
storeys the Torre de Manila may be allowed that would
G.R. No. 181149*, April 17, 2017
pose minimal deviation from the prescribed LUICs and
still be considered consistent with the other
CITY OF DAVAO, REPRESENTED BY RODRIGO R.
performance standards under the Ordinance.
DUTERTE, IN HIS CAPACITY AS CITY MAYOR,
RIZALINA JUSTOL, IN HER CAPACITY AS THE CITY
Furthermore, while the majority insists on according
ACCOUNTANT, AND ATTY. WINDEL E. AVISADO, IN
respect to the City of Manila's exercise of discretion, it HIS CAPACITY AS CITY
seems to me that their finding at this point that the ADMINISTRATOR, Petitioner, v. ROBERT E.
standards provided under Ordinance No. 8119 are OLANOLAN, Respondent.
not applicable does more to preempt the City of
Manila in the exercise of its discretion than an DECISION
order requiring it to merely consider their
application. This, despite clear indications that they
PERLAS-BERNABE, J.:
have not been considered at all during the processing of
DMCI-PDI's application. That the City of Manila has not
considered these standards is a finding of fact that the Assailed in this petition for review on certiorari1 are the
Court can make because this was admitted as much by Decision2 dated June 29, 2006 and the
Resolution3 dated November 21, 2007 of the Court of
the local government itself when, based on its
Appeals (CA) in CA-G.R. SP No. 00643 which: (a)
erroneous reading of its own zoning ordinance, it
nullified and set aside the Orders dated September 5,
claimed that there is no law which regulates 20054 and September 22, 20055 of the Regional Trial
constructions alleged to have impaired the sightlines of Court of Davao City, Branch 16 (RTC) in Spec. Civil Case
a historical site/facility. At the risk of sounding No. 31,005-2005, dismissing the petition
repetitive, I believe a remand would, at the very least, for mandamus filed by respondent Robert E. Olanolan
allow the City of Manila to consider and settle, at the (respondent) on procedural grounds; and (b) directed
first instance, the matter of whether the Sections in petitioner City of Davao (petitioner) to immediately
question are applicable or not. release the withheld funds of Barangay 76-A, Bucana,
Davao City (Brgy. 76-A).
To end, I am reminded of the view, first expressed
in Ta�ada v. Angara,223 that even non-self-executing The Facts
provisions of the Constitution may be "used by the
judiciary as aids or as guides in the exercise of its power On July 15, 2002, respondent was elected and
of judicial review."224 More than anything, this case proclaimed Punong Barangay of Brgy. 76-A. On July 25,
2002, an election protest was filed by the opposing
presented an opportunity for the Court to recognize that
candidate, Celso A. Tizon (Tizon), before the Municipal
aspirational provisions contained in Article II
Trial Court in Cities, Davao City (MTCC). Tizon's election
(Declaration of Principles and State Policies) and many. protest was initially dismissed by the MTCC, but was
more similar provisions spread in the Constitution, such later granted by the Commission on Elections
as Sections 14 and 15, Article XIV, are not, in the (COMELEC), 2nd Division, on appeal. Hence, Tizon was
words of Chief Justice Reynato Puno, "meaningless declared the duly-elected Punong Barangay of Brgy. 76-
constitutional patter."225 These provisions have A.6
constitutional worth. They define our values and
embody our ideals and aspirations as a people. The Respondent filed a motion for reconsideration7 before
command under Section 15, Article XIV of the the COMELEC, but to no avail.
Thus, he filed a Petition for Certiorari, Mandamus and The RTC Ruling
Prohibition, with prayer for Issuance of a Temporary
Restraining Order8 (TRO), before the Court, docketed as In an Order25 dated September 5, 2005, the RTC
G.R. No. 165491. dismissed respondent's mandamus petition on the sole
ground that there was still an adequate remedy still
On November 9, 2004, the Court en bancgave due available to respondent in the ordinary course of law,
course to the petition and issued a Status Quo
Ante Order (SQAO)9 which was immediately i.e., his pending request before the DILG Regional
implemented by the Department of Interior and Local Director to recognize his legitimacy and to give due
Government (DILG). Thus, respondent was reinstated to course to the financial transactions of Brgy. 76-A under
the disputed office.10 his administration. In this regard, respondent was
deemed to have violated the doctrine of exhaustion of
Upon his reinstatement, respondent presided over as administrative remedies, which perforce warranted the
Punong Barangay of Brgy. 76-A which, in the regular dismissal of his petition.26
course of business, passed Ordinance No. 01, Series of
2005,11 on January 5, 2005, otherwise known as the Dissatisfied, respondent filed a motion for
"General Fund Annual Budget of Barangay Bucana for reconsideration but was denied in an Order27 dated
Calendar Year 2005" totalling up to P2,216,180.20. September 22, 2005. Thus, he elevated his case to
Likewise included in the local government's annual theCA on certiorari, docketed as CA-G.R. SP No. 00643.
budget is the Personnel Schedule amounting to
P6,348,232.00, which formed part of the budget of the The CA Ruling
General Administration, appropriated as salaries
and honoraria for the 151 employees and workers of In a Decision28 dated June 29, 2006, the CA nullified
Brgy. 76-A.12 and set aside the RTC's Orders, holding that the latter
court gravely abused its discretion in dismissing
On March 31, 2005, the Court en banc rendered a respondent's mandamus petition on the ground of
Decision13 dismissing respondents' petition in G.R. No. failure to exhaust administrative remedies.
165491. Consequently, it also recalled its SQAO issued
on November 9, 200414 (Recall Order). Undaunted, In so ruling, the CA observed that an exception to the
respondent filed a motion for reconsideration15 on April said doctrine was present in that the mandamus petition
29, 2005.16 only raised pure legal questions; hence, the same
should not have been dismissed.29
In the meantime, the Regional Office of the DILG,
Region XI rejected the request of Tizon's legal counsel Although the RTC confined its ruling on the procedural
for immediate implementation of the Court's Recall infirmity of the mandamus petition, the CA nonetheless
Order on the ground that the timely filing of proceeded to resolve the substantive issue of the
respondents' motion for reconsideration had stayed the case, i.e., whether or not petitioner should be compelled
execution of the March 31, 2005 Decision. by mandamus to release the funds under respondent's
administration. Ruling in the affirmative, the CA ruled
The City Legal Officer of petitioner, on the other hand, that it is the ministerial duty of petitioner to release the
opined17 that the Recall Order was in effect, an order of share of Brgy. 76-A in the annual budget. Moreover, it
dissolution which is immediately executory and found that the city government is not authorized to
effective. On the basis of the latter's opinion, the City of withhold the said share, as the Local Government Code
Davao thus refused to recognize all acts and only mandates that the Punong Barangay concerned be
transactions made and entered into by respondent accountable for the execution of the annual and
as Punong Barangay after his receipt of the Recall Order supplemental budgets.30
as it signified his immediate ouster from the disputed
office.18 Accordingly, the CA directed petitioner to release the
withheld funds of Brgy. 76-A, together with the funds
This notwithstanding, the Office of for the compensation of the employees and workers
the Sangguniang Barangay of Brgy. 76-A issued which were already due and payable before the Court's
Resolution No. 115, Series of 200519 on June 1, 2005, issuance of the June 28, 2005 Resolution denying
requesting that the Regional Director of the DILG issue respondent's motion for reconsideration with finality.31
a directive for the officials of petitioner to recognize the
legitimacy of respondent as Punong Barangay of Brgy. Aggrieved, petitioner moved for reconsideration32 but
76-A. was denied in a Resolution33 dated November 21, 2007;
hence, this petition.
On June 6, 2005, respondent wrote a letter to the
Regional Office XI of the DILG, endorsing the said The Issue Before the Court
Resolution.20
The sole issue in this case is
Before any action could be taken by the DILG on
respondent's letter, or on July 26, 2005, he filed a whether or not the CA erred in reversing the RTC's
Petition for Mandamus etc.21 (mandamus petition) dismissal of respondent's mandamus petition. -
before the RTC, docketed as Spec. Civil Case No. YES
31,005-2005, seeking to compel petitioner to allow the
release of funds in payment of all obligations incurred
The Court's Ruling
under his administration.22
The petition is meritorious.
In the interim, the Court en banc issued a
Resolution23 dated June 28, 2005, denying with finality
"Mandamus is defined as a writ commanding a tribunal,
respondent's motion for the reconsideration of its March
corporation, board or person to do the act required to
31,2005 Decision in G.R. No. 165491 for lack of merit.24
be done when it or he unlawfully neglects the
performance of an act which the law specifically enjoins reliefs.
as a duty resulting from an office, trust or station, or
unlawfully excludes another from the use and The recall of the SQAO is effectively a dissolution of the
enjoyment of a right or office or which such other is said issuance. In Defensor-Santiago v. Vasquez,42 the
entitled, there being no other plain, speedy, and Court discussed the immediately executory nature of
adequate remedy in the ordinary course of law."34 orders dissolving preliminary injunctions and/or
TROs: chanRoblesvi rt ual Lawlib rary

In Special People, Inc. Foundation v. Canda,35 the Court [A]n order of dissolution of an injunction may be
explained that the peremptory writ of mandamus is an immediately effective, even though it is not final. A
extraordinary remedy that is issued only in extreme dismissal, discontinuance, or non� suit of an action in
necessity, and the ordinary course of procedure is which a restraining order or temporary injunction has
powerless to afford an adequate and speedy relief to been granted operates as a dissolution of the restraining
one who has a clear legal right to the performance order or temporary injunction and no formal order of
of the act to be compelled.36 dissolution is necessary to effect such dissolution.
Consequently, a special order of the court is necessary
In this case, respondent has no clear legal right to the for the reinstatement of an injunction. There must be a
performance of the legal act to be compelled. new exercise of judicial power.43
Thus, considering that respondent had no right to the
office of Punong Barangay at the time he filed
To recount, respondent filed a mandamus petition
his mandamus petition on July 26, 2005, during which
before the RTC, seeking that petitioner, as city
the SQAO had already been recalled, he had no valid
government, release the funds appropriated for Brgy.
legal interest to the reliefs prayed for. In fact, it should
76-A, together with the funds for the compensation of
be pointed out that respondent's motion for
barangay employees, and all funds that in the future
reconsideration before the Court was altogether denied
may accrue to Brgy. 76-A, including legal interests until
with finality even prior to his filing of
full payment.37 As it appears, respondent anchors his
the mandamus petition, i.e., on June 28, 2005. This
legal interest to claim such relief on his ostensible
means that, for all legal intents and purposes,
authority as Punong Barangay of Brgy. 76-A. In this
respondent could not have even relied on the supposed
regard, Section 332 of Republic Act No.
effectivity of the SQAO during the pendency of his
7160,38 otherwise known as the "Local Government
motion for reconsideration, because at the time he filed
Code of 1991," provides that:
his mandamus petition, the Court's March 31, 2005
chanRoble svirtual Lawlib ra ry

Section 332. Effectivity of Barangay Budgets. - The


Decision against him had already attained finality.
ordinance enacting the annual budget shall take effect
Therefore, stripped of the technical niceties, the Court
at the beginning of the ensuing calendar year. An
finds that respondent had no clear legal right to the
ordinance enacting a supplemental budget, however,
performance of the legal act to be compelled of, which
shall take effect upon its approval or on the date fixed
altogether justifies the dismissal of
therein.
his mandamus petition.
The responsibility for the execution of the annual
In addition, petitioner could not have been compelled
and supplemental budgets and the accountability
by mandamus to release the funds prayed for by
therefor shall be vested primarily in the punong
respondent in view of the attending circumstances. It is
barangay concerned. (Emphasis supplied)
well-settled that "[m]andamus only lies to enforce the
However, records clearly show that respondent's performance of a ministerial act or duty and not to
proclamation as Punong Barangay was overturned by control the performance of a discretionary power. Purely
the COMELEC upon the successful election protest of administrative and discretionary functions may not be
Tizon, who was later declared the duly-elected Punong interfered with by the courts. Discretion, as thus
Barangay of Brgy. 76-A. While the Court en banc indeed intended, means the power or right conferred upon the
issued an SQAO on November 9, 2004 which office by law of acting officially under certain
temporarily reinstated respondent to the disputed office, circumstances according to the dictates of his own
the same was recalled on March 31, 2005 when a judgment and conscience and not controlled by the
Decision was rendered dismissing respondent's petition judgment or conscience of others."44
in G.R. No. 165491. The dispositive portion of the said
Decision reads:chanRob lesvi rtua lLawl ibra ry In this case, petitioner, as city government, had to
WHEREFORE, the petition is DISMISSED. Accordingly, exercise its discretion not to release the funds to
the status quo ante order issued by this Court on respondent considering the COMELEC's declaration of
November 9, 2004 is hereby RECALLED.39 Tizon as the duly-elected Punong Barangay of Brgy. 76-
A. Surely, it was part of petitioner's fiscal responsibility
While respondent did file a motion for reconsideration of
to ensure that the barangay funds would not be
the March 31, 2005 Decision, the Court's recall of the
released to a person without proper authority. Section
SQAO was without any qualification; hence, its effect
305 (1) of RA 7160 provides that:
was immediate and non-contingent on any other
chanRoblesvi rtual Lawli bra ry

Section 305. Fundamental Principles. - The financial


occurrence. As such, respondent cannot successfully
affairs, transactions, and operations of local government
argue that the SQAO's recall was suspended during the
units shall be governed by the following fundamental
pendency of his motion for reconsideration.
principles:
In fact, as petitioners correctly argue,40 the Court's
xxxx
SQAO is akin to preliminary injunctions and/or TROs. As
per the November 9, 2004 Resolution issuing the SQAO,
(1) Fiscal responsibility shall be shared by all those
the parties were required "to observe the STATUS QUO
exercising authority over the financial affairs,
prevailing before the issuance of the assailed resolution
transactions, and operations of the local government
and order of the Commission on Elections."41 Therefore,
units;
as they carry the same import and effect, the recall of
the SQAO subject of this case should be accorded the Barangay funds shall be kept in the custody of the city
same treatment as that of the recall of said provisional or municipal treasurer, at the option of the
barangay,45 and any officer of the local government unit
whose duty permits or requires the possession or LAYGO vs. MUNICIPAL
custody of local government funds shall be accountable
and responsible for the safekeeping thereof in
MAYOR OF SOLANO, NUEVA
conformity with the provisions of the law.46 VIZCAYA
Moreover, "[t]he city or municipality, through the city or RODOLFO LAYGO and WILLIE LAYGO, Petitioners, vs.
municipal mayor concerned, shall exercise general MUNICIPAL MAYOR OF SOLANO, NUEVA VIZCAYA,
supervision over component barangays to ensure that
the said barangays act within the scope of their
Respondent.
prescribed powers and functions."47 Hence, given the G.R. No. 188448
COMELEC's ruling revoking respondent's election and January 11, 2017
proclamation as Punong Barangay of Brgy. 76-A, which
in fact, was later on validated by no less than the Court,
petitioner could not have been faulted for not
automatically releasing the funds sought for by
respondent in his mandamus petition.
FACTS:

At any rate, petitioner points out that the issue in this The case is a Petition for Review on Certiorari from
case has already been rendered moot and academic. In
particular, petitioner states that the release of the the Decision of the Court of Appeals (CA) in CA-G.R. SP
barangay funds corresponding to the aggregate amount No. 103922 and its Resolution dated June 19, 2009.
of respondents' claim is no longer possible given that
the budget for the year 2005 has already been
exhausted. Notably, respondent did not proffer any In July 2005, Aniza Bandrang (Bandrang) sent two
objection on the following submissions in the instant letter-complaints to then Municipal Mayor Santiago
petition:
c hanRoble svirtual Lawlib ra ry

(a) [Petitioner] released funds to the Clerk of Court of O. Dickson and the Sangguniang Bayan of Solano,
the Regional Trial Court of Davao City for payment to Nueva Vizcaya, informing them of the illegal sublease
the REGULAR employees of Brgy. 76-A for the reason
that their continuance in office was not dependent on
she entered into with petitioners Rodolfo Laygo and
[respondent's] incumbency as Punong Barangay. With Willie Laygo over Public Market Stalls No. 77-A, 77-B,
or without [respondent], these employees are secured 78-A, and 78-B, which petitioners leased from the
in their positions. Also, there were available funds in the
Barangay 76-A BUDGET to cover their compensation. Municipal Government.

(b) In contrast, the other set of Barangay functionaries


are contractual or job-order workers,
Bandrang claimed that petitioners told her to vacate
and NOT employees of Barangay 76-A. The budget of the stalls, which they subsequently subleased to
Barangay 76-A did not have funds to cover their another. Bandrang expressed her willingness to testify
compensation at the time that they were allowed by
[respondent] to work or render service for the against petitioners if need be, and appealed that she
Barangay. The funds for the year to cover the be given priority in the future to lease the stalls she
compensation of these individuals had already been
exhausted by the Barangay itself. That is why
vacated.
Supplemental Budget No. 1 had to be drawn up, which
budget was, however, not approved. Supplemental In August 2005, the Sangguniang Bayan endorsed the
Budget No. 1 was drawn up precisely to pay these
workers. But the point is, no funds were available to pay letter of Bandrang and a copy of Resolution No. 183-
the services of these people when they started 2004 to Mayor Dickson for appropriate action. The
rendering services at the behest of [respondent.]48
Sanggunian informed Mayor Dickson that the matter
xxxx falls under the jurisdiction of his office since it
Thus, given these supervening circumstances which (Sanggunian) has already passed and approved
ostensibly preclude the satisfaction of the reliefs prayed Resolution No. 183-2004, which authorized Mayor
for, respondent's mandamus petition should also be
dismissed on the ground of mootness. That being said, Dickson to enforce the provision against subleasing of
the Court finds it unnecessary to delve into the other stalls in the public market.
issues raised in this case.

WHEREFORE, the petition is GRANTED. The Decision Mayor Dickson, in response, informed the Sanggunian
dated June 29, 2006 and the Resolution dated that the stalls were constructed under a Build-
November 21, 2007 of the Court of Appeals in CA-G.R.
SP No. 00643 are hereby REVERSED and SET ASIDE. Operate-Transfer (BOT) scheme, which meant that
The petition for mandamus filed by respondent Robert the petitioners had the right to keep their stalls until
E. Olanolan in Spec. Civil Case No. 31,005-2005 before
the Regional Trial Court of Davao City, Branch 16
the BOT agreement was satisfied. He then asked the
is DISMISSED. Sanggunian if provisions were made to sanction
lessees under the BOT scheme similar to the provision
SO ORDERED.
against subleasing (Item No. 9) in the contract of
lease.
Thereafter, Bandrang wrote another letter to the
Sanggunian, praying and recommending to Mayor In his Pre-Trial Brief, Mayor Dickson elaborated that
Dickson, by way of a resolution, the cancellation of Bandrang had no cause of action because the stalls
the lease contract between the Municipality and were on a BOT scheme covered by an ordinance.
petitioners for violating the provision on subleasing. During the hearing, Mayor Dickson presented a copy
She suggested that after which, the stalls can be bided of the resolution of the Sanggunian indicating that
upon anew and leased to the successful bidder. She there was a directive to all stall owners in the public
made the suggestion because Mayor Dickson did not market of Solano, Nueva Vizcaya to build their own
act on her concerns even after the Sanggunian stalls after a fire gutted the public market.
referred them to him.
On the other hand, petitioners denied that they were
The Sanggunian once again referred the letter of the lessees of Stalls 77 A and B and 78 A and B. They
Bandrang, together with a copy of Resolution No. 183- clarified that Clarita Laygo (Clarita), their mother, was
2004, to Mayor Dickson for appropriate action. The the lessee of the stalls by virtue of a BOT scheme of
Sanggunian opined that they no longer need to make the Municipality. At the time they entered into a
any recommendation to Mayor Dickson because contract of lease with Bandrang, it was agreed that
Resolution No. 183-2004 already empowered and the contract was subject to the consent of the other
authorized him to cancel the lease contracts pursuant heirs of Clarita. The consent, however, was never
to its pertinent provisions. given; hence, there was no subleasing to speak of.
Even on the assumption that there was, petitioners
Mayor Dickson, however, did not act on the letter of maintained that the prohibition on subleasing would
Bandrang and on the referrals of the Sanggunian. not apply because the contract between the
Municipality and Clarita was one under a BOT scheme.
Thus, Bandrang filed a Petition for Mandamus
against him before the Regional Trial Court of Resolution No. 183-2004 only covered stall holders
Bayombong, Nueva Vizcaya (RTC). Subsequently, she who violated their lease contracts with the Municipal
amended her petition to implead petitioners. Government. Since their contract with the Municipal
Bandrang alleged that despite already being aware of Government was not a lease contract but a BOT
the violations of the lease contracts of petitioners agreement, Resolution No. 183-2004 would neither
with the Municipality, Mayor Dickson still refused to apply to them, nor be enforced against them. Further,
enforce the provisions of the lease contracts against even granting arguendo that the prohibition would
subleasing. Bandrang concluded that Mayor Dickson's apply, petitioners claimed that there was no more
inaction can only be construed as an unlawful ground for the revocation of the lease because the
neglect in the performance and enforcement of his subleasing claimed by Bandrang had ended and the
public duty as the Chief Executive of Solano, Nueva subsequent receipt by the Municipality of payments
Vizcaya. Thus, she sought an order directing Mayor ratified the contract with petitioners.
Dickson to immediately cancel the lease between the
Municipal Government and petitioners over Public On July 23, 2007, the RTC issued an Order directing
Market Stall Nos. 77-A, 77-B, 78-A, and 78-B, and to the substitution of then incumbent mayor Hon. Philip
lease the vacated stalls to interested persons. A. Dacayo (Mayor Dacayo) as respondent in place of
Mayor Dickson.
In his Answer with Special and Affirmative Defenses,
Mayor Dickson claimed that under the principle of Bandrang filed a Motion for Summary Judgment on
pari delicto, Bandrang had no right to seek remedy January 8, 2008 arguing that no genuine factual issues
with the court as she was guilty herself in leasing the existed to necessitate trial. Bandrang reiterated the
market stalls. Mayor Dickson insisted that he acted in violation of petitioners against subletting in their
accordance with law by referring the matter to the lease contracts with the Municipal Government.
Sanggunian for appropriate action. He also argued
that Bandrang had no cause of action against him and
that she was not a real-party-in-interest. He likewise ISSUES:
asserted that the subject of the mandamus was not
proper as it entailed an act which was purely
discretionary on his part.
Whether or not mandamus is proper – NO. secondary evidence, that its contract with petitioners
discretionary on the part of Mayor Dickson was one of lease.

Whether or not the Sangguniang Bayan Resolution In view of the foregoing, the petition is GRANTED the
No. 183-2004 be applied against petitioners despite previous decision REVERSED and SET ASIDE. The
the absence of a contract of lease between them and Petition for Mandamus against Mayor Santiago O.
the Municipal Government Dickson is DISMISSED.

MEJORADO VS ABAD (G.R. NO.


RULING:
214430, MARCH 09, 2016 )
Mejorado vs Abad
1. No. Mandamus is a command issuing from a court
of competent jurisdiction, in the name of the state or G.R. No. 214430, March 09, 2016
the sovereign, directed to some inferior court,
Facts:
tribunal, or board, or to some corporation or person Sometime in December 1996 and the early part of 1997,
requiring the performance of a particular duty therein petitioner documented 62 smuggled oil importations from
specified, which duty results from the official station 1991 to 1997 of Union Refinery Corporation (URC), OILINK
of the party to whom the writ is directed or from Industrial Corporation (OILINK), Union Global Trading
(UGT), and Philippine Airlines (PAL).
operation of law.
As a rule, mandamus will not lie in the absence of any He provided confidential information detailing the illegal
of the following grounds: importations of the said companies to the now-defunct
Economic Intelligence and Investigation Bureau of the
Bureau of Customs (BOC).
[a] that the court, officer, board, or person against
whom the action is taken unlawfully neglected the Based on the information petitioner furnished, the BOC
performance of an act which the law specifically investigated 23 out of the 62 smuggled oil importations he
reported. The investigation resulted in the payment by the
enjoins as a duty resulting from office, trust, or
four (4) companies of millions in unpaid Value-Added Tax
station; or (VAT), excise, and ad valorem taxes from 1997 to 1998.

[b] that such court, officer, board, or person bas Thus, petitioner filed his first claim for informer’s reward
with the BOC and the Department of Finance (DOF).
unlawfully excluded petitioner/relator from the use
Subsequently, the BOC investigated 30 additional smuggled
and enjoyment of a right or office to which he is oil importations out of the 62 that petitioner reported. From
entitled. this investigation, it was able to collect deficiency taxes from
Neither will the extraordinary remedy of mandamus URC, OILINK, and PAL, prompting petitioner to file his
second claim for informer’s fee on May 12, 2000. Records
lie to compel the performance of duties that are show that petitioner was able to receive the amount of
discretionary in nature. P63,185,959.73 as informer’s fee for the first claim on April
19, 2006.
Applying the foregoing distinction, we find that the
Issue:
Petition for Mandamus must fail because the acts Whether or not a petition for mandamus under Rule 65
sought to be done are discretionary in nature. of the Revised Rules of Civil Procedure is the proper
remedy for petitioner’s second claim on the informer’s
2.Yes. There is preponderant evidence that the reward.
- NOOOO!! Not proper remedy
contract between petitioners and the Municipal
Government is one of lease. The type of contract Held:
existing between petitioners and the Municipal No.
Government is disputed. The Municipal Government It is settled that mandamus is employed to compel the
performance, when refused, of a ministerial duty, but not to
asserts that it is one of lease, while petitioners insist compel the performance of a discretionary duty.
that it is a BOT agreement. Both parties, however,
failed to present the contracts which they purport to Mandamus will not issue to enforce a right which is in
have. It is likewise uncertain whether the contract substantial dispute or to which a substantial doubt exists.
would fall under the coverage of the Statute of Frauds In Star Special Watchman and Detective Agency, Inc. v.
and would, thus, be only proven through written Puerto Princesa City, a case cited at length by petitioner
evidence. In spite of these, we find that the Municipal himself, the Court elucidated on the propriety of the issuance
of the writ of mandamus in this wise:
Government was able to prove its claim, through
(DIGEST)
Mandamus is a command issuing from a court of law of
competent jurisdiction, in the name of the state or the
sovereign, directed to some inferior court, tribunal, or board,
or to some corporation or person requiring the performance
of a particular duty therein specified, which duty results from
| APPOINTMENT
the official station of the party to whom the writ is directed or
from operation of law. This definition recognizes the public November 10, 2016
character of the remedy, and clearly excludes the idea that it
may be resorted to for the purpose of enforcing the G.R. No. 207422, 753 SCRA 680, March 18,
performance of duties in which the public has no interest. The 2015
writ is a proper recourse for citizens who seek to enforce a
public right and to compel the performance of a public duty,
most especially when the public right involved is mandated Facts:
by the Constitution. As the quoted provision instructs,
mandamus will lie if the tribunal, corporation, board, officer,
or person unlawfully neglects the performance of an act
Mayor of Muntinlupa, upon the concurrence of
which the law enjoins as a duty resulting from an office, trust the majority of members of the Sangguniang
or station. Panlungsod of the City Government of
Muntinlupa, appointed the respondent (Dela
The writ of mandamus, however, will not issue to compel an Cruz) on 2006 as City Assessor in a permanent
official to do anything which is not his duty to do or which it
is his duty not to do, or to give to the applicant anything to capacity as City Government Department Head
which he is not entitled by law. Nor will mandamus issue to III.
enforce a right which is in substantial dispute or as to which
a substantial doubt exists, although objection raising a mere
technical question will be disregarded if the right is clear and Petitioner (Abad), Local Assessment
the case is meritorious. As a rule, mandamus will not lie in Operations Officer V in the Office of the City
the absence of any of the following grounds: [a] that the court, Assessor, requested the disapproval of Dela
officer, board, or person against whom the action is taken Cruz’s appointment, alleging that the position
unlawfully neglected the performance of an act which the law
specifically enjoins as a duty resulting from office, trust, or
of City Government Department Head III
station; or [b] that such court, officer, board, or person has corresponded to Salary Grade 27, salary
unlawfully excluded petitioner/relator from the use and grades higher than Dela Cruz’s former position
enjoyment of a right or office to which he is entitled. On the as Local Assessment Operations Officer III with
part of the relator, it is essential to the issuance of a writ of
Salary Grade 18.
mandamus that he should have a clear legal right to the thing
demanded and it must be the imperative duty of respondent
to perform the act required. x x x x According to Abad, Dela Cruz’s appointment
violated Item 15 of CSC Memorandum Circular
Moreover, an important principle followed in the issuance of
the writ is that there should be no plain, speedy and adequate No. 3, Series of 2001, which prohibits the
remedy in the ordinary course of law other than the remedy promotion of an employee to a position more
of mandamus being invoked. In other words, mandamus can than 3 salary grades above his or her former
be issued only in cases where the usual modes of procedure position. Abad added that he and 3 other
and forms of remedy are powerless to afford relief. Although
classified as a legal remedy, mandamus is equitable in its qualified applicants were allegedly excluded
nature and its issuance is generally controlled by equitable from the selection process, in violation of Item
principles. Indeed, the grant of the writ of mandamus lies in 10 of the same Memorandum Circular, which is
the sound discretion of the court. the automatic consideration of all the next-in-
rank employees for promotions to the next
It bears reiteration that the writ of mandamus may only issue
if the party claiming it has a well-defined, clear, and certain higher position.
legal right to the thing demanded, and that it was the
imperative duty of respondent to perform the act required to
accord the same upon him. Petitioner’s prayer for the
On 2009, CSC-NCR invalidated the appointment
issuance of the NCA to cover the amount of his second claim of Dela Cruz which the latter appealed to
falls short of this standard, there being no clear and specific CSC which revered the CSC-NCR’s decision
duty on the part of the respondent to issue the same. stating that applicants for City Government
Department Head III based on the following
QUO WARRANTO
criteria: performance, work history, awards,
education, training, potential, and physical
ABAD VS DELA characteristics and personality traits.
Commission ruled that Dela Cruz’s
CRUZ 2015 appointment was an exception to the three-
salary-grade rule.
On appeal to the Court of Appeals, The rationale of the next-in-line rule is for the
the court dismissed Abad’s petition ruling that maintenance of the merit policy and rewards in
the three-salary-grade rule only gives the civil service. Since appointments in the civil
preference to the person occupying the service are based on merit and fitness, it is
position next in rank to a vacancy, assumed that the appointments of employees
but does not by any means give the next in rank are equally meritorious. As long as
employee next in rank the exclusive right to the appointee possesses the qualifications
be appointed to the said vacancy. required by law, the appointment is valid.

As long as the employee appointed to the Petitioner might have been considered for
position possesses the minimum qualifications promotion, but he did not make it to the short list.
Absent contrary evidence, the presumption that the
for the position, the appointment is valid.
City Government of Muntinlupa’s Personnel
Selection Board performed its duties with regularity
Issues: applies.95

In any case, we cannot order the invalidation of


 Whether or not Dela Cruz’s appointment is void respondent’s appointment in the present
for the violation of the next-in-rank rule; and - proceedings. To do so would necessarily result in
NO his removal from an office he has physically
 Whether or not Dela Cruz’s appointment is an possessed for almost nine (9) years. Respondent
exception to the three-salary grade limitation. has been discharging the duties of the City
-YES Assessor, at the very least, under a color of title to
the position especially since he possesses the
Petition for certiorari was filed. qualifications for it. Analogous to a de facto
officer, respondent’s title to his office may only
Whether or not Dela Cruz is a de facto officer. - be attacked through a petition for quo warranto
YES filed by the Government or by the person
claiming title to the office.96 ·
Petitioner failed to discharge his burden of proving
that he was a qualified next-in-rank. He failed to In Tayko v. Capistrano,97 this court held that "[t]he
prove that his position of Local Assessment title of a de facto officer cannot be indirectly
Operations Officer V has been previously questioned.... Having at least colorable right to the
determined to be next-in-rank to the position of City office[,] [the de facto officer's] title can be
Government Department Head III in the Office of the determined only in a quo warranto proceeding or
City Assessor of the City Government of information in the nature of a quo warranto at suit of
Muntinlupa.90 the sovereign."98

Petitioner, therefore, has no right to protest the De Facto Officer refers to an officer holding a
appointment of respondent. colorable right or title to the office accompanied
by possession. The lawful acts of an officer de
facto, so far as the rights of third persons are
Analogous to a de facto officer, respondent’s concerned, when done within the scope and by
title to his office may only be attacked through a the apparent authority of office, are valid and
petition for quo warranto filed by the binding.
Government or by the person claiming title to
the office.96 · Respondent possesses the minimum qualifications
for the position of City Government Department
Ruling: Head III. Moreover, his promotion from a Salary
Grade 18 to a Salary Grade 27 position was a "very
meritorious case" since he has gone through a deep
1. No, Dela Cruz’s appointment is valid in selection process. Respondent Herminio Dela
accordance with the next-in-rank rule. Cruz's appointment as City Government Department
Head III, therefore, is valid.
Under the Section 21(2)(3) of the Civil Service
2. Yes, Dela Cruz’s appointment is an exception
Law, the appointing authority for promotion
to the three-salary grade limitation.
must automatically consider the employees
next-in-rank as candidates for appointment.
Item 15 of CSC Memorandum Circular, Series of criteria. Respondent’s case, therefore, is a “very
2001 on the three-salary-grade rule states that meritorious case” and is valid.
“an employee may be promoted or transferred to Petition is dismissed.
a position which is not more than 3 salary, pay
or job grades higher than the employee’s present G.R. No. 207422
position.” However, this rule is subject to the
exception of “very meritorious cases.” These ANGEL ABAD, Petitioner,
“very meritorious cases” are provided in CSC vs.
Resolution No. 03-0106 dated January 24, HERMINIO DELA CRUZ, Respondent.
2003:
DECISION

Any or all of the following would constitute a LEONEN, J.:


meritorious case exempted from the 3-salary
grade limitation on promotion: Appointments in the civil service are made
fundamentally on the basis of merit. Both the
Constitution and law ensure that those appointed
1.The position occupied by the person is next- are fit for the position. While those who are next in
in- rank to the vacant position, as identified in rank to a vacant position may be given some
the Merit Promotion Plan and the System of preference, no one has a vested right to a
Ranking Positions (SRP) of the agency; government position. Seniority and salary grades
should be given their due weight but should not
trump the public interest.
2.The position is a lone, or entrance position, as
indicated in the agency’s staffing pattern; This resolves the Petition for Review on
Certiorari1 filed by Angel Abad assailing the Court of
Appeals Decision2dated April 11, 2012. The Court of
3.The position belongs to the dearth category,
Appeals affirmed the Civil Service Commission
such as Medical Officer/Specialist positions and Resolution3 dated June 22, 2010. This Resolution
Attorney positions; affirmed the permanent appointment of Herminio
Dela Cruz as City Government Department Head
III.4
4.The position is unique and/or highly
specialized such as Actuarial positions and
Mayor Jaime R. Fresnedi appointed Herminio Dela
Airways Communicator; Cruz (Dela Cruz) as City Assessor5 of the City
Government of Muntinlupa in a permanent capacity
5.The candidates passed through a deep on December 28, 2006.6 The City Assessor is given
the item of City Government Department Head III.7
selection process, taking into consideration the
candidates’ superior qualifications in regard to:
In Resolution No. 06-361,8 majority of the members
of the Sangguniang Panlungsod of the City
-Educational achievements Highly specialized Government of Muntinlupa concurred in the
trainings Relevant work experience appointment of Dela Cruz as City Government
Department Head III.9

-Consistent high performance rating/ranking; Pursuant to Civil Service Commission Resolution


and No. 02-1235 granting the City Government of
Muntinlupa the power to take final action on its
appointments, the appointment of Dela Cruz was
6.The vacant position belongs to the closed considered attested to by the Civil Service
career system. Commission.10

In the case at bar, Dela Cruz’s appointment falls Angel A. Abad (Abad), Local Assessment
under the 5th exception. Contrary to petitioner’s Operations Officer V in the Office of the City
Assessor, wrote the Civil Service Commission and
claim, the Personnel Selection Board conducted requested the disapproval of Dela Cruz’s
a deep selection process, ranking the appointment as City Government Department Head
candidates for the position of City Government III.11 Abad alleged that the position of City
Department Head III based on approved Government Department Head III corresponded to
Salary Grade 27, nine (9) salary grades higher than
Dela Cruz’s former position as Local Assessment
Operations Officer III with Salary Grade as City Government Department Head III.21 This
18.12 According to Abad, Dela Cruz’s appointment recommendation was approved by Mayor San
violated Item 15 of Civil Service Commission Pedro.
Memorandum Circular No. 3, Series of 2001, which
prohibits the promotion of an employee to a position Mayor San Pedro’s approval was then referred to
more than three (3) salary grades above his or her the Civil Service Commission-National Capital
former position:13 Region for appropriate action.22

15. An employee may be promoted or transferred to In the Decision23 dated August 17, 2009, the Civil
a position which is not more than three (3) salary, Service Commission-National Capital Region
pay or job grades higher than the employee’s invalidated Dela Cruz’s permanent appointment as
present position except in very meritorious cases, City Government Department Head III and ruled that
such as: if the vacant position is next-in- rank as he was appointed in violation of the three-salary-
identified in the System of Ranking Positions (SRP) grade rule under Civil Service Commission
approved by the head of agency, or the lone or Memorandum Circular No. 3, Series of 2001.24
entrance position indicated in the agency staffing
pattern. On Dela Cruz’s appeal,25 the Civil Service
Commission reversed and set aside the Civil
Abad added that being a qualified next-in-rank, he Service Commission-National Capital Region’s
applied for the position of City Government Decision in Resolution No. 101276 dated June 22,
Department Head III. However, he and three (3) 2010.26
other qualified applicants were allegedly excluded
from the selection process, in violation of Item 10 of The Civil Service Commission found that the City
Civil Service Commission Memorandum Circular Government of Muntinlupa’s Personnel Selection
No. 3, series of 2001.14 This provides: Board ranked the applicants for City Government
Department Head III based on the following criteria:
10.For vacancies in the first and second levels, all performance, work history, awards, education,
qualified next-in-rank employees shall be training, potential, and physical characteristics and
automatically considered candidates for promotion personality traits. Out of nine (9) applicants, Dela
to the next higher position. Cruz ranked first with a grade of 90.67 out of 100
points. Although it conceded that Abad was not
According to Abad, the appointment of Dela Cruz among the nine (9) applicants screened, the
caused "demoralization within [their] ranks."15 Commission nevertheless ruled that Dela Cruz’s
appointment was an exception to the three-salary-
In the letter16 dated January 26, 2007, the Civil grade rule.27 Dela Cruz underwent a deep selection
Service Commission referred Abad’s letter to the process rendering his appointment "very
City Government of Muntinlupa’s grievance meritorious[.]"28
machinery for proper action.
The Commission likewise noted that contrary to the
In the meantime, newly elected Mayor Aldrin San rule that whoever alleges must prove, the Grievance
Pedro (Mayor San Pedro) assumed his office in the Committee placed on Dela Cruz the burden of
City Government of Muntinlupa on July 1, 2007. On proving that Abad was not considered for
August 3, 2007, the main building of Muntinlupa City appointment. The Grievance Committee, therefore,
Hall was gutted by fire, destroying the Office of the erred. As for Abad, he failed to prove the allegation
City Personnel. The City Government of Muntinlupa, that he was not considered for promotion.29
therefore, failed to act on Abad’s Letter.17
Abad’s Motion for Reconsideration was denied by
Thus, on September 25, 2007, Abad filed with the the Civil Service Commission in the Resolution
Mayor’s Office the letter-complaint18 reiterating his dated November 12, 2010.30
request for disapproval of Dela Cruz’s permanent
appointment as City Government Department Head A Petition for Review was filed before the Court of
III. Appeals.31 The Court of Appeals, however,
dismissed the Petition for Review in the Decision
Mayor San Pedro referred Abad’s letter-complaint to dated April 11, 2012.32
the City Government of Muntinlupa’s Personnel
Department.19 The Court of Appeals held that the three-salary-
grade rule "only gives preference to the person
Finding that Dela Cruz’s promotion violated Civil occupying the position next in rank to a vacancy, but
Service Commission Memorandum Circular No. 3, does not by any means give [the employee next in
Series of 2001 on the three- salary-grade rule,20 the rank] [the] exclusive right to be appointed to the said
Grievance Committee recommended the vacancy."33 As long as the employee appointed to
invalidation of Dela Cruz’s permanent appointment
the position possesses the minimum qualifications Second, whether respondent Dela Cruz’s promotion
for the position, the appointment is valid.34 to the position of City Government Department
Head III is void for lack of a deep selection process.
The Court of Appeals also found that Abad failed to
prove that he was the employee next in rank to the This Petition must be denied.
position of City Government Department Head
III.35 On the other hand, Dela Cruz proved that he I
possessed the minimum qualifications for the
position and that he underwent a deep selection The Civil Service Commission is the "central
process where he ranked first among nine (9) personnel agency of the Government[.]"48 Its
applicants.36 The Court of Appeals, thus, affirmed mandate is to ensure that appointments in the civil
Dela Cruz’s appointment.37 service are generally made on the basis of merit
and fitness.49 The Commission is tasked to
Both Motion for Reconsideration38 and Supplemental strengthen the merit and rewards system in the civil
Motion for Reconsideration39 filed by Abad were service50 by administering and enforcing the
denied by the Court of Appeals in its "constitutional and statutory provisions on the merit
Resolution40 dated June 4, 2013. system for all levels and ranks in the Civil
Service[.]"51
On July 25, 2013,41 Abad filed before this court
the Petition for Review on Certiorari. Dela Cruz The Constitution adopts the merit system to ensure
filed his Comment,42after which Abad filed his that those appointed in the civil service are
Reply.43 competent.52 This is to "eradicate the system of
appointment to public office based on political
Abad insists that Dela Cruz’s promotion was void for considerations and to eliminate . . . the element of
violation of the three-salary-grade rule under Civil partisanship and personal favoritism in making
Service Commission Memorandum Circular No. 3, appointments."53
Series of 2001. Moreover, he and other employees
who were allegedly next in rank to the position of "The civil service embraces all branches,
City Government Department Head III were not subdivisions, instrumentalities, and agencies of the
considered for the position. Contrary to the finding Government, including government- owned or
of the Civil Service Commission and the Court of controlled corporations with original
Appeals, the City Government of Muntinlupa’s charters."54 Thus, all appointive local government
Personnel Selection Board did not conduct any employees are covered by civil service laws and
deep selection process in appointing a new City rules.55 Appointive local government employees
Government Department Head III.44 must possess the qualifications provided by law for
the positions they hold.56
Thus, Abad prays that this court invalidate Dela
Cruz’s appointment and order the City Government The qualifications the appointee must satisfy
of Muntinlupa to conduct a new selection process depend on whether the position belongs to the
for the position of City Government Department career service or the non-career service. Entrance
Head III.45 in the career service is based on "merit and fitness
to be determined as far as practicable by
Dela Cruz refutes Abad’s claim of lack of deep competitive examination, or based on highly
selection process. As the Civil Service Commission technical qualifications[.]"57 On the other hand,
and the Court of Appeals found, the City entrance in the non-career service is based on
Government of Muntinlupa’s Personnel Selection criteria other than the "usual tests of merit and
Board conducted a deep selection process for the fitness[.]"58
position of City Government Department Head III
where he ranked first out of nine (9) Positions in the career service are further grouped
applicants.46Dela Cruz emphasizes that the factual into three (3) levels. The first level includes positions
findings of the Civil Service Commission, which was requiring less than four (4) years of collegiate
sustained by the Court of Appeals, must be studies.59 The second level includes positions with
accorded great respect since these have been duties requiring at least four (4) years of college
made by the "administrative agency which [has] work up to the Division Chief level.60 The third level
acquired expertise [in the field of civil service law.]"47 includes positions in the Career Executive Service.61

The issues for this court’s resolution are: Candidates for appointment to first and second level
positions are generally screened by the Personnel
First, whether respondent Dela Cruz’s promotion to Selection Board.62 In local government units, the
the position of City Government Department Head Personnel Selection Board is headed by the local
III is void because it violated the next- in-rank rule; chief executive and is composed of members
and appointed by the sanggunian concerned.63 The
Personnel Selection Board of each local position of City Assessor III shows that he meets all
government unit "assist[s] the local chief executive the requirements for appointment thereto. Likewise,
in the judicious and objective selection of personnel he satisfies the requirements prescribed by RA
for employment as well as . . . promotion[.]"64 7160. Hence, Dela Cruz qualifies for the issuance of
permanent appointment as City Assessor III.
The appointing authority in local government units,
therefore, is the local chief executive who must Moreover, the appointment of Dela Cruz was
assess the merits of the Personnel Selection confirmed by the Sangguniang Panlungsod ng
Board’s recommendation.65 If heads of offices or Muntinlupa in Resolution No. 06-361 dated
departments in a local government unit are December 7, 2006.71
appointed, majority of the members of the
sanggunian concerned must concur in the With its constitutional mandate, the Civil Service
appointment.66 Finally, the appointment must be Commission has acquired "specialized knowledge
submitted to the Civil Service Commission for and expertise"72in the field of civil service law.
attestation within 30 days from the appointment’s Consequently, its findings of fact, if based on
issuance date.67 substantial evidence, are "accorded great respect
and even finality"73 by appellate courts, this court
For local government units, the appointment of an included. Absent grave abuse of discretion, this
assessor is mandatory.68 In the City Government of court will not disturb the findings of fact of the Civil
Muntinlupa, the City Assessor is given the item of Service Commission.74
City Government Department Head III under the
City’s 2007 Personnel Schedule.69 As provided in II
Section 472(a) of the Local Government Code of
1991, the assessor must possess the following Petitioner contends, however, that he is a qualified
qualifications: next-in-rank who was bypassed for appointment to
the position of City Government Department Head
SECTION 472. Qualifications, Powers and Duties. - III. Thus, respondent’s appointment is void
(a) No person shall be appointed assessor unless notwithstanding his possession of the qualifications
he is a citizen of the Philippines, a resident of the for the position.
local government unit concerned, of good moral
character, a holder of a college degree preferably in In promotions,75 the appointing authority must
civil or mechanical engineering, commerce, or any automatically consider the employees next in rank
other related course from a recognized college or as candidates for appointment. Section 21,
university, and a first grade civil service eligible or paragraphs (2) and (3) of the Civil Service Law
its equivalent. He must have acquired experience in provide for the next-in-rank rule:
real property assessment work or in any related field
for at least five (5) years in the case of the city or
SEC. 21. Recruitment and Selection of Employees.
provincial assessor, and three (3) years in the case
—...
of the municipal assessor.
(2)When a vacancy occurs in a position in
The 1997 Revised Qualification Standards Manual
the first level of the Career Service as
reiterates the following minimum qualifications for
defined in Section 6, the employees in the
the position of assessor:
department who occupy the next lower
positions in the occupational group under
Education : Bachelor’s degree preferably in Civil or which the vacant position is classified, and
Mechanical Engineering, Commerce or any in other functionally related occupational
related course groups and who are competent, qualified
Experience : Five (5) years experience in real property and with the appropriate civil service
assessment work or in any related field eligibility shall be considered for promotion.
Training : None
(3)When a vacancy occurs in a position in
Eligibility : First grade or its equivalent.70
the second level of the Career Service as
defined in Section 8, the employees in the
The Civil Service Commission-National Capital government service who occupy the next
Region and the Civil Service Commission agree that lower positions in the occupational group
respondent possesses the minimum qualifications under which the vacant position is classified
under the law for the position of City Government and in other functionally related
Department Head III: occupational groups and who are
competent, qualified and with the
A comparative evaluation of the qualifications of appropriate civil service eligibility shall be
Dela Cruz as indicated in his Personal Data Sheet considered for promotion. (Emphasis
(PDS) vis-à-vis the qualification standards for the supplied)
"Promotion is the advancement of an employee next in rank is a legal conclusion that would be the
from one position to another with an increase in result of inference from evidence properly alleged
duties and responsibilities as authorized by law, and and proven. The burden of proof rests on the
usually accompanied by an increase in employee alleging that he or she is next in rank.89
salary."76 Employees next in rank are those "who
occupy the next lower positions in the occupational Petitioner failed to discharge his burden of proving
group under which the vacant position is classified, that he was a qualified next-in-rank. He failed to
and in other functionally related occupational groups prove that his position of Local Assessment
and who are competent, qualified and with the Operations Officer V has been previously
appropriate civil service eligibility[.]"77 determined to be next-in-rank to the position of City
Government Department Head III in the Office of the
The reason behind the next-in-rank rule is to City Assessor of the City Government of
maintain the policy of merit and rewards in the civil Muntinlupa.90
service.78 Since appointments in the civil service are
based on merit and fitness, it is assumed that the Petitioner, therefore, has no right to protest the
appointments of employees next in rank are equally appointment of respondent.
meritorious. Appointments that consider rank, salary
grades, and seniority promote progressiveness and III
courtesy in the civil service.79
Petitioner further contends that respondent was
Still, the next-in-rank rule is a rule of preference on appointed in violation of the three-salary-grade rule
who to consider for promotion.80 The rule does not found in Item 15 of Civil Service Commission
give employees next in rank a vested right to the Memorandum Circular No. 3, Series of 2001.
position next higher to theirs should that position Therefore, respondent’s appointment should be
become vacant.81Appointment is a discretionary recalled.
power of the appointing authority.82 So long as the
appointee possesses the qualifications required by
Item 15 of Civil Service Commission Memorandum
law, the appointment is valid.83
Circular, Series of 2001 on the three-salary-grade
rule states that "[a]n employee may be promoted or
Who to appoint is "a political question involving transferred to a position which is not more than
considerations of wisdom which only the appointing three (3) salary, pay or job grades higher than the
authority can decide."84 For the betterment of employee’s present position[.]" However, this rule is
government service, the appointing authority may subject to the exception of "very meritorious cases."
consider other "abstract criteria[,]"85 aside from the These "very meritorious cases" are provided in Civil
minimum qualifications set by law in making Service Commission Resolution No. 03-0106 dated
appointments. As this court explained in Cortez v. January 24, 2003:
Civil Service Commission:86
Any or all of the following would constitute a
[M]any factors are taken into account in evaluating meritorious case exempted from the 3-salary grade
the qualifications of prospective appointees and that limitation on promotion:
formal examinations, work experience and
educational attainment are only some of them. Such
1.The position occupied by the person is
abstract criteria as loyalty, cordiality, initiative,
next-in- rank to the vacant position, as
resourcefulness, discipline, and other personality
identified in the Merit Promotion Plan and
traits are also properly considered. When making
the System of Ranking Positions (SRP) of
this evaluation, the appointing authority should be
the agency[;]
given the widest possible leeway and cannot be
controlled by the Commission. . . .
2.The position is a lone, or entrance
position, as indicated in the agency’s
....
staffing pattern;
As long as the appointee possesses the minimum
3.The position belongs to the dearth
qualifications prescribed by law or regulations, there
category, such as Medical Officer/Specialist
is no question that his appointment must be
positions and Attorney positions;
respected by the Civil Service Commission even if it
be proved that there are others with superior
credentials.87 4.The position is unique and/or highly
specialized such as Actuarial positions and
Airways Communicator;
To successfully protest the issuance of an
appointment, the employee next in rank must prove
his or her status as a qualified next-in-rank; 5.The candidates passed through a deep
otherwise, the protest shall be dismissed.88 Being selection process, taking into consideration
the candidates’ superior qualifications in Absent contrary evidence, the presumption that the
regard to: City Government of Muntinlupa’s Personnel
Selection Board performed its duties with regularity
Educational achievements Highly applies.95
specialized trainings Relevant work
experience In any case, we cannot order the invalidation of
respondent’s appointment in the present
Consistent high performance proceedings. To do so would necessarily result in
rating/ranking; and his removal from an office he has physically
possessed for almost nine (9) years. Respondent
6.The vacant position belongs to the closed has been discharging the duties of the City
career system.91 (Emphasis supplied) Assessor, at the very least, under a color of title to
the position especially since he possesses the
qualifications for it. Analogous to a de facto officer,
Consistent with the next-in-rank rule, the appointing
respondent’s title to his office may only be attacked
authority shall consider for promotion qualified next-
through a petition for quo warranto filed by the
in-rank employees. However, there are instances
Government or by the person claiming title to the
when the employees next in rank occupy positions
office.96 ·
whose salary grades are more than three (3) grades
lower than that corresponding to the vacant position.
These instances should not prevent the appointing In Tayko v. Capistrano,97 this court held that "[t]he
authority from filling the vacancy, but whoever is title of a de facto officer cannot be indirectly
appointed must undergo a deep selection process questioned.... Having at least colorable right to the
and demonstrate his or her superior qualifications office[,] [the de facto officer's] title can be
and competence.92 This is to maintain the standard determined only in a quo warranto proceeding or
of merit and fitness for appointment in the civil information in the nature of a quo warranto at suit of
service. the sovereign."98

The Civil Service Commission found that De Facto Officer refers to an officer holding a
respondent’s appointment fell under the fifth colorable right or title to the office accompanied
exception provided in Civil Service Commission by possession. The lawful acts of an officer de
Resolution No. 03-0106 dated January 24, facto, so far as the rights of third persons are
2003.93 Contrary to petitioner’s claim, the Personnel concerned, when done within the scope and by
Selection Board conducted a deep selection the apparent authority of office, are valid and
process, ranking the candidates for the position of binding.
City Government Department Head III based on the
following criteria: performance, 25 points; work Respondent possesses the minimum qualifications
history, 25 points; awards, 5 points; education, 5 for the position of City Government Department
points; training, 10 points; potential, 10 points; and Head III. Moreover, his promotion from a Salary
physical characteristics and personality traits, 20 Grade 18 to a Salary Grade 27 position was a "very
points. meritorious case" since he has gone through a deep
selection process. Respondent Herminio Dela
The document denominated as Merit Promotion and Cruz's appointment as City Government Department
System of Ranking Position shows that out of nine Head III, therefore, is valid.
(9) candidates, respondent ranked first with a grade
of 90.67 out of 100 points.94 Respondent’s case, WHEREFORE, the Petition for Review on Certiorari
therefore, is a "very meritorious case." His is DENIED. The Court of Appeals' Decision dated
promotion from Local Assessment Operations April 11, 2012 is AFFIRMED.
Officer III with Salary Grade 18 to City Government
Department Head III with Salary Grade 27 is valid. SO ORDERED.

IV
G.R. No. 184980 March 30, 2011
Even if petitioner were next in rank, he failed to
DANILO MORO, Petitioner,
present evidence conclusively showing that he was
vs.
not considered for promotion. The document
GENEROSO REYES DEL CASTILLO,
denominated as Merit Promotion and System of
JR., Respondent.
Ranking Position contains only nine (9) names;
hence, it appears to be a short list of those ranked
for promotion. To be shortlisted, however, is DECISION
different from being considered for promotion.
Petitioner might have been considered for ABAD, J.:
promotion, but he did not make it to the short list.
This case is about the right of the petitioner to be the GHQ had already reassigned Del Castillo to
reinstated through an action for quo the PAF Accounting Center even before the
warranto against the present holder meantime that Ombudsman placed him under preventive
petitioner has appealed from the Ombudsman’s suspension.
decision dismissing him from the service for, among Del Castillo was, therefore, not automatically
other grounds, misconduct in office. entitled to return to his former GHQ post despite
the lapse of his suspension.
The Facts and the Case
During the pendency of the quo warranto case
On December 7, 2005 the Ombudsman charged before the RTC, Del Castillo refused to report at the
respondent Generoso Reyes Del Castillo, Jr. (Del PAF Accounting Center despite a memorandum
Castillo), then Chief Accountant of the General from the AFP Acting Deputy Chief of Staff for
Headquarters (GHQ) Accounting Center of the Personnel that carried the note and approval of the
Armed Forces of the Philippines (AFP), with AFP Chief of Staff.7 Del Castillo insisted that he
dishonesty, grave misconduct and conduct could not be placed under the PAF since he was the
prejudicial to the best interest of the service in OMB- GHQ Chief Accountant.8
P-A-06-0031-A. The Ombudsman alleged that Del
Castillo made false statements in his Statement On October 10, 2007 the RTC dismissed Del
of Assets and Liabilities from 1996 to 2004 and Castillo’s petition,9 holding that Moro held the
that he acquired properties manifestly out of position of GHQ Chief Accountant pursuant to
proportion to his reported salary. orders of the AFP Chief of Staff.

On April 1, 2006 the GHQ reassigned Del Castillo to Moreover, the RTC found Del Castillo’s
the Philippine Air Force (PAF) Accounting Center by reassignment to the PAF Accounting Center valid.
virtue of GHQ AFP Special Order 91 (SO 91).1
Under the Civil Service Commission (CSC) Rules, a
Through the same order, petitioner Danilo Moro reassignment may be made for a maximum of one
(Moro), then Chief Accountant of the Philippine year. Since Del Castillo’s preventive suspension
Navy, took over the position of Chief Accountant of kept him away for only six months, he had to return
the GHQ Accounting Center. to the PAF to complete his maximum detail at that
posting. Besides, said the trial court, the
Meantime, on August 30, 2006 the Ombudsman Ombudsman’s February 5, 2007 Order, which
placed Del Castillo under preventive suspension for directed Del Castillo’s dismissal from the service for
six months and eventually ordered his dismissal grave misconduct, among others, rendered the
from the service on February 5, 2007.2 The penalty petition moot and academic.
imposed on him included cancellation of eligibility,
forfeiture of retirement benefits, and perpetual The RTC denied Del Castillo’s motion for
disqualification from reemployment in the reconsideration.
government. Del Castillo filed a motion for
reconsideration, which is pending to this date. Instead of appealing from the order of dismissal of
his action, Del Castillo filed a petition for certiorari
Following the lapse of his six-month suspension or with the Court of Appeals (CA) in CA-G.R. SP
on March 12, 2007 Del Castillo attempted to 103470.
reassume his former post of GHQ Chief Accountant.
But, he was unable to do so since Moro declined to On October 13, 2008 the CA reversed the RTC
yield the position. Decision.10

Consequently, on April 4, 2007 Del Castillo filed a Notwithstanding the procedural error, the CA gave
petition for quo warranto3 against Moro with the due course to the petition on grounds of substantial
Regional Trial Court4 (RTC) of Parañaque City in justice and fair play. It held that Del Castillo’s
Civil Case 07-0111. reassignment exceeded the maximum of one year
allowed by law and that SO 91 was void since it did
Del Castillo claimed that Moro was merely detailed not indicate a definite duration for such
as GHQ Chief Accountant when the Ombudsman reassignment. Further, the CA held as non-
placed Del Castillo under preventive suspension. executory the Ombudsman’s dismissal of Del
Since the latter’s period of suspension already Castillo in view of his appeal from that dismissal.
lapsed, he was entitled to resume his former With the denial of his motion for reconsideration,
post and Moro was but a usurper. 5 Moro filed this petition via Rule 45 of the Rules of
Court.
For his part, Moro pointed out in his Answer6 that his
appointment under SO 91 as GHQ Chief The Issue Presented
Accountant was a permanent appointment. Indeed,
The key issue in this case is whether or not In quo warranto, the petitioner who files the
respondent Del Castillo is entitled to be restored action in his name must prove that he is entitled
to the position of Chief Accountant of the GHQ to the subject public office.
Accounting Center that he once held. – NO
Otherwise, the person who holds the same has a
Whether or not del Castillo has the legal right to undisturbed possession and the action
standing to file quo warranto proceeding. – for quo warranto may be dismissed.17
NO!!! Not entitled to the said position
Here, Del Castillo brought the action for quo
The Court’s Ruling warranto in his name on April 4, 2007, months after
the Ombudsman ordered his dismissal from service
An action for quo warranto under Rule 66 of the on February 5, 2007. As explained above, that
Rules of Court may be filed against one who usurps, dismissal order was immediately executory even
intrudes into, or unlawfully holds or exercises a pending appeal. Consequently, he has no right to
public office.11 pursue the action for quo warranto or reassume the
position of Chief Accountant of the GHQ Accounting
It may be brought by the Republic of the Philippines Center.
or by the person claiming to be entitled to such
office.12 WHEREFORE, the Court GRANTS the petition,
REVERSES and SETS ASIDE the decision dated
In this case, it was Del Castillo who filed the action, October 13, 2008 of the Court of Appeals in CA-
claiming that he was entitled as a matter of right to G.R. SP 103470, and REINSTATES the October
reassume the position of GHQ Chief Accountant 10, 2007 decision of the Regional Trial Court in Civil
after his preventive suspension ended on March 11, Case 07-0111, which dismissed the complaint for
2007. quo warranto.

He argues that, assuming his reassignment to the SO ORDERED.


PAF Accounting Center was valid, the same could
not exceed one year. Since his detail at the PAF REBECCA T. ARQUERO, G.R. No
took effect under SO 91 on April 1, 2006, it could
last not later than March 31, 2007. By then, Moro
should have allowed him to return to his
Petitioner,
previous posting as GHQ Chief Accountant.

But, as Moro points out, he had been authorized Present:


under SO 91 to serve as GHQ Chief Accountant.
Del Castillo, on the other hand, had been ordered
dismissed from the service by the Ombudsman in - versus-
OMB-P-A-06-0031-A. Consequently, he cannot
reassume the contested position.
VELAS
Del Castillo of course insists, citing Lapid v. Court of
Appeals,13 that only decisions of the Ombudsman
that impose the penalties of public censure,
PERAL
COURT OF APPEALS (Former
reprimand, or suspension of not more than a month
or a fine of one month salary are final, executory, Thirteenth Division); EDILBERTO C. ABAD,
and unappealable. Consequently, when the penalty DE JESUS, in his capacity as
is dismissal as in his case, he can avail himself of MEND
the remedy of appeal and the execution of the Secretary of the Department of
decision against him would, in the meantime, be Education; DR. PARALUMAN PERLA
held in abeyance. 1avvphi1

GIRON, Director, Regional Office


But, the Lapid case has already been superseded IV-MIMAROPA, Department of
by In the Matter to Declare in Contempt of Court Promu
Hon. Simeon A. Datumanong, Secretary of Education; DR. EDUARDO LOPEZ,
DPWH.14 The Court held in Datumanong that Schools Division Superintendent,
Section 7, Rule III of Administrative Order 7, as
amended by Administrative Order 17,15 clearly Puerto Princesa City; and NORMA
provides that an appeal shall not stop a decision of BRILLANTES,
the Ombudsman from being executory. The Court
later reiterated this ruling in Office of the Septemb
Ombudsman v. Court of Appeals.16
Respondents.
The facts of the case are as follows:

On October 13, 1989, Congress approved


Republic Act (RA) No. 6765, or An Act
Integrating Certain High Schools in the City
of Puerto Princesa and in the Province of
Palawan with the Palawan National School
and Appropriating Funds Therefor. Under
the law, the following schools were
x------------------------------------------------------- converted into national schools and
---------------------------------x integrated with the Palawan National
School (PNS) in the City of Puerto Princesa,
Province of Palawan, as branches thereof:
(1) Puerto Princesa School of Philippine
DECISION Craftsmen; (2) San Jose Barangay High
School; (3) Inagawan Barangay High School;
(4) Puerto Princesa Rural High School; all in
PERALTA, J.: the City of Puerto Princesa and (5) Plaridel
This is a petition for review Barangay High School in the Municipality of
on certiorari under Rule 45 of the Rules of Aborlan; (6) Narra Barangay High School in
Court filed by petitioner Rebecca T. the Municipality of Narra; (7) Quezon
Arquero against public respondents Municipal High School in the Municipality
Edilberto C. De Jesus (De Jesus), in his of Quezon; (8) Pulot Barangay High School
capacity as Secretary of Education, Dr. in the Municipality of Brookes Point; (9)
Paraluman Giron (Dr. Giron), Department Bataraza Barangay High School in the
of Education (DepEd) Director, Regional Municipality Bataraza; and (10) Balabac
Office IV-MIMAROPA, Dr. Eduardo Lopez Barangay High School in the Municipality of
(Lopez), Schools Division Superintendent, Balabac; all in the Province of Palawan.[4]
Puerto Princesa City, and private
respondent Norma Brillantes. Petitioner
Section 2 of the law provides that the
assails the Court of Appeals (CA)
Palawan National School shall, in addition
Decision[1] dated December 15, 2004 and
to general secondary education program,
Resolution[2] dated May 3, 2005 in CA-G.R.
offer post-secondary technical-vocational
SP No. 85899. The assailed decision
and other relevant courses to carry out its
reversed and set aside the Judgment by
objectives. The PNS shall thus be
Default[3] of the Regional Trial Court (RTC),
considered the mother unit and the
Branch 95, Puerto Princesa City, while the
integrated schools should benefit from a
assailed resolution denied petitioners
motion for reconsideration. centralized curriculum planning to
eliminate duplication of functions and
efforts relative to human resource Petitioner was instructed to turn over the
development for the province.[5] The law administration and supervision of the PINS
also provides that the Palawan Integrated branches or units.[11] In another
National Schools (PINS) shall be headed by memorandum, Schools Division
a Vocational School Superintendent (VSS) Superintendent Portia Gesilva was
who shall be chosen and appointed by the designated as OIC of the PINS. These
Secretary of the Department of Education, events prompted different parties to
Culture, and Sports (now the institute various actions restraining the
[6]
DepEd). Except for Puerto Princesa enforcement of the DepEd orders.
School of Philippine Craftsmen, which
Pursuant to RA 8204, separate City Schools
shall be headed by the Home Industries
Division Offices were established for the
Training Supervisor, the PNS and each of
City of Puerto Princesa and the Province of
its units or branches shall be headed
Palawan. [12]
either by a Principal or Secondary School
Head Teacher to be chosen in accordance On March 14, 2000, Regional Director
with the DepEd Rules and Regulations.[7] Belen H. Magsino issued an Order
addressed to the Schools Division
Superintendent of Palawan and Puerto
However, no Vocational School Princesa City, and petitioner stating that
Superintendent was appointed. the PINS satellite schools shall be under the
supervision of the division schools
Instead, then DECS Region IV Office
superintendents concerned, while
designated then PNS Principal Eugenio J.
petitioner should concentrate on the
dela Cuesta in a concurrent capacity as
supervision and administration of the
Officer-in-Charge (OIC) of the PINS.
PNS.[13] Again, this prompted the filing of
After the retirement of Dela Cuesta, various court actions.
petitioner Arguero took over as Secondary
School Principal of the PNS.[8]
On May 14, 2002, then DECS
On March 18, 1993, then DECS-Region IV
Undersecretary Jaime D. Jacob issued an
Director IV Desideria Rex (Director Rex)
Order[14] addressed to Dr. Giron, OIC,
designated petitioner as OIC of the PINS.[9]
DepEd Regional Office No. 4, stating that
there being no more legal impediment to
On December 1, 1994, Director Rexs the integration, he ordered that the
successor, Pedro B. Trinidad placed all secondary schools integrated with the PNS
satellite schools of the PINS under the be under the direct administrative
direct supervision of the Schools Division management and supervision of the
Superintendent for Palawan effective schools division superintendents of the
January 1, 1995.[10] divisions of Palawan and Puerto Princesa
City, as the case may be, according to their
This directive was later approved by the geographical and political boundaries.
DepEd in September 1996. Consequently, Dr. Giron instructed the
secondary schools principals concerned of On September 18, 2003, Dr. Giron filed a
the assumption of jurisdiction by the formal charge[19] against petitioner who
superintendent of the schools division continued to defy the orders issued by the
offices of the city and province, and that Regional Office relative to the exercise of
their fiscal and financial transaction as her functions as OIC of the PINS despite the
turned over will be effected in July 1, 2002. designation of private respondent as
However, then DepEd Undersecretary such. The administrative complaint
Ramon C. Bacani (Bacani) ordered that charged petitioner with grave misconduct,
the status quo be maintained and that no gross insubordination and conduct
turn over of schools be made.[15] In the prejudicial to the best interest of the
meantime, petitioner remained as the OIC service. Petitioner was also preventively
of the PINS. suspended for ninety (90) days.[20]

On September 19, 2002, Dr. Giron On October 2, 2003, petitioner filed the
withdrew the designation of petitioner as Petition for Quo Warranto with Prayer for
OIC of the PINS, enjoining her from Issuance of Temporary Restraining Order
submitting to the Regional Office all and/or Injunctive Writ[21] before the RTC of
appointments and personnel movement Palawan[22] against public and private
involving the PNS and the satellite respondents. The case was docketed as
schools. On November 7, 2002, petitioner Civil Case No. 3854. Petitioner argued that
appealed to the Civil Service Commission the designation of private respondent
assailing the withdrawal of her designation deprived her of her right to exercise her
as OIC of the PINS.[16] function and perform her duties in
violation of her right to security of tenure.
Considering that petitioner was appointed
in a permanent capacity, she insisted that
On March 28, 2003, then DepEd Secretary private respondents designation as OIC of
Edilberto C. De Jesus designated Assistant the PNS is null and void there being no
Schools Division Superintendent Norma B. vacancy to the position. Petitioner thus
Brillantes (hereafter referred to as private prayed that the RTC issue an order granting
respondent) in concurrent capacity as OIC the writ of quo warranto enjoining private
of the PINS entitled to representation and respondent from assuming the position of
transportation allowance, except the salary OIC of the PNS, declaring the questioned
of the position.[17] Petitioner filed a Motion designation null and void and without
for Reconsideration and/or operative effect, and declaring petitioner
Clarification[18]before the Office of the to be entitled to the office of the principal
DepEd Secretary as to the designation of of the PNS.[23]
private respondent.

On October 6, 2003, the Executive Judge


issued a 72-Hour TRO[24] enjoining and
restraining private respondent from
assuming the position of OIC and 2. Declaring the formal
performing the functions of the Office of charge against
the Principal of the PNS; and restraining petitioner, the
public respondents from giving due course preventive
or recognizing the assailed designation of suspension, the
private respondent. The RTC later issued investigating
the writ of preliminary injunction.[25] committee, the
proceedings therein
and any orders,
Respondents failed to file their rulings, judgments
Answer. Hence, on motion[26] of petitioner, and decisions that
the Court declared respondents in default would arise
in an Order[27]dated December 15, 2003. In therefrom as null,
the same order, petitioner was allowed to void and of no effect;
present her evidence ex parte.

3. Ordering respondent
On June 14, 2004, the RTC rendered a Norma Brillantes, or
Judgment by Default,[28] the dispositive any person acting in
portion of which reads: her behalf, to cease
and desist from
assuming and
exercising the
functions of the
WHEREFORE, premises
Office of the Principal
considered and by
of Palawan
preponderance of evidence,
Integrated National
judgment is hereby rendered:
High School, and
respondents
Edilberto C. De Jesus,
1. Declaring petitioner
Paraluman R. Giron
Rebecca T. Arquero
and Eduardo V. Lopez,
as the lawful
or any person acting
Principal and Head of
in their behalf, from
the Palawan
giving due course or
Integrated National
recognizing the same;
High School who is
and
lawfully entitled to
manage the
operation and 4. Making the writ of
finances of the school preliminary
subject to existing injunction issued in
laws; this case permanent.
IT IS SO ORDERED.[29]
Applying the rules on statutory
construction, the appellate court
The RTC held that considering that the emphasized the need to harmonize the
integrated school failed to offer post- laws. The CA held that the PINS and its
secondary technical-vocational courses, satellite schools remain under the
the VSS position became functus complete administrative jurisdiction of the
officio. The PNS, therefore, remains to be a DepEd and not transferred to the Technical
general secondary school under the Education and Skills Development
jurisdiction of the DepEd.[30]Consequently, Authority (TESDA). It also explained that by
supervision of the integrated school was providing for a distinct position of VSS with
automatically vested with the principal of a higher qualification, specifically chosen
the PNS without the necessity of and appointed by the DepEd Secretary that
appointment or designation. As to the is separate from the school head of the PNS
administrative case filed against petitioner, offering general secondary education
the RTC opined that the formal charge and program, RA 6765 intended that the
preventive suspension are illegal for lack of functions of a VSS and School Principal of
due process.[31] PNS be discharged by two separate
persons.[33] The CA added that if we follow
the RTC conclusion, petitioner would
On appeal, the CA reversed and set aside assume the responsibilities and exercise
the RTC decision, the dispositive portion of the functions of a division schools
which reads: superintendent without appointment and
compliance with the qualifications
required by law.[34] The appellate court
WHEREFORE, premises likewise held that petitioner failed to
considered, the present appeal establish her clear legal right to the
is hereby GRANTED. The position of OIC of the PINS as she was not
appealed decision of the court appointed but merely designated to the
a quo in Civil Case No. 3854 is position in addition to her functions as
hereby REVERSED and SET incumbent school principal of the
ASIDE. A new judgment is PNS.[35] Clearly, there was no violation of
hereby entered DISMISSING her right to due process and security of
the petition for quo tenure when private respondent replaced
warranto filed by appellee her. As to the validity of filing the
Rebecca T. Arquero. administrative charge against her and the
subsequent imposition of preventive
suspension, the CA refused to rule on the
No pronouncement as to costs. matter due to the pendency of the
administrative case which is within the
jurisdiction of the DepEd.
SO ORDERED.[32]
FOR A SPECIFIC PURPOSE BY
THE RESPONDENTS (WHO
Hence, this petition raising the
WERE DECLARED IN
following issues:
DEFAULT).

A. THE COURT OF
THEREFORE,
APPEALS DECISION DATED
THE CONCLUSION OF THE
THE 15TH DECEMBER 2004,
IMPUGNED DECISION IS
AND THE RESOLUTION OF
NOT SUPPORTED BY
3RD MAY 2005, HAVE
RECORDED EVIDENCE.[36]
DECIDED A QUESTION OF
SUBSTANCE, NOT The petition is without merit.
THERETOFORE
DETERMINED BY THE
SUPREME COURT, OR THE Petitioner insists that respondents could
APPELLATE COURT HAS not have appealed the RTC decision having
DECIDED IT IN A WAY been declared in default. She explains that
PROBABLY NOT IN ACCORD the only issue that could have been raised
WITH LAW OR WITH THE is a purely legal question, therefore, the
APPLICABLE DECISIONS OF appeal should have been filed with the
THE HIGHEST COURT; OR Court and not with the CA.
THE RESPONDENT COURT
OF APPEALS HAS SO FAR
DEPARTED FROM THE In Martinez v. Republic,[37] the Court has
ACCEPTED AND USUAL clearly discussed the remedies of a party
COURSE OF JUDICIAL declared in default in light of the 1964 and
PROCEEDINGS AS TO CALL 1997 Rules of Court and a number of
FOR AN EXERCISE OF THE jurisprudence applying and interpreting
POWER OF SUPERVISION. said rules. Citing Lina v. Court of
Appeals,[38] the Court enumerated the
above-mentioned remedies, to wit:
B. THE CHALLENGED DECISION
WAS RENDERED ON THE
BASIS OF MERE a) The defendant in default
UNSUBSTANTIATED ARGU may, at any time after
MENTATIONS OF THE discovery thereof and
INDIVIDUAL RESPONDENTS. before judgment, file a
motion, under oath, to set
NO IOTA OF EVIDENCE, aside the order of default on
TESTIMONIAL OR the ground that his failure
DOCUMENTARY, WERE to answer was due to fraud,
PRESENTED AND OFFERED accident, mistake or
excusable neglect, and that
he has meritorious defenses; remedies of the defending party declared
(Sec. 3, Rule 18) in default:

b) If the judgment has already It bears stressing that a


been rendered when the defending party declared in
defendant discovered the default loses his standing in
default, but before the court and his right to adduce
same has become final and evidence and to present his
executory, he may file a defense. He, however, has the
motion for new trial under right to appeal from the
Section 1 (a) of Rule 37; judgment by default and assail
said judgment on the
c) If the defendant discovered
ground, inter alia, that the
the default after the
amount of the judgment is
judgment has become final
excessive or is different in kind
and executory, he may file a
from that prayed for, or that
petition for relief under
the plaintiff failed to prove the
Section 2 of Rule 38; and
material allegations of his
complaint, or that the decision
d) He may also appeal from is contrary to law. Such party
the judgment rendered declared in default is
against him as contrary to proscribed from seeking a
the evidence or to the law, modification or reversal of the
even if no petition to set assailed decision on the basis of
aside the order of default the evidence submitted by him
has been presented by him. in the Court of Appeals, for if it
(Sec. 2, Rule 41)[39] were otherwise, he would
thereby be allowed to regain
his right to adduce evidence, a
The Court explained in Martinez that right which he lost in the trial
the fourth remedy, that of appeal, is court when he was declared in
anchored on Section 2, Rule 41 of the 1964 default, and which he failed to
Rules.Even after the deletion of that have vacated. In this case, the
provision under the 1997 Rules, the Court petitioner sought the
did not hesitate to expressly rely on modification of the decision of
the Lina doctrine, including the the trial court based on the
pronouncement that a defaulted evidence submitted by it only in
defendant may appeal from the judgment the Court of Appeals.[41]
rendered against him. Moreover, in Rural
Bank of Sta. Catalina v. Land Bank of the
Philippines,[40] the Court provided a
comprehensive restatement of the
Undoubtedly, a defendant declared in and the action for quo warranto may be
default retains the right to appeal from the dismissed.[47] It is not even necessary to
judgment by default on the ground that the pass upon the right of the defendant who,
plaintiff failed to prove the material by virtue of his appointment, continues in
allegations of the complaint, or that the the undisturbed possession of his office.[48]
decision is contrary to law, even without
need of the prior filing of a motion to set
aside the order of default except that he On the basis of the evidence presented
does not regain his right to adduce solely by petitioner and without
evidence.[42] The appellate court, in turn, considering the arguments and
can review the assailed decision and is not attachments made by respondents to
precluded from reversing the same based rebut petitioners claims, we find that
solely on the evidence submitted by the petitioner failed to prove that she is
plaintiff. entitled to the contested position.
It is undisputed that petitioner was
appointed as the principal of the PNS. In
The next question to be resolved is
addition, she was designated as the OIC of
whether petitioner has the right to the
the PINS. Said designation was, however,
contested public office and to oust private
withdrawn. Private respondent was,
respondent from its enjoyment. We
thereafter, designated as the new OIC. This
answer in the negative.
prompted petitioner to file the quo
A quo warranto proceeding is the proper warranto petition before the court a quo.
legal remedy to determine the right or title
to the contested public office and to oust
the holder from its enjoyment.[43] It is The contested position was created
brought against the person who is alleged by RA 6765. Section 3 of the law provides:
to have usurped, intruded into, or
unlawfully held or exercised the public
office.[44] It may be brought by the Republic Section 3. The school
of the Philippines or by the person claiming shall be headed by a Vocational
to be entitled to such office.[45] School Superintendent. He
shall be chosen and appointed
by the Secretary of Education,
In quo warranto, the petitioner who Culture and Sports [now
files the action in his name must prove that Secretary of Education].
he is entitled to the subject public office.
In other words, the private
person suing must show a clear right to the
contested position.[46] Moreover, Section 4 thereof states:

Otherwise, the person who holds the


same has a right to undisturbed possession
Section 4. The Home office once he is called to do so by the
Industries Training Supervisor appointing authority. Therefore, his term
of the Puerto Princesa School of office is not fixed, but endures at the
of Philippine Craftsmen shall pleasure of the appointing
continue to serve as such. The [49]
authority. The essence of an acting
main school and each of its appointment is its temporariness and its
units or branches shall be consequent revocability at any time by the
headed either by a Principal or appointing authority.[50]
Secondary School Head
Teacher to be chosen in
accordance with the rules and Thus, under RA 6765, petitioner can
regulations of the Department only insist on her security of tenure as
of Education, Culture and principal of the PNS but not as OIC of the
Sports [now the Department of integrated school. Upon the withdrawal of
Education]. her designation, her right to the contested
position ceased to exist.

As aptly observed by the CA, the law Petitioner also bases her right to the
created two positions the VSS and the contested position on the enactment of RA
principal or secondary school head teacher 7796, or An Act Creating the Technical
of each of the units or branches of the Education and Skills Development
integrated school. The legislators clearly Authority, Providing for its Powers,
intended that the integrated schools shall Structure and for Other Purposes, and RA
be headed by a superintendent. 9155, or An Act Instituting a Framework of
Admittedly, petitioner did not possess the Governance for Basic Education,
qualifications to hold the position and she Establishing Authority and Accountability,
was merely designated by the DepEd as the Renaming the Department of Education
OIC of the PINS. At that time, she held in a Culture and Sports as the Department of
concurrent capacity, the permanent Education, and for Other Purposes. She
position of principal of the PNS. Having contends that under RA 7796, the position
been appointed as OIC without the of VSS could no longer be filled up by the
necessary qualifications, petitioner held DepEd having been absorbed by TESDA. As
the position only in a temporary such, the right to manage the operation
capacity. The purpose of an acting or and finances of the integrated schools is
temporary appointment is to prevent a automatically vested with petitioner being
hiatus in the discharge of official functions the principal of the PNS without further
appointment or designation.
by authorizing a person to discharge those
functions pending the selection of a
permanent or another appointee. An
Again, we do not agree.
acting appointee accepts the position on
the condition that he shall surrender the
As found by the RTC and affirmed by governance of basic education. It also
the CA, the PINS failed to implement its emphasizes the principle of shared
technical-vocational education program. governance which recognizes that every
Consequently, the PNS and the other unit (which includes the national, regional,
satellite schools never came under the division, school district, and school levels)
jurisdiction of the Bureau of Technical and in the education bureaucracy has a
Vocational Education of the DepEd nor the particular role, task and responsibility. The
technical-vocational education in DepEds school shall be headed by a [principal] or
regional offices. Thus, except for the school head; a school district by a schools
Puerto Princesa School of Philippine district supervisor; a division by a schools
Craftsmen, which is now within the division superintendent; a region by a
jurisdiction of the TESDA, the PNS and the director; and the national level by the
other units remained under the complete Secretary of Education.It must be recalled
administrative jurisdiction of the DepEd. that the integration under RA 6765
Although the technical-vocational involved certain high schools in different
education program was not implemented, municipalities of the Province of Palawan
it does not alter the laws intent that the and the City of Puerto Princesa. We also
main school, which is the PNS and the other note that RA 6765 intended that the
units integrated with it, shall be headed integrated school shall be headed by a
either by a principal or secondary school superintendent. Nowhere in the above
head teacher; while the PINS or the laws can we find justification for
integrated school shall be headed by petitioners insistence that she, and not
another. We cannot subscribe to private respondent, has a better right to
petitioners insistence that the principal hold the contested position.
automatically heads the PINS without
Clearly, petitioner failed to establish
appointment or designation. As clearly
her right to the contested
explained by the CA, by providing for a
position. Therefore, the dismissal of
distinct position with a higher qualification
her quo warranto petition is in order. It
(that of a superintendent), specifically
must be emphasized, however, that this
chosen and appointed by the DepEd
declaration only involves the position of
Secretary, separate from the school head
petitioner as OIC of the PINS. It does not in
of the PNS offering general secondary
any way affect her position as principal of
education program, the law clearly
the PNS which she holds in a permanent
intended the functions of a VSS and school
capacity.
principal of the PNS to be discharged and
performed by two different individuals.[51]
WHEREFORE, premises considered,
the petition is DENIED for lack of
Neither can petitioner rely on the
merit. The Court of Appeals Decision dated
enactment of RA 9155. The law, in fact,
December 15, 2004 and Resolution dated
weakens petitioners claim. RA 9155
May 3, 2005 in CA-G.R. SP No. 85899,
provides the framework for the
are AFFIRMED.
Before us is a petition for review[1] on
certiorari under Rule 45 of the Rules of
SO ORDERED.
Court filed by Samuel B. Ong (Ong) to assail
SAMUEL B. ONG, G.R. [2]
the No. 184219
Decision rendered by the Court of
Appeals (CA) on August 5, 2008 in CA-G.R.
Petitioner,
SP No. 88673, the dispositive portion of
Present:
which reads:

CARPIO, J.,
- versus - WHEREFORE, in view of the
Chairperson,
foregoing premises, the
PEREZ, petition for quo warranto filed
in this case is hereby DENIED.
SERENO,
REYES, and
SO ORDERED.[3]
PERLAS-BERNABE, JJ.*
OFFICE OF THE PRESIDENT, ET AL.,
Respondents.
Promulgated:
Ong died on May 22, 2009 during the
pendency of the instant
[4]
petition.
January Admittedly,
30, 2012 Ong's death
rendered the prayer for reinstatement in
the petition for quo warranto as moot and
[5]
x-------------------------------------------------- academic. However, substitution was
----------------------------------x sought because in the event that the Court
would rule that Ong was indeed entitled to
the position he claimed, backwages
pertaining to him can still be paid to his
legal heirs. Per Resolution[6]issued on
DECISION January 10, 2011, we granted the motion
for substitution. The deceased petitioner is
now herein substituted by his wife
REYES, J.: Elizabeth, and children, Samuel Jr.,
Elizabeth and Carolyn, all surnamed Ong.

Antecedents Facts
The Case
The CA aptly summarized the facts of the
case before the filing of the petition for quo On June 3, 2004, the petitioner
warranto as follows: received from respondent
Reynaldo Wycoco
Memorandum Circular No. 02-
The petitioner [Ong] joined the
S.2004 informing him that his
National Bureau of
appointment, being co-
Investigation (NBI) as a career
terminus with the appointing
employee in 1978. He held the
authority's tenure, would end
position of NBI Director I from
effectively at midnight on June
July 14, 1998 to February 23,
30, 2004 and, unless a new
1999 and NBI Director II from
appointment would be issued
February 24, 1998 to
in his favor by the President
September 5, 2001. On
consistent with her new tenure
September 6, 2001, petitioner
effective July 1, 2004, he would
was appointed Director III by
be occcupying his position in
the President. His appointment
a de facto/hold[-]over status
paper pertinently reads:
until his replacement would be
appointed.
xxx

On December 01, 2004, the


President appointed
Pursuant to the provisions of
respondent Victor A. Bessat as
existing laws, the following are
NBI Director III as replacement
hereby appointed to
of the petitioner. Consequently,
the NATIONAL BUREAU OF
respondent Wycoco notified
INVESTIGATION,
the petitioner that, effective on
DEPARTMENT OF JUSTICE co-
December 17, 2004, the latter
terminus with the appointing
should cease and desist from
authority:
performing his functions as NBI
Director III in view of the
xxx presidential appointment of
respondent Bessat as
petitioner's replacement. The
SAMUEL B. ONG - DIRECTOR III petitioner received the
aforementioned notice only on
(vice Carlos S. Caabay) [DEPUTY January 27,
DIRECTOR] 2005.[7] (underscoring supplied
and citations omitted)

xxx
On February 22, 2005, Ong filed before the a temporary appointment shall
CA a petition for quo warranto. He sought be issued to a person who meets
all the requirements for the
for the declaration as null and void of (a) his
position to which he is being
removal from the position of NBI Director appointed except the
III; and (b) his replacement by respondent appropriate civil service
Victor Bessat (Bessat). Ong likewise prayed eligibility; provided, that such
for reinstatement and backwages. temporary appointment shall
not exceed twelve months, but
the appointee may be replaced
The CA denied Ong's petition on grounds: sooner if a qualified civil
service eligible becomes
available.
A petition for quo warranto is a x x x In Cuadra v.
proceeding to determine the [10]
Cordova, temporary
right of a person to the use or appointment is defined as one
exercise of a franchise or office made in an acting capacity, the
and to oust the holder from its essence of which lies in its
enjoyment, if his claim is not temporary character and its
well-founded, or if he has terminability at pleasure by the
forfeited his right to enjoy the appointing power. Thus, the
privilege.[8] Where the action is temporary appointee accepts
filed by a private person, in his the position with the condition
own name, he must prove that that he shall surrender the office
he is entitled to the controverted when called upon to do so by
position, otherwise, respondent the appointing authority. The
has a right to the undisturbed termination of a temporary
possession of the office.[9] appointment may be with or
without a cause since the
Section 27 of the appointee serves merely at the
Administrative Code of 1987, pleasure of the appointing
as amended, classifies the authority.
appointment status of public
officers and employees in the In the career executive service,
career service into permanent the acquisition of security of
and temporary. A permanent tenure presupposes a permanent
appointment shall be issued to a appointment. As held
person who meets all the in General v. Roco, two [11]
requirements for the position to requisites must concur in order
which he is being appointed, that an employee in the career
including appropriate eligibility executive service may attain
prescribed, in accordance with security of tenure, to wit: 1)
the provisions of law, rules and CES eligibility[;] and 2)
standards promulgated in appointment to the appropriate
pursuance thereof. In the CES rank.
absence of appropriate eligibles
and it becomes necessary in the In the present case, it is
public interest to fill a vacancy, undisputed that the petitioner is
a non-CESO eligible. At best,
therefore, his appointment xxxx
could be regarded only as
temporary and, hence, he has no (2) Co-terminous
security of tenure. Such being with the
the case, his appointment can be appointing
withdrawn at will by the authority
President, who is the appointing when appointment
authority in this case, and at a is co-existent with
moment's notice.[12] the tenure of the
appointing
Moreover, a perusal of the authority or at his
petitioner's appointment will pleasure; x x x
reveal that his appointment as
NBI Director III is co- xxxx
terminous with the appointing
authority. Correlatively, his Thus, although petitioner's
appointment falls under Section appointment is co-terminous
14 of the Omnibus Rules with the tenure of the President,
Implementing Book V of the he nevertheless serves at the
Revised Administrative Code pleasure of the President and his
of 1987 which provides that:[13] appointment may be recalled
anytime. The case of Mita
Sec. 14. An Pardo de Tavera v. Philippine
appointment may Tuberculosis Society,
[14]
also be co- Inc. delineated the nature of
terminous which an appointment held at the
shall be issued to a pleasure of the appointing
person whose power in this wise:
entrance and
continuity in the An appointment
service is based on held at the
the trust and pleasure of the
confidence of the appointing power
appointing is in essence
authority or that temporary in
which is subject to nature. It is co-
his pleasure, or extensive with the
co-existent with desire of the
his tenure, or Board of
limited by the Directors. Hence,
duration of project when the Board
or subject to the opts to replace the
availability of incumbent,
funds. technically there
The co-terminous is no removal but
status may thus be only an expiration
classified as of term and in an
follows: expiration of term,
there is no need of warrantoproceeding[,] the
prior notice, due person suing must show that he
hearing or has a clear right to the office
sufficient grounds allegedly held unlawfully by
before the another. Absent that right, the
incumbent can be lack of qualification or
separated from eligibility of the supposed
office. The usurper is immaterial.[16]
protection
afforded by Indeed, appointment is an
Section 7.04 of the essentially discretionary power
Code of By-Laws and must be performed by the
on Removal [o]f officer in which it is vested
Officers and according to his best lights, the
Employees, only condition being that the
therefore, cannot appointee should possess the
be claimed by qualifications required by law.
petitioner. If he does, then the appointment
cannot be faulted on the ground
All told, petitioner's that there are others better
appointment as well as its qualified who should have been
consequent termination falls preferred. This is a political
within the ambit of the question involving
discretion bestowed on the considerations of wisdom
appointing authority, the which only the appointing
President. Simply put, his authority can decide.[17]
appointment can be terminated
at any time for any cause and In sum, quo warranto is
without the need of prior notice unavailing in the instant case, as
or hearing since he can be the
removed from his office public office in question has not
anytime. His termination cannot been usurped, intruded into or
be said to be violative of unlawfully held by respondent
Section 2(3), Article IX-B of Bessat. The petitioner had no
the 1987 Constitution. When a legal right over the disputed
temporary appointee is required office and his cessation from
to relinquish his office, he is office involves no removal but
being separated from office an expiration of his term of
because his term has office.[18]
[15]
expired. Starkly put, upon the
appointment of respondent
Bessat as his replacement, his
term of office had already
expired.
Hence, the instant petition ascribing to the
Likewise, it is inconsequential CA the following errors:
that the petitioner was replaced
by another non-CESO eligible,
respondent Besat. In a quo I.
Evangelista, etcl.,[24] Ong's counsel
THE CA ERRED WHEN IT distinguished a term as the time during
SUSTAINED THE which the officer may claim to hold office
VALIDITY OF THE as of right from a tenure which represents
PETITIONER'S REMOVAL
the term during which the incumbent
BY
RESPONDENT WYCOCO A actually
S NBI DIRECTOR III holds the office. Ong's appointment, from
(DEPUTY DIRECTOR). [19] which he cannot be removed without just
cause, was co-terminous with the
II. President's tenure which ended not on June
30, 2004, but only on June 30, 2010.
THE CA ERRED IN
HOLDING THAT SINCE
THE PETITIONER HELD A Section 2(b), Article IX-G of the 1987
CO-TERMINOUS Constitution and Jocom v. Regalado[25] are
APPOINTMENT, HE IS likewise cited to stress that government
TERMINABLE AT THE employees, holding both career and non-
PLEASURE OF THE career service positions, are entitled to
[20]
APPOINTING POWER. protection from arbitrary removal or
suspension. In the case of Ong, who started
Citing Ambas v. Buenaseda[21] and Decano his employment in 1978 and rose from the
v. Edu,[22] the instant petition emphasizes ranks, it is allegedly improper for the CA to
that the power of removal is lodged in the impliedly infer that the President acted in
appointing authority. Wycoco, and not the bad faith by converting his supposed
President, issued Memorandum Circular promotional appointment to one
(MC) No. 02-S.2004 informing Ong that his removable at the pleasure of the
co-terminous appointment as Director III appointing authority.
ended effectively on June 30, 2004. The
issuance of MC No. 02-S.2004 was
In its Comment[26] to the petition, the
allegedly motivated by malice and revenge
Office of the Solicitor General (OSG)
since Ong led the NBI employees in holding
maintains that the replacement of Ong by
rallies in July 2003 to publicly denounce
Bessat was fair, just and in
Wycoco. Hence, Bessat's assumption of the accord with the doctrine enunciated
position was null and void since it was in Aklan College v. Guarino,[27] and with
technically still occupied by Ong at the time Sections 13[28]and 14,[29] Rule V, Civil
of the former's appointment. Service Commission (CSC) Resolution No.
91-1631 issued on December 27, 1991.
It is further alleged that it was erroneous for Section 13 substantially provides that only
the CA to equate an a temporary appointment can be issued to
appointment co-terminous with the tenure a person who
of the appointing authority with one that is
at the pleasure of such appointing
authority.[23]Citing Alba, etc.. v.
does not have the appropriate civil service 2
eligibility. Section 14(2), on the other hand, -
defines a co-terminous appointment as S.
one co-existent with the tenure of the 2
appointing authority or at his pleasure. The 0
last paragraph of Section 14 states that 0
4
appointments which are co-terminous with
d
the appointing authority shall not be
i
considered as permanent.
d
n
o
The OSG also points out that in
t
issuing MC No. 02-S.2004, Wycoco did not r
remove Ong as Director III but merely e
reminded the latter that after June 30, m
2004, his appointment shall lapse into a de o
facto/hold-over status unless he was re- v
appointed. Ong's colleagues applied for re- e
appointment. Bessat was in fact re- O
appointed as Director II on August 13, n
2004. Subsequently, on December 1, 2004, g
the President appointed Bessat as Director fr
III, effectively replacing Ong. o
m
t
Further, the OSG claims that when Ong h
accepted promotional appointments in the e
Career Executive Service (CES) for which he p
did not have the required eligibility, he o
became a temporary employee and had si
impliedly abandoned his right to security of ti
tenure. o
n
o
Our Ruling f
D
ir
The petition is bereft of merit. e
c
M
t
C
o
N
r
o.
II
0
I.
A t
s h
s e
u P
m r
i e
n si
g d
a e
r n
g t,
u w
e h
n o
d w
o a
t s
h t
a h
t e
it a
d p
i p
d, o
t i
h n
e ti
d n
e g
f a
e u
c t
t h
w o
a ri
s t
c y
u h
r e
e r
d s
w el
h f,
e i
n n
w d
h B
o e
s s
e s
h a
a t,
n e
d ff
s e
w c
e ti
r v
e el
l y
o r
d e
g v
e o
d ki
t n
h g
e O
p n
o g'
w s
e a
r p
t p
o o
r i
e n
m t
o m
v e
e n
, t.
a
p
p MC No. 02-S.2004,[30] addressed to Ong,
o Bessat, Deputy Director Nestor Mantaring,
i and Regional Director Edward Villarta, in
n part reads:
t
e
Records indicate your terminous appointment had lapsed into
appointment status as co- a de facto/hold-over status. It likewise
terminus with the appointing apprised him of the consequences of the
power's tenure which ends said status.
effectively at midnight of this
day, 30 June 2004.
Be that as it may, if we were to
assume for argument's sake that Wycoco
Unless, therefore, a new removed Ong from his position as Director
appointment is extended to III by virtue of the
you by Her Excellency GLORIA former's issuance of MC No. 02-S.2004, still,
MACAPAGAL-ARROYO, the defect was cured when the President
consistent with her new tenure herself issued Bessat's appointment on
effective 01 July 2004, your December 1, 2004. The appointing
services shall lapse into a de authority, who in this case was the
facto/hold[-]over status, to President, had effectively revoked Ong's
ensure continuity of service, appointment.
until your replacements are
appointed in your stead.[31]

O
On December 1, 2004, the President
n
appointed Bessat as Ong's
[32]
g
replacement. Bessat was notified on la
December 17, 2004. Wycoco c
[33]
furnished Ong with a Notice, dated k
December 20, 2004, informing the latter e
that he should cease from performing the d
functions of Director III, effective t
December 17, 2004. h
e
C
It is argued that in the hands of the E
appointing authority are lodged the power S
to remove. Hence, Wycoco allegedly acted el
beyondthe scope of his authority when he ig
issued MC No. 02-S.2004. i
b
ili
This Court notes that MC No. 02- t
S.2004 did not in effect remove Ong from y
his post. It merely informed Ong that r
records of the NBI showed that his co- e
q a
u s
ir c
e o
d -
f t
o e
r r
t m
h i
e n
p u
o s
si w
ti it
o h
n t
o h
f e
D a
ir p
e p
c o
t i
o n
r ti
II n
I g
a a
n u
d t
h h
is o
a ri
p t
p y.
o H
i is
n a
t p
m p
e o
n i
t n
w t
m c
e a
n n
t b
b e
ei r
n e
g v
b o
o k
t e
h d
t b
e y
m t
p h
o e
r P
a r
r e
y si
a d
n e
d n
c t
o e
- v
t e
e n
r w
m it
i h
n o
o u
u t
s c
i a
n u
n s
a e
t a
u n
r d
e, a
it t
a
s The case of Amores v. Civil Service
h Commission, et al.[38] is instructive anent
o the nature of temporary appointments in the
rt CES to which the position of Director III
n
held by Ong belonged. The Court declared:
o
ti
c An appointment is permanent
e. where the appointee meets all
the requirements for the
position to which he is being
appointed, including the
appropriate eligibility
This Court likewise finds no error in the prescribed, and it is temporary
CA's ruling that since Ong held a co- where the appointee meets all
the requirements for the
terminous appointment, he was removable position except only the
at the pleasure of the appropriate civil service
appointing authority. eligibility.

It is established that no officer or employee xxxx


in the Civil Service shall be removed or
suspended except for cause provided by x x x Verily, it is clear that the
law.[34]However, this admits of exceptions possession of the required CES
for it is likewise settled that the right to eligibility is that which will
security of tenure is not available to those make an appointment in the
employees whose appointments are career executive service a
contractual and co-terminous in nature.[35] permanent one. x x x

In the case at bar, Ong's appointment


as Director III falls under the classifications Indeed, the law permits, on
provided in (a) Section 14(2) of the many occasions, the
Omnibus Rules Implementing Book V of appointment of non-CES
the Administrative Code, to wit, that which eligibles to CES positions in the
is co- government in the absence of
existent with the tenure of the appointing appropriate eligibles and when
authority or at his pleasure; and (b) Sections there is necessity in the interest
13(b)[36] and 14(2)[37] of Rule V, CSC of public service to fill
Resolution No. 91-1631, or that which is vacancies in the
government. But in all such
both a temporary and a co-terminous
cases, the appointment is at
appointment. The appointment is temporary
best merely temporary as it is
as Ong did not have the required CES
said to be conditioned on the
eligibility.
subsequent obtention of the emphasis that, in any case, the
required CES eligibility. x x x mere fact that an employee is a
CES eligible does not
automatically operate to vest
xxx security of tenure on the
appointee inasmuch as the
security of tenure of employees
Security of tenure in the career in the career executive service,
executive service, which except first and second-level
presupposes a permanent employees, pertains only to
appointment, takes place upon rank and not to the office or
passing the CES examinations position to which they may be
administered by the CES Board. appointed.[45][39] (underscorin
xxx g supplied and citations
omitted)

At this juncture, what comes


unmistakably clear is the fact
that because petitioner lacked
the proper CES eligibility and
therefore had not held the
subject office in a permanent
capacity, there could not have The Court is categorical in the Amores case
been any violation of that an appointee without the requisite
petitioners supposed right to CES eligibility cannot hold the position in a
security of tenure inasmuch as permanent capacity. Temporary
he had never been in appointments are made if only to prevent
possession of the said right at hiatus in the government's rendition
least during his tenure as of public service. However, a temporary
Deputy Director for Hospital appointee can be removed even without
Support Services. Hence, no cause and at a moment's notice. As to
challenge may be offered those with eligibilities, their rights to
against his separation from security of tenure pertain to ranks but not
office even if it be for no cause to the positions to which they were
and at a moments notice. Not appointed.
even his own self-serving claim
that he was competent to Ong never alleged that at any time
continue serving as Deputy during which he held the Director III
Director may actually and position, he had acquired the requisite
legally give even the slightest eligibility. Thus, the right to
semblance of authority to his security of tenure did not pertain to him at
thesis that he should remain in least relative to the Director III position.
office. Be that as it may, it bears
The next logical query to be resolved enunciated in the cases of Mita Pardo de
then is whether or not Ong, as an appointee Tavera, Decano, and Carillo apply. Hence,
holding a position co-terminus with the no legal challenge can be properly posed
appointing authority, was entitled to remain against the President's appointment of
as Director III until the end of the Bessat as Ong's replacement. The CA
President's tenure on June 30, 2010. correctly ruled that in quo
warranto proceedings, the petitioner must
We likewise rule in the negative. show that he has a clear right to the office
allegedly held unlawfully by another and in
Both Section 14 of the Omnibus Rules the absence of the said right, the lack of
Rules Implementing Book V of the qualification or eligibility of the supposed
Administrative Code and Section 14 (2) of usurper is immaterial. Stated differently,
Rule V, CSC Resolution No. 91-1631 where a non-eligible holds a temporary
define a co-terminous appointment as one appointment, his replacement by another
co-existent with the tenure of the appointing non-eligible is not prohibited.[43]
authority or at his pleasure.
We note that Ong's counsel had
In Mita Pardo de Tavera v. Philippine
painstakingly drawn distinctions between a
Tuberculosis Society, Inc.[40] cited by the
term and a tenure. It is argued that since
CA in its decision, we sustained the
Ong's appointment was co-terminous with
replacement of an incumbent, who held an
the appointing authority, it should not had
appointment at the pleasure of the
lapsed into a de facto status but continued
appointing authority. Such appointment
until the end of the President's tenure on
was in essence temporary in nature. We
June 30, 2010.
categorized the incumbent's replacement
not as removal but rather as an expiration of
term and no prior notice, due hearing or Under the Omnibus Rules
cause were necessary to effect the same. Implementing the Revised Administrative
In Decano v. Edu,[41] we ruled that the Code and CSC Resolution No. 91-1631, a
acceptance of a co-terminous appointment is defined as
temporary appointment divests an one co-existing with the tenure of the
appointee of the right to security of tenure appointing authority or at his pleasure.
against removal without cause. Further, Neither law nor jurisprudence draws
in Carillo vs. CA,[42] we stated that one who distinctions between appointments co-
holds a temporary appointment has no fixed existing with the term of the appointing
tenure of office; his employment can be authority on one hand, and one co-existing
terminated at the pleasure of the appointing with the appointing authority's tenure on
authority, there being no need to show that the
the termination is for cause.
other. In the contrary, under the aforecited
In Ong's case, his appointment was rules, tenure and term are used rather
temporary and co-terminous. The doctrines loosely and interchangeably.
official’s qualifications to hold office as to render
such appointment or election invalid. Acts or
In Ong's case, the issues needed to be omissions, even if it relates to the qualification of
integrity being a continuing requirement but
disposed of revolve around the concepts of nonetheless committed during the incumbency of a
temporary and co-terminous validly appointed and/or validly elected official
appointments. The distinctions cannot be the subject of a quo warrantoproceeding,
but of impeachment if the public official concerned
between term and tenure find no is impeachable and the act or omission constitutes
materiality in the instant petition. Besides, an impeachable offense, or to disciplinary,
whether or not the President's term ended administrative or criminal action, if otherwise.

on June 30, 2004 or her tenure ceased on


FACTS:
June 30, 2010, the fact remains that she
appointed Bessat as Director III, in effect From 1986 to 2006, Sereno served as a member of
revoking Ong's temporary and co- the faculty of the University of the Philippines-
terminous appointment. College of Law. While being employed at the UP
Law, or from October 2003 to 2006, Sereno was
concurrently employed as legal counsel of the
Republic in two international arbitrations known as
This Court recognizes Ong's lengthy service the PIATCO cases, and a Deputy Commissioner of
rendered to the government and deeply the Commissioner on Human Rights.
commisserates with his earlier
plight. However, we cannot grant Ong the The Human Resources Development Office of UP
(UP HRDO) certified that there was no record on
reliefs he sought as law and jurisprudence Sereno’s file of any permission to engage in limited
clearly dictate that being a temporary and practice of profession. Moreover, out of her 20 years
of employment, only nine (9) Statement of Assets,
co-terminous appointee, he had no vested Liabilities, and Net Worth (SALN) were on the
rights over the position of Director III. records of UP HRDO. In a manifestation, she
attached a copy of a tenth SALN, which she
supposedly sourced from the “filing cabinets” or
IN VIEW OF THE FOREGOING, the petition “drawers of UP”. The Ombudsman likewise had no
is DENIED. The Decision rendered by the record of any SALN filed by Sereno. The JBC has
certified to the existence of one SALN. In sum, for
Court of Appeals on August 5, 2008 in CA- 20 years of service, 11 SALNs were recovered.
G.R. SP No. 88673 is AFFIRMED.
On August 2010, Sereno was appointed as Associate
Justice. On 2012, the position of Chief Justice was
declared vacant, and the JBC directed the applicants
SO ORDERED. to submit documents, among which are “all previous
REPUBLIC of the PHILIPPINES, represented SALNs up to December 31, 2011” for those in the
by SOLICITOR GENERAL JOSE C. CALIDA government and “SALN as of December 31, 2011”
v. MARIA LOURDES P.A. SERENO, for those from the private sector. The JBC
announcement further provided that “applicants with
incomplete or out-of-date documentary requirements
G.R. No. 237428, May 11, 2018 [J. Tijam, En will not be interviewed or considered for
Banc] nomination.” Sereno expressed in a letter to JBC
that since she resigned from UP Law on 2006 and
DOCTRINE OF THE CASE: became a private practitioner, she was treated as
coming from the private sector and only submitted
three (3) SALNs or her SALNs from the time she
Quo warranto as a remedy to oust an ineligible became an Associate Justice. Sereno likewise added
public official may be availed of when the subject that “considering that most of her government
act or omission was committed prior to or at the records in the academe are more than 15 years old, it
time of appointment or election relating to an is reasonable to consider it infeasible to retrieve all
of those files,” and that the clearance issued by UP means that Members of the SC may be removed
HRDO and CSC should be taken in her favor. There through modes other than impeachment.
was no record that the letter was deliberated upon.
Despite this, on a report to the JBC, Sereno was said OSG contends that it is seasonably filed within the
to have “complete requirements.” On August 2012, one-year reglementary period under Section 11,
Sereno was appointed Chief Justice. Rule 66 since Sereno’s transgressions only came to
light during the impeachment proceedings.
On August 2017, an impeachment complaint was Moreover, OSG claims that it has an imprescriptible
filed by Atty. Larry Gadon against Sereno, alleging right to bring a quo warranto petition under the
that Sereno failed to make truthful declarations in maxim nullum tempus occurit regi (“no time runs
her SALNs. The House of Representatives against the king”) or prescription does not operate
proceeded to hear the case for determination of against the government. The State has a continuous
probable cause, and it was said that Justice Peralta, interest in ensuring that those who partake of its
the chairman of the JBC then, was not made aware sovereign powers are qualified. Even assuming that
of the incomplete SALNs of Sereno. Other findings the one-year period is applicable to the OSG,
were made: such as pieces of jewelry amounting to considering that SALNs are not published, the OSG
P15,000, that were not declared on her 1990 SALN, will have no other means by which to know the
but was declared in prior years’ and subsequent disqualification.
years’ SALNs, failure of her husband to sign one
SALN, execution of the 1998 SALN only in 2003 Moreover, OSG maintains that the SC has
jurisdiction, citing A.M. No. 10-4-20-SC which
On February 2018, Atty. Eligio Mallari wrote to the created a permanent Committee on Ethics and
OSG, requesting that the latter, in representation of Ethical Standards, tasked to investigate complaints
the Republic, initiate a quo warranto proceeding involving graft and corruption and ethical violations
against Sereno. The OSG, invoking the Court’s against members of the SC and contending that this
original jurisdiction under Section 5(1), Article VIII is not a political question because such issue may be
of the Constitution in relation to the special civil resolved through the interpretation of the provisions
action under Rule 66, the Republic, through the of the Constitution, laws, JBC rules, and Canons of
OSG filed the petition for the issuance of the Judicial Ethics.
extraordinary writ of quo warranto to declare as
void Sereno’s appointment as CJ of the SC and to OSG seeks to oust Sereno from her position as CJ
oust and altogether exclude Sereno on the ground that Sereno failed to show that she is
therefrom. [yourlawyersays] a person of proven integrity which is an
indispensable qualification for membership in the
Capistrano, Sen. De Lima, Sen. Trillianes, et. al., Judiciary under Section 7(3), Article VIII of the
intervened. Sereno then filed a Motion for Inhibition Constitution. According to the OSG, because OSG
against AJ Bersamin, Peralta, Jardeleza, Tijam, and failed to fulfill the JBC requirement of filing the
Leonardo-De Castro, imputing actual bias for complete SALNs, her integrity remains unproven.
having testified against her on the impeachment The failure to submit her SALN, which is a legal
hearing before the House of Representatives. obligation, should have disqualified Sereno from
being a candidate; therefore, she has no right to hold
Contentions: the office. Good faith cannot be considered as a
defense since the Anti-Graft and Corrupt Practices
Act (RA No. 3019) and Code of Conduct and
Office of the Solicitor General (petitioner): Ethical Standards for Public Officials and
Employees (RA No. 6713) are special laws and are
OSG argues that the quo warranto is an available thus governed by the concept of malum prohibitum,
remedy because what is being sought is to question wherein malice or criminal intent is completely
the validity of her appointment, while the immaterial.
impeachment complaint accuses her of committing
culpable violation of the Constitution and betrayal Sereno (respondent):
of public trust while in office, citing Funa v.
Chairman Villar, Estrada v.
Desierto and Nacionalista Party v. De Vera. OSG Sereno contends that an impeachable officer may
maintains that the phrase “may be removed from only be ousted through impeachment, citing Section
office” in Section 2, Article XI of the Constitution 2 of Article XI of the Constitution, and Mayor
Lecaroz v. Sandiganbayan, Cuenca v. Hon.
Fernan, In Re: First lndorsement from Hon. appointment to office was regular. OSG failed to
Gonzales, and Re: Complaint-Affidavit for overcome the presumption created by the
Disbarment Against SAJ Antonio T. Carpio. Sereno certifications from UP HRDO that she had been
contends that the clear intention of the framers of the cleared of all administrative responsibilities and
Constitution was to create an exclusive category of charges. Her integrity is a political question which
public officers who can be removed only by can only be decided by the JBC and the President.
impeachment and not otherwise. Impeachment was
chosen as the method of removing certain high- Regarding her missing SALNs, Sereno contends that
ranking government officers to shield them from the fact that SALNs are missing cannot give rise to
harassment suits that will prevent them from the inference that they are not filed. The fact that 11
performing their functions which are vital to the SALNs were filed should give an inference to a
continued operations of government. Sereno further pattern of filing, not of non-filing.
argues that the word “may” on Section 2 of Article
XI only qualifies the penalty imposable after the
impeachment trial, i.e., removal from office. Sereno Intervenors’ arguments:
contends that the since the mode is wrong, the SC
has no jurisdiction. The intervenors argue that it is not incumbent upon
Sereno to prove to the JBC that she possessed the
Sereno likewise argues that the cases cited by OSG integrity required by the Constitution; rather, the
is not in all fours with the present case because the onus of determining whether or not she qualified for
President and the Vice President may, in fact, be the post fell upon the JBC. Moreover, submission of
removed by means other than impeachment on the SALNs is not a constitutional requirement; what is
basis of Section 4, Article VII of the 1987 only required is the imprimatur of the JBC. The
Constitution vesting in the Court the power to be the intervenors likewise contend that “qualifications”
“sole judge” of all contests relating to the such as citizenship, age, and experience are
qualifications of the President and the Vice- enforceable while “characteristics” such as
President. There is no such provision for other competence, integrity, probity, and independence
impeachable officers. Moreover, on the rest of the are mere subjective considerations.
cases cited by the OSG, there is no mention that quo
warranto may be allowed. ISSUES:

Sereno also argues that since a petition for quo Preliminary issues:
warranto may be filed before the RTC, such would
result to a conundrum because a judge of lower
court would have effectively exercised disciplinary 1. Whether the Court should entertain the motion for
power and administrative supervision over an intervention
official of the Judiciary much higher in rank and is 2. Whether the Court should grant the motion for the
contrary to Sections 6 and 11, Article VIII of the inhibition of Sereno against five Justices
Constitution which vests upon the SC disciplinary
and administrative power over all courts and the Main Issues:
personnel thereof.
3. Whether the Court can assume jurisdiction and give
Sereno likewise posits that if a Member of the SC due course to the instant petition for quo warranto.
can be ousted through quo warrantoinitiated by the 4. Whether Sereno may be the respondent in a quo
OSG, the Congress’ “check” on the SC through warranto proceeding notwithstanding the fact that an
impeachment would be rendered inutile. impeachment complaint has already been filed with
the House of Representatives.
5. Whether Sereno, who is an impeachable officer, can
Furthermore, Sereno argues that it is already time- be the respondent in a quo warranto proceeding, i.e.,
barred. Section 11, Rule 66 provides that a petition whether the only way to remove an impeachable
for quo warranto must be filed within one (1) year officer is impeachment.
from the “cause of ouster” and not from the 6. Whether to take cognizance of the quo warranto
“discovery” of the disqualification. proceeding is violative of the principle of separation
of powers
Moreover, Sereno contends that the Court cannot 7. Whether the petition is outrightly dismissible on the
presume that she failed to file her SALNs because as ground of prescription
a public officer, she enjoys the presumption that her
8. Whether the determination of a candidate’s any private individual or group, because disputes
eligibility for nomination is the sole and exclusive over title to public office are viewed as a public
function of the JBC and whether such determination. question of governmental legitimacy and not merely
partakes of the character of a political question a private quarrel among rival claimants.
outside the Court’s supervisory and review powers;
9. Whether the filing of SALN is a constitutional and Anent the second issue: There is no basis for the
statutory requirement for the position of Chief Associate Justices of the Supreme Court to inhibit in
Justice. the case.
10. If answer to ninth issue is in the affirmative, whether
Sereno failed to file her SALNs as mandated by the
Constitution and required by the law and its It is true that a judge has both the duty of rendering
implementing rules and regulations a just decision and the duty of doing it in a manner
11. If answer to ninth issue is in the affirmative, whether completely free from suspicion as to its fairness and
Sereno filed SALNs are not filed properly and as to his integrity. However, the right of a party to
promptly. seek the inhibition or disqualification of a judge who
12. Whether Sereno failed to comply with the does not appear to be wholly free, disinterested,
submission of SALNs as required by the JBC impartial and independent in handling the case must
13. If answer to the twelfth issue is in the affirmative, be balanced with the latter’s sacred duty to decide
whether the failure to submit SALNs to the JBC cases without fear of repression. Bias must be
voids the nomination and appointment of Sereno as proven with clear and convincing evidence. Those
Chief Justice; justices who were present at the impeachment
14. In case of a finding that Sereno is ineligible to hold proceedings were armed with the requisite
the position of Chief Justice, whether the subsequent imprimatur of the Court En Banc, given that the
nomination by the JBC and the appointment by the Members are to testify only on matters within their
President cured such ineligibility. personal knowledge. The mere imputation of bias or
15. Whether Sereno is a de jure or a de facto officer. partiality is not enough ground for inhibition,
especially when the charge is without basis. There
[READ: Justice Leonen’s dissenting opinion: Q&A must be acts or conduct clearly indicative of
Format] arbitrariness or prejudice before it can brand them
with the stigma of bias or partiality. Sereno’s call for
inhibition has been based on speculations, or on
HELD: distortions of the language, context and meaning of
the answers the Justices may have given as sworn
Anent the first issue: The intervention is improper. witnesses in the proceedings before the House.

Intervention is a remedy by which a third party, not Moreover, insinuations that the Justices of the SC
originally impleaded in the proceedings, becomes a are towing the line of President Duterte in
litigant therein for a certain purpose: to enable the entertaining the quo warranto petition must be
third party to protect or preserve a right or interest struck for being unfounded and for sowing seeds of
that may be affected by those proceedings. The mistrust and discordance between the Court and the
remedy of intervention is not a matter of right but public. The Members of the Court are beholden to
rests on the sound discretion of the court upon no one, except to the sovereign Filipino people who
compliance with the first requirement on legal ordained and promulgated the Constitution. It is thus
interest and the second requirement that no delay inappropriate to misrepresent that the SolGen who
and prejudice should result. The justification of has supposedly met consistent litigation success
one’s “sense of patriotism and their common desire before the SG shall likewise automatically and
to protect and uphold the Philippine Constitution”, positively be received in the present quo
and that of the Senator De Lima’s and Trillanes’ warranto action. As a collegial body, the Supreme
intervention that their would-be participation in the Court adjudicates without fear or favor. The best
impeachment trial as Senators-judges if the articles person to determine the propriety of sitting in a case
of impeachment will be filed before the Senate as rests with the magistrate sought to be
the impeachment court will be taken away is not disqualified. [yourlawyersays]
sufficient. The interest contemplated by law must be
actual, substantial, material, direct and immediate, Anent the third issue: A quo warranto petition is
and not simply contingent or expectant. Moreover, allowed against impeachable officials and SC has
the petition of quo warranto is brought in the name jurisdiction.
of the Republic. It is vested in the people, and not in
The SC have concurrent jurisdiction with the CA dismissal, and (4) limitations. Forum shopping is the
and RTC to issue the extraordinary writs, act of a litigant who repetitively availed of several
including quo warranto. A direct invocation of the judicial remedies in different courts, simultaneously
SC’s original jurisdiction to issue such writs is or successively, all substantially founded on the
allowed when there are special and important same transactions and the same essential facts and
reasons therefor, and in this case, direct resort to SC circumstances, and all raising substantially the same
is justified considering that the action is directed issues, either pending in or already resolved
against the Chief Justice. Granting that the petition adversely by some other court, to increase his
is likewise of transcendental importance and has far- chances of obtaining a favorable decision if not in
reaching implications, the Court is empowered to one court, then in another. The test for determining
exercise its power of judicial review. To exercise forum shopping is whether in the two (or more)
restraint in reviewing an impeachable officer’s cases pending, there is identity of parties, rights or
appointment is a clear renunciation of a judicial causes of action, and reliefs sought. The crux of the
duty. an outright dismissal of the petition based on controversy in this quo warranto proceedings is the
speculation that Sereno will eventually be tried on determination of whether or not Sereno legally holds
impeachment is a clear abdication of the Court’s the Chief Justice position to be considered as an
duty to settle actual controversy squarely presented impeachable officer in the first place. On the other
before it. Quo warranto proceedings are essentially hand, impeachment is for respondent’s prosecution
judicial in character – it calls for the exercise of the for certain impeachable offenses. Simply put, while
Supreme Court’s constitutional duty and power to Sereno’s title to hold a public office is the issue in
decide cases and settle actual controversies. This quo warranto proceedings, impeachment necessarily
constitutional duty cannot be abdicated or presupposes that Sereno legally holds the public
transferred in favor of, or in deference to, any other office and thus, is an impeachable officer, the only
branch of the government including the Congress, issue being whether or not she committed
even as it acts as an impeachment court through the impeachable offenses to warrant her removal from
Senate. office.

To differentiate from impeachment, quo Moreover, the reliefs sought are different.
warranto involves a judicial determination of the respondent in a quo warranto proceeding shall be
eligibility or validity of the election or appointment adjudged to cease from holding a public office,
of a public official based on predetermined rules which he/she is ineligible to hold. Moreover,
while impeachment is a political process to impeachment, a conviction for the charges of
vindicate the violation of the public’s trust. In quo impeachable offenses shall result to the removal of
warranto proceedings referring to offices filled by the respondent from the public office that he/she is
appointment, what is determined is the legality of legally holding. It is not legally possible to impeach
the appointment. The title to a public office may not or remove a person from an office that he/she, in the
be contested collaterally but only directly, by quo first place, does not and cannot legally hold or
warranto proceedings. usurpation of a public office occupy.
is treated as a public wrong and carries with it public
interest, and as such, it shall be commenced by a Lastly, there can be no forum shopping because the
verified petition brought in the name of the Republic impeachment proceedings before the House is not
of the Philippines through the Solicitor General or a the impeachment case proper, since it is only a
public prosecutor. The SolGen is given permissible determination of probable cause. The impeachment
latitude within his legal authority in actions for quo case is yet to be initiated by the filing of the Articles
warranto, circumscribed only by the national of Impeachment before the Senate. Thus, at the
interest and the government policy on the matter at moment, there is no pending impeachment case
hand. against Sereno. The process before the House is
merely inquisitorial and is merely a means of
Anent the fourth issue: Simultaneous quo discovering if a person may be reasonably charged
warranto proceeding and impeachment proceeding with a crime.
is not forum shopping and is allowed.
Anent the fifth issue: Impeachment is not an
Quo warranto and impeachment may proceed exclusive remedy by which an invalidly appointed
independently of each other as these remedies are or invalidly elected impeachable official may be
distinct as to (1) jurisdiction (2) grounds, (3) removed from office.
applicable rules pertaining to initiation, filing and
The language of Section 2, Article XI of the Anent the sixth issue: The Supreme Court’s
Constitution does not foreclose a quo exercise of its jurisdiction over a quo
warranto action against impeachable officers: warranto petition is not violative of the doctrine of
“Section 2. The President, the Vice-President, the separation of powers.
Members of the Supreme Court, the Members of the
Constitutional Commissions, and the The Court’s assumption of jurisdiction over an
Ombudsman may be removed from office on action for quo warranto involving a person who
impeachment for, and conviction of, culpable would otherwise be an impeachable official had it
violation of the Constitution, treason, bribery, graft not been for a disqualification, is not violative of the
and corruption, other high crimes, or betrayal of core constitutional provision that impeachment
public trust.” The provision uses the permissive term cases shall be exclusively tried and decided by the
“may” which denote discretion and cannot be Senate. Again, the difference between quo
construed as having a mandatory effect, indicative warranto and impeachment must be emphasized. An
of a mere possibility, an opportunity, or an option. action for quo warranto does not try a person’s
In American jurisprudence, it has been held that “the culpability of an impeachment offense, neither does
express provision for removal by impeachment a writ of quo warranto conclusively pronounce such
ought not to be taken as a tacit prohibition of culpability. The Court’s exercise of its jurisdiction
removal by other methods when there are other over quo warranto proceedings does not preclude
adequate reasons to account for this express Congress from enforcing its own prerogative of
provision.” determining probable cause for impeachment, to
craft and transmit the Articles of Impeachment, nor
The principle in case law is that during their will it preclude Senate from exercising its
incumbency, impeachable officers cannot be constitutionally committed power of impeachment.
criminally prosecuted for an offense that carries with
it the penalty of removal, and if they are required to However, logic, common sense, reason, practicality
be members of the Philippine Bar to qualify for their and even principles of plain arithmetic bear out the
positions, they cannot be charged with disbarment. conclusion that an unqualified public official should
The proscription does not extend to actions assailing be removed from the position immediately if indeed
the public officer’s title or right to the office he or Constitutional and legal requirements were not met
she occupies. Even the PET Rules expressly provide or breached. To abdicate from resolving a legal
for the remedy of either an election protest or a controversy simply because of perceived availability
petition for quo warranto to question the eligibility of another remedy, in this case impeachment, would
of the President and the Vice-President, both of be to sanction the initiation of a process specifically
whom are impeachable officers. intended to be long and arduous and compel the
entire membership of the Legislative branch to
Further, that the enumeration of “impeachable momentarily abandon their legislative duties to
offenses” is made absolute, that is, only those focus on impeachment proceedings for the possible
enumerated offenses are treated as grounds for removal of a public official, who at the outset, may
impeachment, is not equivalent to saying that the clearly be unqualified under existing laws and case
enumeration likewise purport to be a complete law.
statement of the causes of removal from office. If
other causes of removal are available, then other For guidance, the Court demarcates that an act or
modes of ouster can likewise be availed. To omission committed prior to or at the time of
subscribe to the view that appointments or election appointment or election relating to an official’s
of impeachable officers are outside judicial review is qualifications to hold office as to render such
to cleanse their appointments or election of any appointment or election invalid is properly the
possible defect pertaining to the Constitutionally- subject of a quo warrantopetition, provided that the
prescribed qualifications which cannot otherwise be requisites for the commencement thereof are
raised in an impeachment proceeding. To hold present. Contrariwise, acts or omissions, even if it
otherwise is to allow an absurd situation where the relates to the qualification of integrity, being a
appointment of an impeachable officer cannot be continuing requirement but nonetheless committed
questioned even when, for instance, he or she has during the incumbency of a validly appointed and/or
been determined to be of foreign nationality or, in validly elected official, cannot be the subject of
offices where Bar membership is a qualification, a quo warrantoproceeding, but of something else,
when he or she fraudulently represented to be a which may either be impeachment if the public
member of the Bar. official concerned is impeachable and the act or
omission constitutes an impeachable offense, or Anent the eighth issue: The Court has supervisory
disciplinary, administrative or criminal action, if authority over the JBC includes ensuring that the
otherwise. JBC complies with its own rules.

Anent the seventh issue: Prescription does not lie Section 8(1), Article VIII of the Constitution
against the State. provides that “A Judicial and Bar Council is hereby
created under the supervision of the Supreme
The rules on quo warranto provides that “nothing Court.” The power of supervision means
contained in this Rule shall be construed to “overseeing or the authority of an officer to see to it
authorize an action against a public officer or that the subordinate officers perform their duties.”
employee for his ouster from office unless the same JBC’s absolute autonomy from the Court as to place
be commenced within one (1) year after the cause of its non-action or improper· actions beyond the
such ouster, or the right of the petitioner to hold latter’s reach is therefore not what the Constitution
such office or position, arose”. Previously, the one- contemplates. What is more, the JBC’s duty to
year prescriptive period has been applied in cases recommend or nominate, although calling for the
where private individuals asserting their right of exercise of discretion, is neither absolute nor
office, unlike the instant case where no private unlimited, and is not automatically equivalent to an
individual claims title to the Office of the Chief exercise of policy decision as to place, in wholesale,
Justice. Instead, it is the government itself which the JBC process beyond the scope of the Court’s
commenced the present petition for quo supervisory and corrective powers. While a certain
warranto and puts in issue the qualification of the leeway must be given to the JBC in screening
person holding the highest position in the Judiciary. aspiring magistrates, the same does not give it an
unbridled discretion to ignore Constitutional and
legal requirements. Thus, the nomination by the JBC
Section 2 of Rule 66 provides that “the Solicitor is not accurately an exercise of policy or wisdom as
General or a public prosecutor, when directed by the to place the JBC’s actions in the same category as
President of the Philippines, or when upon political questions that the Court is barred from
complaint or otherwise he has good reason to resolving. [yourlawyersays]
believe that any case specified in the preceding
section can be established by proof must commence
such action.” It may be stated that ordinary statutes [READ: Justice Leonen’s dissenting opinion: Q&A
of limitation, civil or penal, have no application to Format]
quo warranto proceeding brought to enforce a public
right. There is no limitation or prescription of action With this, it must be emphasized that qualifications
in an action for quo warranto, neither could there under the Constitution cannot be waived or
be, for the reason that it was an action by the bargained by the JBC, and one of which is that “a
Government and prescription could not be plead as a Member of the Judiciary must be a person
defense to an action by the Government. of proven competence, integrity, probity, and
independence. “Integrity” is closely related to, or if
That prescription does not lie in this case can also be not, approximately equated to an applicant’s good
deduced from the very purpose of an action for quo reputation for honesty, incorruptibility,
warranto. Because quo warranto serves to end a irreproachable conduct, and fidelity to sound moral
continuous usurpation, no statute of limitations and ethical standards.” Integrity is likewise imposed
applies to the action. Needless to say, no prudent by the New Code of Judicial Conduct and the Code
and just court would allow an unqualified person to of Professional Responsibility. The Court has
hold public office, much more the highest position always viewed integrity with a goal of preserving
in the Judiciary. Moreover, the Republic cannot be the confidence of the litigants in the Judiciary.
faulted for questioning Sereno’s qualification· for Hence, the JBC was created in order to ensure that a
office only upon discovery of the cause of ouster member of the Supreme Court must be a person
because even up to the present, Sereno has not been of provencompetence, integrity, probity, and
candid on whether she filed the required SALNs or independence.
not. The defect on Sereno’s appointment was
therefore not discernible, but was, on the contrary, Anent the ninth issue: The filing of SALN is a
deliberately rendered obscure. constitutional and statutory requirement.

Section 17, Article XI of the Constitution states that


“A public officer or employee shall, upon
assumption of office and as often thereafter as may have easily dispelled doubts as to the filing or
be required by law, submit a declaration under oath nonfiling of the unaccounted SALNs by presenting
of his assets, liabilities, and net worth.” This has them before the Court. Yet, Sereno opted to
likewise been required by RA 3019 and RA 6713. withhold such information or such evidence, if at all,
“Failure to comply” with the law is a violation of for no clear reason. The Doblada case, invoked by
law, a “prima facie evidence of unexplained wealth, Sereno, cannot be applied, because in the Doblada
which may result in the dismissal from service of case, there was a letter of the head of the personnel
the public officer.” It is a clear breach of the ethical of the branch of the court that the missing SALN
standards set for public officials and employees. The exists and was duly transmitted and received by the
filing of the SALN is so important for purposes of OCA as the repository agency. In Sereno’s case, the
transparency and accountability that failure to missing SALNs are neither proven to be in the
comply with such requirement may result not only records of nor was proven to have been sent to and
in dismissal from the public service but also in duly received by the Ombudsman as the repository
criminal liability. Section 11 of R.A. No. 6713 even agency. The existence of these SALNs and the fact
provides that non-compliance with this requirement of filing thereof were neither established by direct
is not only punishable by imprisonment and/or a proof constituting substantial evidence nor by mere
fine, it may also result in disqualification to hold inference. Moreover, the statement of the
public office. Ombudsman is categorical: “based on records on
file, there is no SALN filed by [Sereno] for calendar
Because the Chief Justice is a public officer, she is years 1999 to 2009 except SALN ending December
constitutionally and statutorily mandated to perform 1998.” This leads the Court to conclude that Sereno
a positive duty to disclose all of his assets and did not indeed file her SALN.
liabilities. According to Sereno herself in her
dissenting opinion in one case, those who accept a For this reason, the Republic was able to discharge
public office do so cum onere, or with a burden, and its burden of proof with the certification from UP
are considered as accepting its burdens and HRDO and Ombudsman, and thus it becomes
obligations, together with its benefits. They thereby incumbent upon Sereno to discharge her burden of
subject themselves to all constitutional and evidence. Further, the burden of proof in a quo
legislative provisions relating thereto, and undertake warranto proceeding is different when it is filed by
to perform all the duties of their office. The public the State in that the burden rests upon the
has the right to demand the performance of those respondent.
duties. More importantly, while every office in the
government service is a public trust, no position In addition, contrary to what Sereno contends, being
exacts a greater demand on moral righteousness and on leave does not exempt her from filing her SALN
uprightness of an individual than a seat in the because it is not tantamount to separation from
Judiciary. government service. The fact that Sereno did not
receive any pay for the periods she was on leave
Noncompliance with the SALN requirement does not make her a government worker “serving in
indubitably·reflects on a person’s integrity. It is not an honorary capacity” to be exempted from the
merely a trivial or a formal requirement. The SALN laws on RA 6713. [yourlawyersays]
contention that the mere non-filing does not affect
Sereno’s integrity does not persuade considering Neither can the clearance and certification of UP
that RA 6713 and RA 3019 are malum HRDO be taken in favor of Sereno. During the
prohibitum and not malum in se. Thus, it is the period when Sereno was a professor in UP,
omission or commission of that act as defined by the concerned authorized official/s of the Office of the
law, and not the character or effect thereof, that President or the Ombudsman had not yet established
determines whether or not the provision has been compliance procedures for the review of SALNs
violated. Malice or criminal intent is completely filed by officials and employees of State Colleges
immaterial. and Universities, like U.P. The ministerial duty of
the head of office to issue compliance order came
Anent the tenth issue: Sereno chronically failed to about only on 2006 from the CSC. As such, the U.P.
file her SALNs and thus violated the Constitution, HRDO could not have been expected to perform its
the law, and the Code of Judicial Conduct. ministerial duty of issuing compliance orders to
Sereno when such rule was not yet in existence at
In Sereno’s 20 years of government service in UP that time. Moreover, the clearance are not substitutes
Law, only 11 SALNs have been filed. Sereno could for SALNs. The import of said clearance is limited
only to clearing Sereno of her academic and The JBC required the submission of at least ten
administrative responsibilities, money and property SALNs from those applicants who are incumbent
accountabilities and from administrative charges as Associate Justices, absent which, the applicant ought
of the date of her resignation. not to have been interviewed, much less been
considered for nomination. From the minutes of the
Neither can Sereno’s inclusion in the matrix of meeting of the JBC, it appeared that Sereno was
candidates with complete requirements and in the singled out from the rest of the applicants for having
shortlist nominated by the JBC confirm or ratify her failed to submit a single piece of SALN for her
compliance with the SALN requirement. Her years of service in UP Law. It is clear that JBC did
inclusion in the shortlist of candidates for the not do away with the SALN requirement, but still
position of Chief Justice does not negate, nor supply required substantial compliance. Subsequently, it
her with the requisite proof of integrity. She should appeared that it was only Sereno who was not able
have been disqualified at the outset. Moreover, the to substantially comply with the SALN requirement,
JBC En Banc cannot be deemed to have considered and instead of complying, Sereno wrote a letter
Sereno eligible because it does not appear that containing justifications why she should no longer
Sereno’s failure to submit her SALNs was squarely be required to file the SALNs: that she resigned
addressed by the body. Her inclusion in the shortlist from U.P. in 2006 and then resumed government
of nominees and subsequent appointment to the service only in 2009, thus her government service is
position do not estop the Republic or this Court not continuous; that her government records are
from looking into her qualifications. Verily, no more than 15 years old and thus infeasible to
estoppel arises where the representation or conduct retrieve; and that U.P. cleared her of all academic
of the party sought to be estopped is due to and administrative responsibilities and charges.
ignorance founded upon an innocent mistake
These justifications, however, did not obliterate the
Anent the eleventh issue: Sereno failed to properly simple fact that Sereno submitted only 3 SALNs to
and promptly file her SALNs, again in violation of the JBC in her 20-year service in U.P., and that there
the Constitutional and statutory requirements . was nary an attempt on Sereno’s part to comply.
Moreover, Sereno curiously failed to mention that
she did not file several SALNs during the course of
Failure to file a truthful, complete and accurate her employment in U.P. Such failure to disclose a
SALN would likewise amount to dishonesty if the material fact and the concealment thereof from the
same is attended by malicious intent to conceal the JBC betrays any claim of integrity especially from a
truth or to make false statements. The suspicious Member of the Supreme Court. [yourlawyersays]
circumstances include: 1996 SALN being
accomplished only in 1998; 1998 SALN only filed
in 2003; 1997 SALN only notarized in 1993; 2004- Indubitably, Sereno not only failed to substantially
2006 SALNs were not filed which were the years comply with the submission of the SALNs but there
when she received the bulk of her fees from was no compliance at all. Dishonesty is classified as
PIATCO cases, 2006 SALN was later on intended to a grave offense the penalty of which is dismissal
be for 2010, gross amount from PIATCO cases were from the service at the first infraction. A person
not reflected, suspicious increase of P2,700,000 in aspiring to public office must observe honesty,
personal properties were seen in her first five candor and faithful compliance with the law.
months as Associate Justice. It is therefore clear as Nothing less is expected. Dishonesty is a malevolent
day that Sereno failed not only in complying with act that puts serious doubt upon one’s ability to
the physical act of filing, but also committed perform his duties with the integrity and uprightness
dishonesty betraying her lack of integrity, honesty demanded of a public officer or employee. For these
and probity. The Court does not hesitate to impose reasons, the JBC should no longer have considered
the supreme penalty of dismissal against public Sereno for interview.
officials whose SALNs were found to have
contained discrepancies, inconsistencies and non- Moreover, the fact that Sereno had no permit to
disclosures. engage in private practice while in UP, her false
representations that she was in private practice after
Anent the twelfth issue: Sereno failed to submit the resigning from UP when in fact she was counsel for
required SALNs as to qualify for nomination the government, her false claims that the clearance
pursuant to the JBC rules. from UP HRDO is proof of her compliance with
SALNs requirement, her commission of tax fraud
for failure to truthfully declare her income in her
ITRs for the years 2007-2009, procured a brand new said position follows as a matter of course. The
Toyota Land Cruiser worth at least P5,000,000, Court has ample jurisdiction to do so without the
caused the hiring of Ms. Macasaet without requisite necessity of impleading the JBC as the Court can
public bidding, misused P3,000,000 of government take judicial notice of the explanations from the JBC
funds for hotel accommodation at Shangri-La members and the OEO. he Court, in a quo warranto
Boracay as the venue of the 3rd ASEAN Chief proceeding, maintains the power to issue such
Justices meeting, issued a TRO in Coalition of further judgment determining the respective rights in
Associations of Senior Citizens in the Philippines v. and to the public office, position or franchise of all
COMELEC contrary to the Supreme Court’s internal the parties to the action as justice requires.
rules, manipulated the disposition of the DOJ
request to transfer the venue of the Maute cases Neither will the President’s act of appointment
outside of Mindanao, ignored rulings of the cause to qualify Sereno. Although the JBC is an
Supreme Court with respect to the grant of office constitutionally created, the participation of
survivorship benefits which caused undue delay to the President in the selection and nomination
the release of survivorship benefits to spouses of process is evident from the composition of the JBC
deceased judges and Justices, manipulated the itself.
processes of the JBC to exclude then SolGen, now
AJ Francis Jardeleza, by using highly confidential
document involving national security against the An appointment is essentially within the
latter among others, all belie the fact that Sereno has discretionary power of whomsoever it is vested,
integrity. subject to the only condition that the appointee
should possess the qualifications required by law.
While the Court surrenders discretionary appointing
Anent the thirteenth issue: Sereno’s failure to power to the President, the exercise of such
submit to the JBC her SALNs for several years discretion is subject to the non-negotiable
means that her integrity was not established at the requirements that the appointee is qualified and all
time of her application other legal requirements are satisfied, in the absence
of which, the appointment is susceptible to attack.
The requirement to submit SALNs is made more
emphatic when the applicant is eyeing the position Anent the fifteenth issue: Sereno is a de
of Chief Justice. On the June 4, 2012, JBC En Banc facto officer removable through quo warranto
meeting, Senator Escudero proposed the addition of
the requirement of SALN in order for the next Chief
Justice to avoid what CJ Corona had gone through. The effect of a finding that a person appointed to an
Further, the failure to submit the required SALNs office is ineligible therefor is that his presumably
means that the JBC and the public are divested of valid appointment will give him color of title that
the opportunity to consider the applicant’s fitness or confers on him the status of a de facto officer. For
propensity to commit corruption or dishonesty. In lack of a Constitutional qualification, Sereno is
Sereno’s case, for example, the waiver of the ineligible to hold the position of Chief Justice and is
confidentiality of bank deposits would be practically merely holding a colorable right or title thereto. As
useless for the years that she failed to submit her such, Sereno has never attained the status of an
SALN since the JBC cannot verify whether the same impeachable official and her removal from the
matches the entries indicated in the SALN. office, other than by impeachment, is justified. The
remedy, therefore, of a quo warranto at the instance
of the State is proper to oust Sereno from the
Anent the fourteenth issue: Sereno’s ineligibility appointive position of Chief
for lack of proven integrity cannot be cured by her Justice. [yourlawyersays]
nomination and subsequent appointment as Chief
Justice.
DISPOSITIVE PORTION:
Well-settled is the rule that qualifications for public
office must be possessed at the time of appointment
and assumption of office and also during the
officer’s entire tenure as a continuing requirement. WHEREFORE, the Petition for Quo Warranto is
The voidance of the JBC nomination as a necessary GRANTED.
consequence of the Court’s finding that Sereno is
ineligible, in the first place, to be a candidate for the
position of Chief Justice and to be nominated for
Sereno is found DISQUALIFIED from and is Bernardo (Fernandez�-Bernardo). The Petition assails
President Aquino's appointment of respondents Musngi
hereby adjudged GUILTY of UNLAWFULLY and Econg as Associate Justices of the
HOLDING and EXERCISING the OFFICE OF Sandiganbayan.2 chanrobleslaw

THE CHIEF JUSTICE. Accordingly, Sereno


is OUSTED and EXCLUDED therefrom. I
FACTUAL ANTECEDENTS

The position of the Chief Justice of the Supreme On June 11, 1978, then President Ferdinand E. Marcos
(Marcos) issued Presidential Decree No. 1486, creating
Court is declared vacant and the Judicial and Bar a special court called the Sandiganbayan, composed of a
Council is directed to commence the application and Presiding Judge and eight Associate Judges to be
nomination process. appointed by the President, which shall have jurisdiction
over criminal and civil cases involving graft and corrupt
practices and such other offenses committed by public
This Decision is immediately executory without officers and employees, including those in government�
owned or controlled corporations.3 A few months later,
need of further action from the Court.
on December 10, 1978, President Marcos also issued
Presidential Decree No. 1606,4 which elevated the rank
of the members of the Sandiganbayan from Judges to
Sereno is ordered to SHOW CAUSE within ten (10) Justices, co-equal in rank with the Justices of the Court
days from receipt hereof why she should not be of Appeals; and provided that the Sandiganbayan shall
sanctioned for violating the Code of Professional sit in three divisions of three Justices each.5Republic Act
Responsibility and the Code of Judicial Conduct for No. 79756 was approved into law on March 30, 1995
and it increased the composition of the Sandiganbayan
transgressing the sub judice rule and for casting from nine to fifteen Justices who would sit in five
aspersions and ill motives to the Members of the divisions of three members each. Republic Act No.
Supreme Court. 10660,7 recently enacted on April 16, 2015, created two
more divisions of the Sandiganbayan with three Justices
each, thereby resulting in six vacant positions.
G.R. No. 224302, November 29, 2016
On July 20, 2015, the Judicial and Bar Council (JBC)
published in the Philippine Star and Philippine Daily
HON. PHILIP A. AGUINALDO, HON. REYNALDO A. Inquirer and posted on the JBC website an
ALHAMBRA, HON. DANILO S. CRUZ, HON. announcement calling for applications or
BENJAMIN T. POZON, HON. SALVADOR V. recommendations for the six newly created positions of
TIMBANG, JR., AND THE INTEGRATED BAR OF THE Associate Justice of the Sandiganbayan.8 After screening
PHILIPPINES (IBP), Petitioners, v. HIS EXCELLENCY and selection of applicants, the JBC submitted to
PRESIDENT BENIGNO SIMEON C. AQUINO III, President Aquino six shortlists contained in six separate
HON. EXECUTIVE SECRETARY PAQUITO N. OCHOA, letters, all dated October 26, 2015, which read:
HON. MICHAEL FREDERICK L. MUSNGI, HON. MA.
ChanRoblesVirt ualawli bra ry

1) For the 16th Sandiganbayan Associate Justice:


GERALDINE FAITH A. ECONG, HON. DANILO S.
SANDOVAL, HON. WILHELMINA B. JORGE-WAGAN, Your Excellency:
HON. ROSANA FE ROMERO-MAGLAYA, HON.
chanRoble svirtual Lawlib ra ry

MERIANTHE PACITA M. ZURAEK, HON. ELMO M. Pursuant to Article VIII, Section 9 of the
ALAMEDA, AND HON. VICTORIA C. FERNANDEZ-
chanRoble svirtual Lawlib ra ry

Constitution, the Judicial and Bar Council (JBC) has the


BERNARDO, Respondent. honor to submit the following nominations for the
vacancy for the SIXTEENTH ASSOCIATE JUSTICE of the
DECISION SANDIGANBAYAN, with their respective votes:
chanRoble svirtual Lawlib ra ry

LEONARDO-DE CASTRO, J.:


1. AGUINALDO, PHILIP -5

Before this Court is a Petition for Quo Warranto under A. votes
Rule 66 and Certiorari and Prohibition under Rule 65
with Application for Issuance of Injunctive Writs1 filed by
petitioners Judge Philip A. Aguinaldo (Aguinaldo) of the 2. ALHAMBRA, -5

Regional Trial Court (RTC), Muntinlupa City, Branch REYNALDO A. votes
207; Judge Reynaldo A. Alhambra (Alhambra) of RTC,
Manila, Branch 53; Judge Danilo S. Cruz (D. Cruz) of
RTC, Pasig City, Branch 152; Judge Benjamin T. Pozon -5
3. CRUZ, DANILO S. �
(Pozon) of RTC, Makati City, Branch 139; Judge votes
Salvador V. Timbang, Jr. (Timbang) of RTC, Las Pi�as
City, Branch 253; and the Integrated Bar of the
Philippines (IBP), against respondents former President 4. POZON, BENJAMIN -5

Benigno Simeon C. Aquino III (Aquino), Executive T. votes
Secretary Paquito N. Ochoa (Ochoa), Sandiganbayan
Associate Justice Michael Frederick L. Musngi (Musngi),
5. SANDOVAL, DANILO -5
Sandiganbayan Associate Justice Ma. Geraldine Faith A. �
Econg (Econg), Atty. Danilo S. Sandoval (Sandoval), S. votes
Atty. Wilhelmina B. Jorge-Wagan (Jorge-Wagan), Atty.
Rosana Fe Romero-Maglaya (Romero� Maglaya), Atty.
Merianthe Pacita M. Zuraek (Zuraek), Atty. Elmo M.
Alameda (Alameda), and Atty. Victoria C. Fernandez-
6. TIMBANG, -5 4) For the 19th Sandiganbayan Associate Justice:

SALVADOR JR. votes9
chanRoble svirtual Lawlib ra ry Your Excellency:

2) For the 17th Sandiganbayan Associate Justice: Pursuant to Article VIII, Section 9 of the
chanRoble svirtual Lawlib ra ry

Constitution, the Judicial and Bar Council (JBC) has the


chanRoble svirtual Lawlib ra ry Your Excellency: honor to submit the following nominations for the
vacancy for the NINETEENTH ASSOCIATE JUSTICE of
Pursuant to Article VIII, Section 9 of the
chanRoble svirtual Lawlib ra ry
the SANDIGANBAYAN, with their respective votes:
Constitution, the Judicial and Bar Council (JBC) has the chanRoble svirtual Lawlib ra ry

honor to submit the following nominations for the


vacancy for the SEVENTEENTH ASSOCIATE JUSTICE of
the SANDIGANBAYAN, with their respective votes:
1. GUANZON, FRANCES V. - 6 votes

2. MACARAIG-GUILLEN,
chanRoble svirtual Lawlib ra ry

- 6 votes
1. CORPUS-MA�ALAC, -6 MARISSA

MARYANN E. votes
3. CRUZ, REYNALDO P. - 5 votes
2. MENDOZA-ARCEGA, -6
� 4. PAUIG, VILMA T. - 5 votes
MARIA THERESA V. votes

3. QUIMBO, RODOLFO -6 5. RAMOS, RENAN E. - 5 votes



NOEL S. votes 6. ROXAS, RUBEN -5
4. DIZON, MA. REYNALDO G. votes12
-5
ANTONIA EDITA �
votes 5) For the 20th Sandiganbayan Associate Justice:
CLARIDADES
Your Excellency:
5. SORIANO, ANDRES -5
chanRoble svirtual Lawlib ra ry

� Pursuant to Article VIII, Section 9 of the


BARTOLOME votes10 chanRoble svirtual Lawlib ra ry

Constitution, the Judicial and Bar Council (JBC) has the


honor to submit the following nominations for the
3) For the 18th Sandiganbayan Associate Justice: vacancy for the TWENTIETH ASSOCIATE JUSTICE of the
SANDIGANBAYAN, with their respective votes.
chanRoble svirtual Lawlib ra ry Your Excellency:

Pursuant to Article VIII, Section 9 of the


chanRoble svirtual Lawlib ra ry 1. MIRANDA, KARL B. - 6 votes
Constitution, the Judicial and Bar Council (JBC) has the
honor to submit the following nominations for the
vacancy for the EIGHTEENTH ASSOCIATE JUSTICE of
2. ATAL-PA�O, PERPETUA - 5 votes
the SANDIGANBAYAN, with their respective votes:
3. BUNYI-MEDINA,
chanRoble svirtual Lawlib ra ry

- 5 votes
THELMA
-5
1. BAGUIO, CELSO O. � 4. CORTEZ, LUISITO G. - 5 votes
votes

2. DE GUZMAN- 5. FIEL-MACARAIG,
-5 - 5 votes
ALVAREZ, MA. TERESA � GERALDINE C.
votes
E.
6. QUIMPO-SALE,
- 5 votes
3. FERNANDEZ, -5 ANGELENE MARY W.

BERNELITO R. votes
-4
7. JACINTO, BAYANI H.
4. PANGANIBAN, -5 votes13

ELVIRA DE CASTRO votes
6) For the 21st Sandiganbayan Associate Justice:
5. SAGUN, FERNANDO -5
� Your Excellency:
JR. T. votes
chanRoble svirtual Lawlib ra ry

Pursuant to Article VIII, Section 9 of the


chanRoble svirtual Lawlib ra ry

6. TRESPESES, ZALDY -5 Constitution, the Judicial and Bar Council (JBC) has the
� honor to submit the following nominations for the
V. votes11 vacancy for the TWENTY-FIRST ASSOCIATE JUSTICE of
the SANDIGANBAYAN, with their respective votes:
chanRoble svirtual Lawlib ra ry

Petitioners base their instant Petition on the following


arguments:
1. JORGE-WAGAN, -6
ChanRoblesVirt ualawli bra ry

PRESIDENT AQUINO VIOLATED SECTION 9, ARTICLE


WILHELMINA B. votes VIII OF THE 1987 CONSTITUTION IN THAT:

(A) HE DID NOT APPOINT ANYONE FROM THE


2. ECONG, GERALDINE -5 chanRoble svirtual Lawlib ra ry

SHORTLIST SUBMITTED BY THE JBC FOR THE VACANCY


FAITH A. votes FOR POSITION OF THE 16TH ASSOCIATE JUSTICE OF
THE SANDIGANBAYAN; AND
3. ROMERO-MAGLAYA, -5 (B) HE APPOINTED UNDERSECRETARY
ROSANNA FE votes MUSNGI AND JUDGE ECONG AS ASSOCIATE JUSTICES
OF THE SANDIGANBAYAN TO THE VACANCY FOR THE
4. ZURAEK, MERIANTHE -5 POSITION OF 21STASSOCIATE JUSTICE OF THE
SANDIGANBAYAN.
PACITA M. votes
(C) THE APPOINTMENTS MADE WERE NOT IN
-4 ACCORDANCE WITH THE SHORTLISTS SUBMITTED BY
5. ALAMEDA, ELMO M. THE JUDICIAL AND BAR COUNCIL FOR EACH VACANCY,
votes THUS AFFECTING THE ORDER OF SENIORITY OF THE
ASSOCIATE JUSTICES.16 chanrob lesvi rtua llawli bra ry

6. FERNANDEZ- -4 According to petitioners, the JBC was created under the


BERNARDO, VICTORIA C. votes 1987 Constitution to reduce the politicization of the
appointments to the Judiciary, i.e., "to rid the process of
appointments to the Judiciary from the political pressure
7. MUSNGI, MICHAEL -4 and partisan activities."17
FREDERICK L. votes14
chan robles law

Article VIII, Section 9 of the 1987 Constitution contains


President Aquino issued on January 20, 2015 the the mandate of the JBC, as well as the limitation on the
appointment papers for the six new Sandiganbayan President's appointing power to the Judiciary, thus: ChanRoblesVirtualawl ibra ry

Associate Justices, namely: (1) respondent Musngi; (2) Sec. 9. The Members of the Supreme Court and judges
Justice Reynaldo P. Cruz (R. Cruz); (3) respondent of lower courts shall be appointed by the President from
Econg; (4) Justice Maria Theresa V. Mendoza-Arcega a list of at least three nominees prepared by the Judicial
(Mendoza-Arcega); (5) Justice Karl B. Miranda and Bar Council for every vacancy. Such appointments
(Miranda); and (6) Justice Zaldy V. Trespeses need no confirmation.
(Trespeses). The appointment papers were transmitted
on January 25, 2016 to the six new Sandiganbayan For the lower courts, the President shall issue the
Associate Justices, who took their oaths of office on the appointments within ninety days from the submission of
same day all at the Supreme Court Dignitaries Lounge. the list.
Respondent Econg, with Justices Mendoza-Arcega and
Trespeses, took their oaths of office before Supreme It is the function of the JBC to search, screen, and select
Court Chief Justice Maria Lourdes P. A. Sereno nominees recommended for appointment to the
(Sereno); while respondent Musngi, with Justices R. Judiciary. It shall prepare a list with at least three
Cruz and Miranda, took their oaths of office before qualified nominees for a particular vacancy in the
Supreme Court Associate Justice Francis H. Jardeleza Judiciary to be submitted to the President, who, in turn,
(Jardeleza).15 shall appoint from the shortlist for said specific vacancy.
Petitioners emphasize that Article VIII, Section 9 of the
c han robles law

Arguments of the Petitioners 1987 Constitution is clear and unambiguous as to the


mandate of the JBC to submit a shortlist of nominees to
Petitioners Aguinaldo, Alhambra, D. Cruz, Pozon, and the President for "every vacancy" to the Judiciary, as
Timbang (Aguinaldo, et al.), were all nominees in the well as the limitation on the President's authority to
shortlist for the 16th Sandiganbayan Associate Justice. appoint members of the Judiciary from among the
They assert that they possess the legal standing nominees named in the shortlist submitted by the JBC.
or locus standi to file the instant Petition since they
suffered a direct injury from President Aquino's failure In this case, the JBC submitted six separate lists, with
to appoint any of them as the 16th Sandiganbayan five to seven nominees each, for the six vacancies in the
Associate Justice. Sandiganbayan, particularly, for the 16th, 17th, 18th,
19th, 20th and 21st Associate Justices. Petitioners
Petitioner IBP avers that it comes before this Court contend that only nominees for the position of the
through a taxpayer's suit, by which taxpayers may 16th Sandiganbayan Associate Justice may be appointed
assail an alleged illegal official action where there is a as the 16th Sandiganbayan Associate Justice, and the
claim that public funds are illegally disbursed, deflected same goes for the nominees for each of the vacancies
to an improper use, or wasted through the enforcement for the 17th, 18th, 19th, 20th, and 21st Sandiganbayan
of an invalid or unconstitutional law. Petitioner IBP also Associate Justices. However, on January 20, 2016,
maintains that it has locus standi considering that the President Aquino issued the appointment papers for the
present Petition involves an issue of transcendental six new Sandiganbayan Associate Justices, to wit: ChanRobles Vi rtua lawlib rary

importance to the people as a whole, an assertion of a


public right, and a subject matter of public interest. VACANC PERS BAR SHORT
Lastly, petitioner IBP contends that as the association of Y IN THE ON CODE LISTED
all lawyers in the country, with the fundamental purpose
of safeguarding the administration of justice, it has a
SANDIG APPO NO. FOR
direct interest in the validity of the appointments of the
members of the Judiciary.
e. Zaldy V. Trespeses, nominated for the
ANBAYA INTE vacancy of the 18th Associate Justice,
but was appointed as the 21st Associate
N D Justice.

Michae 60. Only the appointment of Karl B. Miranda as the


l 20th Associate Justice is in accordance with his
16th Assoc 21st Ass nomination.18
Freder PNOY0
iate ociate
ick L. 19445
Justice Justice Petitioners insist that President Aquino could only
Musng choose one nominee from each of the six separate
i shortlists submitted by the JBC for each specific
vacancy, and no other; and any appointment made in
deviation of this procedure is a violation of the
17th Assoc Reynal 19th Ass Constitution. Hence, petitioners pray, among other
PNOY0
iate do P. ociate reliefs, that the appointments of respondents Musngi
19446 and Econg, who belonged to the same shortlist for the
Justice Cruz Justice position of 21st Associate Justice, be declared null and
void for these were made in violation of Article VIII,
Gerald Section 9 of the 1987 Constitution.
18th Assoc ine 21st Ass
PNOY0 Arguments of the Respondents
iate Faith ociate
19447 The Office of the Solicitor General (OSG), on behalf of
Justice A. Justice
the Office of the President (OP), filed a
Econg Comment,19 seeking the dismissal of the Petition on
procedural and substantive grounds.
Maria
On matters of procedure, the OSG argues, as follows:
Theres
19th Assoc 17th Ass
a V. PNOY0 First, President Aquino should be dropped as a
iate ociate
chanRoble svirtual Lawlib ra ry

respondent m the instant case on the ground of his


Mendo 19448
Justice Justice immunity from suit.
za-
Arcega Second, petitioners Aguinaldo, et al. cannot institute an
action for quo warranto because usurpation of public
office, position, or franchise is a public wrong, and not a
20th Assoc Karl B. 20th Ass private injury. Hence, only the State can file such an
PNOY0
iate Mirand ociate action through the Solicitor General or public
19449 prosecutor, under Sections 2 and 3, Rule 6620of the
Justice a Justice Rules of Court. As an exception, an individual may
commence an action for quo warranto in accordance
Zaldy with Section 5, Rule 6621 of the Rules of Court if he/she
21st Assoc 18th Ass claims entitlement to a public office or position.
V. PNOY0
iate ociate However, for said individual's action for quo warranto to
Trespe 19450 prosper, he/she must prove that he/she suffered a
Justice Justice direct injury as a result of the usurpation of public office
ses
or position; and that he/she has a clear right, and not
Petitioners observe the following infirmities in President merely a preferential right, to the contested office or
Aquino's appointments: ChanRoblesVi rt ualawlib ra ry
position. Herein petitioners Aguinaldo, et al. have failed
to show that they are entitled to the positions now being
held by respondents Musngi and Econg, as the inclusion
a. Michael Frederick L. Musngi, nominated
of petitioners Aguinaldo, et al. in the shortlist for the
for the vacancy of the 21st Associate
16th Sandiganbayan Associate Justice had only given
Justice, was appointed as the
them the possibility, not the certainty, of appointment
16th Associate Justice;
to the Sandiganbayan. Petitioners Aguinaldo, et al., as
nominees, only had an expectant right because their
b. Reynaldo P. Cruz, nominated for the appointment to the Sandiganbayan would still be
vacancy of the 19th Associate Justice, dependent upon the President's discretionary appointing
was appointed as the 17th Associate power.
Justice;
Third, petitioner IBP can only institute the certiorari and
c. Geraldine Faith A. Econg, also prohibition case, but not the action for quo
nominated for the vacancy of the warranto against respondents Musngi and Econg
21st Associate Justice, but was because it cannot comply with the direct injury
appointed as the 18th Associate Justice; requirement for the latter. Petitioner IBP justifies
its locus standi to file the petition for certiorari and
d. Maria Theresa V. Mendoza[-Arcega], prohibition by invoking the exercise by this Court of its
nominated for the vacancy of the expanded power of judicial review and seeking to oust
17thAssociate Justice, but was respondents Musngi and Econg as Sandiganbayan
appointed as the 19th Associate Justice; Associate Justices based on the alleged
unconstitutionality of their appointments, and not on a
claim of usurpation of a public office. Yet, based
on Topacio v. Ong,22 a petition for certiorari or appointed Sandiganbayan Associate Justices.
prohibition is a collateral attack on a public officer's title,
which cannot be permitted. Title to a public office can The OSG interprets Article VIII, Section 9 of the 1987
only be contested directly in a quo warrantoproceeding. Constitution differently from petitioners. According to
the OSG, said provision neither requires nor allows the
Moreover, it is the JBC, not petitioner IBP, which has JBC to cluster nominees for every vacancy in the
legal standing to file the present suit, as the dispute Judiciary; it only mandates that for every vacancy, the
here is between the JBC and the OP. The fundamental JBC shall present at least three nominees, among whom
question in this case is "whether the JBC can corral the the President shall appoint a member of the Judiciary.
discretion of the President to appoint, a core As a result, if there are six vacancies for Sandiganbayan
constitutional prerogative, by designating qualified Associate Justice, the JBC shall present, for the
nominees within specific, artificial numerical categories President's consideration, at least 18 nominees for said
and forcing the President to appoint in accordance with vacancies. In the case at bar, the JBC submitted 37
those artificial numerical categories." The Court, though, nominees for the six vacancies in the Sandiganbayan;
is barred from deciding said question because the JBC is and from said pool of 37 nominees, the President
not a party herein. appointed the six Sandiganbayan Associate Justices, in
faithful compliance with the Constitution.
Fourth, petitioners have erroneously included Jorge-
Wagan, Romero� Maglaya, Zuraek, Alameda, and It is also the position of the OSG that the President has
Fernandez-Bernardo (Jorge-Wagan, et al.) as unwilling the absolute discretion to determine who is best suited
co-petitioners in the Petition at bar. Apart from the fact for appointment among all the qualified nominees. The
that Jorge-Wagan, et al. do not claim entitlement to the very narrow reading of Article VIII, Section 9 of the
positions occupied by respondents Musngi and Econg, 1987 Constitution proposed by petitioners unreasonably
non-appointed nominees for the positions of 16th and restricts the President's choices to only a few nominees
21st Associate Justices of the Sandiganbayan cannot even when the JBC recognized 37 nominees qualified for
simultaneously claim right to assume two vacancies in the position of Sandiganbayan Associate Justice. This
said special court. gives the JBC, apart from its power to recommend
qualified nominees, the power to dictate upon the
And fifth, petitioners disregarded the hierarchy of courts President which among the qualified nominees should be
by directly filing the instant Petition for Quo contending for a particular vacancy. By dividing
warranto and Certiorari and Prohibition before this nominees into groups and artificially designating each
Court. Even in cases where the Court is vested with group a numerical value, the JBC creates a substantive
original concurrent jurisdiction, it remains a court of last qualification to various judicial posts, which potentially
resort, not a court of first instance. impairs the President's prerogatives in appointing
members of the Judiciary.
The OSG next addresses the substantive issues.
The OSG additionally points out that the JBC made a
The OSG submits that the core argument of petitioners categorical finding that respondents Musngi and Econg
stems from their erroneous premise that there are were "suitably best" for appointment as Sandiganbayan
existing numerical positions in the Sandiganbayan: Associate Justice. The functions of the
the 1st being the Presiding Justice, and the succeeding 16th Sandiganbayan Associate Justice are no different
2nd to the 21st being the Associate Justices. It is the from those of the 17th, 18th, 19th, 20th, or
assertion of the OSG that the Sandiganbayan is 21stSandiganbayan Associate Justice. Since respondents
composed of a Presiding Justice and 20 Associate Musngi and Econg were indubitably qualified and
Justices, without any numerical designations. obtained sufficient votes, it was the ministerial duty of
Presidential Decree No. 1606 and its amendments do the JBC to include them as nominees for any of the six
not mention vacancies for the positions of "2nd Associate vacancies in the Sandiganbayan presented for the
Justice," "3rd Associate Justice," etc. There are no such President's final consideration.
items in the Judiciary because such numerical
designations are only used to refer to the seniority or Furthermore, the OSG alleges that it is highly unjust to
order of precedence of Associate Justices in collegiate remove respondents Musngi and Econg from their
courts such as the Supreme Court, Court of Appeals, current positions on the sole ground that the nominees
Court of Tax Appeals, and Sandiganbayan. were divided into six groups. The JBC announced "the
opening/reopening, for application or recommendation"
The OSG further contends that the power to determine of "[s]ix (6) newly-created positions of Associate Justice
the order of precedence of the Associate Justices of the of the Sandiganbayan." Respondents Musngi and Econg
Sandiganbayan is reposed in the President, as part of applied for the vacancy of "Associate Justice of the
his constitutional power to appoint. Citing Section 1, Sandiganbayan." In its announcements for interview,
third paragraph of Presidential Decree No. 160623 and the JBC stated that it would be interviewing applicants
Rule II, Section 1 of the Revised Internal Rules of the for "six (6) newly created positions of Associate Justice
Sandiganbayan,24 the OSG explains that the order of of the Sandiganbayan." It was only on October 26,
precedence of the Associate Justices of the 2015, the date of submission of the shortlists, when the
Sandiganbayan shall be according to the order of their nominees had been clustered into six groups. The OSG
appointments, that is, according to the dates of their notes that there are no JBC rules on the division of
respective commissions, or, when two or more nominees in cases where there are several vacancies in
commissions bear the same date, according to the order a collegiate court. In this case, the OSG observes that
in which their commissions had been issued by the there were no measurable standards or parameters for
President. It is the averment of the OSG that the dividing the 37 nominees into the six groups. The
constitutional power of the JBC to recommend nominees clustering of nominees was not based on the number of
for appointment to the Judiciary does not include the votes the nominees had garnered. The nominees were
power to determine their seniority. President Aquino not evenly distributed among the six groups, i.e., there
correctly disregarded the order of precedence in the were five nominees for 17th Sandiganbayan Associate
shortlists submitted by the JBC and exercised his Justice; six nominees for 16th, 18th, and
statutory power to determine the seniority of the 19th Sandiganbayan Associate Justices; and seven
nominees for the 20th and 21st Sandiganbayan Associate Teresita V. Diaz-Baldos, who eventually retired on July
Justices. 22, 2016. Even assuming for the sake of argument that
petitioners' alternative remedy of certiorari is proper,
The OSG then refers to several examples demonstrating respondent Econg contends that petitioners only had 60
that the previous practice of the JBC was to submit only days to file such a petition from January 20, 2016, the
one shortlist for several vacancies in a collegiate court. date she and respondent Musngi were appointed.
Petitioners belatedly filed their Petition before the Court
The other respondents had likewise filed their respective on May 17, 2016.
Comments or Manifestations:
Respondent Econg also raises the concern that if the
1) In respondent Fernandez-Bernardo's
chanRoble svirtual Lawlib ra ry Court affirms the petitioners' position that there are no
Comment,25 she recognizes the legal, substantial, and
cralawred valid appointments for the 16th and 21st Sandiganbayan
paramount significance of the ruling of the Court on the Associate Justices, the seniority or order of precedence
interpretation and application of Article VIII, Section 9 among the Sandiganbayan Associate Justices will be
of the 1987 Constitution, which will serve as a judicial adversely affected. Respondent Econg avers that there
precedent for the guidance of the Executive and was only one list of nominees for the six vacant
Legislative Departments, the JBC, the Bench, and the positions of Sandiganbayan Associate Justice,
Bar. considering that: (a) the announcement of the opening
for application/recommendation was for the six newly-
2) Respondent Musngi states in his Manifestation26 that created positions of Sandiganbayan Associate Justice;
he will no longer file a separate Comment and that he (b) respondent Econg's application was for the six
adopts all the averments, issues, arguments, newly-created positions of Sandiganbayan Associate
discussions, and reliefs in the Comment of the OSG. Justice; and (c) the announcement of the public
interview of candidates was for the six newly-created
3) In her Comment,27 respondent Jorge-Wagan positions of Sandiganbayan Associate Justice.
maintains that she is not the proper party to assail the
validity of the appointment of the 16th Sandiganbayan Thus, respondent Econg prays for, among other reliefs,
Associate Justice as she was nominated for the the dismissal of the instant Petition for Quo
21st Sandiganbayan Associate Justice; and that she is Warranto and Certiorari and Prohibition for lack of merit,
also not the proper party to seek the nullification of the and the declaration that the appointments of
appointments of respondents Musngi and Econg as respondents Musngi and Econg as Sandiganbayan
Sandiganbayan Associate Justices. Not being a proper Associate Justices are valid.
party-in-interest, respondent Jorge-Wagan argues that
she cannot be considered an "unwilling co-plaintiff." 6) In respondent Sandoval's Comment,30 he avows that
he opts not to join the petitioners as he subscribes to
4) Respondent Romero-Maglaya makes the following the principle that the heart and core of the President's
averments in her Manifestation/Comment28: that she power to appoint is the freedom to choose. The power
should not have been impleaded as a respondent or an to appoint rests on the President and the President
unwilling co-plaintiff in the instant Petition because her alone. Respondent Sandoval has already accepted the
rights as a nominee for judicial appointment were not fact that he was not appointed despite being nominated
violated; that she had no claim of entitlement to the by the JBC for the position of Sandiganbayan Associate
position of Sandiganbayan Associate Justice; and that Justice and he is looking forward to another opportunity
she had no participation in the alleged violation of the to apply for a higher position in the Judiciary.
Constitution or exercise of grave abuse of discretion
amounting to lack or excess of jurisdiction. Respondents Zuraek and Almeda have not filed their
comments despite notice and are deemed to have
5) Respondent Econg manifests in her Comment29 that waived their right to do so.
while she is adopting in toto the arguments in the
Comment of the OSG, she is also making certain factual On November 26, 2016, the JBC belatedly filed a Motion
clarifications and additional procedural and substantive for Intervention in the Petition at bar, or more than six
averments. months from the filing of the herein Petition on May 17,
2016 and after Chief Justice Sereno, the Chairperson of
Respondent Econg clarifies that her real name is the JBC herself, administered the oath of office of
Geraldine Faith A. Econg, and not Ma. Geraldine Faith A. respondent Econg, whose appointment is now being
Econg. questioned for having been done in disregard of the
clustering of nominees by the JBC.
Respondent Econg believes that the present Petition is
really for quo warranto because it seeks to declare null II
and void the respective appointments of respondents The Ruling of the Court
Musngi and Econg. Respondent Econg, however,
asseverates that petitioners Aguinaldo, et al. have no The Court takes cognizance of the present Petition
clear, unquestionable franchise to the Office of Associate despite several procedural infirmities given the
Justice of the Sandiganbayan simply because they had transcendental importance of the constitutional
been included in the shortlist submitted for the issue raised herein.
President's consideration. Nomination is not equivalent
to appointment and the removal of respondents Musngi The Petition at bar is for (a) Quo Warranto under Rule
and Econg will not automatically grant petitioners 66 of the Revised Rules of Court; and (b) Certiorari and
Aguinaldo, et al. the right to the Office of Associate Prohibition under Rule 65 of the same Rules.
Justice of the Sandiganbayan. Petitioners Aguinaldo, et
al., except for petitioner Alhambra, are even uncertain Rule 66 of the Revised Rules of Court particularly
about their right to the position/s of 16th and/or identifies who can file a special civil action of Quo
21st Sandiganbayan Associate Justice/s as they have Warranto, to wit: ChanRoblesVi rt ualawlib ra ry

also applied for the position of Sandiganbayan Associate RULE 66


Justice in lieu of Sandiganbayan Associate Justice Quo Warranto
judicial appointments. It is for this same reason that
Sec. 1. Action by Government against individuals. - An respondents Jorge-Wagan, et al., nominees for the
action for the usurpation of a public office, position or 21st Sandiganbayan Associate Justice, may not be
franchise may be commenced by a verified petition impleaded as respondents or unwilling plaintiffs in a quo
brought in the name of the Republic of the Philippines warranto proceeding. Neither can the IBP initiate a quo
against: warranto proceeding to oust respondents Musngi and
Econg from their currents posts as Sandiganbayan
(a) A person who usurps, intrudes into, or unlawfully
chanRoble svirtual Lawlib ra ry Associate Justices for the IBP does not qualify under
holds or exercises a public office, position or franchise; Rule 66, Section 5 of the Revised Rules of Court as an
individual claiming to be entitled to the positions in
(b) A public officer who does or suffers an act which, by question.
the provision of law, constitutes a ground for the
forfeiture of his office; or Nevertheless, the Court takes in consideration the fact
that the present Petition is also for Certiorari and
(c) An association which acts as a corporation within the Prohibition under Rule 65 of the Revised Rules of Court,
Philippines without being legally incorporated or without which alleges that President Aquino violated Article VIII,
lawful authority so to act Section 9 of the 1987 Constitution and committed grave
abuse of discretion amounting to lack or excess of
Sec. 2. When Solicitor General or public prosecutor must jurisdiction in his appointment of respondents Musngi
commence action. - The Solicitor General or a public and Econg as Sandiganbayan Associate Justices.
prosecutor, when directed by the President of the
Philippines, or when upon complaint or otherwise he has Article VIII, Section 1 of the 1987 Constitution vests
good reason to believe that any case specified in the upon the Court the expanded power of judicial review,
preceding section can be established by proof, must thus:ChanRoblesVirt ualawli bra ry

commence such action. Article VIII

Sec. 3. When Solicitor General or public prosecutor may Sec. 1. The judicial power shall be vested in one
commence action with permission of court. - The Supreme Court and in such lower courts as may be
Solicitor General or a public prosecutor may, with the established by law.
permission of the court in which the action is to be
commenced, bring such an action at the request and Judicial power includes the duty of the courts of justice
upon the relation of another person; but in such case to settle actual controversies involving rights which are
the officer bringing it may first require an indemnity for legally demandable and enforceable, and to determine
the expenses and costs of the action in an amount whether or not there has been a grave abuse of
approved by and to be deposited in the court by the discretion amounting to lack or excess of jurisdiction on
person at whose request and upon whose relation the the part of any branch or instrumentality of the
same is brought. Government.
The Court recognized in Jardeleza v. Sereno (Jardeleza
xxxx
Decision)32 that a "petition for certiorari is a proper
remedy to question the act of any branch or
Sec. 5. When an individual may commence such an
instrumentality of the government on the ground of
action. - A person claiming to be entitled to a public
grave abuse of discretion amounting to lack or excess of
office or position usurped or unlawfully held or exercised
jurisdiction by any branch or instrumentality of the
by another may bring an action therefor in his own
government, even if the latter does not exercise judicial,
name.
quasi-judicial or ministerial functions."
In Topacio v. Ong,31 the Court pronounced that: ChanRoblesVi rt ualawlib ra ry

A quo warranto proceeding is the proper legal remedy to In opposing the instant Petition for Certiorari and
determine the right or title to the contested public office Prohibition, the OSG cites Topacio in which the Court
and to oust the holder from its enjoyment. It is brought declares that title to a public office may not be
against the person who is alleged to have usurped, contested except directly, by quo warranto proceedings;
intruded into, or unlawfully held or exercised the public and it cannot be assailed collaterally, such as
office, and may be commenced by the Solicitor General by certiorari and prohibition.33 chan roble slaw

or a public prosecutor, as the case may be, or by any


person claiming to be entitled to the public office or However, Topacio is not on all fours with the instant
position usurped or unlawfully held or exercised by case. In Topacio, the writs of certiorari and prohibition
another. were sought against Sandiganbayan Associate Justice
Gregory S. Ong on the ground that he lacked the
Nothing is more settled than the principle, which goes qualification of Filipino citizenship for said position. In
back to the 1905 case of Acosta v. Flor, reiterated in the contrast, the present Petition for Certiorari and
recent 2008 case of Feliciano v. Villasin, that for a quo Prohibition puts under scrutiny, not any disqualification
warrantopetition to be successful, the private on the part of respondents Musngi and Econg, but the
person suing must show a clear right to the act of President Aquino in appointing respondents
contested office. In fact, not even a mere Musngi and Econg as Sandiganbayan Associate Justices
preferential right to be appointed thereto can lend without regard for the clustering of nominees into six
a modicum of legal ground to proceed with the separate shortlists by the JBC, which allegedly violated
action. (Emphasis supplied, citations omitted.) the Constitution and constituted grave abuse of
discretion amounting to lack or excess of jurisdiction.
Petitioners Aguinaldo, et al., as nominees for the
This would not be the first time that the Court, in the
16th Saridiganbayan Associate Justice, did not have a
exercise of its expanded power of judicial review, takes
clear right to said position, and therefore not proper
cognizance of a petition for certiorari that challenges a
parties to a quo warranto proceeding. Being included in
presidential appointment for being unconstitutional or
the list of nominees had given them only the possibility,
for having been done in grave abuse of discretion. As
but not the certainty, of being appointed to the position,
the Court held in Funa v. Villar34:
given the discretionary power of the President in making
ChanRobles Vi rtua lawlib rary
Anent the aforestated posture of the OSG, there is no person. He could be suing as a "stranger," or in the
serious disagreement as to the propriety of the category of a "citizen," or "taxpayer." In either case, he
availment of certiorari as a medium to inquire on has to adequately show that he is entitled to seek
whether the assailed appointment of respondent Villar judicial protection. In other words, he has to make out a
as COA Chairman infringed the constitution or was sufficient interest in the vindication of the public order
infected with grave abuse of discretion. For under the and the securing of relief as a "citizen" or "taxpayer."
expanded concept of judicial review under the 1987
Constitution, the corrective hand of certiorari may be Case law in most jurisdictions now allows both "citizen"
invoked not only "to settle actual controversies involving and "taxpayer" standing in public actions. The
rights which are legally demandable and enforceable," distinction was first laid down in Beauchamp v. Silk,
but also "to determine whether or not there has been a where it was held that the plaintiff in a taxpayer's suit is
grave abuse of discretion amounting to lack or excess of in a different category from the plaintiff in a citizen's
jurisdiction on the part of any branch or instrumentality suit. In the former, the plaintiff is affected by the
of the government." "Grave abuse of discretion" expenditure of public funds, while in the latter, he is but
denotes: ChanRobles Vi rtua lawlib rary the mere instrument of the public concern. As held by
such capricious and whimsical exercise of judgment as the New York Supreme Court in People ex rel Case v.
is equivalent to lack of jurisdiction, or, in other words, Collins: "In matter of mere public right, however ... the
where the power is exercised in an arbitrary or despotic people are the real parties... It is at least the right, if
manner by reason of passion or personal hostility, and it not the duty, of every citizen to interfere and see that a
must be so patent and gross as to amount to an evasion public offence be properly pursued and punished, and
of positive duty or to a virtual refusal to perform the that a public grievance be remedied." With respect to
duty enjoined or to act in contemplation of law. taxpayer's suits, Terr v. Jordan held that "the right of a
citizen and a taxpayer to maintain an action in courts to
We find the remedy of certiorari applicable to the instant
restrain the unlawful use of public funds to his injury
case in view of the allegation that then President
cannot be denied."
Macapagal-Arroyo exercised her appointing power in a
manner constituting grave abuse of discretion.
xxxx
(Citations omitted.)
Even so, the Court finds it proper to drop President However, being a mere procedural technicality, the
Aquino as respondent taking into account that when this requirement of locus standi may be waived by the Court
Petition was filed on May 17, 2016, he was still then the in the exercise of its discretion. This was done in the
incumbent President who enjoyed immunity from suit. 1949 Emergency Powers Cases, Araneta v. Dinglasan,
The presidential immunity from suit remains preserved where the "transcendental importance" of the cases
in the system of government of this country, even prompted the Court to act liberally. Such liberality was
though not expressly reserved in the 1987 neither a rarity nor accidental. In Aquino v. Comelec,
Constitution.35 The President is granted the privilege of this Court resolved to pass upon the issues raised due
immunity from suit "to assure the exercise of to the "far-reaching implications" of the petition
Presidential duties and functions free from any notwithstanding its categorical statement that petitioner
hindrance or distraction, considering that being the therein had no personality to file the suit. Indeed, there
Chief Executive of the Government is a job that, aside is a chain of cases where this liberal policy has been
from requiring all of the office-holder's time, also observed, allowing ordinary citizens, members of
demands undivided attention."36 It is sufficient that Congress, and civic organizations to prosecute actions
former Executive Secretary Ochoa is named as involving the constitutionality or validity of laws,
respondent herein as he was then the head of the OP regulations and rulings.
and was in-charge of releasing presidential
appointments, including those to the Judiciary.37 chan roble slaw Thus, the Court has adopted a rule that even where the
petitioners have failed to show direct injury, they have
Since the Petition at bar involves a question of been allowed to sue under the principle of
constitutionality, the Court must determine the locus "transcendental importance." Pertinent are the following
standi or legal standing of petitioners to file the same. cases:ChanRoblesVirt ualawli bra ry

The Court will exercise its power of judicial review only (1) Chavez v. Public Estates Authority, where the Court
if the case is brought before it by a party who has the ruled that the enforcement of the constitutional right to
legal standing to raise the constitutional or legal information and the equitable diffusion of natural
question. "Legal standing" means a personal and resources are matters of transcendental importance
substantial interest in the case such that the party has which clothe the petitioner with locus standi;
sustained or will sustain direct injury as a result of the
governmental act that is being challenged; while (2) Bagong Alyansang Makabayan v. Zamora, wherein
"interest" refers to material interest, an interest in issue the Court held that "given the transcendental
and to be affected by the decree or act assailed, as importance of the issues involved, the Court may relax
distinguished from mere interest in the question the standing requirements and allow the suit to prosper
involved, or a mere incidental interest. The interest of despite the lack of direct injury to the parties seeking
the plaintiff must be personal and not one based on a judicial review" of the Visiting Forces Agreement;
desire to vindicate the constitutional right of some third
and unrelated party.38 chanroble slaw (3) Lim v. Executive Secretary, while the Court noted
that the petitioners may not file suit in their capacity as
In David v. Macapagal-Arroyo,39 the Court taxpayers absent a showing that "Balikatan 02-01"
acknowledged exceptional circumstances which justified involves the exercise of Congress' taxing or spending
liberality and relaxation of the rules on legal powers, it reiterated its ruling in Bagong Alyansang
standing: ChanRobles Virtualawl ibra ry Makabayan v. Zamora, that in cases of transcendental
The difficulty of determining locus standi arises in public importance, the cases must be settled promptly and
suits. Here, the plaintiff who asserts a "public right" in definitely and standing requirements may be relaxed.
assailing an allegedly illegal official action, does so as a
By way of summary, the following rules may be culled
representative of the general public. He may be a
from the cases decided by this Court. Taxpayers, voters,
person who is affected no differently from any other
concerned citizens, and legislators may be accorded
standing to sue, provided that the following administration of justice is primarily a joint
requirements are met: ChanRob les Vi rtualawl ib rary responsibility of the judge and the lawyer.41 Definitely,
lawyers cannot effectively discharge their duties if they
entertain doubts, or worse, had lost their faith in judges
(1) the cases involve constitutional and/or justices. It is clearly imperative for the IBP to
issues; prevent that situation from happening by exercising
vigilance and ensurmg that the judicial appointment
process remains transparent and credible.

Given that the constitutional issue in the Petition at bar


(2) for taxpayers, there must be a is of transcendental importance and of public interest,
claim of illegal disbursement of and for the above� mentioned reasons, the Court shall
accord petitioners the legal standing to sue.
public funds or that the tax
measure is unconstitutional; The instant Petition fundamentally challenges President
Aquino's appointment of respondents Musngi and Econg
as the 16th and 18th Sandiganbayan Associate Justices.
Petitioners contend that only one of them should have
been appointed as both of them were included in one
(3) for voters, there must be a cluster of nominees for the 21stSandiganbayan Associate
Justice. The Petition presents for resolution of the Court
showing of obvious interest in the issue of whether President Aquino violated Article
the validity of the election law in VIII, Section 9 of the 1987 Constitution and gravely
question; abused his discretionary power to appoint members of
the Judiciary when he disregarded the clustering by the
JBC of the nominees for each specific vacant position of
Sandiganbayan Associate Justice. The issue is of
paramount importance for it affects the validity of
(4) for concerned citizens, there appointments to collegiate courts and, ultimately, the
administration of justice, for if there are questions as to
must be a showing that the the right of the appointee to his position as
issues raised are of judge/justice, then doubts shall likewise shadow all his
acts as such. This will indubitably undermine the faith of
transcendental importance the public in the judicial system. Since at hand is a
which must be settled early; and constitutional issue of first impression, which will likely
arise again when there are simultaneous vacancies in
collegiate courts, it is imperative for the Court to
already resolve the same for the guidance of the Bench
and Bar, and the general public as well.
(5) for legislators, there must be a
The OSG also prays for the dismissal of this Petition on
claim that the official action the additional ground that petitioners, by coming
complained of infringes upon directly before this Court, violated the hierarchy of
their prerogatives as legislators. courts. Relevant to this matter are the following
pronouncements of the Court in Querubin v.
While neither petitioners Aguinaldo, et al. nor petitioner Commission on Elections42: ChanRobles Vi rtualaw lib rary

IBP have legal standing to file a petition for quo Notwithstanding the non-exclusivity of the original
warranto, they have legal standing to institute a petition jurisdiction over applications for the issuance of writs
for certiorari. of certiorari, however, the doctrine of hierarchy of
courts dictates that recourse must first be made to the
The clustering of nominees by the JBC, which the lower-ranked court exercising concurrent jurisdiction
President, for justifiable reasons, did not follow, could with a higher court. The rationale behind the principle is
have caused all nominees direct injury, thus, vesting explained in Ba�ez, Jr. v. Concepcion in the following
them with personal and substantial interest, as the wise:ChanRoble sVirtualawli bra ry

clustering limited their opportunity to be considered for The Court must enjoin the observance of the policy on
appointment to only one of the six vacant positions for the hierarchy of courts, and now affirms that the policy
Sandiganbayan Associate Justice instead of all the six is not to be ignored without serious consequences. The
vacant positions to which the JBC found them as strictness of the policy is designed to shield the Court
qualified for appointment. This is the far-reaching from having to deal with causes that are also well within
adverse consequence to petitioners Aguinaldo, et the competence of the lower courts, and thus leave time
al. that they have missed. More importantly, for a to the Court to deal with the more fundamental and
complete resolution of this Petition, the Court must more essential tasks that the Constitution has assigned
inevitably address the issue of the validity of the to it. The Court may act on petitions for the
clustering of nominees by the JBC for simultaneous extraordinary writs of certiorari, prohibition
vacancies in collegiate courts, insofar as it seriously and mandamus only when absolutely necessary or when
impacts on the constitutional power of the President to serious and important reasons exist to justify an
appoint members of the Judiciary, which will be exception to the policy.
explained below. Petitioners do not have the absolute and unrestrained
freedom of choice of the court to which an application
One of the fundamental purposes of the IBP is to
for certiorari will be directed. Indeed, referral to the
improve the administration of justice.40 As the
Supreme Court as the court of last resort will simply be
association of all lawyers in the country, petitioner IBP
empty rhetoric if party-litigants are able to flout judicial
has an interest in ensuring the validity of the
hierarchy at will. The Court reserves the direct
appointments to the Judiciary. It is recognized that the
invocation of its jurisdiction only when there are special
and important reasons clearly and especially set out in
the petition that would justify the same. (j) When appeal is considered as
clearly an inappropriate remedy.
In the leading case of The Diocese of Bacolod v.
Comelec, the Court enumerated the specific instances (Citations omitted.)
when direct resort to this Court is allowed, to wit:
Inasmuch as the Petition at bar involves a constitutional
ChanRob les Virtualawl ibra ry

question of transcendental importance and of first


(a) When there are genuine issues impression and demanded by the broader interest of
justice, the Court, in the exercise of its discretion,
of constitutionality that must be resolves to exercise primary jurisdiction over the same.
addressed at the most
immediate time; Lastly, respondent Econg opposes the Petition at bar for
being filed out of time. According to respondent Econg,
the 60-day period for petitioners to file this Petition
commenced on January 20, 2016, the date she and her
co-respondent Musngi were appointed by President
(b) When the issues involved are of Aquino. Based on respondent Econg's argument, the 60-
day period ended on March 20, 2016, Sunday, so
transcendental importance; petitioners only had until March 21, 2016, Monday, to
timely file the Petition. For their part, petitioners aver
that after learning of the appointments of respondents
Musngi and Econg as Sandiganbayan Associate Justices
from the media, they obtained copies of the shortlists
(c) Cases of first impression; for the vacancies for the 16th to the 21st Sandiganbayan
Associate Justices on March 22, 2016. Counting the 60-
day period from March 22, 2016, petitioners allege that
they had until May 21, 2016 to file their Petition.

(d) When the constitutional issues Rule 65, Section 4 of the Revised Rules of Court
raised are best decided by this explicitly states that certiorari should be instituted
within a period of 60 days from notice of the judgment,
Court; order, or resolution sought to be assailed. The 60-day
period is inextendible to avoid any unreasonable delay
that would violate the constitutional rights of parties to
a speedy disposition of their case. The question though
is when said 60-day period began to run in this case.
(e) When the time element The Court refers to its ruling in Velicaria-Garafil v. Office
presented in this case cannot be of the President.43 In said case, the Court declared that
ignored; appointment is a process. For an appointment to be
valid, complete, and effective, four elements must
always concur, to wit: "(1) authority to appoint and
evidence of the exercise of authority, (2) transmittal of
the appointment paper and evidence of the transmittal,
(f) When the petition reviews the (3) a vacant position at the time of appointment, and
(4) receipt of the appointment paper and acceptance of
act of a constitutional organ; the appointment by the appointee who possesses all the
qualifications and none of the disqualifications." The
Court expounded on the importance of the last element
as follows:ChanRobles Vi rtua lawlib rary

Acceptance is indispensable to complete an


(g) When there is no other plain, appointment. Assuming office and taking the oath
speedy, and adequate remedy in amount to acceptance of the appointment. An oath of
office is a qualifying requirement for a public office, a
the ordinary course of law; prerequisite to the full investiture of the office.

Javier v. Reyes is instructive in showing how acceptance


is indispensable to complete an appointment. On 7
November 1967, petitioner Isidro M. Javier (Javier) was
(h) When public welfare and the appointed by then Mayor Victorino B. Aldaba as the
advancement of public policy so Chief of Police of Malolos, Bulacan. The Municipal
dictates, or when demanded by Council confirmed and approved Javier's appointment on
the same date. Javier took his oath of office on 8
the broader interest of justice; November 1967, and subsequently discharged the
rights, prerogatives, and duties of the office. On 3
January 1968, while the approval of Javier's
appointment was pending with the CSC, respondent
Purificacion C. Reyes (Reyes), as the new mayor of
(i) When the orders complained of Malolos, sent to the CSC a letter to recall Javier's
are patent nullities; and appointment. Reyes also designated Police Lt. Romualdo
F. Clemente as Officer-in-Charge of the police
department. The CSC approved Javier's appointment as
permanent on 2 May 1968, and even directed Reyes to
reinstate Javier. Reyes, on the other hand, pointed to
the appointment of Bayani Bernardo as Chief of Police of
Malolos, Bulacan on 4 September 1967. This Court ruled the 16th Sandiganbayan Associate Justice was appointed
that Javier's appointment prevailed over that of to any of the six vacancies for Sandiganbayan Associate
Bernardo. It cannot be said that Bernardo accepted his Justice; and that respondents Musngi and Econg, both in
appointment because he never assumed office or took the shortlist for the 21st Sandiganbayan Associate
his oath. Justice, were appointed as the 16th and
18thSandiganbayan Associate Justices, respectively. In
Excluding the act of acceptance from the appointment addition, respondent Econg is not unjustly prejudiced by
process leads us to the very evil which we seek to avoid the delay, but will even benefit from the Court resolving
(i.e., antedating of appointments). Excluding the act of once and for all the questions on her right to the
acceptance will only provide more occasions to honor position of Sandiganbayan Associate Justice.
the Constitutional provision in the breach. The inclusion
of acceptance by the appointee as an integral part of The Court reiterates that there can be no valid objection
the entire appointment process prevents the abuse of to its discretion to waive one or some procedural
the Presidential power to appoint. It is relatively easy to requirements if only to remove any impediment to
antedate appointment papers and make it appear that address and resolve the constitutional question of
they were issued prior to the appointment ban, but it is transcendental importance raised in this Petition, the
more difficult to simulate the entire appointment same having far�reaching implications insofar as the
process up until acceptance by the administration of justice is concemed.46chan roble slaw

appointee.44 (Citations omitted.)


President Aquino did not violate the Constitution
The records show that on January 25, 2016, the
or commit grave abuse of discretion in
appointment papers were transmitted to and received
disregarding the clustering of nominees into six
by the six newly-appointed Sandiganbayan Associate
separate shortlists for the six vacancies for
Justices, including respondents Musngi and Econg, who,
Sandiganbayan Associate Justice.
on the same day, already took their oaths of office.
Therefore, pursuant to Velicaria-Garafil, the
Article VIII, Section 9 of the 1987 Constitution provides
appointment process became complete and effective on
that "[t]he Members of the Supreme Court and judges
January 25, 2016. If the Court is to count the 60-day
of lower courts shall be appointed by the President from
reglementary period for filing a petition
a list of at least three nominees prepared by the Judicial
for certiorari from January 25, 2016, it expired on March
and Bar Council for every vacancy."
25, 2016. The present Petition for Certiorari and
Prohibition was filed on May 17, 2016.
The appointment process for the Judiciary seems simple
enough if there is only one vacancy to consider at a
Just like any rule, however, there are recognized
time. The power of the President to appoint members of
exceptions to the strict observance of the 60-day period
the Judiciary is beyond question, subject to the
for filing a petition for certiorari, viz.: (1) most
limitation that the President can only appoint from a list
persuasive and weighty reasons; (2) to relieve a litigant
of at least three nominees submitted by the JBC for
from an injustice not commensurate with his failure to
every vacancy. However, the controversy in this case
comply with the prescribed procedure; (3) good faith of
arose because by virtue of Republic Act No. 10660,
the defaulting party by immediately paying within a
creating two new divisions of the Sandiganbayan with
reasonable time from the time of the default; (4) the
three members each, there were six simultaneous
existence of special or compelling circumstances; (5)
vacancies for Associate Justice of said collegiate court;
the merits of the case; (6) a cause not entirely
and that the JBC submitted six separate shortlists for
attributable to the fault or negligence of the party
the vacancies for the 16th to the 21st Sandiganbayan
favored by the suspension of the rules; (7) a lack of any
Associate Justices.
showing that the review sought is merely frivolous and
dilatory; (8) the other party will not be unjustly
On one hand, petitioners assert that President Aquino's
prejudiced thereby; (9) fraud, accident, mistake, or
power to appoint is limited to each shortlist submitted
excusable negligence without appellant's fault; (10)
by the JBC. President Aquino should have appointed the
peculiar legal and equitable circumstances attendant to
16th Sandiganbayan Associate Justice from the
each case; (11) in the name of substantial justice and
nominees in the shortlist for the 16th Sandiganbayan
fair play; (12) importance of the issues involved; and
Associate Justice, the 17th Sandiganbayan Associate
(13) exercise of sound discretion by the judge guided by
Justice from the nominees in the shortlist for the
all the attendant circumstances. There should be an
17th Sandiganbayan Associate Justice, and so on and so
effort, though, on the part of the party invoking
forth. By totally overlooking the nominees for the
liberality to advance a reasonable or meritorious
16th Sandiganbayan Associate Justice and appointing
explanation for his/her failure to comply with the
respondents Musngi and Econg, who were both
rules.45
nominees for the 21st Sandiganbayan Associate Justice,
cha nrob leslaw

as the 16th and 18th Sandiganbayan Associate Justices,


The peculiar circumstances of this case, plus the
respectively, President Aquino violated the 1987
importance of the issues involved herein, justify the
Constitution and committed grave abuse of discretion
relaxation of the 60-day period for the filing of this
amounting to lack or excess of jurisdiction.
Petition for Certiorari and Prohibition. Indeed, the official
act assailed by petitioners is the appointment by
Respondents, on the other hand, maintain that
President Aquino of respondents Musngi and Econg as
President Aquino acted in accordance with the 1987
Sandiganbayan Associate Justices, which was completed
Constitution and well-within his discretionary power to
on January 25, 2016 when said respondents took their
appoint members of the Judiciary when he disregarded
oaths of office. Yet, petitioners could not have sought
the clustering of nominees by the JBC into six separate
remedy from the Court at that point. As basis for
shortlists and collectively considered all 37 nominees
petitioners' opposition to the said appointments, they
named in said shortlists for the six vacancies for
needed to see and secure copies of the shortlists for the
Sandiganbayan Associate Justice.
16th to the 21st Sandiganbayan Associate Justices. It
was only after petitioners obtained copies of all six
The primordial question then for resolution of the Court
shortlists on March 22, 2016 that petitioners would have
is whether President Aquino, under the circumstances,
been able to confirm that no one from the shortlist for
was limited to appoint only from the nominees in the Presiding Justice and 20 Associate Justices divided into
shortlist submitted by the JBC for each specific vacancy. seven divisions, with three members each. The
numerical order of the seniority or order of preference
The Court answers in the negative. of the 20 Associate Justices is determined pursuant to
law by the date and order of their commission or
The JBC was created under the 1987 Constitution with appointment by the President.
the principal function of recommending appointees to
the Judiciary.47 It is a body, representative of all the This is clear under Section 1, paragraph 3 of Presidential
stakeholders in the judicial appointment process, Decree No. 1606, which reads: ChanRobles Vi rtua lawlib rary

intended to rid the process of appointments to the Sec. 1. Sandiganbayan; composition; qualifications;
Judiciary of the evils of political pressure and partisan tenure; removal and compensation. - x x x
activities.48 The extent of the role of the JBC in
recommending appointees vis-a-vis the power of the xxxx
President to appoint members of the Judiciary was
discussed during the deliberations of the Constitutional The Presiding Justice shall be so designated in his
Commission (CONCOM) on July 10, 1986, thus: ChanRoblesVi rtua lawlib rary commission and the other Justices shall have
MR. RODRIGO: Let me go to another point then. precedence according to the dates of their respective
commissions, or, when the commissions of two or more
On page 2, Section 5, there is a novel provision about of them shall bear the same date, according to the order
appointments of members of the Supreme Court and of in which their commissions have been issued by the
judges of lower courts. At present it is the President President.
who appoints them. If there is a Commission on
Consistent with the foregoing, Rule II, Section 1(b) of
Appointments, then it is the President with the
the Revised Internal Rules of the Sandiganbayan
confirmation of the Commission on Appointments. In
similarly provides:
this proposal, we would like to establish a new office, a
Cha nRobles Vi rtua lawlib rary

Sec. 1. Composition of the Court and Rule on


sort of a board composed of seven members, called the
Precedence.-
Judicial and Bar Council. And while the President will still
appoint the members of the judiciary, he will be limited
xxxx
to the recommendees of this Council.
(b) Rule on Precedence - The Presiding Justice shall
MR. CONCEPCION: That is correct.
enjoy precedence over the other members of the
Sandiganbayan in all official functions. The Associate
MR. RODRIGO: And the Council will, whenever there is a
Justices shall have precedence according to the order of
vacancy, recommend three.
their appointments.
MR. CONCEPCION: At least three for every vacancy. Apropos herein is the following ruling of the Court in Re:
Seniority Among the Four (4) Most Recent Appointments
MR. RODRIGO: And the President cannot appoint to the Position of Associate Justices of the Court of
anybody outside of the three recommendees. Appeals,50 which involved the Court of Appeals, another
collegiate court:
ChanRobles Vi rtua lawlib rary

MR. CONCEPCION: Nomination by the Council would be For purposes of appointments to the judiciary,
one of the qualifications for appointment.49 chanro blesvi rt uallawli bra ry therefore, the date the commission has been signed by
the President (which is the date appearing on the face of
It is apparent from the aforequoted CONCOM
such document) is the date of the appointment. Such
deliberations that nomination by the JBC shall be a
date will determine the seniority of the members of the
qualification for appointment to the Judiciary, but this
Court of Appeals in connection with Section 3, Chapter I
only means that the President cannot appoint an
of BP 129, as amended by RA 8246. In other words, the
individual who is not nominated by the JBC. It cannot be
earlier the date of the commission of an
disputed herein that respondents Musngi and Econg
appointee, the more senior he/she is over the
were indeed nominated by the JBC and, hence, qualified
other subsequent appointees. It is only when the
to be appointed as Sandiganbayan Associate Justices.
appointments of two or more appointees bear the
same date that the order of issuance of the
It should be stressed that the power to recommend of
appointments by the President becomes material.
the JBC cannot be used to restrict or limit the
This provision of statutory law (Section 3, Chapter I of
President's power to appoint as the latter's prerogative
BP 129, as amended by RA 8246) controls over the
to choose someone whom he/she considers worth
provisions of the 2009 IRCA which gives premium to the
appointing to the vacancy in the Judiciary is still
order of appointments as transmitted to this Court.
paramount. As long as in the end, the President
Rules implementing a particular law cannot override but
appoints someone nominated by the JBC, the
must give way to the law they seek to implement.
appointment is valid. On this score, the Court finds
(Emphasis supplied.)
herein that President Aquino was not obliged to appoint
one new Sandiganbayan Associate Justice from each of Evidently, based on law, rules, and jurisprudence, the
the six shortlists submitted by the JBC, especially when numerical order of the Sandiganbayan Associate Justices
the clustering of nominees into the six shortlists cannot be determined until their actual appointment by
encroached on President Aquino's power to appoint the President.
members of the Judiciary from all those whom the JBC
had considered to be qualified for the same positions of It bears to point out that part of the President's power
Sandiganbayan Associate Justice. to appoint members of a collegiate court, such as the
Sandiganbayan, is the power to determine the seniority
Moreover, in the case at bar, there were six or order of preference of such newly appointed
simultaneous vacancies for the position of members by controlling the date and order of issuance
Sandiganbayan Associate Justice, and the JBC cannot, of said members' appointment or commission papers.
by clustering of the nominees, designate a numerical By already designating the numerical order of the
order of seniority of the prospective appointees. The vacancies, the JBC would be establishing the seniority or
Sandiganbayan, a collegiate court, is composed of a order of preference of the new Sandiganbayan Associate
Justices even before their appointment by the President Bienvenido L. Reyes, and Estela Perlas-Bernabe.
and, thus, unduly arrogating unto itself a vital part of
the President's power of appointment. 78. In January 2012, there were 3 vacancies for
Associate Justice of the CA. Out of sixty-three (63)
There is also a legal ground why the simultaneous candidates, the JBC prepared only 1 short list of 13
vacant positions of Sandiganbayan Associate Justice nominees for these 3 vacancies. Based on this short list,
should not each be assigned a specific number by the President Aquino appointed Associate Justices Ma. Luisa
JBC. The Sandiganbayan Associate Justice positions C. Quijano�Padilla, Renate C. Francisco, and Jhosep Y.
were created without any distinction as to rank in Lopez.
seniority or order of preference in the collegiate court.
The President appoints his choice nominee to the post of 79. In June 2012, there were 3 vacancies for Associate
Sandiganbayan Associate Justice, but not to a Justice of the CA. Out of 53 candidates, the JBC
Sandiganbayan Associate Justice position with an submitted to the President only 1 short list of 14
identified rank, which is automatically determined by nominees who obtained the required number of votes.
the order of issuance of appointment by the President. Based on this short list, President Aquino appointed
The appointment does not specifically pertain to the Associate Justices Henri Jean Paul B. Inting, Oscar V.
16th, 17th, 18th, 19th, 20th, or 21st Sandiganbayan Badelies, and Marie Christine Azcarraga Jacob.52 chanrob lesvi rtua llawlib ra ry

Associate Justice, because the Sandiganbayan Associate


Additionally, in 1995, when Republic Act No. 7975
Justice's ranking is temporary and changes every time a
increased the divisions in the Sandiganbayan from three
vacancy occurs in said collegiate court. In fact, by the
to five, which similarly created six simultaneous vacant
end of 2016, there will be two more vacancies for
positions of Sandiganbayan Associate Justice, the JBC,
Sandiganbayan Associate Justice.51 These vacancies will
with then Supreme Court Chief Justice Andres R.
surely cause movement in the ranking within the
Narvasa as Chairman, submitted a single list of
Sandiganbayan. At the time of his/her appointment, a
nominees from which former President Fidel V. Ramos
Sandiganbayan Associate Justice might be ranked 16th,
subsequently chose his six appointees. Reproduced in
but because of the two vacancies occurring in the court,
full below was the nomination submitted by the JBC on
the same Sandiganbayan Associate Justice may
said occasion:���
eventually be higher ranked.
July 17, 1997
Furthermore, the JBC, in sorting the qualified nominees
HIS EXCELLENCY
into six clusters, one for every vacancy, could influence
PRESIDENT FIDEL V. RAMOS
the appointment process beyond its constitutional
Malaca�an, Manila
mandate of recommending qualified nominees to the
President. Clustering impinges upon the President's
Dear Mr. President:
power of appointment, as well as restricts the chances
for appointment of the qualified nominees, because (1)
Pursuant to the provisions of Article VIII, Section 9
the President's option for every vacancy is limited to the
chanRoble svirtual Lawlib ra ry

of the Constitution, the Judicial and Bar Council has the


five to seven nominees in the cluster; and (2) once the
honor to submit the nominations (in alphabetical order)
President has appointed from one cluster, then he is
for six (6) positions of Associate Justice of the
proscribed from considering the other nominees in the
Sandiganbayan, per the JBC Minutes of July 9 and 16,
same cluster for the other vacancies. The said
1997:
limitations are utterly without legal basis and in
ChanRobles Vi rtua lawlib rary

1. Asuncion, Elvi John S.


contravention of the President's appointing power.
2. Badoy Jr., Anacleto D.
3. Casta�eda Jr., Catalina D.
To recall, the JBC invited applications and
4. De Castro, Teresita Leonardo
recommendations and conducted interviews for the "six
5. Fineza, Antonio J.
newly created positions of Associate Justice of the
6. Flores, Alfredo C.
Sandiganbayan." Applicants, including respondents
7. Gustilo, Alfredo J.
Musngi and Econg, applied for the vacancy for
8. Hernandez, Jose R.
"Associate Justice of the Sandiganbayan." Throughout
9. Ilarde, Ricardo M.
the application process before the JBC, the six newly-
10. Laggui, Pedro N.
created positions of Sandiganbayan Associate Justice
11. Lee Jr., German G.
were not specifically identified and differentiated from
12. Legaspi, Godofredo L.
one another for the simple reason that there was really
13. Makasiar, Ramon P.
no legal justification to do so. The requirements and
14. Mallillin, Hesiquio R.
qualifications, as well as the power, duties, and
15. Martinez, Wilfredo C.
responsibilities are the same for all the Sandiganbayan
16. Mirasol, Teodulo E.
Associate Justices. If an individual is found to be
17. Nario, Narciso S.
qualified for one vacancy, then he/she is also qualified
18. Navarro, Flordelis Ozaeta
for all the other vacancies. It was only at the end of the
19. Ortile, Senecio D.
process that the JBC precipitously clustered the 37
20. Pineda, Ernesto L.
qualified nominees into six separate shortlists for each
21. Ponferrada, Bernardo T.
of the six vacant positions.
22. Quimsing, Godofredo P.
23. Rivera, Candido V.
The Court notes that the clustering of nominees is a
24. Rosario Jr., Eriberto U.
totally new practice of the JBC. Previously, the JBC
25. Salonga, Josefina Guevara
submitted only one shortlist for two or more vacancies
26. Sultan, Justo M.
in a collegiate court. Worth reproducing below are the
27. Umali, Mariano M.
examples cited by the OSG: ChanRoblesVirt ualawli bra ry

77. For instance, in June 2011, there were 2 vacancies Their respective curriculum vitae are hereto attached.
for Associate Justice of the Supreme Court. Out of 30
Once more, on November 23, 2009, the JBC, then
candidates, the JBC submitted to the President only 1
headed by Supreme Court Chief Justice Reynato S. Puno
short list of 6 nominees. Based on this short list,
(Puno), submitted to former President Gloria Macapagal-
President Aquino appointed Associate Justices
Arroyo (Macapagal-Arroyo) a single list of nominees for
two vacant positions of Supreme Court Associate
Justice, from which President Macapagal-Arroyo -7
2. Robles, Rodolfo D. �
ultimately appointed Associate Justices Jose P. Perez votes
and Jose C. Mendoza. The letter of nomination of the
JBC reads:���
November 23, 2009 3. De Leon, Magdangal -6

M. votes
Her Excellency
President Gloria Macapagal Arroyo
Malaca�ang Palace -6
4. Reyes, Bienvenido L. �
Manila votes
Your Excellency:
5. Bernabe, Estela -5

Pursuant to Section 9, Article VIII of the
chanRoble svirtual Lawlib ra ry Perlas votes
Constitution, the Judicial and Bar Council has the honor
to submit nominations for two (2) positions of Associate
6. Dimaampao, Japar -5
Justice of the Supreme Court (vice Hon. Leonardo A. �
Quisumbing and Hon. Minita V. Chico-Nazario), per the B. votes
JBC Minutes of even date, to wit:
Their respective curriculum vitae are hereto attached.
ChanRobles Vi rt ualawlib ra ry

1. Abdulwahid, Hakim -6 There is no explanation for the shift in practice by the


� JBC, which impaired the power of the President to
S. votes appoint under the 1987 Constitution and his statutory
authority to determine seniority in a collegiate court.
-6 The clustering by the JBC of the qualified nominees for
2. Mendoza, Jose C. � the six vacancies for Sandiganbayan Associate Justice
votes appears to have been done arbitrarily, there being no
clear basis, standards, or guidelines for the same. The
-5 number of nominees was not even equally distributed
3. Perez, Jose P. � among the clusters.
votes
In view of the foregoing, President Aquino validly
4. Villaruz, Francisco, -5 exercised his discretionary power to appoint members of
� the Judiciary when he disregarded the clustering of
Jr. H. votes nominees into six separate shortlists for the vacancies
for the 16th, 17th, 18th, 19th, 20th and
5. De Leon, Magdangal -4 21st Sandiganbayan Associate Justices. President Aquino
� merely maintained the well-established practice,
M. votes
consistent with the paramount Presidential constitutional
prerogative, to appoint the six new Sandiganbayan
-4 Associate Justices from the 37 qualified nominees, as if
6. Tijam, Noel G. �
votes embodied in one JBC list. This does not violate Article
VIII, Section 9 of the 1987 Constitution which requires
Their respective curriculum vitae are hereto attached. the President to appoint from a list of at least three
nominees submitted by the JBC for every vacancy. To
And, as mentioned by the OSG, the JBC, during the
meet the minimum requirement under said
Chairmanship of Supreme Court Chief Justice Renato C.
constitutional provision of three nominees per vacancy,
Corona, submitted to President Aquino on June 21, 2011
there should at least be 18 nominees from the JBC for
just one list of nominees for two vacant positions of
the six vacancies for Sandiganbayan Associate Justice;
Supreme Court Associate Justice, from which President
but the minimum requirement was even exceeded
Aquino eventually appointed Associate Justices
herein because the JBC submitted for the President's
Bienvenido L. Reyes and Estela M. Perlas-Bernabe. Such
consideration a total of 37 qualified nominees. All the six
list is fully quoted hereunder:���
newly appointed Sandiganbayan Associate Justices met
June 21, 2011
the requirement of nomination by the JBC under Article
VIII, Section 9 of the 1987 Constitution. Hence, the
His Excellency
appointments of respondents Musngi and Econg, as well
President Benigno Simeon C. Aquino III
as the other four new Sandiganbayan Associate Justices,
Malaca�ang Palace
are valid and do not suffer from any constitutional
Manila
infirmity.
Your Excellency:
The ruling of the Court in this case shall similarly apply
to the situation wherein there are closely successive
Pursuant to Article VIII, Section 9 of the
vacancies in a collegiate court, to which the President
chanRoble svirtual Lawlib ra ry

Constitution, the Judicial and Bar Council has the honor


shall make appointments on the same occasion,
to submit nominations for the two (2) positions of
regardless of whether the JBC carried out combined or
ASSOCIATE JUSTICE of the SUPREME COURT, per the
separate application process/es for the vacancies. The
JBC Minutes of even date, as follows:
President is not bound by the clustering of nominees by
ChanRoble sVirt ualawli bra ry

the JBC and may consider as one the separate shortlists


-7 of nominees concurrently submitted by the JBC. As the
1. Reyes, Jose, Jr. C. � Court already ratiocinated herein, the requirements and
votes qualifications, as well as the power, duties, and
responsibilities are the same for all the vacant posts in a
collegiate court; and if an individual is found to be
qualified for one vacancy, then he/she is also qualified to the detriment of said court, in particular, and the
for all the other vacancies. It is worthy of note that the entire justice system, in general. What is more, unless
JBC, in previous instances of closely successive promptly resolved by the Court, the instant case is
vacancies in collegiate courts, such as the Court of capable of repetition given the forthcoming vacancies in
Appeals and the Supreme Court, faithfully observed the collegiate courts, particularly, the Supreme Court.
practice of submitting only a single list of nominees for
all the available vacancies, with at least three nominees Even if the intervention of the JBC will evidently cause
for every vacancy, from which the President made his delay in the resolution of this case and prejudice to the
appointments on the same occasion. This is in keeping original parties herein, are there compelling substantive
with the constitutional provisions on the President's grounds to still allow the intervention of the JBC? The
exclusive power to appoint members of the Judiciary JBC, through its own fault, did not provide the Court
and the mandate of the JBC to recommend qualified with a way to make such a determination. The Revised
nominees for appointment to the Judiciary. Rules of Court explicitly requires that the pleading-in-
intervention already be attached to the motion for
The Court denies the Motion for Intervention of intervention.55 The JBC could have already argued the
the JBC in this Petition. merits of its case in its complaint-in-intervention.
However, the JBC not only failed to attach its complaint-
In its Motion for Intervention, the JBC echoes the in-intervention to its Motion for Intervention, but it also
arguments of the OSG in the latter's Comment that the did not provide any explanation for such failure.
dispute is between the JBC and the OP and it cannot be
decided by the Court since the JBC is not a party, much The Court can reasonably assume, as well, that the JBC
less, a complaining party in this case. The JBC asserts is well-aware of President Aquino's appointment of the
that it has legal interest in the matter of litigation six Sandiganbayan Associate Justices, including
because it will be adversely affected by the judgment or respondents Musngi and Econg, on January 20, 2015.
decision in the present case, having submitted the The six newly-appointed Sandiganbayan Associate
controverted shortlists of nominees to the OP. The JBC Justices all took their oaths of office on January 25,
likewise claims that its intervention will not unduly delay 2016 at the Supreme Court Dignitaries Lounge.
or prejudice the adjudication of the rights of the original Respondent Econg, with Justices Mendoza-Arcega and
parties in the case. The JBC, thus, prays that it be Trespeses, took their oaths of office before Chief Justice
allowed to intervene in the instant case and to submit Sereno, who is also the Chairperson of the JBC; while
its complaint-in-intervention within 30 days from receipt respondent Musngi, with Justices R. Cruz and Miranda,
of notice allowing its intervention. took their oaths of office before Supreme Court
Associate Justice Jardeleza on the same occasion and at
Intervening in a case is not a matter of right but of the same venue. Despite its knowledge of the
sound discretion of the Court.53 The allowance or appointment and assumption of office of respondents
disallowance of a motion for intervention rests on the Musngi and Econg in January 2016, the JBC did not take
sound discretion of the court after consideration of the any action to challenge the same on the ground that
appropriate circumstances. It is not an absolute right. President Aquino appointed respondents Musngi and
The statutory rules or conditions for the right of Econg in disregard of the clustering of nominees by the
intervention must be shown. The procedure to secure JBC through the separate shortlists for the six vacancies
the right to intervene is to a great extent fixed by the for Sandiganbayan Associate Justice. The silence of the
statute or rule, and intervention can, as a rule, be JBC all this while, for a period of eleven (11) months,
secured only in accordance with the terms of the can already be deemed as acquiescence to President
applicable provision.54
cha nrob leslaw Aquino's appointment of respondents Musngi and Econg.

It bears to point out that petitioners did not name the For the foregoing reasons, the Court denies the Motion
JBC as a respondent in this case because petitioners for Intervention of the JBC.
precisely wanted the shortlists submitted by the JBC
upheld; they were on the same side. Petitioners already There are several other new rules and practices
presented the arguments for the constitutionality of and adopted by the JBC which the Court takes
strict adherence by the President to the separate cognizance of as a separate administrative matter.
shortlists submitted by the JBC for the six simultaneous
vacancies for Sandiganbayan Associate Justice. The Court takes cognizance of several other matters
Significantly, not one of the parties moved, and not covered by the new rules and practices adopted by the
even the Court motu proprio ordered, to implead the JBC.
JBC as an indispensable party herein.
Item No. 1: The Court takes judicial notice of the fact
The JBC avers in its Motion for Intervention that it has a that the JBC promulgated on September 20, 2016 JBC
legal interest in the Petition at bar and its intervention No. 2016-1, "The Revised Rules of the Judicial and Bar
will not unduly delay or prejudice the adjudication of the Council" (Revised JBC Rules), to take effect on October
rights of the original parties in the case. 24, 2016. Notably, the Revised JBC Rules explicitly
states among its Whereas clauses: ChanRoblesVirt ualawli bra ry

The Court is unconvinced. WHEREAS, the President of the Philippines may appoint
only one from the list of at least three nominees for
The instant Petition was filed before this Court on May every vacancy officially transmitted by the Council to
17, 2016, yet, the JBC filed its Motion for Intervention the Office of the President[.]
only on November 26, 2016, more than six months
This is an obvious attempt by the JBC to institutionalize
later, and even praying for an additional 30-day period
through the Revised JBC Rules its newly-introduced
from notice to submit its complaint-in-intervention.
practice of clustering nominees for simultaneous
Therefore, allowing the intervention will undoubtedly
vacancies in collegiate courts. The timing likewise is
delay the resolution of the case; and further delay in the
disturbing as the instant case is pending resolution by
resolution of this case will only perpetuate the doubts on
this Court and with existing and upcoming vacancies in
the legitimacy of the appointments of respondents
several collegiate courts, i.e., the Sandiganbayan, the
Musngi and Econg as Sandiganbayan Associate Justices,
Court of Appeals, and even this Court. As the Court has
categorically declared herein, the clustering by the JBC Sec. 8. Publication of List of Applicants. The list of
of nominees for simultaneous vacancies in collegiate applicants who meet the minimum qualifications and the
courts constitute undue limitation on and impairment of Council's evaluative criteria prescribed in Sections 2 and
the power of the President to appoint members of the 3 of Rule 3 of these Rules, which the Council shall
Judiciary under the 1987 Constitution. It also deprives consider in a given time, shall be published once in two
qualified nominees equal opportunity to be considered newspapers of general circulation in the Philippines.
for all vacancies, not just a specific one. Incorporating
such Whereas clause into the Revised JBC Rules will not The publication shall inform the public that any
serve to legitimize an unconstitutional and unfair complaint or opposition against applicants may be
practice. Accordingly, such Whereas clause shall not filed with the secretariat of the Council. A copy of
bind the President pursuant to the pronouncements of the list shall likewise be posted in the JBC website.
the Court in the present Petition. (Emphasis supplied.)
Yet, Chief Justice Sereno, without consulting the
Item No. 2: The same Revised JBC Rules deleted a
Court en banc, has done away with the settled practice
significant part of JBC-009, the former JBC Rules,
of seeking the views of the incumbent Justices on the
specifically, Rule 8, Section 1, which provided:
applicants to the vacant positions in the Supreme Court.
ChanRob les Virtualawl ibrary

Sec. 1. Due weight and regard to the recommendees of


the Supreme Court. - In every case involving an
To recall, Chief Justice Sereno had previously
appointment to a seat in the Supreme Court, the
disregarded Rule 8, Section 1 of JBC-009, during the
Council shall give due weight and regard to the
nomination process for the vacancy of Supreme Court
recommendees of the Supreme Court. For this purpose,
Associate Justice following the retirement of Associate
the Council shall submit to the Court a list of candidates
Justice Roberto A. Abad on May 22, 2014. As Associate
for any vacancy in the Court with an executive summary
Justice Arturo D. Brion narrated in his Separate
of its evaluation and assessment of each of them,
Concurring Opinion in the Jardeleza Decision56:
together with all relevant records concerning the
Cha nRobles Vi rtua lawlib rary

[Of particular note in this regard is this Court's own


candidates from whom the Court may base the selection
experience when it failed to vote for its recornmendees
of its recommendees.
for the position vacated by retired Associate Justice
The deletion of this provision will likewise institutionalize Roberto A. Abad, because of a letter dated May 29,
the elimination by Chief Justice Sereno of the voting by 2014 from the Chief Justice representing to the Court
the Supreme Court Justices on who among the that "several Justices" requested that the Court do away
applicants to the Supreme Court they believe are most with the voting for Court recornmendees, as provided in
deserving. Section 1, Rule 8 of JBC-009. When subsequently
confronted on who these Justices were, the Chief Justice
Through Rule 8, Section 1 of JBC-009, the JBC had failed to name anyone. As a result, applicants who could
accorded through the years due weight and regard to have been recommended by the Court (Jardeleza,
the recommendees of the Supreme Court for the among them), missed their chance to be
vacancies in said Court. The JBC had consistently nominees.]57 chan rob lesvi rtual lawlib rary

complied with said rule and furnished the Court in prior


The Supreme Court Justices were also not given the
years with the list of candidates for vacancies in the
opportunity to know the applicants to the succeeding
Court, together with an executive summary of the
vacant position in the Court (to which Associate Justice
evaluation and assessment of each candidate by the JBC
Alfredo Benjamin S. Caguioa was eventually appointed)
and all relevant documents concerning the candidates,
as Rule 8, Section 1 of JBC-009 was again not followed.
for the incumbent Justices' consideration, but stopped
doing so ever since Chief Justice Sereno became the
Item No. 3: The JBC currently has no incumbent
Chairperson of the JBC. Although the JBC was not bound
Supreme Court Associate Justice as consultant. By
by the list of recommendees of the Court, the JBC at
practice, since the creation of the JBC, the two (2) most
least took the list under advisement. The deletion of the
senior Supreme Court Associate Justices had acted as
foregoing provision from the Revised JBC Rules formally
consultants of the JBC. From 1987 until 2016, the
institutionalizes Chief Justice Sereno's unilateral decision
following Associate Justices of this Court, during their
to abandon a well-established rule, procedure, and
incumbency, served as JBC consultants:
practice observed by the Court, and completely
ChanRoblesVi rtua lawlib rary

precludes the incumbent Supreme Court Justices from


expressing their views on the qualifications of the
Supreme Court
applicants to the vacancies in the Supreme Court. Associate
Period
Justices as JBC
The Court calls attention to the fact that the JBC, in
JBC-009 and the Revised JBC Rules, invites the public to Consultants
give any comment or opposition against the applicants
to the Judiciary. December 10,
According to Rule 1, Section 9 of JBC-009: ChanRoblesVi rtua lawlib rary
Pedro L. Yap+ 1987 to April
Sec. 9. Publication of list of applicants. The list of 13, 1988
applicants or recommendees which the Council shall
consider in a given time shall be published once in a
newspaper of general circulation in the Philippines and
January 5,
once in a newspaper of local circulation in the province Marcelo B. Fernan+ 1988 to June
or city where the vacancy is located. The publication 29, 1988
shall invite the public to inform the Council within
the period fixed therein of any complaint or
derogatory information against the applicant. x x x May 6, 1988 to
(Emphasis supplied.) Andres R. Narvasa December 5,
A similar provision can be found in the Revised JBC 1991
Rules as Rule 1, Section 8: ChanRobles Vi rtualaw lib rary
July 21, 1988 2014] to
Leo M. Medialdea+ to November 4, [August
1992 2016]58
Without notice, warning, or explanation to the Supreme
January 16, Court En Banc, Chief Justice Sereno recently
Ameurfina M.
1992 to March unceremoniously relieved Supreme Court Associate
Herrera Justices Presbiterio J. Velasco, Jr. and Teresita J.
30, 1992 Leonardo� De Castro as JBC consultants, and in their
stead, the Chief Justice appointed retired Chief Justices
December 21, Hilario G. Davide, Jr., Artemio V. Panganiban, and
Reynato S. Puno as JBC consultants. The experience and
1993 to
Josue N. Bellosillo wisdom of the three retired Chief Justices are
November 13, undisputed. However, practicality and prudence also
2003 dictate that incumbent Associate Justices of the Court
should be retained as JBC consultants since their
interest in the Judiciary is real, actual, and direct.
November 20, Incumbent Associate Justices of the Court are aware of
Jose C. Vitug 2003 to July the present state, needs, and concerns of the Judiciary,
and consultants from the Court, even if they have no
14, 2004 right to vote, have served, from the organization of the
JBC, as the only link to the supervisory authority of the
July 21, 2004 Court over the JBC under the 1987 Constitution.
Artemio V. Moreover, Hon. Angelina Sandoval-Gutierrez already sits
to December
Panganiban as a regular member of the JBC representing the Retired
19, 2005 Supreme Court Justices, pursuant to Article VIII,
Section 8(1) of the 1987 Constitution, which expressly
January 1, describes the composition of the JBC, as follows: ChanRobles Virtualawl ibra ry

Sec. 8. (1) A Judicial and Bar Council is hereby created


Leonardo A. 2006 to under the supervision of the Supreme Court composed
Quisumbing November 5, of the Chief Justice as Chairman, the Secretary of
Justice, and a representative of the Congress
2009 as Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme
December 11, Court, and a representative of the private sector.
(Emphasis supplied.)
Consuelo Y. 2006 to
These changes in settled rules and practices recently
Santiago October 4, adopted by the JBC under Chief Justice Sereno are
2009 disconcerting. There appears to be a systematic move
by the JBC, under Chief Justice Sereno to arrogate to
November 6, itself more power and influence than it is actually
granted by the Constitution and this Court, and at the
Renato C. Corona 2009 to May same time, to ease out the Court from any legitimate
16, 2010 participation in the nomination process for vacancies in
the Judiciary, specifically, in the Supreme Court. This
behooves the Court, through the exercise of its power of
Antonio T. Carpio October 5, supervision over the JBC, to take a closer look into the
2009 to May new rules and practices of the JBC and ensure that
these are in accord with the 1987 Constitution, the
16, 2010 pertinent laws, and the governmental policies of
September 10, transparency and accountability in the nomination
2012 to process for vacancies in the Judiciary.

January 28, Article VIII, Section 8 of the 1987 Constitution gives the
2014 JBC the principal function of "recommending appointees
to the Judiciary," but it also explicitly states that the JBC
shall be "under the supervision of the Court" and that
Presbiterio J. June 4, 2012 to "[i]t may exercise such other functions and duties as the
Velasco, Jr. August 23, Supreme Court may assign to it."
2012 Book IV, Chapter 7, Section 38(2) of Executive Order
September 10, No. 292, otherwise known as The Administrative Code of
2012 to the Philippines, defines supervision as follows: ChanRob les Virtualawl ibra ry

Sec. 38. Definition of Administrative Relationship. -


[August 2016] Unless otherwise expressly stated in the Code or in
other laws defining the special relationships of particular
Teresita J. June 4, 2012 to agencies, administrative relationships shall be
categorized and defmed as follows:
Leonardo-De Castro August 23,
2012 chanRoble svirtual Lawlib ra ry xxxx
[February 1, (2) Administrative Supervision. - (a) Administrative
supervlSlon which shall govern the administrative inquire into facts and conditions in order to render the
relationship between a department or its equivalent and power real and effective."61 chan roble s law

regulatory agencies or other agencies as may be


provided by law, shall be limited to the authority of the In the exercise of its power of supervision over the JBC,
department or its equivalent to generally oversee the the Court shall take up the aforementioned Item Nos. 2
operations of such agencies and to insure that they are and 3 as a separate administrative matter and direct the
managed effectively, efficiently and economically but JBC to file its comment on the same.
without interference with day-to-day activities; or
require the submission of reports and cause the conduct WHEREFORE, premises considered, the
of management audit, performance evaluation and Court DISMISSES the instant Petition for Quo
inspection to determine compliance with policies, Warranto and Certiorari and Prohibition for lack of merit.
standards and guidelines of the department; to take The Court DECLARES the clustering of nominees by the
such action as may be necessary for the proper Judicial and Bar Council UNCONSTITUTIONAL, and
performance of official functions, including rectification the appointments of respondents Associate Justices
of violations, abuses and other forms of Michael Frederick L. Musngi and Geraldine Faith A.
maladministration; and to review and pass upon budget Econg, together with the four other newly-appointed
proposals of such agencies but may not increase or add Associate Justices of the Sandiganbayan, as VALID. The
to them; Court further DENIES the Motion for Intervention of the
Judicial and Bar Council in the present Petition,
(b) Such authority shall not, however, extend to: (1) but ORDERS the Clerk of Court En Banc to docket as a
appointments and other personnel actions in accordance separate administrative matter the new rules and
with the decentralization of personnel functions under practices of the Judicial and Bar Council which the Court
the Code, except when appeal is made from an action of took cognizance of in the preceding discussion as Item
the appointing authority, in which case the appeal shall No.2: the deletion or non-inclusion in JBC No. 2016-1,
be initially sent to the department or its equivalent, or the Revised Rules of the Judicial and Bar Council, of
subject to appeal in accordance with law; (2) contracts Rule 8, Section 1 of JBC-009; and Item No. 3: the
entered into by the agency in the pursuit of its removal of incumbent Senior Associate Justices of the
objectives, the review of which and other procedures Supreme Court as consultants of the Judicial and Bar
related thereto shall be governed by appropriate laws, Council, referred to in pages 35 to 40 of this Decision.
rules and regulations; and (3) the power to review, The Court finally DIRECTS the Judicial and Bar Council
reverse, revise, or modify the decisions of regulatory to file its comment on said Item Nos. 2 and 3 within
agencies in the exercise of their regulatory or quasi- thirty (30) days from notice.
judicial functions; and cralawlawl ib rary

SO ORDERED. chanroblesvi rtua lla

(c) Unless a different meaning is explicitly provided in


the specific law governing the relationship of particular
agencies, the word "supervision" shall encompass
administrative supervision as defined in this paragraph.
G.R. No. 216637
The Court also provided the following definition of
supervision in the Jardeleza Decision59: Cha nRobles Vi rt ualawlib ra ry

AGAPITO J. CARDINO,, Petitioner


As a meaningful guidepost, jurisprudence provides the
definition and scope of supervision. It is the power of vs
oversight, or the authority to see that subordinate COMMISSION ON ELECTIONS EN BANC and
officers perform their duties. It ensures that the laws ROSALINA G. JALOSJOS a.k.a. ROSALINA
and the rules governing the conduct of a government JALOSJOS JOHNSON, Respondents
entity are observed and complied with. Supervising
officials see to it that rules are followed, but they
themselves do not lay down such rules, nor do they RESOLUTION
have the discretion to modify or replace them. If the
rules are not observed, they may order the work done LEONARDO-DE CASTRO, J.:
or redone, but only to conform to such rules. They may
not prescribe their own manner of execution of the act.
They have no discretion on this matter except to see to The Court resolves the instant petition
it that the rules are followed. (Citation omitted.) for certiorari1 under Rule 64 in relation to Rule 65 of
"Supervision" is differentiated from "control," thus: ChanRoblesVirt ualawli bra ry
the Rules of Court filed by petitioner
Supervisory power, when contrasted with control, is the Agapito J. Cardino (Cardino), which assails the
power of mere oversight over an inferior body; it does Resolution2 dated December 16, 2014 of the
not include any restraining authority over such body. Commission on Elections (COMELEC) Second
Officers in control lay down the rules in the doing of an Division and the
act. If they are not followed, it is discretionary on his
part to order the act undone or re-done by his
subordinate or he may even decide to do it himself. Resolution3 dated January 30, 2015 of the
Supervision does not cover such authority. Supervising COMELEC En Banc in EPC No. 2013-06. Both
officers merely sees to it that the rules are followed, but resolutions denied the petition for quo warranto4 filed
he himself does not lay down such rules, nor does he by Cardino against private respondent Rosalina G.
have the discretion to modify or replace them. If the
Jalosjos (Jalosjos).
rules are not observed, he may order the work done or
re-done to conform to the prescribed rules. He cannot
prescribe his own manner for the doing of the The Facts
act.60 (Citations omitted.)
The Court had recognized that "[s]upervision is not a During the May 13, 2013 Elections, Cardino and
meaningless thing. It is an active power. It is certainly Jalosjos both ran for the position of Mayor of
not without limitation, but it at least implies authority to
Dapitan City, Zamboanga del Norte. On May 15, of July 19, 2012. Jalosjos claimed that it was on the
2013, Jalosjos was proclaimed the winner after latter date that she appeared before Judge De
garnering 18,414 votes compared to Cardino's Guzman-Laput to execute a personal and sworn
16,346 votes. renunciation of her American citizenship. Jalosjos
further contended that Cardino failed to show that
Cardino immediately filed a petition for quo Judge De Guzman-Laput denied having
warranto before the COMELEC, which sought to administered the oath that Jalosjos took as she
nullify the candidacy of Jalosjos on the ground of renounced said citizenship. Jalosjos averred that
ineligibility. Said petition was docketed as EPC No. she had no reason to make it appear that she
2013-06 before the COMELEC Second Division. renounced her American citizenship on July 16,
2012. The actual date of Jalosjos' renunciation of
Cardino alleged that Jalosjos was a former natural- her American citizenship on July 19, 2012 allegedly
born Filipino citizen who subsequently became a complied with the requirements under Republic Act
naturalized citizen of the United States of America No. 9225 such that she remained eligible for the
(USA). Jalosjos later applied for the reacquisition of position of Mayor of Dapitan City.
her Filipino citizenship under Republic Act No.
92255 before the Consulate General of the Before the COMELEC Second Division, Cardino
Philippines in Los Angeles, California, USA. On offered the following pieces of documentary
August 2, 2009, Jalosjos took her Oath of evidence, among others, to prove that it was
Allegiance to the Republic of the Philippines and an physically impossible for Jalosjos to have personally
Order of Approval of citizenship retention and appeared, signed and sworn to her Affidavit of
reacquisition was issued in her favor. However, Renunciation on July 16, 2012: (a) a
when Jalosjos filed her Certificate of Candidacy certification7 from the Bureau of Immigration,
(COC) for Mayor of Dapitan City on October 1, reflecting Jalosjos' arrival in the country on July 17,
2012, she attached therein an Affidavit of 2012; (b) Jalosjos' vacation and sick leave
Renunciation of her American citizenship that was applications8 from May 29, 2012 up to July 18, 2012;
subscribed and sworn to on July 16, 2012 before and (c) a certification9 from the Houston Eye
Judge Veronica C. De Guzman-Laput of the Associates, showing that Jalosjos underwent a
Municipal Trial Court (MTC) of Manukan, medical examination in Houston, Texas, USA on
Zamboanga del Norte. July 15, 2012.

Cardino averred that based on the certification from On the other hand, Jalosjos offered, inter alia, the
the Bureau of Immigration, Jalosjos left the following evidence: (a) the judicial affidavit of
Philippines for the USA on May 30, 2012 and she Jalosjos,10 which narrated the events involving the
presented her US passport to the immigration execution of her Affidavit of Renunciation on July
authorities. Jalosjos then arrived back in the 19, 2012; (b) the judicial affidavit of Eric Corro
Philippines via Delta Airlines Flight No. 173 on July (Corro),11 a member of the staff of Jalosjos who
17, 2012 at around 10:45 p.m. using her US drafted the Affidavit of Renunciation; and (c) the
passport. Cardino, therefore, argued that it was letter complaint filed by Cardino against Judge De
physically impossible for Jalosjos to have personally Guzman-Laput before the Office of the Court
appeared in Manukan, Zamboanga del Norte before Administrator (OCA), docketed as OCA IPI No. 13-
Judge De Guzman-Laput on July 16, 2012 to 2627-MTJ, and its attachments.12
execute, sign and swear to her Affidavit of
Renunciation. On July 22, 2014, Judge De Guzman-Laput testified
by deposition before the Provincial Election
Cardino alleged that Jalosjos' Affidavit of Supervisor in Dipolog City wherein she positively
Renunciation was a falsified document that had no stated that it was on July 19, 2012 that Jalosjos
legal effect. As such, when Jalosjos filed her COC personally appeared before her to subscribe to the
for Mayor of Dapitan City, she still possessed both Affidavit ofRenunciation.13
Philippine and American citizenships and was
therefore disqualified from running for any elective In the assailed Resolution dated December 16,
local position. Given that Jalosjos' COC was void ab 2014, the COMELEC Second Division dismissed
initio, she was never a candidate for Mayor of Cardino's petition for quo warranto in this wise:
Dapitan City. Cardino, thus, prayed for Jalosjos to
be declared ineligible to run for Mayor of Dapitan [Cardino] stated herein that [Jalosjos'] Affidavit of
City, that her proclamation be set aside, and that he Renunciation is falsified and therefore invalid. The
be proclaimed as the duly-elected Mayor of Dapitan Affidavit of Renunciation was allegedly executed
City. and subscribed before [Judge -De Guzman-Laput]
on July 16, 2012 or one day before respondent
Jalosjos answered6 that the date of "16th day of Jalosjos arrived in Manila.
July, 2012" was mistakenly indicated in the Affidavit
of Renunciation instead of its actual execution date
[Jalosjos] did not dispute the date indicated in the Jalosjos for her failure to comply with the
Affidavit of Renunciation. However, the said date requirement of Republic Act No. 9225 of making a
was only a result of a clerical error as it was on July personal and sworn renunciation of any and all
19, 2012 that [Jalosjos] made a personal and sworn foreign citizenships before any public officer
renunciation of all foreign citizenships before a authorized to administer an oath when she filed her
public officer. The COC for Mayor of

Affidavit of Renunciation cannot be considered Dapitan City on October 1, 2012. Cardino insists
falsified but only one containing clerical error in the that Jalosjos' Affidavit of Renunciation was falsified
date of execution. and, therefore, void ab initio as it was physically
impossible for her to have executed, signed and
xxxx sworn to her Affidavit of Renunciation before Judge
De Guzman-Laput on July 16, 2012.
To the mind of this Commission, [Judge De
Guzman-Laput] amply explained the discrepancy as Consequently, there was no valid personal sworn
to the date indicated in the affidavit. [Cardino] never renunciation of any and all foreign citizenships on
refuted the assertion of clerical error. He only relied the part of Jalosjos.
on the date of the affidavit which appears to be
erroneous. The premise that the affidavit was As to the testimonial evidence adduced by Jalosjos,
subscribed to on July 16, 2012 is already debunked Cardino brushed them aside as mere self-serving
by the admission by the public officer authorized to and inconsistent testimonies of biased witnesses.
administer oaths that there was a clerical error in Cardino alleged that Judge De Guzman-Laput had
the said Affidavit. every reason to falsely testify in favor of Jalosjos
given the pendency of the administrative case that
We lend credence to the testimony of [Judge De Cardino filed against Judge De Guzman-Laput
Guzman-Laput] as she was the public officer who before the Supreme Court (OCA IPI No. 13-2627-
administered the oath. Furthermore, [Cardino] did MTJ) involving the allegedly fraudulent execution of
not provide any assertion contradicting her. Jalosjos' Affidavit of Renunciation.
[Cardino] did not provide any proof on the
insinuation that the Judge has motives to falsely In her Comment16 to the petition, Jalosjos maintains
testify in the case. [Cardino] failed to present even a that her Affidavit of Renunciation is not falsified, but
single testimony to support his claim. The negative one that merely contains a clerical error in the date
testimony that the renunciation did not take place of execution. The same was actually executed and
cannot overcome the positive testimony that there sworn to before Judge De Guzman-Laput on July
was one. The testimony of [Judge De Guzman- 19, 2012 and it was through an error of the
Laput] goes to show that [Jalosjos] made a personal personnel who prepared the affidavit that the date of
and sworn renunciation of any and all foreign July 16, 2012 was indicated thereon. Jalosjos
citizenship[s]. The document Affidavit of admits that she could not have executed the
Renunciation was the evidence and result of such. affidavit on July 16, 2012 as she was still in the USA
The eligibility of [Jalosjos] cannot just be negated by on said date.
the clerical error in a document evidencing her
renunciation of any and all foreign citizenships. Jalosjos explains that after she arrived in Manila on
July 17, 2012, she bought a ticket for a flight to
Lastly, [Jalosjos] obtained the plurality of votes for Dipolog City in Zamboanga del Norte on July 19,
the position of mayor of Dapitan City in the May 13, 2012. Jalosjos then informed Corro that she wanted
2013 Elections. This Commission cannot hold to appear before Judge De Guzman-Laput on July
hostage the will of the electorate on the unproven 19, 2012 so that her staff could make the necessary
allegation that a requirement was not met by arrangements. Jalosjos did in fact fly from Manila to
[Jalosjos]. x x x. Dipolog City on board Cebu Pacific Flight No. SJ-
703 and arrived there around 2:00 p.m. of July 19,
xxxx 2012. At around 5:00 p.m. that day, Jalosjos
personally appeared before Judge De Guzman-
WHEREFORE, the instant petition is Laput at the latter's sala in the MTC of Manukan,
hereby DISMISSED for lack of merit.14 Zamboanga del Norte and renounced her American
citizenship by executing the Affidavit of
Renunciation under oath. Jalosjos stresses that
Cardino moved for a reconsideration15 of the above
Judge De Guzman-Laput herself confirmed that
resolution but the same was denied in the assailed
Jalosjos personally appeared on July 19, 2012
Resolution dated January 30, 2015 of the
before the latter at her sala in the MTC of Manukan,
COMELEC En Banc.
Zamboanga del Norte to renounce her American
citizenship. Cardino, on the other hand, failed to
In the petition before this Court, Cardino faults the present any evidence that would controvert the
COMELEC for refusing to declare the ineligibility of
testimonies of Jalosjos and her witnesses that she officer on the ground of ineligibility or of disloyalty to
in fact appeared before Judge De Guzman-Laput on the Republic of the Philippines shall file a sworn
July 19, 2012 to personally renounce her American petition for quo warranto with the [COMELEC] within
citizenship. ten days after the proclamation of the results of the
election.
Jalosjos asserts that the mistake in the entry for the
date of execution of the Affidavit of Renunciation did According to Cardino, the ineligibility of Jalosjos
not negate the fact she still performed the stemmed from the fact that she was a dual citizen of
necessary acts to renounce her American the Philippines and the USA when she submitted
citizenship under oath before she filed her COC for her COC for Mayor in the May 13, 2013 elections.
Mayor in the May 13, 2013 Elections. This is proscribed by Section 40 (d) of the Local
Government Code, which reads:
In its Comment17 to the petition, the COMELEC
argues that Cardino' s petition for quo warranto was Sec. 40. Disqualifications. - The following persons
correctly dismissed as Jalosjos validly executed a are disqualified from running for any elective local
personal and sworn renunciation of her American position:
citizenship before Judge De Guzman-Laput prior to
the filing of her COC. The COMELEC avers that the xxxx
date July 16, 2012 written on Jalosjos' Affidavit of
Renunciation was proven to be a mere clerical error. (d) Those with dual citizenship[.]
This fact was explained by Judge De Guzman-Laput
when she testified that Jalosjos personally appeared
In Sobejana-Condon v. Commission on
before her and sworn to the Affidavit of
Elections,20 the Court explained in detail the
Renunciation on July 19, 2012. The COMELEC
requirements that must be complied with under
posits that since Jalosjos won the elections, all
Republic Act No. 9225 before a person with dual
doubts should be resolved in favor of her eligibility.
citizenship can be qualified to run for any elective
public office, to wit:
In his Consolidated Reply18 to the above comments,
Cardino stands pat on his position that Jalosjos'
[Republic Act] No. 9225 allows the retention and re-
defense of clerical error cannot be used to override
acquisition of Filipino citizenship for natural-born
the established fact that it was physically impossible
citizens who have lost their Philippine citizenship by
for Jalosjos to appear before Judge De Guzman-
taking an oath of allegiance to the Republic, thus:
Laput on July 16, 2012 to renounce her American
citizenship under oath.
Section 3. Retention of Philippine Citizenship. - Any
provision of law to the contrary notwithstanding,
After evaluating the facts and evidence of this case,
natural-born citizens of the Philippines who have
the Court fails to find any action on the part of the
lost their Philippine citizenship by reason of their
COMELEC that constitutes grave abuse of
naturalization as citizens of a foreign country are
discretion amounting to lack or excess of
hereby deemed to have reacquired Philippine
jurisdiction.
citizenship upon taking the following oath of
1âw phi 1

allegiance to the Republic:


At the outset, the Court notes that term of the
contested office in this case, i.e., the mayorship of
"I, solemnly swear (or affirm) that I will support and
Dapitan City following the May 13, 2013 Elections,
defend the Constitution of the Republic of the
already expired on June 30, 2016. The issues
Philippines and obey the laws and legal orders
regarding the eligibility of Jalosjos for the said
promulgated by the duly constituted authorities of
position and Cardino's supposed right to be
the Philippines; and I hereby declare that I
declared the winner for said term had been
recognize and accept the supreme authority of the
rendered moot and academic. However, we deem it
Philippines and will maintain true faith and
appropriate to resolve the petition on the merits
allegiance thereto; and that I imposed this obligation
considering that litigation on the question of
upon myself voluntarily without mental reservation
Jalosjos' citizenship is capable of repetition in that it
or purpose of evasion."
is likely to recur if she would run again for public
office.19
Natural-born citizens of the Philippines who, after
the effectivity of this Act, become citizens of a
The present case arose from a petition for quo
foreign country shall retain their Philippine
warranto filed by Cardino under Section 253 of the
citizenship upon taking the aforesaid oath.
Omnibus Election Code, which pertinently reads:
The oath is an abbreviated repatriation process that
Sec. 253. Petition for quo warranto. - Any voter
restores one's Filipino citizenship and all civil and
contesting the election of any Member of the
political rights and obligations concomitant
Batasang Pambansa, regional, provincial, or city
therewith, subject to certain conditions imposed in failed to disprove Judge De Guzman-Laput's
Section 5, viz: testimony.

Sec. 5. Civil and Political Rights and Liabilities. - After carefully reviewing the evidence on hand, the
Those who retain or re-acquire Philippine citizenship Court finds no proper reason to disturb the factual
under this Act shall enjoy full civil and political rights findings of the COMELEC. We reiterate our ruling
and be subject to all attendant liabilities and in Typoco v. Commission on Elections22 that:
responsibilities under existing laws of the
Philippines and the following conditions: The findings of fact of administrative bodies, when
supported by substantial evidence, are final and
(1) Those intending to exercise their right of suffrage nonreviewable by courts of justice. This principle is
1awp++i1

must meet the requirements under Section 1, Article applied with greater force when the case concerns
V of the Constitution, Republic Act No. 9189, the COMELEC, because the framers of the
otherwise known as "The Overseas Absentee Constitution intended to place the poll body -
Voting Act of 2003" and other existing laws; created and explicitly made independent by the
Constitution itself- on a level higher than statutory
(2) Those seeking elective public office in the administrative organs.
Philippines shall meet the qualification for holding
such public office as required by the Constitution To repeat, the Court is not a trier of facts. The
and existing laws and, at the time of the filing of the Court's function, as mandated by the Constitution, is
certificate of candidacy, make a personal and sworn merely to check whether or not the governmental
renunciation of any and all foreign citizenship before branch or agency has gone beyond the
any public officer authorized to administer an oath; constitutional limits of its jurisdiction, not that it
simply erred or has a different view. Time and
xxxx again, the Court has held that a petition
for certiorari against actions of the COMELEC is
The language of Section 5(2) is free from any confined only to instances of grave abuse of
ambiguity. In Lopez v. COMELEC, we declared its discretion amounting to patent and substantial
categorical and single meaning: a Filipino American denial of due process, because the COMELEC is
or any dual citizen cannot run for any elective public presumed to be most competent in matters falling
position in the Philippines unless he or she within its domain.23 (Citations omitted.)
personally swears to a renunciation of all foreign
citizenship at the time of filing the certificate of Notably, the Court arrived at a similar conclusion in
candidacy. We also expounded on the form of the resolving the administrative case filed by Cardino
renunciation and held that to be valid, the against Judge De Guzman-Laput relative to the
renunciation must be contained in an affidavit duly incidents of this case. Thus, in our
executed before an officer of the law who is Resolution24 dated June 18, 2014 in OCA IPI No. 13-
authorized to administer an oath stating in clear and 2627-MTJ, we adopted and approved the following
unequivocal terms that affiant is renouncing all conclusions of law and recommendations of the
foreign citizenship.21 (Citations omitted; emphasis OCA:
supplied.)
EVALUATION: On the issue of falsification, this
In this case, the crux of the controversy involves the Office finds for respondent Judge. There was really
validity of Jalosjos' Affidavit of Renunciation. no reason why respondent Judge would have to
Cardino asserts the spuriousness of the affidavit falsify the date of the notarization of the Affidavit of
based on the date of its supposed execution on July Renunciation when indicating the actual date of
16, 2012; whereas Jalosjos claims otherwise, notarization, 19 July 2012, would not have affected
insisting that while the affidavit was so dated, the the validity of the affidavit. There was no deadline to
same was merely an error as the affidavit was reckon with since the Affidavit of Renunciation was
executed and subscribed to on July 19, 2012. required to be executed, at the latest, on the day of
the filing of the Certificate of Candidacy and
The COMELEC En Banc affirmed the ruling of the Jalosjos filed it later or on 1 October 2012. In sum,
Second Division that the date of July 16, 2012 in the the facts surrounding this particular issue lead to the
Affidavit of Renunciation was indeed a clerical error. conclusion that the date appearing in the Affidavit of
The COMELEC Second Division gave greater Renunciation is the result of an honest mistake.
weight to the evidence offered by Jalosjos, Furthermore, respondent Judge could not have
particularly the testimony of Judge De Guzman- falsified the Affidavit of Renunciation just to do
Laput, who unequivocally stated that Jalosjos Jalosjos a favor. Respondent Judge was correct in
personally appeared before her sala "n July 19, saying that if there was anybody who benefited from
2012 to subscribe to the Affidavit of Renunciation. her inadvertence, it was complainant since the
The COMELEC Second Division found that Cardino mistake gave him a ground to question the validity
of the election of Jalosjos as mayor of Dapitan City,
Zamboanga [d]el Norte.

Also, it must be noted that the subject notarized


document was used by Jalosjos only after several
months after it was notarized, or in October 2012.
Evidently, there was no urgency for the said
document to be notarized in July 2012, thereby
negating any probable impropriety with respect
thereto.

RECOMMENDATION: It is respectfully
recommended for the consideration of the
Honorable Court that with respect to the instant
complaint of Agapito J. Cardino relative to the
violation of SC Circular No. 1-90, Judge Veronica C.
DG-Laput, Municipal Trial Court, Manukan,
Zamboanga del Norte, be REMINDED to be more
circumspect in the performance of her duties, and
be STERNLY WARNED that a repetition of the
same or similar infraction shall be dealt with more
severely.25 (Citations omitted; emphasis supplied.)

All things considered, the Court affirms the findings


of the COMELEC Second Division that Jalosjos'
Affidavit of Renunciation is not a falsified document.
As such, Jalosjos complied with the provisions of
Section 5(2) of Republic Act No. 9225. By virtue
thereof, Jalosjos was able to fully divest herself of
her American citizenship, thus making her eligible to
run for the mayorship of Dapitan City, Zamboanga
del Norte.

WHEREFORE, the petition for certiorari is DENIED.


The Resolution dated December 16, 2014 of the
Commission on Elections Second Division and the
Resolution dated January 30, 2015 of the
Commission on Elections En Banc in EPC No.
2013-06 are hereby AFFIRMED. Costs against the
petitioner.

SO ORDERED.

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